HOUSE OF REPRESENTATIVES FINAL BILL ANALYSIS BILL #: CS/HB 929 FINAL HOUSE FLOOR ACTION: SPONSOR(S): Local & Federal Affairs 119 Y’s 0 N’s Committee; Roberson COMPANION N/A GOVERNOR’S ACTION: Approved BILLS: SUMMARY ANALYSIS CS/HB 929 passed the House on April 25, 2014, and subsequently passed the Senate on April 29, 2014. The bill creates a process to resolve the issues arising from certain nonconforming private residential docks on sovereignty submerged lands adjacent to Little Gasparilla Island in Placida Harbor, in Charlotte County. Sovereignty submerged lands are reserved exclusively to the state and administered by the Governor and Cabinet sitting as the Board of Trustees of the Internal Improvement Trust Fund (Board). The Department of Environmental Protection (DEP) administers and enforces the state’s interests in these submerged lands on behalf of the Board. A dock or other structure may be built on sovereignty submerged lands and preempt the use of those lands to the dock’s owner only with prior authorization, usually in a letter of consent or lease issued under rules adopted by the Board. Leases of submerged lands require annual payments to the state in amounts calculated according to Board rules. The terms under which docks and other structures may be built, maintained, repaired, and replaced are also controlled by Board rules, particularly where the structure exists or is proposed for construction in an aquatic preserve. Lemon Bay Aquatic Preserve was created by statute in 1986 and encompasses areas in Sarasota and Charlotte Counties. Little Gasparilla Island lies between the Gulf of Mexico and Placida Harbor, which is part of the Preserve. Platted into 642 lots, almost the entire Island is occupied by single family residences with two developed condominiums. Because the Island is accessible virtually only by water, many of the interior lots depend upon easements or other interests allowing access to private docks located in Placida Harbor in order to moor their boats. Although some of the docks apparently are covered by submerged land leases, most are not. In order to apply for a conventional submerged lands lease, most of the nonconforming docks would require substantial rebuilding or removal to comply with current law. Under the resolution process created in the bill, those owners of property adjacent to or having an established interest in a dock may apply to DEP for a letter of consent (private residential single-family docks) or submerged lands lease (private residential multifamily or multi-slip docks) within two years from the bill becoming law. Submission of an application under the requirements of the bill will be in full and final settlement of all Board claims for the prior nonconforming use. Those owners complying with the terms for timely application and settlement will be exempted from the statutory permit requirements and certain rule requirements for repair, rebuilding, modification, or expansion of docks under conditions stated in the bill. The bill may increase state revenues from submerged land leases with a commensurate increase in expenses for administration and enforcement. No impact on local government revenues or expenses is projected. Resolving issues with DEP will provide greater certainty to private property owners for the continued use of the affected docks, including repair and rebuilding standards and costs but may increase amounts paid for leasing submerged lands. The bill was approved by the Governor on June 13, 2014, ch. 2014-237, L.O.F., and became effective on that date. This document does not reflect the intent or official position of the bill sponsor or House of Representatives. STORAGE NAME h0929z1.LFAC DATE: July 10, 2014 I. SUBSTANTIVE INFORMATION A. EFFECT OF CHANGES: Introduction1 Upon statehood, Florida gained title to all sovereignty submerged lands2 within its boundaries, to be held in trust for the public.3 The Board of Trustees of the Internal Improvement Trust Fund (Board) is responsible for the acquisition, administration, management, control, supervision, conservation, protection, and disposition of such lands.4 The Florida Constitution requires the sale of such lands to be authorized by law, but only when in the public interest, and private use of portions of such lands may be authorized by law, but only when not contrary to the public interest.5 When disposing of sovereignty submerged lands, the Board must “ensure maximum benefit and use.”6 The Board is authorized to adopt rules pertaining to anchoring, mooring, or otherwise attaching to the bottom and the establishment of anchorages on sovereignty submerged lands.7 Florida recognizes “riparian rights" for landowners with waterfront property bordering on navigable waters.8 These rights include ingress, egress, boating, bathing, fishing, and others as defined by law.9 Riparian landowners must obtain the Board’s authorization for installation and maintenance of docks, piers, and boat ramps on sovereignty submerged land.10 As defined by the Board, “dock” generally means a fixed or floating structure, including moorings and access walkways, used for the purpose of mooring and accessing vessels.11 Board authorization may be in the form of consent by rule,12 letter of consent,13 or lease.14 All leases authorizing activities on sovereignty submerged lands must include provisions for lease fee adjustments and annual payments.15 Lease of Sovereignty Submerged Lands for Residential Docks Sovereignty submerged lands may be leased for private residential or non-commercial uses under specified terms.16 These uses include a private residential single-family dock or pier,17 private residential multifamily dock or pier,18 or private residential multi-slip dock.19 1 Portions of this analysis are drawn from staff analysis h0013e.SAC (2012) prepared by staff of the House State Affairs Committee (February 22, 2012). 2 In Florida, “submerged lands” are “publicly owned lands below the ordinary high-water mark of fresh waters and below the mean high-water line of salt waters extending seaward to the outer jurisdiction of the state.” Section 253.03(8)(b), F.S. For purposes of managing sovereignty submerged lands, the term also includes all submerged lands title to which is held by the Board. Rule 18- 21.004, F.A.C. 3Art. X, s. 11, Fla. Const.; Broward v. Marbry, 50 So. 826, 829-30 (Fla. 1909). 4 Sections 253.001, 253.03(1), F.S. 5 Art. X, s. 11, Fla. Const. 6 Section 253.03(7)(a), F.S. 7 Section 253.03(7)(b), F.S. 8 Section 253.141(1), F.S. These rights are appurtenant to and inseparable from the riparian land; the rights inure to the property owner, but the rights are not proprietary in nature. Id. 9 Section 253.141(1), F.S. 10 Rule 18-21.005(1)(d), F.A.C. 11 Rules 18-20.003(19), 18-21.003(20), F.A.C. 12 Rule 18-21.005(1)(b), F.A.C. 13 18-21.005(1)(c), F.A.C. 14 18-21.005(1)(d), F.A.C. 15 18-21.008(1)(b)2., F.A.C. 16 Section 253.0347, F.S.; Chapter 18-21 & Rule 18-20.004, F.A.C. 17 A “dock or pier used for private recreational or leisure purposes that is located on a single-family riparian parcel or that is shared by two adjacent single-family riparian owners if located on their common riparian rights line.” Rule 18-21.003(48), F.A.C. A pier is defined as a structure primarily used for fishing or swimming and not for mooring watercraft. Rule 18-21.003(44), F.A.C. 18 A “dock or pier on a common riparian parcel or area that is intended to be used for private recreational or leisure purposes by persons or groups of persons with real property interest in a multifamily residential dwelling such as a duplex, a condominium, or STORAGE NAME: h0929z1.LFAC PAGE: 2 DATE: July 10, 2014 Unless otherwise exempt,20 the use of sovereignty submerged lands for residential docks requires an environmental use permit21 and authorization from the Board.22 A lease of sovereignty submerged lands for a private residential single-family dock or pier, private residential multifamily dock or pier, or private residential multi-slip dock is for a maximum initial period of 10 years and may be renewed for periods not exceeding 10 years providing the lessee continues to comply with all applicable laws and rules.23 The lease contract must specify the fees as established by the Board for the use of submerged lands preempted24 by the dock or pier, as guided by the statute.25 The annual fee for a lease of sovereignty submerged lands is based on the greater of 6 percent of the annual income received from the lessee’s operation of the property, the base fee of approximately $0.16 per square foot26 (of preempted submerged lands), or the minimum fee of approximately $500.27 The base fee and minimum fee amounts were set in 2007 and are adjusted annually based on the past five-year average U.S. Bureau of Labor Services’ Consumer Price Index. Certain leases of submerged lands located in an aquatic preserve may be subject to a doubling of the applicable base fee.28 If the applicant seeks to bring a prior unauthorized use of submerged lands into present compliance, an additional amount is required for unpaid annual lease fees for the period of the unauthorized use together with an additional fee based on two percentage points above the Federal Reserve Bank’s discount rate charged to member banks.29 The applicant must provide “satisfactory evidence” of having a legal interest in the upland parcel to obtain a lease of sovereignty submerged lands.