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Virginia C. Dailey Hopping Green & Sams
850/222-7500
May 16, 2012
1. Property Rights Authorizations
2. Environmental Permits
Timing? Six months to 1.5 years without
litigation Three years or more with litigation
Unless subsequently conveyed, State of Florida owns all lands beneath waters that were navigable on March 3, 1845, up to MHWL or OHWL
Owned as a consequence of sovereignty under “Equal Footing” doctrine (no deed, patent or survey required)
Owned “In Trust” for all citizens of the new state
Subject to “Public Trust” doctrine under Article X, Section 11 of the Florida Constitution
Subject to federal navigation servitude
Subsequent federal patent ineffective
Psst, wanna buy the deed to some
submerged property?
Coastal Petroleum v. American Cyanamid, 492 So.2d 339 (Fla. 1986)
Deeds issued by Board of Trustees before 1919 do not convey sovereign lands Sovereign lands vested in Legislature, not Trustees,
so no authority for Trustees to convey
Deeds issued by Trustees after 1919 must evince clear intent to convey sovereign lands Government lot or STR legal description IS NOT
enough
No estoppel for previous Trustees deeds
Conveyance of sovereign submerged lands could be made only by the King himself, or those expressly authorized by the King
Even if authorized, a grant does not include sovereign submerged lands unless it expressly states an intention to convey such lands
Board of Trustees v. Webb, 618 So.2d 1381 (Fla. 1st DCA, 1993)
Sullivan v. Richardson, 14 So. 692 (Fla. 1894)
Rod Maddox – 850/245-2643
DEP, Division of State Lands, Bureau of Public Lands Management, State Lands Title Section
If on privately owned submerged lands
no proprietary approval needed; just follow Chapter 718, F.S.
Owners of uplands
abutting the water body
may have
riparian rights.
Constitutionally protected property rights appurtenant to ownership of waterfront property
Cannot be severed from waterfront property, absent consent of upland owner
Include the right of access to the waterway, and the right to “wharf out” to a navigable depth
Not absolute rights – subject to reasonable regulation
State became owner, in its sovereign capacity, of all lands beneath navigable waters on April 3, 1845, as a consequence of statehood.
Article X, Section 11 of the Florida Constitution directs that SSL be "held by the state . . . in trust for all the people".
The Board of Trustees is charged with balancing the rights to use and enjoy SSL of all the “people” with the riparian rights of the "people" that own waterfront property.
All uses of Sovereign Submerged Lands require
some form of authorization from the Board of Trustees,
in addition to any environmental permits.
Chapters 253, F.S., and 18-21, F.A.C., for any State owned submerged lands Must be not contrary to the public interest
Chapters 258, F.S., and 18-20, F.A.C., if within any Aquatic Preserve Must be clearly in the public interest
Section 258.397(3)(a), F.S., and Chapter 18-18, F.A.C., if within Biscayne Bay Aquatic Preserve Extreme Hardship required
Demonstrable environmental, social, and economic benefits which would accrue to the public at large . . . which would clearly exceed all demonstrable environmental, social, and economic costs
Board shall consider the ultimate project and purpose to be served
“Not contrary to”; “clearly exceed”
Construction or maintenance of water or sewer systems by counties. Section 153.04, F.S.
Removal of material from around intake or discharge structures. Section 403.813(2)(f), F.S.
Removal of organic detrital material. Section 403.813(2)(r) or (u), F.S.
Floating vessel platforms. Section 403.813(2)(s), F.S.
Trimming or alteration of mangroves. Section 403.9321 - .9334, F.S.
Docks Consent by Rule (Rule 18-21.005(1)(b), F.A.C.), IF:
Qualifies for regulatory exemption under 403.812(2)(b), F.S. Not in Aquatic Preserve or Monroe County or manatee
protection area Maximum of 1,000 ft2, except 500 ft2 in OFW Less than three boat slips
Letter of Consent (Rule 18-21.005(1)(c)2., F.A.C.), IF: Preempt no more than 10 square feet of submerged lands for
every foot of shoreline owned/controlled NOT revenue generating One time approval No fee
Otherwise, lease (Rule 18-21.005(1)(d), F.A.C.) Standard term is five years (Rule 18-21.008(1), F.A.C.) Term of ten years for marinas open to public on 1st come, 1st
served basis
Access Channel
Letter of Consent if no more than 10:1 (Rule 18-21.005(1)(c)3., F.A.C)
Otherwise, private easement (Rule 18-21.005(1)(f)5., F.A.C.)
Significant fee required
No application fee
No annual fee
No renewal required
Limited to 10 ft2 for each linear foot of shoreline
Application fee ($525)
Annual fee is greater of:
Minimum fee (about $400) about $0.15 per ft2 6% of gross income
Based on appraisal, including two factors Value of dirt (sometimes calculated based on lease
fees in the area - some of which are 6% of gross income)
Between 10% and 25% of the enhanced value of the uplands, depending upon the degree of exclusivity of the easement
Term for standard lease is 5 years (Rule 18-21.008(1), F.A.C.)
Extended term of up to 25 years (Rule 18-21.008(2), F.A.C.), and then usually must be either:
operated or funded by government; or,
open to the general public on first come-first serve basis
Maximum one (1) wet slip for each upland residential unit (Rule 18-21.004(4)(b)1., F.A.C.)
No more than forty (40) ft2 of preempted area
for each linear foot of shoreline owned/controlled (Rule 18-21.004(4)(b)2., F.A.C.) (with a limited exception) Maximum is 10:1 in Aquatic Preserves (Rule 18-
20.004(5)(c)1., F.A.C.); except, Maximum is 30:1 in Boca Ciega Bay and Pinellas
County Aquatic Preserves (Rule 18-20.019(7)(a), F.A.C.)
Provide a very small boat slip for each unit
OR
Provide a larger boat slip for only some of the units
Tim Rach – 850/245-8474 Program Administrator, DEP Office of Submerged
Lands and Wetland Resources
Sandra Stockwell, Esq. – 850/245-2242 DEP Deputy General Counsel for State Lands
Environmental Resources Permit under Section 373.414, F.S.: for work in, on or over waters of the State
- Processed by DEP or WMD DEP if stand-alone marina WMD if associated with upland development
Sovereign Submerged Lands Authorization (Section 253.12(2), F.S.) Linked to ERP (Rule 18-21.00401, F.A.C.) - Part “G” of ERP
application (Form 62-343.900(1), F.A.C.) Cabinet appearance if:
Larger than 50 slips or 50,000 square feet preempted area Heightened Public Concern
No harm to water resources
No violation of water quality standards
Numerical standards outside OFWs
Non-degradation within OFWs
Satisfy regulatory public interest test
Public health, safety, or welfare, or property of others
Conservation of fish and wildlife, including endangered or threatened species, or their habitats Manatees
Shellfish harvesting areas
Navigation, flow of water, harmful erosion or shoaling
Fishing or recreational values or marine productivity in the vicinity
Temporary or permanent
Significant historical or archaeological resources
Current condition and relative value of functions being performed
Regulatory and proprietary approvals processed together
Standard 90-day clock applies (Section 120.60, F.S.)
If Cabinet appearance required, add 8 to 12 weeks Limited delegations (Rule 18-21.0051, F.A.C.)
No leases > 50 slips or 50,000 square feet
No private easements > 5 acres
Heightened Public Concern (Rule 18-21.0051(4), F.A.C.)
If Cabinet appearance is required, expect additional requests for concessions
Northwest District Andrew Joslyn- 850/595-8300 x1128
Northeast District Jim Maher – 904/256-1650
Central District Dave Herbster – 407/893-3982
Southwest District Bill Vorstadt– 813/632-7600 x417
Southeast District Jennifer Smith– 561/681-6642
South District Lucy Blair – 239/344-5618
DEP or FFWCC
Army Corps NOAA Fisheries
USFWS
Board of Trustees
Dep’t. Economic Opportunity
Dep’t. Agriculture (shellfish)
Water Management District
Local Planning/Environmental Agency
City/County Commission
Florida Dep’t. of State
Regional Planning Council
