Title: Definitions of 'High Water Line' Are Not Definitive
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 Material Information
Title: Definitions of 'High Water Line' Are Not Definitive
Physical Description: Book
Language: English
Publisher: Okeechobee News
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Definitions of 'High Water Line' Are Not Definitive, October 16, 1992
General Note: Box 10, Folder 10 ( SF Water Resources Historical Collection - 1988 ), Item 9
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00002228
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text

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Okeechobee News, Friday, October 16, 1992



Definitions of 'high water line'


are not definitive


According to the Florida statutes,
sovereign submerged lands are lands
"beneath navigable waterways, that is,
rivers, streams and lakes.
The statute further defines sovereign
lands as those lands
which lie beneath the
"ordinary high water
line."
According to Leland Who
Dyals, a local surveyor FCR
who worked for the state
of Florida during the
channelization of the
Kissimmee River, the
"ordinary high water
line" lies within the
banks of the navigable
waterway and not in the
backed-up swamp.
In the 1850 Federal
Swamp and Overflowed
Land Grant, swamp and sOV
lands were defined as
those "...which would By .iili|
require drainage to dis-
pose of needless water
or moisture on or in the
lands, in order to make them fit for culti-
vation."
Overflowed lands (wetlands) were
described as "...those covered by non-
navigable waters, or ...subject to such
periodical or frequent overflows of
water...(not including lands between high
and low water marks or navigable
streams or bodies of water) ...as to
require drainage or levees or embank-


ments to keep out the water and thereby
render the lands suitable for successful
cultivation."
Mr. Dyals said the 1850 Act provided
an exact procedure to identify the lands
that were given by the
federal government to
the state. Federal sur-
owns veyors were directed
wns to establish the
Ida? boundary lines of
tracts that qualified as
swamp or overflowed
Sc--od i_ lands. They excluded
the beds of navigable
4 $Of$ water bodies by trac-
': C*. .n ing a 'meander line"
S that approximated the
Ordinary high water
line.
.. S a During a 1987
I "ni court case involving
ignity Issue trespassing charges
on property belonging
Valentine to the Latt Maxcy
Corp. in northern
Okeechobee County,
the definition of the


"ordinary high water mark" was the basis
of the case.
The three defendants who were arrest-
ed some three-quarters to 1 '/2 miles from
the natural streambed of the Kissimmee
River in Gum Slough claimed they were on
sovereign submerged lands when they
were arrested.
At the time of their arrests, the defen-
dants were allegedly accompanied by DNR


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officials.
The resolution of the case depended
upon the location of the "ordinary high
water line" of the Kissimmee River.
In that 19th Judicial Circuit Court
case, Douglas Thompson, a DNR staff
member, testified he believed the arrest
sites were located on sovereign lands and
were beneath the pre-regulated ordinary
high water line for the river.
Under cross examination, he later testi-
fied he did not know where the ordinary
high water line was located.
The state brought in George Cole,
the president of Florida Engineering
Services Corp. in Tallahassee, who is a
nationally recognized expert on the
location of water boundaries.
In his testimony; Cole stated that
"...based upon the pronounced natural
levee or bank along the streambed,
botanical evidence of obvious upland
and terrestrial plant species along the
natural bank and throughout the prop-
erty, and the Official Survey of 1859,
"I had no difficulty in placing the
ordinary high water line of the Kissim-
mee River on the lands herein under
discussion along the natural levee or
bank of the natural streambed," he
added.
The court documents further state
that Mr. Cole said, "It was his firm
opinion that this situs is the location of
the ordinary high water line both prior
to and after regulation of the river was.
begun by the state of Florida."
According to those court documents,


the 1859 official survey map outlines
the marshy portions of the uplands
remarkably close to the way they exist
today.
"It is clear from this that the sur-
veyor was nonetheless able to locate
the banks of the Kissimmee River and
meander them without confusing the
marsh plain with the river and, sec-
ondly, he did not consider Gum
Slough a nai#gable waterway inas-
much as it was not meandered," the
court documents state.
Judge William Hendry then entered
his order finding the "ordinary high
water line of the Kissimmee is along
the present natural levee or banks
which follows the sinuosities of the
natural streambed of said river."
Judge Hendry said that since his
decision was never appealed by the
Department of Natural Resources, it
implies they agreed with his ruling in
the matter and thus, established the
Official Survey of 1859 as determining
the ordinary high water line in the
Kissimmee River.
The Judge said last year he feels the
issue of sovereign lands is a very diffi-
cult one.
He said if the Attorney General's
Office, the Department of Natural
Resources and the Department of
Environmental Regulation are suc-
cessful in getting a ruling which might
include swamp and overflowed lands, it
could have far-reaching consequences
statewide.


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