By: Coastal Systems International, Inc.

Waterfront development is on the rise in SouthFlorida, and property owners/developers are look-ing to add docks and other improvements alongtheir shoreline. There is a shortage of boat slips inSouth Florida, and available dock space increasesproperty values substantially. In conjunction withthe environmental regulatory permitting process,submerged land ownership issues need to beaddressed prior to planning a new or reconstruct-ing an existing docking facility. The question of"who owns/controls the submerged lands at mywaterfront property" is a common concern whenplanning a docking facility. Furthermore, existingwaterfront property owners in the Biscayne BayAquatic Preserve need to address the "grandfa-ther" clause for submerged lands under existingmulti-slip docking facilities. This perspectiveexplains the different types of submerged lands,and provides an overview of the process to obtainsubmerged lands leases from the state regulatoryagency, the Florida Department of EnvironmentalProtection (FDEP).

Submerged Lands

Types ofSubmerged LandsThere are generally two types of submerged landsin the State of Florida:

Dock slips on state owned lands, Miami Beach, FL.

Marina in Hollywood, FL.

Privately owned

State owned

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Privately owned submerged lands are actuallydeeded to a specific owner, and recorded as atract of land defined by a legal boundary. An envi-ronmental professional, professional surveyor orattorney can assist in the determination of pri-vately owned submerged lands. The majority ofwaterfront developments do not own the sub-merged lands in front of their property, mainlybecause these tracts of land were deeded in thepre-1960's. Once deeded, previous owners oftenfilled the entire deeded area for development.Submerged land ownership presents anowner/developer with more waterfront structuraloptions (docks, marinas, etc.). However, they arestill regulated by the environmental resource per-mitting process through the FDEP or WaterManagement District. The majority of the sub-merged lands are owned or controlled by thestate.

Sovereign submerged lands are those natural orhistorically submerged lands owned by the Stateof Florida, either by right of statehood or by deedor grants. They include tidal lands, islands, sand-bars, shallow banks, and lands waterward of theordinary or mean high water line, beneath naviga-ble fresh water or tidally influenced water.

The lands are held in Trust and managed by theFDEP or the various Water Management Districts,serving as staff to the Florida Cabinet sitting asthe Board of Trustees of the InternalImprovement Trust Fund of the State of Florida(Board of Trustees).

Any activity proposed on or near submerged landsor both private and state, requires proprietaryauthorization from the FDEP. A determination ofthe appropriate form of authorization required isdependent on the size, location and use of theproposed activity/structure. With regard to theregulatory aspect of the project, any activity with-in the waters of the state is subject to the permit-ting requirements of the FDEP or agencies withdelegated authority. Regulatory exemptions areavailable for certain activities; however, there areno proprietary exemptions for any activity on sov-ereign submerged lands.

Types ofProprietaryAuthorization

If a determination is made that the state controlsthe submerged lands at a particular waterfrontproperty, a proprietary authorization can besecured if the planned waterfront activity meetsthe following criteria:

Consent Of Use: Issued for activities, which maybe exempt from obtaining regulatory authoriza-tion from the DEP. These activities include:

Dinner Key Marina in Biscayne Bay

Single-family docks which do not exceed10 sq. ft. per linear foot of shorelineowned by the applicant.

Repair or replacement of private docks,mooring piles, seawall's, boat ramp at orwithin 1 foot of the mean high water line.

Installation of mooring piles, seawall's,boat lifts within authorized facilities.

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Utility crossings and rights-of-way.

Groins, breakwaters, and other shorelineprotection structures.

Oil, gas and other pipelines or cables.

Dredged spoil disposal sites.

Public & private navigation project channels

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Private And Public Easements: Easements arerequired for the following activities:

Lease: A sovereign submerged lands lease(lease) is required for all activities which do notmeet the criteria for a Consent of Use orEasement. These activities include but are notlimited to:

A registered grandfathered structure(GSR’ed structure) is any structure that hasbeen formally registered with the FDEP asgrandfathered structure as evidenced by sub-mittal of an acceptable application prior toSeptember 30, 1984. This registration expiredon January 1, 1998. The current rules requirethat these facilities obtain a lease now for anystructure on sovereign submerged land that issubject to a lease.

What are GrandfatheredStructures? All structures, subject to the leasing requirementsof the FDEP that preempt sovereign submergedlands and were authorized prior to March 10,1970, for commercial structures, and March 27,1982, for residential structures, are considered toqualify for registration as a "GrandfatheredStructure". These structures could have beenregistered as a grandfathered structure by the(FDEP).

Leases forGrandfatheredStructures: Local permitting agencies will require evidencethat the proposed project is authorized by theFDEP prior to issuing building and environmentalpermits. Upon discovery of an existing un-GSR'edstructure, the facility would qualify for aTemporary Use Agreement (TUA) which isbasically a one-year, temporary lease to allow therequired lease application processing or regulato-ry permitting for modification or reconstruction tooccur. This instrument would not be granted for aproposed structure, but could allow an existingstructure to legally remain on sovereign land inthe interim.

Dredged areas or channels

Structures which exceed 10 sq. ft. per linearfoot of shoreline owned by the applicant, orany dock which is 3 or more slips within anAquatic Preserve. Within Biscayne BayAquatic Preserve, any dock which is not asingle-family dock requires a lease (however,a lease requires the difficult task of demon-strating extreme hardship and positive publicinterest that essentially precludes issuance).

Revenue generating/ income related (com-mercial) facilities.

Registered or unregistered grandfatheredstructures.

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An unregistered grandfathered structure(un-GSR'ed structure) is any structure that issubject to the leasing provisions of theDepartment and was authorized prior to March10, 1970, or unregistered multi-family residen-tial or other non-revenue generating structureconstructed prior to March 27, 1982. Multi-fam-ily residential or commercial related structuresapproved by the Board of Trustees or theDivision of State Lands between March 10, 1970and March 27, 1982 are also considered grand-fathered structures provided that they wereconstructed pursuant to a valid dredge and fillpermit or exemption.

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New activities, or modifications to a GSR or un-GSR'ed structure are subject to the current rules.Docks which were originally constructed and usedin conjunction with single-family homes, butwhich are now slip residential docking facilities orcommercial uses are subject to current code stan-dards.

These structures were required to be registeredwith the FDEP by September 30, 1984.

Any structures which were built after the stateddates are considered to be unauthorized and sub-ject to the full permitting requirements of currentstatutes and rules. This includes expansion ormodifications (which extend outside of theGSR'able facilities).

Boat lifts, or the addition of any other structureswithin an existing commercial or industrial facilityare subject to the full regulatory permitting crite-ria of the FDEP. Additionally, the required permitswill not be issued until the proprietary issues havebeen resolved.

The current owner is responsible for the paymentof lease fees in arrears, back to September 30,1984 or when the current owner obtained theproperty (whichever is more recent).

An application for a TUA is required to be submit-ted to the FDEP upon notification of an unautho-rized use of sovereign lands. Processing time-frame for a TUA is typically 2 to 4 months fromapplication submittal date and the TUA is valid forone year from the date of final execution or untilthe finalized lease is issued, whichever comesfirst.

Additionally, as a part of the TUA process, theapplicant must pay all past-due lease fees for thepreempted area of the facility, from the date ofownership or from September 30, 1984 to thepresent. While the FDEP has prepared a moreconvenient and less demanding informationalpackage for the TUA, the information is designedto work in concert with the required lease infor-mational package.

lands) for the Biscayne Bay Aquatic Preservein Miami-Dade County are summarized in the fol-lowing paragraphs:

The Biscayne Bay Florida Statute (Ch. 258.397,F.S.), requires:(a) No further sale, transfer, or lease of sovereign-ty submerged lands in the preserve shall beapproved or consummated by the board oftrustees, except upon a showing of extreme hard-ship on the part of the applicant and a determina-tion by the board of trustees that such sale, trans-fer, or lease is in the public interest.

Note:Because the rule says that an activity wouldrequire a lease or other forms of consent does notimply that the required consent would be issued.As an example, denial of a lease application forthe failure to affirmatively or acceptably demon-strate either Extreme Hardship or Public Interestshould be expected.

AquaticPreserves There are 41 aquatic preserves in Florida. Thesepreserves were established to limitwaterfront/shoreline development and to protectmarine resources. Some preserves have addition-al regulations that govern waterfront develop-ment, and the regulations (related to submerged

Docking facilities in Coral Gables, FL.

Miamarina Bayside

State-owned submerged land along theIntracoastal Waterway.

ConclusionsUnderstanding the submerged lands for a pro-posed waterfront development is essential inplanning any marine construction activity;whether it be a dock, marina, dredging, or coastalstructure. Proprietary control of the submergedlands can have a substantial impact on a plannedwaterfront development, and these issues shouldbe addressed prior to the acquisition of waterfrontproperties. Existing waterfront property ownersshould also address the "grandfather" clauseissues, and the potential impact on any futurewaterfront facility maintenance and improve-ments. An environmental professional or anattorney can assist with the submerged landsissues for a particular piece of property.Submerged lands issues are site specific, and fur-ther information can be obtained by contactingCoastal Systems International, Inc. at305.661.3655 / info@coastalsystemsint.com

Disclaimer: The material presented in this perspectiveis for general information only. The information shouldnot be used without first securing engineering advicefrom qualified personnel with respect to its suitability forany application. Utilization of this information assumesall liability arising from such use.

Coastal Systems International, Inc.464 South Dixie HighwayCoral Gables, FL 33146Tel: 305-661-3655 Fax: 305-661-1914www.coastalsystemsint.cominfo@coastalsystemsint.com

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