OHWM Issues

Lakebed Property Rights

...The state's placement of the OHWM would have moved the property boundary in some locations to as much as three miles from open water - a similarity to some lakebed determinations in Wisconsin - a fact the judge said defied logic and common intelligence.

...The case is important in Wisconsin not only because state lakebed actions have generally mirrored those of Florida - events in Florida have generally foreshadowed those here - but also because the judge's determination hinged on the basis for determining the OHWM, which has been similarly derived by natural resources agencies in both states.

...What is similar to Wisconsin's situation was the court-defined language of the OHWM, which was to be established according to a 1927 Florida decision, Tilden v. Smith. The OHWM would be determined, that decision stated, by "ascertaining where the presence and action of the water are so common and usual, and so long continued in all ordinary years, as to mark upon the soil of the bed a character distinct from that of the banks, in respect to vegetation, as well as respects the nature of the soil itself." That language echoes Wisconsin's definition, which the DNR states is "the point on the bank or shore up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation or other easily recognized characteristic."