Senate Bill sb2104

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    Florida Senate - 2005                                  SB 2104

    By Senator Campbell





    32-1161-05

  1                      A bill to be entitled

  2         An act relating to the line of ordinary high

  3         water dividing sovereign and riparian ownership

  4         in certain navigable freshwater bodies;

  5         creating s. 253.024, F.S.; defining the term

  6         "ordinary high-water line" for purposes of ch.

  7         253, F.S., relating to state lands; amending

  8         ss. 197.502, 258.39, 258.399, 380.0555, and

  9         403.813, F.S., relating to property

10         descriptions in tax deeds, boundaries of

11         aquatic preserves, and the Apalachicola Bay

12         Area; providing a definition; providing an

13         effective date.

14  

15  Be It Enacted by the Legislature of the State of Florida:

16  

17         Section 1.  Section 253.024, Florida Statutes, is

18  created to read:

19         253.024  Ordinary high-water line.--

20         (1)  This section applies when construing the term

21  "ordinary high-water line" as it is used in this chapter. The

22  term "ordinary high-water line" includes the terms "ordinary

23  high-water mark," "line of ordinary high water," and "ordinary

24  high watermark", and the term "freshet" means a flood or

25  overflowing of a river, by means of rains or melted snow, or

26  an inundation.

27         (2) The ordinary high-water line is a water mark that

28  is coordinate with the limit of the bed of a freshwater body;

29  and that only is to be considered the bed that the water

30  occupies sufficiently long and continuously to wrest it from

31  vegetation and destroy its value for agricultural purposes.

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 1  Any necessary determination of the location of the ordinary

 2  high-water mark must be made by examining the bed and the

 3  banks of the freshwater body, and ascertaining where the

 4  presence and action of the water are so common and usual, and

 5  so long continued in all ordinary years, as to mark upon the

 6  soil of the bed a character distinct from that of the banks,

 7  in respect to vegetation, as well as respects the nature of

 8  the soil itself.  Ordinarily the slope of the bank and the

 9  character of the soil of the bank soil are such that the water

10  impresses a distinct character on the soil as well as on the

11  vegetation; in some places, however, where the banks are low

12  and flat, the water does not impress on the soil any

13  well-defined line of demarcation between the bed and the

14  banks.  In such cases, the effect of the water upon vegetation

15  must be the principal test in determining the location of

16  ordinary high-water mark. Such location is the point up to

17  which the presence and action of the water is so continuous as

18  to destroy the value of the land for agricultural purposes by

19  preventing the growth of vegetation that constitutes an

20  ordinary agricultural crop. The ordinary high-water mark on a

21  freshwater river is not the highest point to which the water

22  rises in times of freshets, but is the line that the river

23  impresses upon the soil by covering it for sufficient periods

24  to deprive it of vegetation and to destroy its value for

25  agriculture.

26         Section 2.  Paragraph (h) of subsection (4) of section

27  197.502, Florida Statutes, is amended to read:

28         197.502  Application for obtaining tax deed by holder

29  of tax sale certificate; fees.--

30         (4)  The tax collector shall deliver to the clerk of

31  the circuit court a statement that payment has been made for

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 1  all outstanding certificates or, if the certificate is held by

 2  the county, that all appropriate fees have been deposited, and

 3  stating that the following persons are to be notified prior to

 4  the sale of the property:

 5         (h)  Any legal titleholder of record of property that

 6  is contiguous to the property described in the tax

 7  certificate, when the property described is either submerged

 8  land or common elements of a subdivision, if the address of

 9  the titleholder of contiguous property appears on the record

10  of conveyance of the land to that legal titleholder. However,

11  if the legal titleholder of property contiguous to the

12  property described in the tax certificate is the same as the

13  person to whom the property described in the tax certificate

14  was assessed on the tax roll for the year in which the

15  property was last assessed, the notice may be mailed only to

16  the address of the legal titleholder as it appears on the

17  latest assessment roll. As used in this chapter, the term

18  "contiguous" means touching, meeting, or joining at the

19  surface or border, other than at a corner or a single point,

20  and not separated by submerged lands. Submerged lands lying

21  below the ordinary high-water line, as defined in s. 253.024,

22  mark which are sovereignty lands are not part of the upland

23  contiguous property for purposes of notification.

24  

25  The statement must be signed by the tax collector, with the

26  tax collector's seal affixed. The tax collector may purchase a

27  reasonable bond for errors and omissions of his or her office

28  in making such statement. The search of the official records

29  must be made by a direct and inverse search. "Direct" means

30  the index in straight and continuous alphabetic order by

31  

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 1  grantor, and "inverse" means the index in straight and

 2  continuous alphabetic order by grantee.

 3         Section 3.  Subsections (6) and (30) of section 258.39,

 4  Florida Statutes, is amended to read:

 5         258.39  Boundaries of preserves.--The submerged lands

 6  included within the boundaries of Nassau, Duval, St. Johns,

 7  Flagler, Volusia, Brevard, Indian River, St. Lucie, Charlotte,

 8  Pinellas, Martin, Palm Beach, Dade, Monroe, Collier, Lee,

 9  Citrus, Franklin, Gulf, Bay, Okaloosa, Marion, Santa Rosa,

10  Hernando, and Escambia Counties, as hereinafter described,

11  with the exception of privately held submerged lands lying

12  landward of established bulkheads and of privately held

13  submerged lands within Monroe County where the establishment

14  of bulkhead lines is not required, are hereby declared to be

15  aquatic preserves.  Such aquatic preserve areas include:

16         (6)  Banana River Aquatic Preserve, as described in the

17  Official Records of Brevard County in Book 1143, pages

18  195-198, and the sovereignty submerged lands lying within the

19  following described boundaries: BEGIN at the intersection of

20  the westerly ordinary high-water high water line of Newfound

21  Harbor with the North line of Section 12, Township 25 South,

22  Range 36 East, Brevard County: Thence proceed northeasterly

23  crossing Newfound Harbor to the intersection of the South line

24  of Section 31, Township 24 South, Range 37 East, with the

25  easterly ordinary high-water high water line of said Newfound

26  Harbor; thence proceed northerly along the easterly ordinary

27  high-water high water line of Newfound Harbor to its

28  intersection with the easterly ordinary high-water high water

29  line of Sykes Creek; thence proceed northerly along the

30  easterly ordinary high-water high water line of said creek to

31  its intersection with the southerly right-of-way of Hall Road;

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 1  thence proceed westerly along said right-of-way to the

 2  westerly ordinary high-water high water line of Sykes Creek;

 3  thence southerly along said ordinary high-water high water

 4  line to its intersection with the ordinary high-water high

 5  water line of Newfound Harbor; thence proceed southerly along

 6  the westerly ordinary high-water high water line of Newfound

 7  Harbor to the POINT OF BEGINNING. As used in this subsection,

 8  the term "ordinary high-water line" has the same meaning as in

 9  s. 253.024.

10         (30)  Wekiva River Aquatic Preserve, the boundaries of

11  which are generally:  All the state-owned sovereignty lands

12  lying waterward of the ordinary high-water line mark of the

13  Wekiva River and the Little Wekiva River and their tributaries

14  lying and being in Lake, Seminole, and Orange counties and

15  more particularly described as follows:

16         (a)  In Sections 15, 16, 17, 20, 21, 22, 27, 28, 29,

17  and 30, Township 20 South, Range 29 East.  These sections are

18  also depicted on the Forest City Quadrangle (U.S.G.S. 7.5

19  minute series-topographic) 1959 (70PR); and

20         (b)  In Sections 3, 4, 8, 9, and 10, Township 20 South,

21  Range 29 East and in Sections 21, 28, and 33, Township 19

22  South, Range 29 East lying north of the right-of-way for the

23  Atlantic Coast Line Railroad and that part of Section 33,

24  Township 19 South, Range 29 East lying between the Lake and

25  Orange County lines and the right-of-way of the Atlantic Coast

26  Line Railroad.  These sections are also depicted on the

27  Sanford SW Quadrangle (U.S.G.S. 7.5 minute series-topographic)

28  1965 (70-1); and

29         (c)  All state-owned sovereignty lands, public lands,

30  and lands whether public or private below the ordinary

31  high-water line mark of the Wekiva River and the Little Wekiva

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 1  and their tributaries within the Peter Miranda Grant in Lake

 2  County lying below the 10 foot m.s.l. contour line nearest the

 3  meander line of the Wekiva River and all state-owned

 4  sovereignty lands, public lands, and lands whether public or

 5  private below the ordinary high-water line mark of the Wekiva

 6  River and the Little Wekiva and their tributaries within the

 7  Moses E. Levy Grant in Lake County below the 10 foot m.s.l.

 8  contour line nearest the meander lines of the Wekiva River and

 9  Black Water Creek as depicted on the PINE LAKES 1962 (70-1),

10  ORANGE CITY 1964 (70PR), SANFORD 1965 (70-1), and SANFORD S.W.

11  1965 (70-1) QUADRANGLES (U.S.G.S. 7.5 minute topographic); and

12         (d)  All state-owned sovereignty lands, public lands,

13  and lands whether public or private below the ordinary

14  high-water line mark of the Wekiva River and the Little Wekiva

15  River and their tributaries lying below the 10 foot m.s.l.

16  contour line nearest the meander line of the Wekiva and St.

17  John's Rivers as shown on the ORANGE CITY 1964 (70PR), SANFORD

18  1965 (70-1), and SANFORD S.W. 1965 (70-1) QUADRANGLES

19  (U.S.G.S. 7.5 minute topographic) within the following

20  described property:  Beginning at a point on the south

21  boundary of the Moses E. Levy Grant, Township 19 South, Range

22  29 East, at its intersection with the meander line of the

23  Wekiva River; thence south 60 1/2  degrees east along said

24  boundary line 4,915.68 feet; thence north 29 1/2  degrees east

25  15,516.5 feet to the meander line of the St. John's River;

26  thence northerly along the meander line of the St. John's

27  River to the mouth of the Wekiva River; thence southerly along

28  the meander line of the Wekiva River to the beginning; and

29         (e)  All state-owned sovereignty lands, public lands,

30  and lands whether public or private below the ordinary

31  high-water line mark of the Wekiva River and the Little Wekiva

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 1  River and their tributaries within the Peter Miranda Grant

 2  lying east of the Wekiva River, less the following:

 3         1.  State Road 46 and all land lying south of said

 4  State Road No. 46.

 5         2.  Beginning 15.56 chains West of the Southeast corner

 6  of the SW  1/4  of the NE  1/4  of Section 21, Township 19

 7  South, Range 29 East, run east 600 feet; thence north 960

 8  feet; thence west 340 feet to the Wekiva River; thence

 9  southwesterly along said Wekiva River to point of beginning.

10         3.  That part of the east  1/4  of the SW  1/4  of

11  Section 22, Township 19 South, Range 29 East, lying within the

12  Peter Miranda Grant east of the Wekiva River.

13         (f)  All the sovereignty submerged lands lying within

14  the following described boundaries:  Begin at the intersection

15  of State Road 44 and the westerly ordinary high-water high

16  water line of the St. Johns River, Section 22, Township 17

17  South, Range 29 East, Lake County: Thence proceed southerly

18  along the westerly ordinary high-water high water line of said

19  river and its tributaries to the intersection of the northerly

20  right-of-way of State Road 400; thence proceed northeasterly

21  along said right-of-way to the easterly ordinary high-water

22  high water line of the St. Johns River; thence proceed

23  northerly along said ordinary high-water high water line of

24  the St. Johns River and its tributaries to its intersection

25  with the easterly ordinary high-water high water line of Lake

26  Beresford; thence proceed northerly along the ordinary

27  high-water high water line of said lake to its intersection

28  with the westerly line of Section 24, Township 17 South, Range

29  29 East; thence proceed northerly to the southerly

30  right-of-way of West New York Avenue; thence proceed westerly

31  along the southerly right-of-way of said avenue to its

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 1  intersection with the southerly right-of-way line of State

 2  Road 44; thence proceed southwesterly along said right-of-way

 3  to the point of beginning.

 4  

 5  As used in this subsection, the term "ordinary high-water

 6  line" has the same meaning as in s. 253.024.

 7         Section 4.  Section 258.399, Florida Statutes, is

 8  amended to read:

 9         258.399  Oklawaha River Aquatic Preserve.--The

10  following described area in Marion County is designated by the

11  Legislature for inclusion into the aquatic preserve system

12  under the Florida Aquatic Preserve Act of 1975. Such area, to

13  be known as the Oklawaha River Aquatic Preserve, shall be

14  included in the aquatic preserve system and shall include the

15  following described property.  The Oklawaha River Aquatic

16  Preserve shall consist of those state-owned sovereignty

17  submerged lands lying below the ordinary high-water high water

18  line of said land, located in Marion County. The preserve is

19  more specifically described as:  Begin at the intersection of

20  the southerly right-of-way of county road 316 and the westerly

21  ordinary high-water high water line of the Oklawaha River,

22  located in Section 9, Township 13 South, Range 24 East.

23  Thence from said point of beginning proceed southerly along

24  the ordinary high-water high water line of the Oklawaha River

25  and its tributaries to its intersection with the eastern line

26  of Section 36, Township 15 South, Range 23 East.  Thence

27  proceed northerly along said Section line to its intersection

28  with the easterly ordinary high-water high water line of the

29  Oklawaha River.  Thence proceed northerly along said ordinary

30  high-water high water line to its intersection with the

31  southerly right-of-way of county road 316. Thence proceed west

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 1  along said road to the point of beginning; including Eaton

 2  Creek upstream to the northern line of Section 3, Township 14

 3  South, Range 24 East, Daisy Creek upstream to county road 315,

 4  Silver River upstream to the western line of Section 5,

 5  Township 15 South, Range 23 East. Less and except Dead River

 6  and Orange Drain. As used in this section, the term "ordinary

 7  high-water line" has the same meaning as in s. 253.024.

 8         Section 5.  Paragraph (a) of subsection (10) of section

 9  380.0555, Florida Statutes, is amended to read:

10         380.0555  Apalachicola Bay Area; protection and

11  designation as area of critical state concern.--

12         (10)  REQUIREMENTS; LOCAL GOVERNMENTS.--

13         (a)  As used in this subsection:

14         1.  "Alternative onsite system" means any approved

15  onsite disposal system used in lieu of a standard subsurface

16  system.

17         2.  "Critical shoreline zone" means all land within a

18  distance of 150 feet landward of the mean high-water line in

19  tidal areas, the ordinary high-water line, as defined in s.

20  253.024, in nontidal areas, or the inland wetland areas

21  existing along the streams, lakes, rivers, bays, and sounds

22  within the Apalachicola Bay Area.

23         3.  "Pollution-sensitive segment of the critical

24  shoreline" means an area which, due to its proximity to highly

25  sensitive resources, including, but not limited to, productive

26  shellfish beds and nursery areas, requires special regulatory

27  attention.

28         4.  "Low-income family" means a group of persons

29  residing together whose combined income does not exceed 200

30  percent of the 1985 Poverty Income Guidelines for all states

31  and the District of Columbia, promulgated by the United States

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 1  Department of Health and Human Services, as published in

 2  Volume 50, No. 46 of the Federal Register, pages 9517-18.

 3  Income shall be as defined in said guidelines.

 4         Section 6.  Paragraph (u) of subsection (2) of section

 5  403.813, Florida Statutes, is amended to read:

 6         403.813  Permits issued at district centers;

 7  exceptions.--

 8         (2)  A permit is not required under this chapter,

 9  chapter 373, chapter 61-691, Laws of Florida, or chapter 25214

10  or chapter 25270, 1949, Laws of Florida, for activities

11  associated with the following types of projects; however,

12  except as otherwise provided in this subsection, nothing in

13  this subsection relieves an applicant from any requirement to

14  obtain permission to use or occupy lands owned by the Board of

15  Trustees of the Internal Improvement Trust Fund or any water

16  management district in its governmental or proprietary

17  capacity or from complying with applicable local pollution

18  control programs authorized under this chapter or other

19  requirements of county and municipal governments:

20         (u)  Notwithstanding any provision to the contrary in

21  this subsection, a permit or other authorization under chapter

22  253, chapter 369, chapter 373, or this chapter is not required

23  for an individual residential property owner for the removal

24  of organic detrital material from freshwater rivers or lakes

25  that have a natural sand or rocky substrate and that are not

26  Aquatic Preserves or for the associated removal and replanting

27  of aquatic vegetation for the purpose of environmental

28  enhancement, providing that:

29         1.  No activities under this exemption are conducted in

30  wetland areas, as defined by s. 373.019(22), which are

31  

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 1  supported by a natural soil as shown in applicable United

 2  States Department of Agriculture county soil surveys.

 3         2.  No filling or peat mining is allowed.

 4         3.  No removal of native wetland trees, including, but

 5  not limited to, ash, bay, cypress, gum, maple, or tupelo,

 6  occurs.

 7         4.  When removing organic detrital material, no portion

 8  of the underlying natural mineral substrate or rocky substrate

 9  is removed.

10         5.  Organic detrital material and plant material

11  removed is deposited in an upland site in a manner that will

12  not cause water quality violations.

13         6.  All activities are conducted in such a manner, and

14  with appropriate turbidity controls, so as to prevent any

15  water quality violations outside the immediate work area.

16         7.  Replanting with a variety of aquatic plants native

17  to the state shall occur in a minimum of 25 percent of the

18  preexisting vegetated areas where organic detrital material is

19  removed, except for areas where the material is removed to

20  bare rocky substrate; however, an area may be maintained clear

21  of vegetation as an access corridor. The access corridor width

22  may not exceed 50 percent of the property owner's frontage or

23  50 feet, whichever is less, and may be a sufficient length

24  waterward to create a corridor to allow access for a boat or

25  swimmer to reach open water. Replanting must be at a minimum

26  density of 2 feet on center and be completed within 90 days

27  after removal of existing aquatic vegetation, except that

28  under dewatered conditions replanting must be completed within

29  90 days after reflooding. The area to be replanted must extend

30  waterward from the ordinary high-water high water line, as

31  defined in s. 253.024, to a point where normal water depth

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 1  would be 3 feet or the preexisting vegetation line, whichever

 2  is less. Individuals are required to make a reasonable effort

 3  to maintain planting density for a period of 6 months after

 4  replanting is complete, and the plants, including naturally

 5  recruited native aquatic plants, must be allowed to expand and

 6  fill in the revegetation area. Native aquatic plants to be

 7  used for revegetation must be salvaged from the enhancement

 8  project site or obtained from an aquatic plant nursery

 9  regulated by the Department of Agriculture and Consumer

10  Services. Plants that are not native to the state may not be

11  used for replanting.

12         8.  No activity occurs any farther than 100 feet

13  waterward of the ordinary high-water high water line, as

14  defined in s. 253.024, and all activities must be designed and

15  conducted in a manner that will not unreasonably restrict or

16  infringe upon the riparian rights of adjacent upland riparian

17  owners.

18         9.  The person seeking this exemption notifies the

19  applicable department district office in writing at least 30

20  days before commencing work and allows the department to

21  conduct a preconstruction site inspection. Notice must include

22  an organic-detrital-material removal and disposal plan and, if

23  applicable, a vegetation-removal and revegetation plan.

24         10.  The department is provided written certification

25  of compliance with the terms and conditions of this paragraph

26  within 30 days after completion of any activity occurring

27  under this exemption.

28         Section 7.  This act shall take effect July 1, 2005.

29  

30  

31  

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 1            *****************************************

 2                          SENATE SUMMARY

 3    Defines the line of ordinary high water which divides
      sovereign and riparian ownership in certain navigable
 4    freshwater bodies. Adds conforming definitions.

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