Title: Seminar - Environmental Short Course - Ordinary High Water Line Methodologies
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 Material Information
Title: Seminar - Environmental Short Course - Ordinary High Water Line Methodologies
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Seminar - Environmental Short Course - Ordinary High Water Line Methodologies
General Note: Box 19, Folder 2 ( Professional Surveyors - 1990 ), Item 1
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004254
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





S R *R S
P.O. BOX 750 125 S. GADSDEN ST. TALLAHASSEE, FL 32302 904-224-7121


April 30, 1990

Jake Varn
Carlton Fields et al
P.O. Box 10566 R E C
Tallahassee, FL 32302

Dear Jake: c f' AHA'SEE

This is a follow-up to our several conversations regarding an FES/PSF sponsored
course on Ordinary High Water Line Issues and Methodologies.
We would like to schedule the course in the fall (Sept., Oct., or Nov.) in Tampa
and would like your preference as to dates before we book the hotel (preferably the Airport
Marriott).
We anticipate a one day course (6 or 7 hours of instruction) held on a weekday.
However, we could hold it on a Saturday if you prefer, but I don't think the market can
handle a Saturday offering during football season.
Tentatively the course will cover the following topics:
awareness of the issues regarding private and state sovereign lands
review of legal issues
status of rule making proceedings
technical methodologies for locating the ordinary high water line
common areas of dispute
navigable water body determination
effect of navigability and the ordinary high water line on project permitting
possible areas of conflict resolution
How much of this you want to teach yourself is up to you, however, bear in mind
two things: 1) you can get credit for you continuing education requirements as a PLS for
preparation and teaching (see 21 HH 5.004[4]) and 2) you will need to give me names of
quality instructors for those topics you do not want to teach. Perhaps you can split this
with another attorney on land surveyor. Dan Gentry, chairman of the Board of
Professional Land Surveyors, has expressed interest in helping teach this course and I
think he would be a great choice.
In summary...What date in the fall do you prefer? Are the topics in line with what
you think should be presented? How much of this do you want to teach? And, who do
you want to help you?
Let's talk soon.

Warm Regards,

Dennis Barton

DB/ys
Enclosure




A DIVISION OF THE FLORIDA ENGINEERING SOCIETY











RULES

OF THE

DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF LAND SURVEYORS

CHAPTER 21HH-5

CONTINUING EDUCATION REQUIREMENTS FOR

REACTIVATION OF INACTIVE LICENSE


21HH-5.001 Continuing Education Requirements for
Reactivation of Inactive License
21HH-5.002 Definitions
21HH-5.003 Continuing Education for Biennial Renewal
21HH-5.004 Criteria for Approval
21HH-5.005 Proof of Completion of Continuing
Education Hours

21HH-5.001 Continuing Education Requirements for
Reactivation of Inactive License. A license which has been
inactive for more than one year may be reactivated upon
application to the Department and demonstration to the
Board by the licensee of having attended twelve hours of
land surveying related education per inactive year. This
education shall be related to the licensee's field of practice.
Verification of the above-mentioned education shall be in
the form of tuition or registration receipts, records, or letters
of verification from the institutions or entities provided the
training in question.
Specific Authority 472.019(3) FS. Law Implemented 472.019(3) FS. History-
New 10-29-80, Formerly 21HH-5.01.
21HH5.002 Definitions.
(1) Elective Courses.
Within the context of this rule, elective courses shall
mean those courses which relate to the offering of
professional services pursuant to Chapter 472, which may
include, but are not limited to, areas of practice defined in
section 472.005(4), business management, real property law,
business law, computer science, and other courses relevant
to the offering of services under Chapter 472, when such
courses meet the criteria set forth in 21HH-5.004.
(2) Required Courses.
Within the context of this rule, required courses shall
mean courses whose subject matter directly relates to the
areas of practice defined in section 472.005(4); which meet
the criteria of 21HH-5.004; and which are approved by the
board.
Specific Authority 472.008, 472.018 FS. Law Implemented 472.018 FS.
History-New 7-21-88.
21HH-5.003 Continuing Education for Biennial
Renewal.
(1) Every person licensed pursuant to Chapter 472,
Florida Statutes shall be required to complete at least 24
classroom hours in approved continuing education courses
in the 24 months preceding each biennial renewal period as
established by the department. Of these 24 hours, at least
12 hours must be earned in required courses; the remaining
12 hours may be earned in either required or elective courses.
The first 24 month period during which continuing education
hours must be accrued will be that of January 1989 -
January 1991; however, up to 12 approved continuing
education hours earned between January 1, 1988 and
January 1, 1989 may be carried over into the 1989-1991
biennium only.


(2) A new licensee is relieved of accruing continuing
education hours for the year in which he receives his initial
license; however, if the initial license is received during the
first year of the biennium, the licensee must accrue 12
continuing education hours for the second year of the
biennium. Of these 12 hours at least 6 must be earned in
required courses and the remaining 6 hours may be earned
in either elective or required courses.
(3) Credit will be given on a classroom hour basis for
successful completion of courses when such courses are
approved by the board. Credit will not be given for
continuing education courses attended by the licensee after
publication in the board newsletter of disapproval of the
course or provider.
(4) Required courses must be approved by the board
prior to or concurrent with the licensee receiving continuing
education credit for such courses; elective courses must meet
the criteria established in this rule.
(5) The board office shall maintain a list of approved
continuing education courses, instructors, and/or providers,
and shall also maintain a list of courses, instructors, and/or
providers determined by the board to be disapproved for
continuing education credit.
(6) Courses taken to satisfy disciplinary action
requirements in a board order may not be used for continuing
education credit.
(7) Continuing education credit may also be given for:
Sabbaticals or leave for study or research; publication of
papers, books, or articles; and presentations of continuing
education programs, when the subject matter directly relates
to the areas of practice defined in section 472.005(4), F.S.
and the activity (sabbatical, article etc.) is approved by the
board. Credit for preparing and/or teaching courses may also
be granted.
(8) Elective credit may also be received for:
Participation with professional associations whose primary
purpose is to promote the profession of land surveying; the
holding of an office or position on either a state or national
board of a professional association or organization whose
primary purpose is to promote the profession of land
surveying, or membership on a state or national examing
or licensing board for the profession of land surveying. The
following scale will be employed for such participation: for
attendance at a professional association chapter meeting
relating to the practice of land surveying 1/4 hour of
continuing education credit with a maximum of two hours
per year; for attendance at each state or national meeting
of a recognized professional, educational, or examining or
licensing association or board 1/2 hour of continuing
education credit with a maximum of two hours per year; for
attendance at each state or national meeting of a recognized
professional, educational, or examining or licensing
association or board while holding a statewide or nationwide
position of the association or board one hour of continuing
education credit with a maximum of four hours per year.


CONTINUING EDUCATION REQUIREMENTS


CHAPTER 21HH-5












CHAPTER 21HH-5


CONTINUING EDUCATION REQUIREMENTS


'I
/


A licensee may not receive more than six hours of continuing
education credit per year pursuant to this provision.
(9) The requirements of this rule may be satisfied by
successful completion of elective or required courses taken
outside the State of Florida, when such courses meet the
criteria of this rule.
Specific Authority 472.008, 472.018 FS. Law Implemented 472.018 FS.
History-New 7-21-88.


21HH-5.004 Criteria for Approval. The criteria for
approval of courses shall be as follows:
(1) The length of the course must be stated in
classroom hours. For purposes of this rule, each hour spent
in the continuing education course shall equal one
continuing education classroom hour. Continuing education
courses granting Continuing Education Units (CEUs) shall
state the number of classroom hours.
(2) The course must be taught by an individual
sufficiently qualified by education or experience, or a
combination of education and experience, to teach such
course. Qualifications of the individuals) teaching required
courses shall be approved by the board.
(3) The outline for required courses shall sufficiently
present detailed information including dates and locations
as required to enable the board to properly evaluate the
course. Incomplete applications shall not be reviewed until
deemed complete. An entity offering a required course shall
allow one or more board members or consultants to attend
any session of the course if the board deems such attendance
necessary for initial or continuing approval of the course.


/

/


(4) All continuing education courses shall document
that the licensee has successfully completed the course. The
entity offering the continuing education course shall
maintain records of persons attending and successfully
completing continuing education courses offered.
(5) Persons preparing, teaching, or proctoring courses
may receive continuing education credit. Repetitious
presentations of courses may not be considered acceptable
for continuing education credit.
(6) Any substantive changes in the outline or courses
materials of required courses, or any changes in the
individuals) teaching required courses must be submitted
to the board for approval.
Specific Authority 472.008, 472.018 FS. Law Implemented 472.018 FS.
History-New 7-21-88.
21HH-5.005 Proof of Completion of Continuing
Education Hours. The application for licensure renewal shall
include a form in which the licensee shall make a written
statement providing the number of continuing education
hours he or she completed during the previous renewal
period. Each licensee shall be responsible for maintaining
the documentation as may be necessary to prove his
compliance with the continuing education requirements
during the current renewal period and the period
immediately preceding and shall provide such
documentation to the department upon request. The
department will audit at random a number of licensees as
necessary to ensure that these continuing education
requirements are met.
Specific Authority 472.008, 472.018 FS. Law Implemented 472.018 FS.
History-New 7-21-88.











CARLTON, FIELDS, WARD, EMMANUEL, SMITH & CUTLER, P. A.
ATTORNEYS AT LAW


ONE HARBOUR PLACE
P. O. BOX 3239
TAMPA, FLORIDA 33601
(813) 223-7000
FAX (813) 229-4133


FIRSTATE TOWER
P. O- BOX 1171
ORLANDO, FLORIDA 32802
(407) 849-0300
FAX (407) 648-9099


HARBOURVIEW BUILDING
P. O. BOX 12426
PENSACOLA, FLORIDA 32582
(904) 434-0142
FAX (904) 434-5366


FIRST FLORIDA BANK BUILDING
P. 0. DRAWER 190
TALLAHASSEE, FLORIDA 32302
(904) 224-1585
FAX (904) 222-0398


PLEASE REPLY TO:

Tallahassee


VIA HAND TELECOPY


June 13, 1990


MEMORANDUM


TO:

FROM:

RE:


DENNIS BARTON

Jake Varn

ORDINARY HIGH WATER LINE COURSE DESCRIPTION


As requested, I have prepared the attached course
description. I would suggest that you add Dan Gentry's title and
position in his company. I didn't have that information
available when I prepared the description.

You may want to send a copy of this description to Dan
Gentry and Kirby Green and seek their comments. At this time we
have not determined who will be responsible for the different
parts of the program.

JDV:db/Barton2


Attachment










CARLTON, FIELDS,WARD, EMMANUEL,SMITH & CUTLER, P. A.
ATTORNEYS AT LAW
ONE HARBOUR PLACE FIRSTATE TOWER HARBOURVIEW BUILDING FIRST FLORIDA BANK BUILDING
P.O. BOX 3239 P.O. BOX 1171 P. 0. BOX 12426 P.O. DRAWER 190
TAMPA, FLORIDA 33601 ORLANDO, FLORIDA 32802 PENSACOLA, FLORIDA 32582 TALLAHASSEE, FLORIDA 32302
(813) 223-7000 (407) 849-0300 (904) 434-0142 (904) 224-1585

PLEASE REPLY TO:
Tallahassee

July 5, 1990


MEMORANDUM


TO: DAN GENTRY
KIRBY GREEN

FROM: Jake Varn

RE: "Ordinary High Water Line" Seminar
Oct. 5, 1990 Tampa


Attached is a brief description and outline of the topics to
be covered at the referenced seminar. I welcome your comments
and suggestions.

I would like to start the program at 9:00 a.m. and have the
first presentation go to 10:45 a.m. I would like to be the first
speaker and cover relevant Florida case law dealing with the
"ordinary high water line." That would mean that the remaining
topics would be divided between the two of you.

The next speaker would go from 11:00 a.m. to 2:00 p.m. with
an hour break for lunch. The next speaker would go from 2:00
p.m. to 4:00 p.m. with a 15-minute break at 3:00 p.m. If
possible, I would like each of the sessions to be free flowing
and have each of the speakers available throughout the entire
program and participate in the question and answer portions of
each presentation.

Having provided this brief description of what I would like
to do, I would like to schedule a telephone conference with you
at your earliest convenience. My secretary will be calling
trying to schedule such a call. Hopefully we can schedule the
call for Thursday, July 5 or Friday, July 6.

JDV/mam HighWater2

cc: Dennis Barton
Yvonne Sharon










On Friday, October 5, 1990, in Tampa, Florida, the Florida
Engineering Society/Professional Surveyors of Florida (FES/PSF)
will sponsor a course on "Issues and Methodologies Associated
with the Establishment of the Ordinary High Water Line." The
instructors for the course will include the following: (1) Mr.
Kirby Green a PLS and current Director, Division of Beach and
Shores, Florida Department of Natural Resources; (2) Mr. Dan
Gentry a PLS and current Chairman of the Board of Professional
Land Surveyors; and (3) Mr. Jake Varn a PLS and an attorney
with the Carlton, Fields law firm in Tallahassee, Florida. The
course will cover the following topics:

1. A review of all Florida cases relative to the
establishment of the ordinary high water line.

2. How to establish the ordinary high water line. A
discussion of the different methodologies and disciplines
required to establish the ordinary high water line.

3. With respect to the establishment of the ordinary high
water line, the role of:

a. Florida Department of Natural Resources
b. Board of Professional Land Surveyors
c. The Florida Courts

4. The status of current and proposed rules relating to the
establishment of the ordinary high water line.

5. Common problems encountered in establishing the ordinary
high water line, including the navigability of the
waterbody.


JDV:HighWater








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a. Continuous monitoring for pressure changes in the first aquifer overlying the confining zone.

b. continuous monitoring for pressure changes in any monitor well constructed under
Subparagraph 1. above.

c. Periodic monitoring of groundwater quality in the first aquifer overlying the
injection zone.

d. Periodic monitoring of ground water quality in the lowermost USDW.

e. Any additional monitoring necessary to determine whether fluids are moving into or
between USDWs.

(h) The Department may require monitor wells above and in the injection zone at a
sufficient distance from the well, field or project for regional monitoring.

(i) When direct monitoring required under Paragraph (g) above cannot be provided or
the results of such monitoring are inconclusive the Department may require the use of
indirect geophysical techniques to determine:

1. The position of the waste front,
2. The water quality in a formation or zone, or
3. To provide other site specific data.

There are a number of very significant issues that arise from the proposed modifications. Anyone wishing to
comment on these rule changes should contact Mr. Rich Durling, Florida Department of Environmental
Regulation (904/488-3601).


ORDINARY HIGH WATER LINE

L.M. BUDDY BLAIN
BLAIN AND CONE
On March 27, 1990, a three-judge panel of the First District Court of Appeal heard oral arguments in the
OHWL rule appeal. Presentations for each side were limited to 30 minutes. Attorneys Joe Fleming and David
Guest presented the arguments of the appellants Florida Audubon Society and Board of Trustees of the Internal
Improvement Trust Fund. Attorneys Chris Bentley and Mike Rosen presented the arguments of the
appellee/cross-appellants Board of Professional Land Surveyors and Agrico.

Parties involved in the appeal (in support of the rule) but not participating directly in oral argument, were:
Florida Land Council, Florida Cattlemen's Association, Florida Citrus Mutual, Florida Farm Bureau Federation,
Florida Sugar Cane League, Florida Fruit and Vegetable Association, Florida Forestry Association, Florida Land
Title Association, and Shoreline Owners and Residents Association, Inc. Other parties involved in the appeal
but not directly participating in oral argument (challenging the rule) were the Florida Game and Fresh Water
Fish Commission and 1000 Friends of Florida.

The Points of Appeal were:

o Whether the Hearing Officer properly upheld the authority of the Surveyors Board to
promulgate rules for the guidance of surveyors in determining the OHWM; and










o Whether the Hearing Officer properly held that non-navigable arms that are connected to
but distinct from a navigable waterbody, whether tidal or fresh, are not regarded as
sovereignty lands in Florida.

The Points on Cross-Appeal were:

o Whether the Hearing Officer erred in holding that the Surveyors Board only has authority
to adopt OHWM rules that precisely restate language from Florida cases;

o Whether the Hearing Officer erred in holding that the OHWM rules adopted by the
Surveyors Board are contrary to or inconsistent with Florida law;

o Whether the Hearing Officer erred in determining that the Trustees are entitled to
participate in the proceeding through the office of the attorney general and whether the
rule challenge should therefore be dismissed; and

o Whether the Hearing Officer erred in declaring that the Economic Impact Statement was
inadequate.


MITIGATION

FRANK MATTHEWS
HOPPING BOYD GREEN AND SAMS

One year following the delegation by the Department of Environmental Regulation (DER) to the St. Johns River
Water Management District (District) of the dredge and fill program regulated by Section 403.911, et seq.,
Florida Statutes, DER has concluded that the District has done a good job of implementing the "wetland resource
program". Specifically on the subject of mitigation, DER found that, within the 100 wetland resource
management permits issued by the District, approximately 65.538 acres of wetlands were permanently Jost,
while temporary disturbances accounted for 12.08 acres of wetlands: In return for this wetland alteration,
the District required 81.13 acres of wetland creation, and enhancement or preservation of 630.05 acres of
wetlands. Based on review of those 100 permits, DER concluded: "Overall, the ratio of wetlands mitigation, in
the form of creation/enhancement, required by the District to offset losses of wetlands appears to be much
lower than is typically approved by DER. In particular, the loss of forested wetlands did not appear to be
adequately offset in many permits."

DER? also criticized the District for 'not'exhausting"allf efforts to minimize impacts.;on wetlands .before
considering"mitigation.' In addition, DER stated that: "The District'is giving'too much credit for preservation
as a primary mitigation tool in their permitting actions."

Notwithstanding, DER's criticisms, it recommended that the delegation be continued and refined and that
additional delegations be pursued with other water management districts. With respect to the refinements
required in the delegation, DER has recommended closer coordination and cross-training among the wetland and
water quality functions performed by the agency and a comprehensive delegation of all program area
responsibilities including permitting compliance and enforcement.

Long-term, DER recommended that consideration be given to integrating all state wetland policies and wetland
regulatory programs with identical definitions in time for consideration by the 1991 Florida Legislature.












ORDINARY HIGH WATER LINE

L.M. BUDDY BLAIN
BLAIN AND CONE
The Joint Committee on OHWM Rulemaking was formed in June 1989, by Governor Martinez. It was directed
to form a rule acceptable to the heads of the Department of Professional Regulation (DPR) and the Department
of Natural Resources (DNR), to end the conflict over the method to be used to survey OHWM. The Committee is
composed of two surveyors and one attorney from the DNR and two surveyors from the Board of Professional
Land Surveyors (BPLS) and a DPR attorney.

The Committee met six times during 1989 at informal open workshops. In addition, the Committee visited
Lakes Kissimmee, Cypress, Butler, Santa Fe and Okeechobee; and the Appalachicola and Suwannee Rivers.

At the conclusion of the field trips and at the Committee's final meeting, a rule draft was agreed to by the four
surveyor members of the Committee. This is referred to as the Des JerUL ,. 899,~ul.e. Drat

This draft reflects the traditional methods utilized in determining OHWM in the state of Florida. Ken Plant,
General Counsel to DNR and a Joint committee member, requested the rule be returned to him and the other
attorney in the group for revisions. On January 29, 1990, Mr. Plant released his revised draft rule. Mr.
Plant's draft was more than a semantic revision to the rule, it substantially alters the basic procedures used to
determine the location of OHWM. This draft shifts the OHWM from:

(1) a line determining where the presence and action of water are so common and usual and so long continued
in all ordinary years as to have changed the physical nature of the bank; into

(2) a line that is the elevation of the land that confines the waters at their highest flow or stand (i.e. the flood
plain).

After reviewing Mr. Plant's revisions to their Rule Draft, the surveyors determined that it did not reflect the
discussions or conclusions reached during their workshops and field trips.

The surveyors discussed a compromise to delete the navigability section and change the language of the
definition of bed. Mr. Plant rejected the compromise.

Now, Kirby Green, another Joint Committee member, has tried again to fashion a compromise rule. He sent an
April 16 draft to Committee members for their review. He has taken out the definition of "navigability"
because agreement could not be reached on this issue; and has shortened the definition of "bed".

Whatever compromise the Joint Committee reaches, will first go to the heads of DNR and DPR. They are then
directed (under the Governor's original mandate) to submit a recommended rule to the Governor and Cabinet.

Interested parties are nevertheless getting involved at this early stage. The Florida Defenders of the
Environment, Inc., by its President, Shirley Little, wrote to Tom Gardner, Executive Director of DNR, to
protest the details of the December 11 draft and to object to the membership of the Joint Committee. She
requested that any proposed rule not be submitted to the Governor and Cabinet until after the First District
Court of Appeal issues an opinion in the case of the BPLS OHWL rules.

A protest letter also was written by Richard Hamann, Assistant Director of the Center for Governmental
Responsibility at the University of Florida. He recommended to the Cabinet that its members "summarily
reject" the Joint Committee rule in its entirety because it is inconsistent with positions taken in the past by
the Attorney General, the Trustees, and Mr. Hamann and others in their DNR-sponsored research for the DNR
Primer on OHWL. Also he pointed out specific objections to various parts of the rule. Mr. Hamann's comments










to the Cabinet were, in turn, criticized by Attorney J. Patrick Floyd of Port St. Joe. He wrote to the President
of the University of Florida, and the Dean of the College of Law, to inquire into Mr. Hamann's authority to
comment directly to the Cabinet on the matter; asking whether Mr. Hamann's comments represented the
position of the University of the CGR Board of Advisors which includes one Cabinet member and one Supreme
Court Justice.


INDOOR RADON GAS

ROB RHODES
HOLLAND AND KNIGHT
The Department of Community Affairs has announced a series of workshops to address the draft radon resistent
building code that it is developing. Meetings were held on April 27, May 8, May 9, and May 10, 1990.
Additional meetings are scheduled for May 22 (Deland), May 23 (Ocala), May 24 (Jacksonville), and June 1,
1990 (Pensacola). For more details contact Mr. Ralph K. Hook at the Department of Community Affairs
(904-487-4545).

PESTICIDE REVIEW COUNCIL

RALPH A DEMEO AND JONELLE TURNER
HUEY GUILDAY KUERSTEINER & TUCKER
The Pesticide Review Council held a meeting in Tallahassee on March 9. Present at this meeting was
Commissioner Doyle Conner, who discussed the results of the coordinated efforts of the Department of
Agriculture and Consumer Services (DACS), the Department of Environmental Regulation (DER), the
Department of Health and Rehabilitative Services (HRS), and Monsanto regarding alachlor.

As a result of the cooperative groundwater monitoring efforts of the agencies listed above, an emergency rule
has been initiated which will put further restrictions on the use of alachlor. The restrictions call for a 150
foot setback from all water wells and surface water bodies for mixing and loading of all compounds containing
alachlor. According to the restrictions, the application of all alachlor products through any type of
chemigation system is prohibited. Use restrictions now dictate that the application of any alachlor product is
limited to a single application per year, not to exceed three pounds of active ingredient per acre per year.

Monsanto, in a concerted effort with the state, will continue to monitor all positive wells. The company will
perform a retrospective dissipation study in Northeast Jackson county, and will also conduct additional
investigations at selective positive sites in an effort to explore the nature of the contamination.

Daniel Botts of the Florida Fruit and Vegetable Association presented a report of the history of the EPA's
pesticide registration process and its impact on Florida agriculture. Botts explained that the current
reregistration process is largely the result of the 1988 amendments to FIFRA, which established specific
reregistration schedules and fees.

As a result of this reregistration program, the EPA has prioritized active ingredients for pesticides into four
categories, A-D: List A consists of compounds which already have registration standards, and have identified
data gaps; Lists B and C consist of compounds which were registered prior to 1984, and which have food used;
List D consists of all other compounds registered before 1984, and also includes some food use compounds.

The review of compounds designated according to the above-described designations represents a phased
approach to the EPA's decision to reregister a product. Important to this effort are a registrant's commitment
to the evaluation of existing data, the identification of data gaps, and the subsequent effort to supply the agency
with necessary information to fill the identified gaps.
23











demonstrably high and the replacement wetlands are of lower
functional value or the likelihood of success of the mitigation
project is low. Conversely, the ratio may be less than 1 to 1 for
acres where the functional values associated with the area being
impacted are demonstrably low and the likelihood of success
associated with the mitigation proposal is high.

Moreover, the COE's cover memo and an EPA question and answer attachment both reiterate that no net loss may
not be. achieved in every permit action.

Some parties will be happy to know that the COE and EPA have agreed that the MOA does not apply to
applications submitted before February 7, 1990.


RADON

ROB RHODES
HOLLAND AND KNIGHT

Various bills relating to radon have been introduced in the Florida Legislature for consideration in the 1990
session. For example, HB 793 would establish a requirement for indoor radon measurements in all public
buildings. Furthermore, the bill would require sellers of most residential buildings to provide copies of radon
test results to their buyers prior to closing. Similar requirements would be imposed upon landlords of
residential properties. Another bill, PCB(GO) 90-04 would amend the provision of the law respecting
confidentiality of radon test results to allow release where necessary to prevent a health risk.

The Florida Coordinating Council on Radon will meet on March 12, 1990, at 10:00 a.m. at the Radisson Hotel
(7700 Courtney Campbell Causeway) in Tampa. At the meeting, the Council will review a draft code for radon
resistant construction in the mitigation, the schedule for adoption of this code, and issues relating to
preemption by the code of local radon ordinances.

ORDINARY HIGH WATER MARK

L.M. BUDDY BLAIN AND HALLIE S.
EVANS
BLAIN & CONE
The Ordinary High Water Line (OHWL) is usually used as a title boundary between sovereignty submerged
lands under navigable, fresh waters, and privately owned uplands. Sometimes the OHWL is used as a
regulatory jurisdiction line. This is the case with the authority of the U.S. Army Corps of Engineers to
regulate activities in "navigable waters of the U.S.", under the 1899 Rivers and Harbors Act.

The Corps of Engineers recently issued a Determination of Navigability of Fisheating Creek, located in
Highlands and Glades County. The Determination was issued after a request for investigation by the Attorney
General of the State of Florida. The Corps stated in its Determination that fisheating Creek is a navigable water
of the U.S. for purposes of the navigation servitude, from Lake Okeechobee to the State Road 731 Bridge near
Venus.

The Corps' regulatory jurisdiction extends[] laterally to the entire water surface and bed of a navigable
waterbody, which includes all the land and waters below the ordinary high water mark." Sec. 329.11(a), 33
CFR 1989. The Corps defines OHWL, on non-tidal rivers, as "the line on the shore established by the
fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the
bank; shelving; changes in the character of soil; destruction of terrestrial vegetation; the presence of litter


-L










and debris; or other appropriate means that consider the characteristics of the surrounding areas." Sec.
329.1 1(a)(l).

"Permanent changes of the shoreline configuration result in similar alterations of the boundaries of the
navigable waters of the United States. Thus gradual changes which are due to natural causes and are
perceptible only over some period of time constitute changes in the bed of a waterbody which also change the
shoreline boundaries of the navigable waters of the United States. However, an area will remain 'navigable in
law,' even though no longer covered with water, whenever the change has occurred suddenly, or was caused by
artificial forces intended to produce that change. For example, shifting sand bars within a river or estuary
remain part of the navigable water of the United States, regardless that they may be dry at a particular point
in time." Sec. 329.13. This Corps regulation on accretion and reliction is inconsistent with federal law (on
title boundaries, not regulatory boundaries) and with the federal surveying manual. These hold, as does
traditional Florida law, that the (title) boundary moves if the OHWM moves gradually and imperceptibly,
regardless of whether the move is caused by natural or artificial means.

After a water is declared navigable, an interested party can request that the Corps determine the extent of its
jurisdiction, or the location of the OHWM. There are no specific procedures in the regulations for making this
request. Sec. 329.15 (c).

The Corps expressly recognizes in its regulations that the federal navigation servitude does not affect
ownership of the bed. "Ownership of a river or lake bed or of the lands between high and low water marks will
vary according to state law; however, private ownership of the underlying lands has no bearing on the
existence or extent of the dominant Federal jurisdiction over a navigable waterbody." Sec. 329.11(a)(2).
The Corps' Determination of Navigability of Fisheating Creek expressly denies any impact on ownership of the
stream bed.





SL- .


The Hydrogeology Committee indicated that their primary concern is to determine the effect of development on
the quality and quantity of recharge.

Finally, at this hearing, the Commission indicated that it would proceed with the $100,000 USGS contract
(necessary because of the expertise required to implement the mapping.of high recharge areas), that the DER
will conduct a literature review of the effects of development on the quality/quantity of recharge, and that the
Department of Revenue staff will survey the effect of a tax reduction on local government and revenues.

The Bluebelt Commission met for its next workshop in early January, 1990. A spokesman for the Commission
explained that the legislature had asked for an interim report, and asked that the Bluebelt Commission render
their recommendations as to the phasing in of implementations. At this workshop, however, the Bluebelt
Commission determined that it was unable to make recommendations. The Commission has found that the
taxation issue is a complicated one; and it would require further examination before any recommendations are
put forward.

The next public hearing of the Bluebelt Commission is scheduled for March 21. It will be held at 10:00 in the
Tuttle Room of the Hyatt Regency, 400 SE 2nd Avenue, Miami, Florida.



LOCAL POLLUTION CONTROL PROGRAMS

CHARLES GARY STEPHENS
CHARLES G. STEPHENS, ATTORNEY
AT LAW

In December, the House Committee on Environmental Regulation published a staff report which reviewed the
status of local environmental programs throughout the state. The report, prepared by Jill Dumond, a
legislative intern, and Richard H. Wilhelm, Staff Director, noted areas inviting greater coordination and
uniformity between state and local programs and offered several proposals for improved lines of authority
including the suggestion that the Department of Environmental Regulation exercise more active oversight of
such programs. Based on this review, however, the staff committee was unable to identify what it felt were
viable legislative proposals for 1990. The report was received by the Environmental Regulation Committee at
its January 9 meeting, but no further action was taken. -


ORDINARY HIGH WATER MARK

L.M. BUDDY BLAIN & DOUGLAS
MANSON
BLAIN & CONE

The following is a summary of the ongoing activities in the Ordinary High Water Mark (OHWM) controversy:

Surveyor's Rule

Board of Professional Land Surveyors (Surveyors) proposed adoption of an OHWM rule that set the minimum
standards that a surveyor must adhere to when performing a survey that includes the location of the OHWM.
The rule was challenged by the Attorney General's office. The Final Order declared that the Surveyors had the
authority to write minimum technical standards for OHWM, but that those standards must precisely reflect
only Florida case law.











The Attorney General's office and Florida Audubon Society filed an appeal to the First District Court of Appeal.
The main issues raised were whether sovereign ownership extends into non-navigable arms of lakes and
similar features and whether the Surveyors possess the authority to adopt OHWM rules. At this time, all
briefs have been filed and oral argument has been requested.

Joint Committee on OHWM

After seeing State agency fighting State agency during the rule challenge, Governor Martinez created a Joint
Committee on OHWM to draft a consensus rule. The Committee is composed of two surveyors and one attorney
from the Department of Natural Resources, and two surveyors from the Board of Professional Land Surveyors
and a Department of Professional Regulation attorney. The Joint committee has completed drafting its OHWM
rule which was approved by all four of the surveyor members of the Committee.

The current version of this rule is divided into six sections. Section I through V provide for technical
standards and methodology for surveyors to determine the location of OHWM. Section VI creates a mechanism
by which an individual can submit an OHWM survey to DNR for review and approval by the Board of Trustees.

The rule is to be presented to the Governor and Cabinet for approval. Sections I through V are to be adopted by
the Board of Professional Land Surveyors to prescribe minimum technical standards for OHWM surveys.
Section VI is to be adopted by DNR and will require that OHWM surveys comply with Minimum Technical
Standard Sections I through V adopted by the Board of Professional Land Surveyors in order to be approved.

DNR Rulemaking

DNR is drafting a series of rules on sovereignty submerged lands. The Trustees instructed DNR to divide the
rule into technical and policy issues and to transfer the drafting of the OHWM section to the Committee.

The remaining sections of the rules consist of 18-22 on navigability, 18-23 Part One on policies concerning
sovereignty lands included in the Save Our River or CARL Land Acquisition Programs, and 18-23 Part Two
providing for the Trustees to agree not to assert ownership claims to sovereignty submerged lands that have
been exposed for more than 30 years. Currently, the comment period on the draft proposed rules has expired
and DNR has not released any revised drafts.

DNR Primer for OHWM Surveys

DNR has also completed an OHWM primer for surveyors. This primer is a re-statement of the Attorney
General's position taken in OHWM litigation. The primer utilizes an expansive navigability standard and
extends the claim of sovereignty ownership to non-navigable arms and sloughs that are part of but distinct
from a navigable waterbody. The primer's new methodology also includes the use of vegetative indicators for
locating the OHWM. The primer is not adopted in any of the draft rules.

Lake Kissimmee Case

In the Circuit Court, a case involving the OHWM location on Lake Kissimmee is currently being held in
abeyance pending the finalization of a preliminary Settlement Agreement. South Florida Water Management
District is trying to acquire the land up to a higher elevation to provide for extra storage in Lake Kissimmee.
This attempted purchase of lands between the current elevation of the lake and this higher elevation has
renewed the controversy between the Attorney General's office and the property owners.


A I .*




JUL- 9--90 MON 14:45 DENNIS

The Florida Engineering Society
and its practice division
Professional Surveyors of Florida Present




Octo r 1990
Tampa M riot Westshore


Ordi

W (

Me o



C chapter 47 FS,
Surveyor quires
blennum Imum
courses roved by
Surveyors prior -licens
Florida Profes. I Land S
continuing e n requ
will be subject tive at
required cour (courses w
areas of pract leed in sa
in either req courses or
realproper business
relevant to offering o
instance, co mn st meet re
The Profs I a Surveyors of
the survey profession by off
Board ap ved courses. ?M
require early and avoid
Professio Land Surveyor.

a


High

ne

ogies



ion lw rofessional Land
stratf t mplete within a
s ofco ng education in
Board a ofcssional Land
ent licen bienniumfor all
nds Dece r 31, 1990 and
befulfilp r the licensee
24 hours, J ars must be in
ct matter i ly relates to
1005[4]) hours may be
rses (busi cement,
er science other courses
r chapter In either
s by the Boa
e proud to se he needs of
high quality, me dl, and
ge you to fulfill P course
pardising your p tice as a

Arthur R, Miller /P,L.S.
in, Profesional Survey (Florida


& ASSOC.


P.0 1


BARTON




JUL- 9-90 MON 14:45 DENNIS BARTON & ASSOC. P.02

This informative course will review the
Florida experience relative to the establish-
ment of the ordinary high water line
including the many different methodologies
and disciplines required. Current issues
associated with establishment of the ordinary
high water line will be presented from the
perspective of the Florida Department of
Natural Resources, State Board of Profes-
sional Land Surveyors, and recent Florida
court rulings.


PRESENTERS
K irby B. Green, P.L.S. is currently the Division
Director of Beaches and Shores, with the
Florida Department of Natural Resources. He
has worked with DNR in various positions since
1978. Green is a graduate of the University of
Florida in Civil Engineering. He is experienced in
speaking in the areas of high water line
determination, mean high water line methodology
and tidal computation.
Dan E. Gentry, P.L.S. is the current Chairman
of the Board of Professional Land Surveyors.
He has been a registered land surveyor since
1960, and is currently the President of Gordon W.
Wood Inc., Professional Land Surveyors. His area of
expertise is the legal aspects of land surveying.
Gentry graduated in Civil Engineering from the
University of Central Florida.
J ake D. Varn, P.L.S. and attorney with the
Carlton, Fields law firm in Tallahassee. Varn
is experienced in environmental land use
involving water law, developments of regional
impact, and water management districts. He has
served as Secretary of the Florida Department of
Envorinmental Regulation and Department of
Transportation. Varn is a graduate of the University
of Florida, receiving a B.S. m Civil Engineering and a
Juris Doctorate.




JUL- 9-90 MON 14 :46 DENNIS BARTON & ASSOC. P. 03


- COURSE NEDULE
,'. .. \,


9:00- 10:45


10:45- 11:00
11:00- 12:00





12:00- 100
1:00- 2:45





2:45- 3:00
3:00- 4:00



4:00 4:45


A review of all FLORIDA CASES
relative to the establishment of the
ordinary high water line
Break
HOW TO ESTABLISH THE
ORDINARY HIGH WATER
LINE. A discussion of the different
methodologies and disciplines
required to establish the ordinary
high water line
Lunch
The ROLE OF THE STATE:
* Florida Department of Natural
Resources
State Board of Professional Land
Surveyors
The Florida Courts
Break
The STATUS OF CURRENT
AND PROPOSED RULES relating
to the establishment of the ordinary
high water line

COMMON PROBLEMS encount-
ered in establishing the ordinary
high water line, including the
NAVIGABILITY of the waterbody


~"""' "




JUL-- 9-90 MON 14:47 DENNIS BARTON & ASSOC. P.04



GENERAII4,I NATION


REGISTRATION
Pre-registration is required for this seminar. The
registration fee for FES/PSF members is $175 and
$195 for non members. Fees include continental
breakfast, lunch, coffee breaks and all course
materials. Attendance for this seminar is limited to
150. To insure attendance, use your credit card and
register by calling Gilda Drummond at 1-800-
277-0086 or 904-224-7121 in Tallahassee.
Treasury regulation 1.62-5 allows for income tax
deductions for expenses of education undertaken to
maintain and improve professional skills (to include
registration fees, travel, meals, and lodging).
Substitutions are permitted at anytime, However, if
a non member replaces a member the difference in
registration fees will be due at the seminar.
CANCELLATION POLICY
Amount Refunded Cancellation Received By
Full Registration September 25
$50 Withheld Sept. 26 Oct. 2
No Refund After Oct. 2
PROFESSIONAL DEVELOPMENT
As a practice section of the Florida Engineering
Society, PSF is an approved course provider by the
State Board of Professional Land Surveyors. Six
hours of required credit have been applied for,
however, will not be confirmed until the July 11-12
meeting of the SBPLS. Call Gilda Drummond or
Gale Field for course credit information.
HOTEL ACCOMMODATIONS
The Tampa Marriott Westshore combines beauty and
convenience to provide the most enjoyable
conference experience. The hotel is located at 1001
N. Westshore Blvd. and is easily accessible from
1-275. Complimentary airport transfers are available
from the Tampa International Airport. The Marriott
Westshore will hold a block of rooms until
September 24 at the rate of $70 per night for single
or double occupancy. After September 24 this
special seminar rate will no longer be available. To
make your reservations call the hotel direct at
813-876-9611 or call toll-free reservations at
1-800-228-9290. Be sure to mention you will
attending the FES/PSF Ordinary High Water Line
Methodologies.




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