Waterfront property is something that has attracted millions of residents to Florida over the years. Whether it be a single-family home, a large homeowners association, a vibrant condo association or a busy commercial marina, the right to utilize the water that lies immediately adjacent to upland property is a long-standing Florida right. These are more commonly known as “riparian rights” – the right of an upland owner to access and use the water that touches his or her property. However, the rules regulating and administering an upland owner’s riparian rights in Florida have historically led to confusion, frustration and litigation.
Occasionally, the State of Florida attempts to improve the understanding of the scope of riparian rights by amending the rules that administer the Florida Department of Environmental Protection’s Sovereignty Submerged Land Management, also known as Chapter 18-21 of the Florida Administrative Code. This blog is an examination of the changes adopted in 2019 and their implications on owners of waterfront property.
Riparian Rights – The Briefest of Explanations
A thesis on the history of riparian rights in Florida is best found in a dusty law review article. However, please see the below links for some additional background information on riparian rights. For purposes of this blog, allow me to quickly set the stage for the more detailed discussions below. The majority of land located under water in Florida, i.e., submerged land, belongs to the State of Florida and are held in trust and managed by the State’s Internal Improvement Trust Fund, which is essentially made up of the members of the Florida Cabinet. These underwater lands are known as “sovereign (or sovereignty) submerged land”. The State’s Department of Environmental Protection administers the submerged land through rules and regulations set forth in Chapter 18-21, F.A.C.
For sake of discussion, not ALL submerged lands in Florida belong to the State. There are some areas that were specifically conveyed to other entities or individuals via Spanish Land Grants (the City of St. Augustine, for example) and some submerged lands were actually man-made by the dredging of uplands (certain areas of the intracoastal in south Florida, for example).
Continuing on with this abridged examination of sovereignty submerged lands management, any person or entity that wants to utilize the submerged lands, must seek certain permission or authorization from the State of Florida. The type and extent of authorization obviously depends on the proposed activity, but more importantly, any entity seeking such authorization must first demonstrate that it has “sufficient upland title interest”. What does that mean? Well, that’s been debated for decades, has been the subject of rule language challenges and appears to be the purpose of one of the 2019 rule amendments.
Riparian Rights – Sufficient Upland Interest
The owner of a waterfront property that wishes to utilize the water body that touches its property by erecting some type of structure in or upon the associated submerged lands (dock, terminal platform, boathouse, boatramp, marina, dry-dock, etc.) must demonstrate that he or she in fact owns the uplands. The debate over what actually constitutes “sufficient upland title interest” has been scrutinized and argued over for decades.
As an example, almost every real estate lawyer in northeast Florida area is aware of Secret Oaks Owner’s Ass’n, Inc. v. Dept. of Env’tl. Prot., 704 So.2d 702 (Fla. 5th DCA 1998). Most, myself and a partner included, worked on this case at some point in time – that’s how contentious it became. The point is, the State and applicants seeking submerged land authorizations have struggled with “ownership” interests that are something different than the traditional fee simple title, such as “association” forms of ownership – condos, HOAs, cooperatives – as well as waterfront access and use easements granted by separate entities.
Traditionally, an applicant must fully demonstrate to the State that it holds actual or sufficient ownership in the uplands in order to obtain the sought after submerged lands authorization. The 2019 amendments to the applicable rule attempt to clarify the timing and impact of this ownership threshold.
Rule 18-21.004(3)(b), F.A.C.
Before 2019, the Department could issue a sovereign submerged land authorization (easement, lease, letter of consent) prior to determining the actual extent of the upland ownership interest. Instead, the Department would require such ownership interest be provided prior to the commencement of any authorized construction. So, you could get a sovereign submerged land lease, but you couldn’t construct your marina slips until you demonstrated to the Department that you actually “owned” the adjacent upland. This led to instances where an actual upland landowner’s title interests were impacted (cloud on title) by the Department issuing an authorization to a third party (easement holder) without first verifying the type and extent of the ownership interest being asserted.
With the 2019 amendments, the Department now requires that sufficient upland ownership interest be established PRIOR TO the issuance of the submerged lands authorization – meaning an applicant cannot get any approvals until this ownership question is put to bed.
Further, the 2019 amendments to Rule 18-21.004(3)(b), F.A.C. states:
[S]atisfactory evidence of sufficient upland interest shall be commensurate with the level of exclusionary interest provided in the specific sovereign submerged land authorization contemplated.
The premise of this amendment appears to go as follows: the greater the nature of the submerged lands authorization sought by an applicant (otherwise known as the greater the exclusion of the public to a given area of a waterbody), the greater the demonstrable upland riparian interest must be. As you can see, this amendment hardly clarifies the issue, despite years of prior litigation and rulemaking. Instead, it requires a showing of title interest that is merely characterized as “sufficient”. What owners should understand, however, is that if an authorization to utilize submerged lands includes a likely significant exclusion of the public from the area, the Department is likely to increase the required documentation proving the asserted ownership interest AND to scrutinize those documents very closely.
Riparian Rights – Setbacks & Marginal Docks
Like many land use regulations, riparian rights are subject to setbacks, and have been for a long time. (See, Rule 21-18-.004(3)(d), F.A.C.; https://www.flrules.org/gateway/ruleNo.asp?id=18-21.004). Briefly, riparian activities must be setback twenty-five (25) feet from the riparian line of the immediately adjacent property. Thus, structures an applicant wishes to construct over submerged lands must be at least twenty-five (25) feet away from the neighboring riparian line (which is usually the same as the property boundary). However, if the subject property has less than sixty-five (65) feet of water frontage or “riparian area” between property lines, no setbacks are required.
Additionally, structures known as “Marginal docks” can be located within ten (10) feet of the neighboring riparian line. But . . . the 2019 rule amendments included a modification to the definition of Marginal dock as set forth in Rule 18-21.003(35), F.A.C.:
“Marginal dock” means a dock placed adjacent to and parallel with and no more than 10 fee waterward from the shoreline or seawall, bulkhead or revetment.
“So what” you say? Well, as is often the case, one rule provision most definitely interacts or cross-references another rule provision in the same chapter. In the case of docks (defined in Rule 18-21.003(21) https://www.flrules.org/gateway/ruleNo.asp?id=18-21.003), they include not only the traditional terminal platforms but also walkways, mooring piles, boat lifts and davits. Normally, these component structures are considered part and parcel to the “dock” and routinely extend beyond ten (10) feet waterward of the shoreline.
The practical implications are that a dock containing the standard components mentioned above is likely no longer going to qualify as “marginal” and therefore also will not qualify for the ten (10) foot setback – instead needing to be located at least twenty-five (25) feet from the neighboring riparian line. This would also apply to any existing dock that is modified in a way that takes it beyond ten (10) feet of the waterward boundary mentioned above. For instance, adding a boat lift to an existing dock that is within ten (10) feet of a neighboring property owner may no longer be allowed. It remains to be seen how the Department is going to deal with this likely unintended consequence of the amendments to the Marginal dock definition.
Returning to the Riparian Right Setback Rule Amendments
Rule 18-21.005(1)(b), F.A.C., provides Board authorization for certain activities on sovereign submerged lands “by rule”. This means that if the activity meets the rule criteria, no application has to be filed. Obviously, many factors must be met and they can best be reviewed by examining the specific rule language.
The amendment language added to the above rule now also cross-references the setback requirements, meaning that a consent by rule activity must also now satisfy the twenty-five (25) foot setbacks. The problem here is that there are myriads of structures on sovereign submerged lands that were installed without affirmative authorization by the Department. Instead, they qualified “by rule” and were constructed. If those “by rule” structures are modified (say, by adding a boat lift), how is the Department going to enforce this 2019 amendment that requires compliance with the setback criteria? Simply put, we’ll have to wait and see.
Additionally, prior to the 2019 amendments to the riparian setback rules, there was a mechanism for obtaining a waiver from the twenty-five (25) (or 10 foot) setback requirement. An applicant could either obtain written consent of the neighboring property owner, or could seek a special waiver from the Department (issued by the aforementioned Board) to locate the structure inside the setback. The then-existing limitation to the waiver was that it had to be for the purpose of minimizing impacts to certain vegetative natural resources.
The amendment broadens the waiver criteria to include the language “. . . or when the Board determines that the activities are in the public interest.” https://www.flrules.org/gateway/ruleNo.asp?id=18-21.004 No further criteria or limiting language is provided by the rule amendments.
When I sought some guidance on what might constitute “in the public interest”, I immediately thought of activities taking place in Florida’s aquatic preserves. All activities in aquatic preserves must demonstrate that they are “clearly in the public interest”. So maybe there is some reasoning that can be pulled from prior aquatic preserve authorizations that can assist in an applicant seeking a setback waiver.
However, it could also be argued that any activity that qualifies for authorizations in aquatic preserves ALSO qualifies for a waiver of the setback requirements. I’m guessing this is not what the Department intended.
Riparian “Conservation Easement” Changes
Keeping with the theme of brevity, or at least trying to, private multi-family residential docks containing three or more slips (think condo) are restricted to forty (40) square feet or less of sovereign submerged land per linear foot of shoreline of the upland property. As part of such an authorization, the Department would require a “conservation easement” that essentially forfeits any right to use the remaining riparian area to construct additional docks. The effect is that a muti-family residential upland owner gets one “big” dock, not a bunch of little ones spread across its shoreline.
Without quoting the entire amendment to Rule 18-21.004(b), F.A.C., the effect of the amendment is that a multi-family residential applicant seeking to install a multi-slip structure will no longer need to give up its remaining riparian rights. Instead, it will be limited only by the 40:1 ratio described above. And this ratio can be waived by the Board if the applicant makes a showing of a “net public benefit”, such as increasing public access. This amendment seems to contemplate the availability of additional docks on the shoreline of the multi-family property (provided the shoreline ratio hasn’t been exhausted), but it most certainly result in a more streamlined permitting process for condos and the like.
Other Riparian Rights Related Amendments
Delegation of Authority
Certain sovereign submerged land management activities are handled by the Department (as was previously mentioned) through a delegation of authority and some are handled by the full Board of Trustees. The most far-reaching change to the delegation of authority rule is that facilities three-times the size (50k sq.ft. to 150k sq.ft.) can now be reviewed and approved at the Department level. This delegation also now includes leases, not just docks. https://www.flrules.org/gateway/ruleNo.asp?id=18-21.0051
Standard Lease Terms
For the majority of submerged lands lease authorizations for docking facilities, the initial term has been doubled from five (5) years to ten (10). This includes private single-family docks, multi-family and multi-slip residential docks and marinas where at least 90% of the slips are reserved for public rent on a first-come, first-served basis. https://www.flrules.org/gateway/ruleNo.asp?id=18-21.008
Lease fee Calculations
Rule 18-21.011 https://www.flrules.org/gateway/ruleNo.asp?id=18-21.011 sets forth the lease payment calculation criteria for fees owed to the State for activities authorized in sovereign submerged lands. However, the fee schedules are so activity dependent that the best method for determining what applies to your particular project, is to consult with a professional that is familiar with the rules and the Department’s practices.
Riparian Rights – Stay Tuned
While this blog is hopefully helpful in demonstrating the recent changes to Chapter 18-21, F.A.C. adopted in 2019, it should also demonstrate that this Chapter is often revisited, often debated, often interpreted and often the source of confusion and frustration. Waterfront property affords some unique benefits and some incredible access to Florida’s amazing waters. But it also requires diligent review of the rules and sometimes the resources to assert ones rights not only in the eyes of the Department and/or the Board, but also in the eyes of potentially competing neighbors.