It's turning out my earlier post regarding HB 1103 was just part of a growing controversy over where public land adjacent to a freshwater body ends and private property begins. Lots of folks are weighing in on both sides.
The position of the bill’s sponsor, Representative Tom Goodson, is simply that the bill does not change anything. It only clarifies and codifies what has always been the law.
- The farming community, primarily the Cattlemen’s Association, believes the bill will not change anything but will clarify where the line will fall when the bill’s definition is applied.
- Both groups believe there has been confusion in the courts over the years as to where the line will fall using existing statutory language and clarification would be beneficial. On the one hand, the ongoing confusion exposes such users of public lands as airboat operators and hunters to a legal liability because if they accidentally find themselves on property that is privately owned, they can be charged with armed trespass, a felony, and imprisoned.On the other hand, private property owners need to know the extent of their ownership. They need to know how far they can extend their farming or ranching operations onto lands adjacent to a river or lake without fear of regulatory consequences. They also need to know where their ownership ends in order to protect it from unwanted trespassers.
- In the middle, are the legislators who have the responsibility to wrest the plain truth from all the rhetoric and devise a solution that is reasonable for all. This is not a simple task. The definition that has always existed is not like the legal descriptions used by most of us for our properties. It’s a definition that depends upon where water rests either some of the time or most of the time but not during abnormal floods or abnormal droughts. Given Florida’s constantly changing weather patterns which are always trending one way or the other and are never static, this is like trying to hook a jellyfish.
What is at risk is significant for both sides. The state manages 1,800,000 acres of freshwater submerged lands and some 12,000 river miles of shoreline.
Interestingly, it has not been stated that the bill could result in moving the line landward thereby increasing public and decreasing private ownership. There is no issue there. The debate is whether it decreases public ownership and increases private ownership.
For Sam Ard, a paid lobbyist and advocate for the Florida Cattlemen’s Association, there is no confusion. He’s pushing hard to get the bill passed. At the subcommittee hearing, he stated emphatically that, “We think this bill does not change the law.” He said the bill is needed because landowners are simply unable to determine with certainty what lands they own. And that’s pretty much the position of the bill’s primary proponents.
Paid Tallahassee Lobbyist
for Cattlemen's Association
The highlighted sentence provides one reason why the bill’s opponents believe the bill will, in fact, move the line waterward and reduce public ownership. It reveals the intentions of the bill which is to take the current definition of the Ordinary High Water Line, the normal reach of water in the high water season, and “clarify” that it is to be redefined as the level reached when the water body is in an “ordinary” condition.
According to the Florida Conservation Coalition, Florida Wildlife Federation, Florida Airboaters Association and others, “’Ordinary condition’ is not high water; it is the ordinary reach of water in the high water season, not the highest reach,” and, therein, lies the crux of the debate.
Here’s what the Florida Conservation Coalition says:
What do proposed House Bill 1103 and Senate Bill 1362 do?
Two legislators have proposed bills that deal with the definition of the Ordinary High Water line for non-tidal, freshwater rivers and lakes. This is the line that separates public lands (known as sovereignty submerged lands) and private adjacent lands. The public has the right to fish, boat, hunt, camp, hike or otherwise enjoy the lands and waters below the Ordinary High Water line.
The water level of rivers and lakes changes throughout the year. Florida law now states that sovereignty submerged lands go up to the Ordinary High Water line. This is defined as the normal reach of water in the high water season (in Florida “ordinary” is used to distinguish this high water level from “flood” level). Unfortunately, the two bills in issue would change this definition and lower this boundary. This will happen because the bill’s new definition places the “high water mark” at the water level when the water body is in an “ordinary” condition. “Ordinary condition” is not high water; it is the ordinary reach of water in the high water season, not the highest reach. It is a lower level that exists the rest of the year. Additionally, the bills also seem to allow the creation of private land from sovereign submerged lands if a person can grow a radish patch or other crops on it when the water is low.
Passage of these bills would mean the potential massive loss of sovereignty submerged lands and thereby the diminishment of public lands and waters that are presently used by Florida’s millions of resident anglers and boaters and by job-creating tourists, to the benefit of the relative few people with lands adjacent to public waters. Private adjacent owners would be able to post “their” property and keep out anglers and family picnickers from using what was once a public shoreline. Hunters and others would be especially at risk because possession of a firearm while trespassing on private property is a felony.