Perspective
Vol. 3
Submerged Lands
Waterfront development is on the rise in South Florida, and
property owners/developers are looking to add docks and other
improvements along their shoreline. There is a shortage of boat
slips in South Florida, and available dock space increases property
values substantially. In conjunction with the environmental
regulatory permitting process, submerged land ownership issues
need to be addressed prior to planning a new or reconstructing
an existing docking facility. The question of "who owns/controls
the submerged lands at my waterfront property" is a common
concern when planning a docking facility. Furthermore, existing
waterfront property owners in the Biscayne Bay Aquatic Preserve
need to address the "grandfather" clause for submerged
lands under existing multi-slip docking facilities. This perspective
explains the different types of submerged lands, and provides
an overview of the process to obtain submerged lands leases
from the state regulatory agency, the Florida Department of
Environmental Protection (FDEP).
Types of Submerged Lands
There are generally two types of submerged lands in the State
of Florida:
- Privately owned
- State owned
|
Privately owned submerged lands are actually deeded to a specific
owner, and recorded as a tract of land defined by a legal boundary.
An environmental professional, professional surveyor or attorney
can assist in the determination of privately owned submerged
lands. The majority of waterfront developments do not own the
submerged lands in front of their property, mainly because these
tracts of land were deeded in the pre-1960's. Once deeded, previous
owners often filled the entire deeded area for development.
Submerged land ownership presents an owner/developer with more
waterfront structural options (docks, marinas, etc.). However,
they are still regulated by the environmental resource permitting
process through the FDEP or Water Management District. The majority
of the submerged lands are owned or controlled by the state.
Sovereign submerged lands are those natural or historically
submerged lands owned by the State of Florida, either by right
of statehood or by deed or grants. They include tidal lands,
islands, sandbars, shallow banks, and lands waterward of the
ordinary or mean high water line, beneath navigable fresh water
or tidally influenced water.
The lands are held in Trust and managed by the FDEP or the
various Water Management Districts, serving as staff to the
Florida Cabinet sitting as the Board of Trustees of the Internal
Improvement Trust Fund of the State of Florida (Board of Trustees).
Any activity proposed on or near submerged lands or both
private and state, requires proprietary authorization from
the FDEP. A determination of the appropriate form of authorization
required is dependent on the size, location and use of the
proposed activity/structure. With regard to the regulatory
aspect of the project, any activity within the waters of the
state is subject to the permitting requirements of the FDEP
or agencies with delegated authority. Regulatory exemptions
are available for certain activities; however, there are no
proprietary exemptions for any activity on sovereign submerged
lands.
Types of Proprietary Authorization
If a determination is made that the state controls the submerged
lands at a particular waterfront property, a proprietary authorization
can be secured if the planned waterfront activity meets the
following criteria:
Consent Of Use: Issued for activities,
which may be exempt from obtaining regulatory authorization
from the DEP. These activities include:
- Single-family docks which do not
exceed 10 sq. ft. per linear foot of shoreline owned
by the applicant.
- Installation of mooring piles, seawall's,
boat lifts within authorized facilities.
- Repair or replacement of private
docks, mooring piles, seawall's, boat ramp at or within
1 foot of the mean high water line.
|
Private And Public Easements: Easements
are required for the following activities:
- Utility crossings and rights-of-way.
- Oil, gas and other pipelines or cables.
- Public & private navigation
project channels
- Groins, breakwaters, and other shoreline
protection structures.
- Dredged spoil disposal sites.
- Dredged areas or channels
|
Lease: A sovereign submerged lands
lease (lease) is required for all activities which do not meet
the criteria for a Consent of Use or Easement. These activities
include but are not limited to:
- Structures which exceed 10 sq. ft.
per linear foot of shoreline owned by the applicant,
or any dock which is 3 or more slips within an Aquatic
Preserve. Within Biscayne Bay Aquatic Preserve, any
dock which is not a single-family dock requires a
lease (however, a lease requires the difficult task
of demonstrating extreme hardship and positive public
interest that essentially precludes issuance). .
- Revenue generating/income related
(commercial) facilities.
- Registered or unregistered grandfathered
structures.
|
What are Grandfathered Structures?
All structures, subject to the leasing requirements of the FDEP
that preempt sovereign submerged lands and were authorized prior
to March 10, 1970, for commercial structures, and March 27,
1982, for residential structures, are considered to qualify
for registration as a "Grandfathered Structure". These
structures could have been registered as a grandfathered structure
by the (fdep).
These structures were required to be registered with the FDEP
by September 30, 1984.
- A registered grandfathered structure
(GSR’ed structure) is any structure that has
been formally registered with the FDEP as grandfathered
structure as evidenced by submittal of an acceptable
application prior to September 30, 1984. This registration
expired on January 1, 1998. The current rules require
that these facilities obtain a lease now for any structure
on sovereign submerged land that is subject to a lease.
- An unregistered grandfathered structure
(un-GSR'ed structure) is any structure that is subject
to the leasing provisions of the Department and was
authorized prior to March 10, 1970, or unregistered
multi-family residential or other non-revenue generating
structure constructed prior to March 27, 1982. Multi-family
residential or commercial related structures approved
by the Board of Trustees or the Division of State
Lands between March 10, 1970 and March 27, 1982 are
also considered grandfathered structures provided
that they were constructed pursuant to a valid dredge
and fill permit or exemption.
|
Leases for Grandfathered Structures:
Local permitting agencies will require evidence that the proposed
project is authorized by the FDEP prior to issuing building
and environmental permits. Upon discovery of an existing un-GSR'ed
structure, the facility would qualify for a Temporary
Use Agreement (TUA) which is basically a one-year, temporary
lease to allow the required lease application processing or
regulatory permitting for modification or reconstruction to
occur. This instrument would not be granted for a proposed structure,
but could allow an existing structure to legally remain on sovereign
land in the interim.
New activities, or modifications to a GSR or un-GSR'ed structure
are subject to the current rules. Docks which were originally
constructed and used in conjunction with single-family homes,
but which are now slip residential docking facilities or commercial
uses are subject to current code standards.
Any structures which were built after the stated dates are considered
to be unauthorized and subject to the full permitting requirements
of current statutes and rules. This includes expansion or modifications
(which extend outside of the GSR'able facilities).
Boat lifts, or the addition of any other structures within
an existing commercial or industrial facility are subject
to the full regulatory permitting criteria of the FDEP. Additionally,
the required permits will not be issued until the proprietary
issues have been resolved.
The current owner is responsible for the payment of lease
fees in arrears, back to September 30, 1984 or when the current
owner obtained the property (whichever is more recent).
An application for a TUA is required to be submitted to the
FDEP upon notification of an unauthorized use of sovereign
lands. Processing timeframe for a TUA is typically 2 to 4
months from application submittal date and the TUA is valid
for one year from the date of final execution or until the
finalized lease is issued, whichever comes first.
Additionally, as a part of the TUA process, the applicant
must pay all past-due lease fees for the preempted area of
the facility, from the date of ownership or from September
30, 1984 to the present. While the FDEP has prepared a more
convenient and less demanding informational package for the
TUA, the information is designed to work in concert with the
required lease informational package.
Aquatic Preserves
There are 41 aquatic preserves in Florida. These preserves
were established to limit waterfront/shoreline development
and to protect marine resources. Some preserves have additional
regulations that govern waterfront development, and the regulations
(related to submerged lands) for the Biscayne Bay Aquatic
Preserve in Miami-Dade County are summarized in the following
paragraphs:
The Biscayne Bay Florida Statute (Ch. 258.397, F.S.), requires:
(a) No further sale, transfer, or lease of sovereignty submerged
lands in the preserve shall be approved or consummated by
the board of trustees, except upon a showing of extreme hardship
on the part of the applicant and a determination by the board
of trustees that such sale, transfer, or lease is in the public
interest.
Note:
Because the rule says that an activity would require a lease
or other forms of consent does not imply that the required
consent would be issued. As an example, denial of a lease
application for the failure to affirmatively or acceptably
demonstrate either Extreme Hardship or Public Interest should
be expected.
Conclusions
Understanding the submerged lands
for a proposed waterfront development is essential in planning
any marine construction activity; whether it be a dock, marina,
dredging, or coastal structure. Proprietary control of the
submerged lands can have a substantial impact on a planned
waterfront development, and these issues should be addressed
prior to the acquisition of waterfront properties. Existing
waterfront property owners should also address the "grandfather"
clause issues, and the potential impact on any future waterfront
facility maintenance and improvements. An environmental professional
or an attorney can assist with the submerged lands issues
for a particular piece of property. Submerged lands issues
are site specific, and further information can be obtained
by contacting Coastal Systems International, Inc. at
305.661.3655 or email info@coastalsystemsint.com
By: Coastal Systems International, Inc.
|
|
