Sunday, January 22, 2012

Too many questions unanswered about HB 1103 & SB 1362

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.
In carefully watching the video of the House Agriculture and Natural resources Subcommittee which met recently, the positions boil down to this:
  • The environmental community believes the wording of the bill will move the line waterward thus reducing the area adjacent to non-tidal waters that have been held in the public trust for over a hundred years.
    All kayakers, hunters and fishermen ...
  • 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.  
Jack Malloy, former executive director of the South Florida Water management District back in the 1970’s and 80’s once said, the difference between drought and flood in Florida is 24 hours.
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.

Sam Ard
Paid Tallahassee Lobbyist
for Cattlemen's Association
 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.
But in a recent response to a concerned Florida voter who expressed alarm to Representative Goodson about the potential impact upon the public’s rights to these lands, he responded in an email dated January 19:           
In all candor, HB 1103 has been misconstrued to be a bill that would define the "Ordinary High Water Line" as a line that is not consistent with current case law.  In point of fact, that is false; the cases determined by the Florida Supreme Court of Tilden and Martin affirm the criteria for determining the location of the Ordinary High Water Line that has historically been the standard.  This bill clearly states its intentions in defining that line - that is, the Ordinary High Water Line is neither the highest reach during the wet season nor the lowest reach during the dry season, but rather, the highest reach of a water-body as it normally stands throughout the year.  All HB 1103 seeks to do is to codify those findings into law.
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.  

This position is not just the opinion of environmentalists although it is certainly one that reflects important concern for Florida’s natural environment.  It’s also the position of a number of respected lawyers and at least one former staff attorney of the Trustees of the Internal Improvement Trust Fund, Monica Reimer, who gave testimony at the committee hearing.  The Board of Trustees of the Internal Improvement Trust Fund, the same as the Governor and Cabinet, serves as the proprietor of State-owned lands and determines how the public's interests may best be served.  Here’s a video clip of her testimony followed by the testimony of Preston Robertson of the Florida Wildlife Federation.

Monica Reimer
Earth Justice

Preston Robertson
Florida Wildlife federation

Unfortunately, a majority of the committee members chose to ignore the testimony of these well-respected opponents and voted to pass the bill anyway.   To the credit of several of the committee members, a few voted against the bill, and at least two who voted in favor said they were doing so to keep the bill moving but wanted further clarification that the bill will, in actuality, not change where the line would be found today. 
Now, read the second paragraph of Goodson’s email in defense of the bill which provides further reason why the opponents of the bill remain skeptical:
It is truly unfortunate that certain groups are resorting to scare tactics when it comes to this very clear and simple piece of legislation.  HB 1103 does not permit the development of environmentally sensitive lands as some of these groups claim, nor does it alter the public's right to use navigable waters and sovereignty submerged lands for public trust purposes up to the Ordinary High-Water Mark.  Should HB 1103 pass, environmentally sensitive lands would still be protected under zoning and land development laws.  This bill also does not affect the ownership, by the public, of sovereignty submerged lands lying below the mark as defined in the bill.
First, it is quite unbelievable that anyone who has lived in Florida for any length of time could think that environmentally sensitive lands would “still be protected under zoning and land development laws.”  Were it not for national and state laws, as well as this state’s globally recognized environmental land buying programs, Florida would have already been dredged and filled until no natural systems remained.  It is the body of environmental and land use laws that have been passed by both Republicans and Democrats over the last 30 years that have prevented the rampant destruction of Florida, certainly not zoning and land development laws which for years, if anything, accomplished the exact opposite. 
Perhaps it should be noted at this point that these laws which have supported responsible growth and minimized destruction of Florida’s natural ecology have, nevertheless, recently come under attack by both the governor and the legislature.  Further reason to suggest the above statement is without basis.

Second, the last statement is something out of Alice in Wonderland.  Of course the bill “would not affect the public ownership of sovereignty submerged lands lying below the mark as defined by this bill,” because, as defined by the bill, the ordinary “high” water mark has always reflected the lower elevation and therefore defining it as such does not change its impact.
However, the case is strong that the current definition in the law results in a demarcation that is higher than that which would result from passage of the bill.  Simply saying the bill changes nothing doesn’t change the probability that it would if it is passed.
Consequently, House Bill 1103 could result in a huge land transfer to private ownership of irreversible proportions that will do great harm to the public’s current right to use land now considered to be held in trust for the public. 
It could cause hunters serious problems and subject them to imprisonment if they should mistakenly wander onto lands that would become private under the bill but which were clearly public before.


The bill could create private ownership where none now exists and thus a land value would be transferred to private owners that currently belongs to the public.  This amount could be substantial because it could be creating developable water front property where it might not have been possible before.
Should this bill pass, smart landowners will likely have their land surveyed and the newly determined boundaries officially recorded just in case the legislature tries to change its mind later.  One could expect these newly acquired lands would be recorded all over the state making it virtually impossible to reverse because to regain title the state would have to buy them back.  The cost would make it virtually prohibitive.
The bill could also make it so expensive to protect natural floodways and floodplains that are invaluable in terms of the benefits they provide for wildlife, water storage and water quality that doing so on a statewide level would be impossible.  Think in terms of the river of money flowing to private landowners now for “restoration” lands associated with the restoration of The Everglades.  Federal dollars in the hundreds of millions are currently being paid to land owners to store water and other public purposes.  The similarity is that these privately held lands needed for a public purpose today at a tremendous cost were at one time doing the same thing naturally at no cost to the public.  Thus, an unwise shift of the boundary between public and private ownership waterward could drive the cost of water management higher.
Creating new boundaries would create an overwhelming demand upon the limited ability of the state to make final determinations of where the new line actually rests upon the ground.  The Department of Environmental Protection simply would have neither the money nor the personnel to do it, according to the testimony of John Steverson of DEP at the subcommittee hearing.
Finally, speaking of DEP, where are the views of the regulators who have had to deal with this issue for years?  DEP says it hasn’t formed an opinion on the consequences of the bill which could be substantial even though it is the DEP staff that will have to deal with them.  If there has been any discussion with the department, it has been behind closed doors.  Why?  Why aren’t we hearing from its attorneys, surveyors, and other experts about the language of this bill?  Same thing with the water management districts.  Where have they been in this discussion? Would the staffs of DEP and the districts be saying the same thing as the legislative staff given free reign?  Have they been muzzled?

And speaking of SWFWMD which, like all the districts, is in the process of setting minimum Flows and Levels on a number of major rivers.  Will the Ordinary High Water Line by any definition be the one that might have existed before an MFL is established, or will it be the result of the lowered level allowed by an MFL that is lower than the actual water level today, as is the case on the Chassahowitzka River?

In light of these issues and the fact that its impacts are less than clear and could be substantial, the bill should be rejected as proposed.
There are just too many questions ... too many questions.
Please oppose this bill, HB 1103, as well as its companion in the Senate, SB 1362.
Governor Rick Scott, The Capitol, 400 S. Monroe St., Tallahassee, FL 32399-0001, (850) 488-7146
Senate President Mike Haridopolos, 409 Capitol, 404 S. Monroe St., Tallahassee, FL 32399-0001,, (850) 487-5628
 Sen. Alan Hays,, (850) 487-5014 (sponsor of SB 1362)
Speaker Dean Cannon, 420 Capitol, 402 S. Monroe St., Tallahassee, FL 32399 (850) 488-2742        

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