II. Importance of Mangroves
III. Riparian Rights
IV. Overview of the MTPA
V. MTPA Detailed Regulations
b. General Permit
c. Individual Permits
The State of Florida has over 8,000 miles of coastline[i], second only to Alaska among U.S. states. The beauty of that waterfront, coupled with a temperate climate and abundant wildlife, has lured tourists and new residents alike, contributing to the State’s population growth and popularity as a tourist destination. Many homeowners aspire to live on the coast so they can enjoy the waterfront lifestyle. It would be hard to overstate the value of the coastal environment.
Florida’s popularity also generates concerns for the health of the environment. Increased population also means increased pollution, reduced natural habitat, and greater demand for water and recreational access. Florida’s legislature and government agencies strive to balance protection for the environment, meeting the needs of its citizens, and maintaining a strong economy.
In 1995, the Florida Legislature sought to balance environmental protection and homeowners rights when it passed the “Mangrove Trimming and Preservation Act,” (hereinafter, the “Mangrove Act”).[ii] In recognition of the important role mangroves play in Florida’s ecology, the Mangrove Act sets out to provide important protections for the trees and limits the ability to trim or remove them. At the same time, the Mangrove Act affirms the rights of waterfront property owners, specifically including the homeowners’ “riparian right of view.”
This article will help homeowners understand their rights and the regulations concerning any mangroves that exist on, or adjacent to, their property. After a brief description of mangroves and their environmental significance, this article provides an overview of riparian rights and outlines the provisions of the Mangrove Act most critical to Florida’s waterfront homeowners.
II. The Ecological Importance of Mangroves
Mangrove trees are fascinating and unique plants that have evolved to occupy an important ecological niche – the transition zone between land and salt or brackish water. Florida hosts three native mangrove species: red mangrove, black mangrove, and white mangrove. All three species grow in close proximity to one another, but each is specially adapted to inhabit a different area of the shoreline.
The red mangrove occupies shallow water, and is nicknamed the “walking mangrove” because its recognizable tangle of aerial prop roots makes it appear as though the tree is taking a stroll out into the water. This ability to move into the water means mangroves help create new islands and land. This also results in coastlines that swiftly change location and appearance, as new trees spread and grow along the shore.
The roots of the red mangrove filter the salt out of ocean and brackish water, providing fresh water to the tree. The maze of roots in the water creates shelters that function as natural fish hatcheries and nurseries, collects organic material to support the coastal ecology, and provides important habitat for birds and reptiles. The root system also benefits upland property owners by buffering and absorbing wave and tidal energy, which can help stabilize the shoreline and protect the upland property from eroding in large storm events.
The black mangrove lives just upland from the red mangrove, near the high tide line. The black mangrove is also salt tolerant, and a system of roots protrude up from the ground like a carpet of pencils, providing air to the root system and protecting it during flooding. The black mangrove’s leaves are able to excrete excess salt absorbed into the tree, resulting in visible salt crystals forming on their underside.
The third type of native mangrove, the white mangrove, lives further upland than the red or black mangroves and more closely resembles a typical upland tree, although it may also appear in a dense shrub-like community.
Together, the red, black, and white mangroves form a rare and important ecological system in South Florida and play critical roles in anchoring the shoreline, providing unique habitats, and cleaning the water.
III. Riparian Rights
In 1845, Florida was granted statehood and joined the United States. At that moment, all navigable waterways became the property of the State of Florida. This state ownership extends up to the high-tide water line. However, the courts and the Florida legislature have recognized that when upland property abuts the water, that upland property includes certain rights by virtue of its adjacency. These rights are typically referred to as “riparian rights.”
Riparian rights provide the legal outline of the activities a homeowner can expect to enjoy when purchasing property that is on the water. The Florida Statutes itemize riparian rights as including “rights of ingress, egress, boating, bathing, and fishing and such others as may be or have been defined by law.”[iii] In one of the most important rulings concerning riparian rights, the Florida Supreme Court noted that, “An upland owner must in all cases be permitted a direct, unobstructed view of the Channel.”[iv]
The riparian right to a view is often impacted by mangroves, and homeowners often desire to trim or remove mangroves to expand their view of a waterway. Before taking any action concerning the trimming or removal of mangroves, homeowners should be familiar with the legal requirements and implications of their actions.
IV. Overview of the Mangrove Trimming and Preservation Act
As discussed above, the Mangrove Act both protects the State’s mangrove habitats and recognizes property owners’ riparian rights – including the right to access the water and the right to a view towards the channel. The Mangrove Act attempts to walk this tightrope by limiting mangrove trimming without outright banning alterations. The law also allows for the “grandfathering” of mangrove trimming that exceeds the standards set out in the code, if a homeowner can demonstrate that an increased level of trimming existed prior to the enactment of the Mangrove Act.
The Mangrove Act’s regulations establish some important distinctions. First, the law distinguishes trimming activity undertaken by a homeowner from trimming performed by a “Professional Mangrove Trimmer.” As the scale of the intended trimming increases, the regulations mandate that a qualified Professional Mangrove Trimmer complete the work. These professionals may be arborists, wetland scientists, ecologists, or others who can meet the statutory guidelines.[v]
The second important regulatory distinction differentiates between most mangrove trimming and trimming in what is described as the “Riparian Mangrove Fringe.” Trimming within a Riparian Mangrove Fringe is exempt from certain requirements. To qualify as a Fringe, the mangrove area must measure no more than 50 feet from the most landward mangrove trunk to the trunk of the most waterward tree. This distinction arises from the belief that mangrove habitats greater than 50 feet have an increased ecological importance and thus warrant a greater level of protection.
The third distinction found throughout the Mangrove Act concerns the height of the mangrove trees prior to trimming. Increased regulations apply to trees greater than 10 feet in height prior to trimming, and those greater than 16 feet in height before trimming are subject to greater regulation still.
The Mangrove Act creates three regulatory schemes, which are overseen by the Florida Department of Environmental Protection (“DEP”) oversees[vi]. The first scheme allows relatively limited mangrove trimming to occur “exempt” from any permitting requirements. Homeowners, or in some instances a Professional Mangrove Trimmer, can pursue these activities without any interaction with government agencies.
When the desired mangrove trimming exceeds the amount permitted under the exemptions, the mangrove trimming is regulated by the second regulatory scheme, known as the “general permit” process. The general permit process requires a higher level of authorization, and a Professional Mangrove Trimmer must perform all trimming undertaken per a general permit. While the general permit requires the homeowner (or homeowner’s agent) to file a notice with DEP, this notice is relatively straightforward, and DEP must take action on the notice within 30 days or it is deemed approved.
The third and final permitting scheme is that of the “individual permit.” These permits are required when the impacts to the mangroves exceed what is allowed under an exemption or the general permit rules. Filing for an individual permit requires a greater level of detail both in the submittal package and the review by DEP. Preparing this application typically requires the assistance of an environmental scientist. If peculiar or unusual circumstances exist related to the property, homeowners may wish to hire an environmental attorney to assist in obtaining the permit.
Finally, the Mangrove Act provides for enforcement requirements. These include fines levied for every tree illegally modified or destroyed. There may also be restoration and replacement plantings required, in addition to the fines.
V. Mangrove Trimming and Preservation Act Regulations
In order to qualify as an exemption from the permitting requirements, the desired mangrove trimming must meet certain strict criteria. For a homeowner to do the trimming without hiring a Professional Mangrove Trimmer:
- The mangroves must be located on the owner’s property, or within their adjacent riparian area.
- The mangroves must qualify as a “mangrove fringe,” i.e. less than 50 feet in depth.
- Before trimming, the mangroves must not exceed 10 feet in height.
- The trees cannot be cut shorter than 6 feet as measured from the substrate.
- The property shoreline length must be less than 150 feet. If greater than 150 feet, only 65% of its length can be trimmed.
If a Professional Mangrove Trimmer will perform the work, a greater level of trimming may qualify for an exemption. Under the law, these limits include:
- Mangroves cannot be greater than 24 feet in height before trimming.
- The trees cannot be cut shorter than 6 feet as measured from the substrate.
- For trees greater than 16 feet in height, only 25% of their foliage can be removed annually.
- If red mangroves are being trimmed for the first time, notice to DEP must be provided.
Certain other activities qualify for exemptions under the Mangrove Act, including maintaining “previous mangrove configurations” and “historically established maintenance trimming.” Proof of the prior status may be necessary to secure the exemption. This proof may consist of a statement by a person with knowledge of the history of the mangroves, past permits, or photographs of the mangroves.
b. General Permit
General permits may be used for mangrove trimming that does not qualify as exempt. A Professional Mangrove Trimmer must perform all work carried out under the general permit. Mangrove trimming under a general permit is not limited to the Riparian Mangrove Fringe and can continue up to 500 feet waterward from the most landward mangrove tree. Similar to the exempt trimming limitations, no tree may be cut shorter than 6 feet. In addition no more than 65% of the mangrove area can be trimmed and trimming must be carried out so that no more than 25% of the foliage is removed annually.
It is important to note that homeowners may only use a general permit once for a property. After the general permit requirements are followed, subsequent maintenance of the mangrove height is allowed under the exemption rules. If a homeowner fails to maintain the mangroves consistent with the initial general permit requirements, the homeowner must apply for an individual permit to carry out additional trimming.
c. Individual Permit
Any mangrove trimming that exceeds the limits for an exemption or a general permit requires an individual permit. This is also true for mangroves previously trimmed under a general permit, but for which additional or greater trimming is now desired. DEP reviews individual permits using the criteria found in Section 373.414, Florida Statutes. Those criteria include:
- Whether the activity will adversely affect the public health, safety, or welfare or the property of others.
- Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats.
- Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling.
- Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity.[vii]
DEP may require mitigation as a condition of approval for an individual permit. Mitigation may include planting additional mangroves on the property or at a remote location. DEP may also require the purchase of “mitigation credits.” Those credits can be purchased from a “mitigation bank,” which is a property that is placed into permanent conservation in exchange for the right to put mitigation credits up for sale. The higher level of scrutiny and potential for mitigation requirements makes the hiring of an environmental scientist practically mandatory when seeking an individual permit.
Mangroves form an important part of the ecology of South Florida, and through legislation, Florida has decided to protect and preserve these trees. Homeowners benefit from the protection the mangroves provide from storms, the trees’ ability to clean the water, and the beautiful wildlife they attract. Yet the state legislators and the courts recognize the value and importance of a homeowner’s riparian rights, including the right of access and a view. The Mangrove Trimming and Preservation Act, while complex, marks an important effort to balance these objectives in a way that preserves property values for owners while protecting the environment for the benefit of all Floridians.
For more information, contact Kathryn Rossmell at firstname.lastname@example.org and Seth Behn and email@example.com. This article is not intended to serve as legal advice and does not establish a lawyer-client relationship.
[i] Shoreline Mileage of the United States, NOAA Office for Coastal Management, https://coast.noaa.gov/data/docs/states/shorelines.pdf; accessed on June 21, 2019.
[ii] The “Mangrove Trimming and Preservation Act” encompasses Sections 403.9321 through 403.9333, Florida Statutes, (2019). The full text can be accessed online at: http://www.leg.state.fl.us/Statutes/
[iii] Fla. Stat. § 253.141(1) (2018).
[iv] Hayes v. Bowman, 91 So.2d 795, 801 (Fla. 1957). For more information, see General Overview of Riparian Rights in Florida, Andrew J. Baumann, Esquire, which can be found at https://www.llw-law.com/wp-content/uploads/2016/04/General-Overview-of-Riparian-Rights-in-Florida.pdf.
[v] Fla. Stat. § 403.9329 provides the qualifications and requirements to be certified as a Professional Mangrove Trimmer.
[vi] Under the Mangrove Trimming and Preservation Act, local governments can seek to be delegated permitting authority for mangrove trimming within their jurisdiction. As of the date of this paper, the local governments that have assumed mangrove permitting authority are: Miami-Dade County, Broward County, Hillsborough County, Pinellas County, Town of Jupiter Island, City of Sanibel, and Sarasota County.
[vii] Fla. Stat. § 373.414 (a) (2018).