– The majority of submerged land in Florida belongs to the State and is managed by the State’s Internal Improvement Trust Fund.
– The State’s Department of Environmental Protection administers the submerged land through rules and regulations set forth in Chapter 18-21, F.A.C.
– Some submerged lands in Florida were conveyed to other entities or individuals via Spanish Land Grants, and some were created by dredging of uplands. – The ownership of waterfront property is necessary for utilizing submerged lands in Florida.
– There has been a long-standing debate over what qualifies as “sufficient upland title interest” in order to obtain authorization for submerged land use.
– The 2019 rule amendments aim to clarify the timing and impact of the ownership threshold for obtaining submerged lands authorization. 1. The Department used to issue submerged land authorizations before verifying upland ownership, potentially impacting actual upland landowners.
2. With the 2019 amendments, the Department now requires upland ownership to be established before issuing any submerged land authorizations.
3. The level of upland ownership interest required is now commensurate with the level of exclusionary interest provided in the specific submerged lands authorization sought.
4. The greater the exclusion of the public to a given area of a waterbody, the greater the demonstrable upland riparian interest must be.
5. The Department is likely to increase the required documentation for ownership interest and scrutinize those documents closely for authorizations likely to significantly exclude the public. 1. Riparian activities must be setback twenty-five (25) feet from the riparian line of the immediately adjacent property.
2. Structures known as “Marginal docks” can be located within ten (10) feet of the neighboring riparian line.
3. The definition of Marginal dock has been modified in 2019, making it likely that docks with standard components will no longer qualify as “marginal” and will require a twenty-five (25) foot setback from the neighboring riparian line.
4. Adding a boat lift to an existing dock within ten (10) feet of a neighboring property owner may no longer be allowed due to the revised definition of Marginal dock. 1. The amendment to the sovereign submerged lands rule now requires structures to satisfy the twenty-five foot setbacks, creating potential enforcement challenges for existing structures constructed without affirmative authorization.
2. The 2019 amendment broadens the waiver criteria to include activities that the Board determines to be in the public interest, without providing further criteria or limiting language.
3. Existing guidance from aquatic preserve authorizations may assist applicants seeking a setback waiver by demonstrating activities that are clearly in the public interest. – Private multi-family residential docks with three or more slips are limited to 40 square feet or less of sovereign submerged land per linear foot of shoreline.
– The Department will require a “conservation easement” from the upland property owner, forfeiting any remaining rights to construct additional docks.
– However, the amendment to Rule 18-21.004(b), F.A.C., means that multi-family residential applicants can install a multi-slip structure without giving up their remaining riparian rights, as long as it adheres to the 40:1 ratio.
– The Board can waive the ratio if the applicant shows a “net public benefit,” such as increasing public access, leading to a more streamlined permitting process for condos and similar properties. – The delegation of authority for sovereign submerged land management activities now allows for larger facilities to be reviewed and approved at the Department level.
– The initial term for submerged lands lease authorizations for docking facilities has been doubled from five years to ten years.
– The lease payment calculation criteria for fees owed to the State for activities authorized in sovereign submerged lands are activity dependent and require consultation with a professional familiar with the rules and the Department’s practices.
https://www.jimersonfirm.com/blog/2019/09/florida-riparian-rights/
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