Florida Senate - 2012                                    SB 1362
       
       
       
       By Senator Hays
       
       
       
       
       20-01356A-12                                          20121362__
    1                        A bill to be entitled                      
    2         An act relating to the ordinary high-water mark for
    3         navigable, nontidal waterbodies; creating s. 253.024,
    4         F.S.; providing definitions; providing criteria for
    5         determining the location of the ordinary high-water
    6         mark for navigable, nontidal waterbodies; providing
    7         for construction; providing an effective date.
    8  
    9  Be It Enacted by the Legislature of the State of Florida:
   10  
   11         Section 1. Section 253.024, Florida Statutes, is created to
   12  read:
   13         253.024 Determining location of ordinary high-water mark
   14  for navigable, nontidal waterbodies.—
   15         (1) As used in this section, the term:
   16         (a) “Ordinary agricultural crop” means any terrestrial
   17  plant or vegetation from a farm, nursery, grove, orchard,
   18  vineyard, or garden, but does not include cypress trees.
   19         (b) “Freshet” means a flood or overflowing of a river by
   20  means of rain, melted snow, or an inundation of water.
   21         (c) “Ordinary high-water mark” means the highest reach of a
   22  navigable, nontidal waterbody as it usually exists when in its
   23  ordinary condition and is not the highest reach of such
   24  waterbody during the high water season or in times of freshets.
   25  The term also includes the terms “ordinary high-water line” and
   26  “line of ordinary high water.”
   27         (2) When determining the location of the ordinary high
   28  water mark for navigable, nontidal waterbodies, this subsection
   29  shall be considered in its entirety and each of the following
   30  provisions shall apply:
   31         (a) The ordinary high-water mark is an ambulatory boundary,
   32  shifting in response to long-term changes, and is to be
   33  determined by examining the bed and banks to ascertain where the
   34  presence and action of the water are so common and usual, and so
   35  long continued in all ordinary years, as to mark upon the soil
   36  of the bed a character distinct from that of the banks, in
   37  respect to vegetation and the nature of the soil itself.
   38         (b) The ordinary high-water mark is coordinate with the
   39  limit of the bed the water occupies sufficiently long and
   40  continuously to wrest it from vegetation and destroy its value
   41  for agricultural purposes. The bed does not take in swamp or
   42  overflowed lands, and the ordinary high-water mark is to be
   43  found between such lands and the area occupied by the water for
   44  the greater portion of each average year. At this level a
   45  definite escarpment in the soil is generally traceable, at the
   46  top of which is the position for the boundary. Escarpments
   47  resulting from the action of a storm, a flood, or rises in water
   48  levels of a waterbody during the annual high water season do not
   49  signify the ordinary high-water mark.
   50         (c) In some places where the banks are low and flat and the
   51  water does not impress on the soil any well-defined line of
   52  demarcation between the bed and the banks, the effect of the
   53  water upon vegetation must be the principal test in determining
   54  the location of the ordinary high-water mark. In such an
   55  instance, the ordinary high-water mark is the point up to which
   56  the presence and action of the water is so continuous as to
   57  destroy the value of the land for agricultural purposes by
   58  preventing the growth of vegetation constituting what may be
   59  termed an ordinary agricultural crop.
   60         (d) Marks upon the ground or upon local objects that are
   61  more or less permanent may be considered, in connection with
   62  competent testimony and other evidence, in determining the
   63  ordinary high-water mark.
   64         (3) This section does not alter the public’s right to use
   65  navigable waters and sovereignty submerged lands for common law
   66  public trust purposes up to the ordinary high-water mark as
   67  defined in this section, nor does this section affect the
   68  ownership by the public of sovereignty submerged lands lying
   69  below that mark.
   70         Section 2. This act shall take effect July 1, 2012.