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Down to the Waterline

Down to the Waterline: Boundaries, Nature, and the Law in Florida

Copyright Date: 2005
Pages: 296
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  • Book Info
    Down to the Waterline
    Book Description:

    In most states the boundary separating public waters from private uplands--the ordinary high water line (OHWL)--is a flashpoint between proponents of either property rights or public-trust protection of our water. Using Florida as a case study, Down to the Waterline is the first book-length analysis of the OHWL doctrine and its legal, technical, and cultural underpinnings. Sara Warner not only covers the historical function of the OHWL but tells how advances in science and our environmental attitudes have led us to a more complex encounter with this ancient boundary. Florida sees a steady influx of new residents who crowd along its extensive coasts and interior shorelines--yet who also demand pristine water resources. The OHWL establishes public access and private ownership limits on some of the state's most valuable land: in economic terms, waterfront real estate; in ecological terms, marshes and wetlands. Sara Warner brings to life many of the courtroom battles fought over the OHWL through the perspectives of ranchers, outdoors enthusiasts, developers, surveyors, scientists, and policymakers. While explaining the OHWL's legal and political intricacies, Warner never loses sight of the wonder of herons wading a marsh or a largemouth bass breaking a smooth lake surface. To her the OHWL is not just an ideological battleground; it is a marker of how we see the natural world. What do we think we're doing when we channel a river or fill a swamp? she asks--for it matters greatly where we focus our attention before invoking the awesome capabilities of technology.

    eISBN: 978-0-8203-3657-2
    Subjects: Environmental Science, Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. List of Illustrations
    (pp. ix-x)
  4. Acknowledgments
    (pp. xi-xii)
  5. Introduction
    (pp. xiii-xvi)

    This book examines the broad shift in the American consciousness of the natural world by tracing the development of a centuries-old concept—the ordinary high water line. In the law of nearly all states, this line forms the boundary between publicly owned lands that lie beneath navigable waters and the adjoining uplands that are subject to private ownership. In Florida, because of the state’s distinct topography, this boundary has been particularly controversial. It is this controversy that makes Florida’s boundary such a telling case. For the ordinary high water line is not like other boundaries. It is a natural boundary...

  6. 1 A Case of Conflict: Growth, Science, Tradition
    (pp. 1-41)

    On a legal hunting day in November 1994, four men followed their state-issued guidebook along Florida’s Kissimmee River, exploring its marshy river swamp. Soon after daybreak, they were stopped by a deputized ranch hand who accused them of trespassing on private property. The men turned their airboats around and left, but that wasn’t the end of the dispute. Arrested at their places of business in front of employees and clients, the hunters were soon facing trial for armed trespass, a felony that carries up to a five-year prison sentence. In response, the hunters filed a federal civil rights suit against...

  7. 2 The Kissimmee River Story: Empire and Ecology
    (pp. 42-73)

    In 1989, i was commuting every week from Tallahassee, Florida, to Atlanta, Georgia, in order to complete course work for my doctorate at Emory University. One day as I was speeding along the Florida-Georgia Parkway, racing to get to class, I heard a story on National Public Radio (NPR) about Florida’s Kissimmee River. In spite of the facts that I am a third-generation Floridian and that, as I now know, the Kissimmee forms the hydrologic heart of my state, I had never heard of the river. It occurred to me that my unawareness spoke volumes to the question of how...

  8. 3 Custom, Criteria, and Community: Clarifying the OHWL Concept
    (pp. 74-115)

    By the time the channelization of the Kissimmee River was complete, controversy over the boundaries of Florida’s freshwater lakes and streams had been building for over a decade. During the 1960s, the trustees’ sovereignty lands policy on freshwater bodies evolved from one that took little note of these lakes and streams to one of active protection of the public interest in these waters. With the passage of the Bulkhead Laws in 1957, familiarity with the terms ordinary high water line (OHWL) and mean high water line (MHWL) had become increasingly widespread because land lying between the MHWL and the bulkhead...

  9. 4 Drawing the Line: The Changing Status of the Natural World
    (pp. 116-150)

    The legislature’s decision in 1976 to restore the Kissimmee River Basin signaled the blossoming of ecological policymaking in Florida. In the late 1940s, the Water Control District had recognized the need for a coordinated approach to central and south Florida’s water problems; but with the focus on controlling the waters, an understanding of the ecological relationships in the basin was hardly pursued.¹ To a large degree, it was the unprecedented success of the Army Corps in containing the Kissimmee in the 1960s that galvanized environmental research, for the very reason that the project’s accomplishment produced such widespread environmental damage.² By...

    (pp. None)
  11. 5 Lawyers, Landowners, Surveyors, and the State: The OHWL Language Wars
    (pp. 151-190)

    With the 1986 Coastal court finding for the public trust on each of the ownership questions at issue, proponents of privately owned navigable waters suffered a severe defeat.¹ They had contended that they held title to the beds of navigable waters flowing on lands described in their deeds. They had declared that their deeds—derived from deeds issued by the state—prevented the state from claiming ownership of the submerged lands. They had, in some cases, paid taxes on lands below the ordinary high water line, which they argued proved their ownership. With the use of the Marketable Record Title...

  12. 6 A New Low for the Ordinary High Water Line: The Demand for Certainty
    (pp. 191-210)

    Disputes pertaining to the ordinary high water line are probably as old as the law attempting to divide public lands from private. In England, the boundaries of lands adjoining the sea—lands that were granted in the sixth-century charters of Anglo-Saxon kings—were still providing the basis for litigation well into the modern age.¹ In Florida, the law and methodology establishing tidal water boundaries seem now to be well settled, but the law pertaining to freshwater boundaries continues to be challenged. For the most part, these conflicts represent the discordance of interest groups vying with one another to control the...

  13. 7 Down to the Waterline: The Nature of Our Place
    (pp. 211-222)

    In 1994 I bought a farm adjoining a navigable lake in a rural area of north Florida. Shortly after we moved in, my husband and I took our old canoe and began exploring “the pond,” as it is called by local people. Some three thousand acres of cypress swamps and intermittent open water comprise the pond, and we set out eagerly to discover the nature of this mysterious entity. We hadn’t been on the water long, were barely two hundred yards from our shore, when a fellow in a boat spotted us. Making his way toward us he asked if...

  14. Notes
    (pp. 223-246)
  15. Glossary
    (pp. 247-248)
  16. Bibliography
    (pp. 249-258)
  17. Index
    (pp. 259-266)