Florida - Ordinary high water line determination

Yes, it is a task for a qualified surveyor. If you're not qualified leave it for someone else!

Tread lightly my friend.

This can be a pretty complex issue. I would contact Frank Willis. He put on a really good seminar at the TAPS Conference this past spring. He knows a great deal about water issues/conditions. If he can't help you, he might be able to point you in the right direction.

Your state statutes may have verbage concerning this. I would think that the engineers would be all over this one due to the hydrology involved.

Good luck!

Thanks for the replies everyone...

Would it be possible to become qualified by taking available continuing education course work, or would this area require some specialty (license) designation such as “CFM”?

Just curious how and what you mean by ordinary high water? Is that stated in a description on a plat?

Is it tidal? If so find the closest tide guage that is tied to NAVD88 datum, do the calculations to determine MHW, tie your elevations to NAVD88 and survey away. Just qualify the hell out of it.

If its a fresh water lake, how does it outfall? I would think the elevation of the outfall would be your guide.

Not trying to over simplify, but I do this all the time in coastal Virginia.

I have to agree, MHW shouldn't be determined by an engineer, there's no hydrology involved. The local tidal gauges will give you MHW. In Rhode Island they publish approximate elevations in different portions of Narragansett Bay, we show a +/- distance to the MHW with a tie line to close it mathematically, usually where we set a monument.

If it's not a tidal area you'll have to do your research on the property line elevation. We had a local issue with a platted subdivision that didn't go to the water line or include any rights to the lake, when the owner of the lake couldn't get the property owners to help with the damn maintenance he lowered the lake to take away their waterfront usage. This is where you have to tread lightly.

Good luck

To answer the latter part of your question first, yes, a PSM in Florida is a "qualified professional":

Surveyor and mapper" includes the term "professional surveyor and mapper" and means a person who is registered to engage in the practice of surveying and mapping under ss. 472.001-472.037. For the purposes of this statute, a surveyor and mapper means a person who determines and displays the facts of size, shape, topography, tidal datum planes, legal or geodetic location or relation, and orientation of improved or unimproved real property through direct measurement or from certifiable measurement through accepted photogrammetric procedures.

(4)(a) "Practice of surveying and mapping" means, among other things, any professional service or work, the adequate performance of which involves the application of special knowledge of the principles of mathematics, the related physical and applied sciences, and the relevant requirements of law for adequate evidence of the act of measuring, locating, establishing, or reestablishing lines, angles, elevations, natural and manmade features in the air, on the surface and immediate subsurface of the earth, within underground workings, and on the beds or surface of bodies of water, for the purpose of determining, establishing, describing, displaying, or interpreting the facts of size, shape, topography, tidal datum planes, legal or geodetic location or relocation, and orientation of improved or unimproved real property and appurtenances thereto, including acreage and condominiums.

However, if you didn't know this, then probably you have no experience in the type of surveys mentioned. Unless you can get a quick education on this topic, or acquire an partner, it might be better to pass on it.

Here's a website that might help:

http://www.dep.state.fl.us/lands/survey.htm

Back when I took the Florida test, there were questions on the Coastal Mapping Act.....don't they cover this anymore? Try googling "F.S. 177 Part II" for further info.

Water Boundaries (Wiley Series in Surveying and Boundary Control)

Book Description
Publication Date: March 21, 1997

A comprehensive guide to all legal and technical aspects of water boundaries.

Water Boundaries is a single-source guide to all critical legal and technical water boundary issues. An indispensable resource for surveyors, political geographers, public land managers, attorneys, developers, real estate professionals, and students in these and other related fields, this book provides:
* In-depth discussions of the legal issues surrounding all types of water boundaries
* The full range of modern methods of precise water boundary location
* Detailed technical specifications for mean high water line surveys
* Relevant algorithms and mathematical formulas
* Illustrative real-world case studies.

go to www.labins.org and contact them they will steer you properly.

The most important book that you can have is Jim Simpson's book: Rivers & Lake Boundaries

http://www.citlink.net/~platkey/

Keith

Thanks sc,

Back in 1971 when I took the Florida exam there was nothing on it regarding ordinary high water line determination. Whether or not they ask questions regarding such now, I have no idea. Over the years my practice has been limited to other areas of work (including being the prevailing surveyor of record in a land mark Florida Supreme Court case on adverse possession). I simply have never had the need to get into the determination of ordinary high water lines. However, in reading through the statutes I still do not see the phrase “determination of ordinary high water line” mentioned, Tidal Datum Planes of course, but not ordinary high water lines. Nor do I see determination of wetland boundaries anywhere in the statues. I have dealt with wetland boundaries (always bringing in others qualified for such), but till now never had the need for determination of ordinary high water line, so I was simply putting out the question..

I sincerely appreciate your comments.

Jim Simpson is a recognized expert on water boundaries and his book, as mentioned below, is absolutely necessary for determining water boundaries.

Keith

Not FL but check this out for one that stood up on appeal..

Houghton v. Johnson MA

From the Florida Statutes:

177.26 Declaration of policy.—The Legislature recognizes the desirability of confirmation of the mean high-water line, as recognized in the State Constitution and defined in s. 177.27(15) as the boundary between state sovereignty land and uplands subject to private ownership, as well as the necessity for uniform standards and procedures with respect to the establishment of local tidal datums and the determination of the mean high-water and mean low-water lines, and therefore directs that uniform standards and procedures be developed.

177.27 (15) “Mean high-water line” means the intersection of the tidal plane of mean high water with the shore.

177.28?Legal significance of the mean high-water line.—
(1)?Mean high-water line along the shores of land immediately bordering on navigable waters is recognized and declared to be the boundary between the foreshore owned by the state in its sovereign capacity and upland subject to private ownership. However, no provision of this part shall be deemed to constitute a waiver of state ownership of sovereignty submerged lands, nor shall any provision of this part be deemed to impair the title to privately owned submerged lands validly alienated by the State of Florida or its legal predecessors.
(2)?No provision of this part shall be deemed to modify the common law of this state with respect to the legal effects of accretion, reliction, erosion, or avulsion.

Renegade,

According to Corps of Engineers:

The following physical characteristics should be considered when making an OHWM (ordinary high water mark) determination, to the extent that they can be identified and are deemed reasonably reliable:

Natural line impressed on the bank
Shelving
Changes in the character of the soil
Destruction of terrestrial vegetation
Presence of litter and debris
Wracking
Vegetation matted down, bent, or absent
Sediment sorting
Leaf litter disturbed or washed away
Scour
Deposition
Multiple observed flow events
Bed and banks
Water staining
Change in plant community

also, (from the Corps):
“The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.”

Florida law defines:
"Ordinary high water line (OHWL)" means the boundary between sovereign submerged lands and the adjacent uplands along nontidal waterbodies..

From floridageomatics.com:
The boundary between publicly owned navigable waters and adjacent privately owned uplands is the ordinary high water boundary. Two seventy-two year-old Florida Supreme Court decisions definitively addressed how the ordinary high water boundary is located in Florida. The first case states that the ordinary high water boundary represents just what the words suggest: the ordinary reach of high water during the year. Thus, the boundary is, in general, the normal or average reach of water during the high water season.(16) The term "ordinary" excludes floods and other unusual high water events but includes the average high water of each year.(17) In determining the location of the boundary, Florida Supreme Court cases recognize the state's unique topography and differentiate between steep-banked and flat-banked water bodies. On steep-banked water bodies, the boundary is located where the presence and action of water has wrested the bank of vegetation and left a visible mark. However, on low, flat-banked water bodies - most lakes and streams south of Orlando - there is no well-defined mark, and the boundary is located where the presence of the water prevents the cultivation of ordinary agricultural crops. In 1927, the Florida Supreme Court also ruled that where the shore of a water body is low, flat, and vegetated, ordinary high water can be determined by locating water marks on local objects such as dock pilings and trees.(18)

From Chapter 177 of the state Statutes:

177.35?Standards and procedures; applicability.—The establishment of local tidal datums and the determination of the location of the mean high-water line or the mean low-water line, whether by federal, state, or local agencies or private parties, shall be made in accordance with the standards and procedures set forth in ss. 177.37-177.39 and in accordance with supplementary regulations promulgated by the department.
History.—s. 11, ch. 74-56.

177.39?Determination of mean high-water line or mean low-water line.—The location of the mean high-water line or the mean low-water line shall be determined by methods which are approved by the department for the area concerned. Geodetic bench marks shall not be used unless approved by the department.
History.—s. 15, ch. 74-56.

And in all cases above “Department” means the Department of Environmental Protection.

I absolutely would not recommend your determining of the ordinary high water mark on your own. I would do the following:

1. Ask the state if they have determined its boundary. If they have, use that (with caution).

2. Have you seen the publication that suggests the 10% inundation rule in Flordia?

3. The Government Accountability Office released a comprehensive study of the definition of the boundaries of jurisdictional waters and concluded that it is not consistent.

4. It is not necessarily at a given elevation.

This topic interested me so much over my career that I wrote a detailed paper about it. In Louisiana the OHWM is the OHWM of 1812, not the present on. There is no right to dereliction on lakes in Louisiana. Check my dissertation at the following link:

http://cdm16313.contentdm.oclc.org/cdm/singleitem/collection/NOD/id/869/rec/3

I the liability for determining the OWHM is phenomenally huge. And even if you use the state's determination, you should reference it. I have seen them change it. And I have seen the feds use different things that best fit what they are doing at the moment.

I would reach out to a surveyor with the expertise and subcontract him to help determine the Ordinary High Water Line. Then you will have the opportunity to expand you knowledge base.

"I have been requested to locate same on a topographical survey map of a beach area. This topo includes a contour of the adjacent lake bottom and of the landward beach area, and will be used by an engineer for design/dredging work."

The current OHWM can only be found by going on the ground. Topo maps and remote images can provide a rough approximation of the location, but the determination is to be made by looking at the vegetation, soil, escarpments and other indicators of OHWM. I understand this to be a fresh water lake and therefore tidal data will not be used. The OHWM is not at a constant elevation around the lake.

The OHWM is a horizontal position and is most often a boundary of two properties, the location of which falls under the jurisdiction of the professional land surveyor. The OHWM can, after being determined and surveyed, be placed on the topo map, but it cannot be determined from the topo map.

Frank Willis is very knowledgeable and Jim Simpson, author of River & Lake Boundaries has done extensive work in Florida.

I have used maps and other evidence to assist in locating the OHWM as it existed at a past date for which there is no present physical evidence of the old location. If I want to know the current location I better get my boots on the ground.

Jerry

For those who may not know, Jerry is/was and expert for BLM on water boundaries and has extensive experience with such.

Jerry and I have been friends since about the mid 60's in Montana and also we were both in the Washington BLM Division of Cadastral Survey and he knows what he is talking about.

Keith