It is hardly a secret that one of the many draws of Southwest Florida is the accessibility of owning property along the beaches, rivers, and canals that make the area paradise for residents and visitors alike. Waterfront ownership, or littoral ownership, comes with a unique set of rights, such as the right to access and construct improvements on the water. These rights however are not absolute, as various other stakeholders and environmental interests possess similar rights.

What Regulations Apply to the Construction of Waterfront Structures?

In terms of constructing improvements such as docks, boatlifts, piers and other artificial structures, the State and County governments have developed legal regimes designed to balance these competing interests and effectively manage the aquatic resources of the State. These statutes and regulations are often difficult to navigate for homeowners and developers unfamiliar with the specific characteristics of waterfront ownership. Careful attention to these statutes and regulations must be paid in order to avoid fines, construction delays, or even being required to remove non-conforming structures.

What Laws Apply to My Property?

The first step in determining what laws apply to a particular piece of property depends on the type of waterfront property involved. Southwest Florida has three primary types of waterfront property: beachfront, natural waterfront and artificial waterfront.

• Beachfront property is unique from the other types of littoral property because the boundary between the upland property and the State’s property is often difficult to ascertain. Factors such as the ever-evolving shoreline, beach renourishment programs and coastal control lines set by the State mean the boundary shifts overtime.
• In contrast, natural waterfront property does not have the boundary issues to the same extent, however, it is important to note that natural waterfront property may abut sovereign submerged lands, which comes with State regulatory oversight which impacts constructing improvements.
• Artificial waterfront property involves canals or areas where formerly dry-land was dredged and now connects to the water. Artificial waterfront property involves less State level oversight but still must satisfy County requirements for constructing improvements.

The next step in determining which set of governing rules apply to a piece of waterfront property is determining who holds title to the submerged lands which abut the property in question. In Southwest Florida, determining this can be challenging, as much of the land which provides access to the water was formerly dry land connected to the rivers and ocean through dredging.

In some instances, portions of State-owned submerged lands were deeded to private individuals and entities in order to foster development of Southwest Florida. Therefore prior to constructing improvements, individuals should ascertain whether they reside on State-owned submerged lands. Florida’s Department of Environmental Protection (DEP) provides this information to landowners upon request through their local district office (You can find contact information for DEP’s local offices at the following link: https://floridadep.gov/districts). If the property in question abuts sovereign submerged land, then the landowner must obtain consent from the State government prior to beginning construction.

State Regulation of Submerged Lands

At the State level, regulatory oversight of sovereign submerged lands comes from the executive branch of the State government. The State’s authority is derived from a principle that dates back centuries, known as the Public Trust Doctrine, which provides the State government management authority over submerged lands held in trust for the public.

These public trust lands are held by the State in order to protect the public’s right to access, bathe, recreate, and fish in the waters of the State. The governmental entity responsible for overseeing these public trust lands, is the Board of Trustees of the Internal Improvement Trust Fund. The Board, comprised of executive cabinet members, acts as stewards of these lands and therefore individuals seeking to build docks or lifts on these submerged lands must obtain consent from the Board.

What is a Submerged Land Lease?

However, the Board in most instances will not convey title to the submerged land, instead the Board will grant an upland owner a Submerged Land Lease. The Submerged Land Lease is similar to any other lease, in that it names the parties involved, sets out a description of the lands involved, and describes the permissible uses of the property.

In terms of constructing lifts and docks, the Lease spells out, in specific terms, how many slips, docks and lifts can be constructed under the Lease. The term of the lease for private residential docks and piers is ten years, with subsequent renewal terms for additional ten-year periods. Each year, the upland owner leasing the property is required to pay a lease fee, which is determined by the amount of shoreline involved in the lease, less any exceptions provided in Florida Statute §253.0347. Once the Lease is signed, the terms of the Lease govern, and any subsequent modification, such as transfer of upland ownership, changes in use or expanding the scope of the use, will require consent from the State.

In addition to the statutory authority of the Board, the Board has delegated regulatory authority over these Leases to Florida DEP, who, through their own agency rulemaking procedures, has established additional standards and criteria for Submerged Land Leases. In order to obtain a Lease from DEP, an owner must submit an application which contains information such as party names, description of the property, an accurate survey of the upland property, proof of upland ownership, and a $200.00 application fee. DEP, through their local district offices, handles permitting for construction on sovereign submerged lands. In addition to regulatory control, DEP possesses the power to impose fines and can require a landowner to remove docks and piers upon the expiration of a Lease.

Lee County Regulation of Construction

 In terms of County rules regarding constructing improvements, the Lee County Code Chapter 26 provides for specific requirements for docks, boat lifts and other artificial waterfront structures. Permitting under the Lee County Code is governed by the Lee County Community Development Department.

Prior to commencing construction, a permit is required for all new construction or repairs to existing structures. In terms of specific requirements the following list provides examples of the general limitations on dock dimensions:

• Single-family docks may not exceed more than 200 feet in length
• Single-family docks may not take up more than 25 percent of the width of a navigable channel
• Single-family docks on natural waterbodies must be set back 25 feet from the adjacent riparian line and boat lifts must be set back no less than 10 feet from riparian boundaries
• Docking structures cannot create a navigation hazard
• A minimum depth of 3 feet mean low water is required for all single-family docks
• Boat boxes or dock boxes cannot exceed 3 feet in height and 100 cubic feet

The above list provides some general dimensional and structural limitations imposed by the County, however, this list is not exhaustive. Prior to constructing any improvements, the Code should be referenced to determine if it is necessary to seek a variance from the County. In order to avoid running afoul of any of these regulations, landowners looking to construct improvements should ensure that all engineering and legal requirements will be satisfied.

Bottom Line

Overall the State and County governments strive to balance the interest of the landowner, neighboring owners, and the public, to provide for access while also mitigating environmental impacts through these rules and regulations. Failure to follow these rules may result in delays in the permitting process, inability to construct improvements, being forced to remove improvements and, in some cases, even fines.

If you are looking to construct improvements to docks, piers, boathouses, or marinas for single-family, multi-family, or commercial projects, you may wish to first contact our office for a consultation. I may be reached at alessandro.secino@henlaw.com or by phone at 239-344-1268.