WATERS MUDDY OVER WHERE THEY END, LAND BEGINS

By DAVID ROYSE
THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE, Jan. 18, 2012….It's a murky line between really good fishing, and trespassing. 

A measure moving in the House seeks to clarify just where that line is – more specifically, where the state's waterways end and where abutting private property starts. 

The issue is vital to those who own property that runs right up to a riverbank or lake shoreline – how much property they pay taxes on for example is a question depending on where their property stops. But it's also highly important to boaters, hunters and fishermen who fear losing access to swamps – prime habitat for many of the things they're looking for. 

Sometimes those non-tidal swamps aren't there in the dry season, but are in the wet – and whether the high water mark or the low water mark or something in between is used as the demarcation point has become a highly contested issue, and the subject of a bill that cleared a committee stop Tuesday, but only after conflicting testimony about what the change would do.

The measure (HB 1103), approved Tuesday by the House Agriculture Subcommittee on a 9-4 vote, seeks to set out the "ordinary high water mark," which is where the federal government says the public's sovereignty ends. The trouble is, the state law doesn't define ordinary high water mark or spell out exactly how you determine where that is. 

There have been a couple of court cases that tried to set that definition out – and backers of the bill say it tracks those court opinions. The measure says the ordinary high water mark is the "highest reach of a navigable, nontidal water body as it usually exists when in its ordinary condition and is not the highest reach of such water body during the high water season or in times of freshets." 

The bill also acknowledges that the ordinary high water mark is a moving boundary and spells out that officials must determine where it is based on a mark on the soil – a change in the soil from where it is usually wet to where it usually is dry.

As one might imagine, just what it will mean still isn't agreed on. 

Preston Robertson, of the Florida Wildlife Federation, says the new definition will allow the line to be marked lower – allowing more land to be considered private, rather than part of the publicly-owned waterway. 

The measure would take "tens of thousands of acres that everybody now enjoys and put it in the hands of private land owners," Robertson said. And there would be no public benefit for making the change – the benefit would go entirely to those private property owners.

Legislative staff acknowledges that the ordinary high water mark won't be the highest water level. It doesn't take in "swamp or overflowed lands," according to the Agriculture Subcommittee's staff analysis. "And the ordinary high-water mark is to be found between such lands and the area occupied by the water for the greater portion of each average year," the analysis says. Also, if there's water there much of the time, there generally won't be ability to grow crops – if crops can grow in the soil, it's beyond the ordinary high water mark, the staff analysis reasons. 

The exact line is extremely important to land owners for several reasons, said Jim Handley, executive vice president of the Florida Cattlemen's Association. "You can't use property as collateral," if you don't know if you own it, he told the committee this week. "It's a concern of ours if somebody is trespassing and gets injured, who is liable?"

He rejected an assertion by hunters and fishermen, that agricultural landowners are simply trying to increase their holdings.

"This is not a land grab, this is an opportunity to show a clear definition of what folks have been paying property taxes on," Handley said. "…Nobody's trying to move the line, they're trying to define the line."

Trespassing is a major concern of boaters and sportsmen's groups – which have for several days been sending around mass emails to draw attention to the issue. 

Hunters carrying rifles, or even boaters simply legally carrying a concealed weapon, may be charged with trespassing for fishing on low water they've fished on for years.

"If they have to worry about a line that's now moving, they're subject to a third degree felony with armed trespass," Robertson said. 

Democrats on the Agriculture Subcommittee sided with sportsmen's groups and environmentalists – all four votes against the bill were from Democrats: Reps. Dwight Bullard of Miami, Steve Perman of Boca Raton, Franklin Sands of Weston and Michelle Rehwinkel Vasilinda of Tallahassee. But an identical bill (SB 1362) in the Senate is sponsored by a Republican, Sen. Alan Hays of Umatilla. In the Senate it is yet to get a hearing in either of its two assigned committees, Environmental Preservation, and the Budget Committee.

In the House, the bill is awaiting a hearing in the Civil Justice Committee.