Overview of Changes to Sovereign Submerged Land Regulations

July 17, 2019

AMENDMENTS TO CHAPTER 18-21, FLORIDA ADMINISTRATIVE CODE
In March 2019, Chapter 18-20 (Aquatic Preserves) and Chapter 18-21 (Sovereignty Submerged Land Management) were amended by the Florida Department of Environmental Protection. Most of these rule amendments and the policies and considerations behind them have been in the works for years, and some of the changes respond to legal and political disputes dating back to the 1990s. While these rule changes are the product of a long and deliberative process, they are not without their pitfalls, uncertainties and even unintended consequences. It is important to familiarize yourself with these new changes to sovereign land management policies that became effective March, 2014. A summary of some of the more significant changes is set forth below:

DEFINITIONS:
All sound analysis begins by defining important terms, and the evaluation of Chapter 18-21 is no exception. New definitions and changes to old ones will significantly change regulation of waterfront activity for the foreseeable future. Two new definitions are particularly notable:

Rule 18-21.003 (35) “’Marginal dock’ means a dock placed immediately adjacent to and parallel with and no more than 10 feet waterward from to the shoreline or seawall, bulkhead or revetment.”

The restriction on how far a marginal dock can extend into the waterway is new; moreover, this rule interacts with other rules in ways that are not immediately apparent. Rule 18-21.003 (21) (unchanged by the amendments) defines a “dock” as any fixed or floating structure that includes not only the traditional dock platform and walkways, but also mooring piles, lifts and davits. These types of associated structures are considered part of the “dock” and routinely extend more than 10 feet waterward of the shoreline or seawall. Why does this matter? Because marginal docks enjoy a smaller side setback from the neighboring riparian line – only 10 feet instead of the normal 25 feet. Therefore, if your dock is otherwise arranged alongside the seawall but includes a boat lift of mooring pilings, it likely no longer qualifies as a “marginal dock” and must be located further from the neighboring riparian line (and property line). Additionally, adding a boatlift to an existing marginal dock could cause the current dock to become non-compliant with this new rule requirement and could require removal of a portion of the existing dock.

Rule 18-21.003(43) “Open-air dining area” means a fixed or floating structure that serves as a platform for tables and chairs associated with a contiguous upland food or beverage restaurant that is open to the public.

Dining areas built over the water were traditionally considered non-water dependent activities under Section 253.03(15), F.S., and were not allowed on sovereignty submerged land. For years, a number of establishments found creative ways to maneuver around or alongside that policy. Defining the term and placing conditions and limitations on “open-air dining” in Rule 18-21.004(1)(g) and 18-21.0051 is a game-changer. Depending on the size and type of operation and the location, over-water dining facilities can now be approved by the Department by delegation, or otherwise by the Board of Trustees.

WATER DEPENDENT ACTIVITIES AND OVER-WATER “OPEN-AIR DINING”
Rule 18-21.004(1)(g) limits activities on sovereignty submerged lands to “water dependent” activities. Over the years this rule was applied inconsistently, and a vast array of proposed uses have been rejected as “non-water dependent.” The list is exhaustive, ranging from the obvious (residential and commercial buildings) to the odd and seemingly insignificant (water hose spigots, trash cans and fish cleaning tables on docks and piers). At first glance, the changes to 18-21.004(1)(g) appear to be a welcome breath of common sense:

(g) Activities on sovereignty lands shall only be limited to water dependent activities and minimal secondary non-water dependent uses only pursuant to 253.03(15), F.S., unless the activity meets the open-air dining area criteria below or the board determines that it is in the public interest to allow an exception as determined by a case by case evaluation. (remainder of text deleted as part of rule change).

The addition of the text “minimal secondary non-water dependent use” is lifted directly from the text of the statute. However, what that minimal secondary use may or may not be has been subject to a great deal of interpretation in the past. This has led to a high level of unpredictability in application of the statute and rule. It would seem that repeating this statutory language in the rule is intended as emphasis and may signal some consistency in application going forward. However, the language has always been present in the law. Without an illustrative list, uncertainty may continue.

Rule 18-21.004(1)(g)1 lists the general criteria for allowable “open-air” dining uses on sovereignty submerged lands. The most significant restrictions are:
-Open-air dining areas can only be placed along existing non-natural shorelines like revetments and seawalls. Therefore, don’t expect to see open-air dining on the waterward side of a mangrove fringed shoreline (accessed by a walkway) or along a beach.
– Open-air dining areas can have roofs, but no walls. There’s a reason the Department chose “open-air dining” instead of “over-water dining.” No walls means (presumably) no air conditioning. The rule does allow screening and temporary, drop down, transparent weather sheeting.
– Open-air dining areas can be as large as 30% of the square footage of the upland restaurant/bar with a total cap of 2,500 square feet.
– Open-air dining areas can only contain tables and chairs. No bars or food preparation areas appear to be allowed.
– Open-air dining areas are not allowed in aquatic preserves.
– Open-air dining areas are not allowed over seagrass or aquatic vegetation. Shading impacts will presumably disqualify a project under the criteria.
– Open-air dining areas must be open to the public. Private clubs and similar operations would not qualify to place an open-air dining area on adjacent submerged land.

However, none of these restrictions appear to be fatal to any particular project. Both 18-21.004(1)(g) and 18-21.0051(2)(c) appear to give the Board of Trustees the final say. Therefore, if you meet all the criteria, the Department will approve your use. If you fail on one or more, you still have the opportunity to have the Board of Trustees evaluate your proposal on a case-by-case basis.

RIPARIAN RIGHTS
The debate over what constitutes a sufficient riparian or upland title interest that would allow someone to apply for permission to use sovereignty submerged lands has been the subject of litigation as far back as the 1990s. See, E.G., Secret Oaks Owner’s Ass’n, Inc. v. Dept. of Env’tl. Prot., 704 So. 2d 702 (Fla. 5th DCA 1998). The Department and applicants have grappled with concepts such as condominium forms of ownership, community common access easements to the water and a variety of less-than-fee simple ownership arrangements that people have relied on to try to build docks.

Rule 18-21.004(3)(b) tries to at least address some of these troubled areas. The rule has been amended in two places. First, the time period for providing evidence of riparian ownership is moved up. Now, evidence of ownership must be furnished prior to execution of the authorization (including a lease, easement letter of consent, etc.) rather than prior to commencement of construction. This makes sense from the Department’s perspective as many a landowner has accused the Department of clouding their title in the past through issuance of authorizations to third persons. Additionally, the last sentence of the rule is new:

Satisfactory evidence of sufficient upland interest shall be commensurate with the level of exclusionary interest provided in the specific sovereign submerged land authorization contemplated.

This hardly sets a hard line. The greater the exclusion of the public, the greater the upland, riparian interest the Department will require. After decades of litigation and prior rulemaking efforts, it is not apparent that this rule will serve to add much clarity into the already murky topic of sufficient upland title interest.

Rule 18-21.004(3)(d) establishes the long familiar riparian setback requirements applied to applications on sovereign submerged land. In short, all activities must be setback at least 25 feet from the neighbor’s riparian lines unless the property has less than 65 feet of waterfrontage or the area in question has less than 65 feet of riparian area between lines. In those cases, no setback is required. Marginal docks can be located within 10 feet of the neighbor’s riparian line, but the change in what constitutes a “marginal dock” (discussed above) creates potential problems in applying this rule.

The most significant change is found in the last sentence. Prior to the amendments, the waiver of the 25 foot (or 10 foot) setback could occur either only one of two ways: by written consent of the neighbor (using a DEP waiver form), or by special dispensation by the Board of Trustees to move a dock inside the setback to avoid or minimize impacts to natural resources like mangroves, corals or sea grass. Now, a much broader waiver has been added to the rule: “… or when the Board determines that the activities are in the public interest.”

This waiver is very broad and not well defined. For example, any activity in an aquatic preserve must be found to be “clearly in the public interest” which would suggest that any activity in an aquatic preserve would qualify for a setback waiver from the Board. However, that is unlikely what was intended. The frequency with which this waiver is used will be something to watch.

Rule 18-21.004(b) provides criteria for private multi-family residential docks containing three or more wet slips. Private multi-family residential docks are restricted in size such that they may only occupy 40 square feet or less of sovereignty submerged land for each linear foot of shoreline of the upland multi-family property. Traditionally, the Department required the property owner(s) to provide a conservation easement over the remaining shoreline not being used for the proposed multi-family dock. The term “conservation easement,” as used here, is not the traditional usage. Really, it is an easement that gives up any remaining riparian rights to construct any more docks in return for combining the riparian rights of the entire multi-family property in order to build one large dock. The rule has been changed to somewhat relax this requirement:

3. Where the shoreline calculation includes the common parcel and individually owned parcels, the applicant must provide a conservation easement or similar recorded covenant in favor of the Board over the entire waterfront footage used for the calculation of preempted area to subordinate or waive any further riparian rights of ingress and egress for additional docks and piers. Such conservation easements or restrictive covenants shall be released or modified only if the Board finds such release or modification is not contrary to the public interest, does not defeat the original purpose of such easement or covenant, and is in compliance with current rules at the time of modification.

(g) For docks and piers subject to paragraph 18-21.004(4)(b), F.A.C., the applicant will provide a conservation easement or other similar recorded restrictive covenant in favor of the Board over the riparian waterfront footage used for the calculation of the preempted area, or over the entire shoreline when constructing the maximum number of slips, to subordinate or waive any further riparian rights of ingress and egress for additional dock and piers. Such conservation easements or restrictive covenants shall be released or modified only if the Board finds such release or modification is not contrary to the public interest, does not defeat the original purpose of such easement or covenant, and is in compliance with current rules at the time of modification.

Most of the text is relocated, but the change is subtle. Under the new regulation, a conservation easement is only required to build a private residential multi-family dock when the shoreline being combined to calculate the square footage of the occupied submerged land includes both a commonly owned parcel and individual residential parcels. Thus, a standard condominium dock that uses an entire shoreline of common condominium property to calculate square footage will no longer need to surrender its remaining riparian rights when building a single, large multi-slip dock. Further dockage would be limited only by the ceiling set by the 40:1 ratio already present in the rule. However, even this ratio may be waived by the Board if the proposal includes “net public benefits” such as increasing public access to submerged land. The likely result is a more streamlined approval process for community docks – while leaving the door open to site additional docks on the property down the road.

Rule 18-21.005(1)(b) identifies those activities for which the Board of Trustees has given consent in advance by rule. The Board has already consented to the activities that fall under this paragraph and no application need even be filed. One small, but significant change has been made to the consent by rule criteria:

“Except for activities authorized under section 253.77(4), F.S., consent is herein granted by the Board and no application or written authorization is required for an activity that is exempt from the requirements of obtaining a permit under the provisions of section 403.813(1), F.S., paragraphs (a); (b), [provided that the activity must]:…

4. Comply with the provisions of paragraphs 18-21.004(1)(d) and (k), and subsections paragraph 18-21.004(3)(d), and subsections 18-21.004(6) and (7), F.A.C.; and…

The inclusion of paragraph 18-21.004(3)(d) is a significant change to the criteria that must be met by a structure consented to by rule. 18-21.004(3)(d) contains the riparian setbacks (discussed above). In the past, docks and structures consented to by rule could ignore the 25-foot (or 10-foot) setback. That is no longer the case. Moreover, since the majority of marginal docks are consented to by rule, this change (when combined with the new definition of marginal dock and the possible effects on setbacks) becomes very significant. Now, owners who do not even file an application must be aware of both the riparian line and the riparian setbacks. Additionally, the popularity of boatlifts promises to create an enforcement issue going forward for docks that are constructed without Department review and later incorporate a boatlift – thereby changing the setback requirements.

Rule 18-21.0051. Delegation of Authority. This rule identifies which activities may be approved at the Department/Water Management District level and lists those activities that must come directly to the Governor and Cabinet for approval. Since Governor and Cabinet review and approval can add significant time and uncertainty to an application, most applicant representatives remain ever-mindful of the threshold for Cabinet approval and try to keep their proposals under that threshold. The most significant change is:

(a) Docking facilities with more than 50 slips, and additions to docking facilities where the number of proposed new slips exceeds 10% of the existing slips and the total number of existing and proposed additional slips exceeds 50;

(a)(b) Proposed leases or modifications to existing leases Docking facilities having a preempted area, as defined in Rule 18-21.003, F.A.C., of more than 150,000 50,000 square feet, including proposed leases for mooring fields that don’t qualify for the general permit under Rule 62-330.420, F.A.C., and additions to existing docking facilities where the size of the proposed additional preempted area exceeds 10% of the existing preempted area and the total of the existing and proposed additional preempted area exceeds 150,000 50,000 square feet.

The two most obvious changes are (1) the Department and Water Management Districts are out of the slip-counting business; and (2) much larger projects (up to three times the size) can be approved at the agency level without need for direct review by the Governor and Cabinet. The rule change discards the number of slips as a limit on delegation to the agencies and relies entirely on square footage. The rule also (wisely) re-words the delegation to encompass leases – not just docking facilities. Not only are larger facilities approved at the Department/Water Management District level, but larger expansions of existing facilities can proceed as well, without Cabinet review. An increase in the size of the facility is only one of two criteria which must be met. The increase must be greater than 10% of the original square footage and the total (existing and new) must exceed 150,000 square feet before direct review by the Cabinet is triggered.

Other changes to the delegation rule include requiring Cabinet review of easements for extracting pre-sunken timber (a.k.a. “dead-head logging”) and approval of “open-air dining areas” that do not meet the criteria (as outlined above). Public mooring fields are also singled out where they are larger than 150,000 square feet and don’t meet the other applicable criteria, some of which have been added to the rule as part of these amendments.

Rule 18-21.008(1). Standard Lease Terms. The maximum initial term of standard submerged land leases has been increased from 5 years to 10 years for private single-family, multi-family and multi-slip residential docks as well as for marinas where 90 percent of the slips are maintained for rent to the public on a first-come, first-served basis. That covers the bulk of submerged land leases for docking facilities. The maximum initial term for all remaining submerged land leases remains at 5 years.

This change is likely aimed at reducing the administrative costs to both the Department and the property owner resulting from lease renewals every 5 years. However, lease renewals are generally accompanied by an inspection to ensure that the facility remains in compliance. These regular inspections would logically be reduced to once a decade for most docking facilities.

Rule 18-21.011 sets out the payments owed to the State of Florida for conducting various activities on state-owned submerged land. The fee structure is complicated and the calculations can vary based on the type of activity, the type of authorization obtained and the potential application of various discounts and add-ons to the base fee rate. New fees have been set for easements giving the right to remove pre-sunken timber, and fees have been waived for treasure salvage, certain dredging activities for publicly funded environmental restoration activities where the dredged material has no economic value.

Calculation of fees for various projects can quickly become complicated. It is recommended that applicants familiarize themselves with the fee structure early in the process, as certain project modifications can increase or reduce payments owed to the State over the life of the project.

For more information, contact:

Andrew J. Baumann
Lewis, Longman & Walker, P.A.
515 North Flagler Drive, Suite 1500
West Palm Beach Florida
abaumann@llw-law.com
(561) 315-4220
www.llw-law.com