Fla. Admin. Code Ann. R. 18-2.018 - Policies, Standards, and Criteria for Evaluating, Approving or Denying Requests to Use Uplands

Applications to use Trustees-owned uplands and decisions to approve or reject such applications will be based on all of the following:

(1) Public Interest Evaluation. The decision to authorize the use of Trustees-owned uplands requires a determination that such use is not contrary to the public interest. The public interest determination requires an evaluation of the probable impacts of the proposed activity on the uplands. All direct and indirect impacts related to the proposed activity as well as the cumulative effects of those impacts shall be taken into consideration. Relevant factors to be considered include: conservation, general environmental and natural resource concerns, wetlands values, cultural values, fish and wildlife values, flood hazards, floodplain values, land use, recreation, aesthetics, economics, public health and safety, relative extent of the public need for the proposed use or activity, reasonable alternative locations and methods to accomplish the objective of the proposed use or activity, potential detrimental effects on the public uses to which the area is otherwise suited, the effect on cultural, scenic and recreational values, and the needs and welfare of the people.

(2) General Policies.

(a) Uplands may be leased or subleased, managed by use agreement, encumbered by easements or licenses, disposed of to either the public or private sector, or may be retained and managed by the division.

(b) All uplands shall be administered, managed, or disposed of in a manner that will provide the greatest combination of benefits to the general public.

(c) Any use of uplands must comply with specific statutory or legislative mandates or other legal restrictions governing the property.

(d) Any approval granted for any activity on uplands shall contain such terms, conditions, and restrictions as deemed necessary to provide for responsible management that will protect and enhance uplands.

(e) The Board will not grant any form of authorization for a period greater than is necessary to provide for reasonable use of the land for the existing or planned life cycle or amortization of the improvements.

(f) Any authorization to use uplands shall be subject to cancellation if the applicant converts the facility to a use that was not authorized or if the land ceases to be used for the purpose which was approved. In addition, the Trustees may require removal of the structure and restoration of parcel to its natural state, and administrative fines and damages as stipulated by rule.

(g) Unless otherwise provided herein, no activity may commence until the authorizing document is executed by the Department.

(h) All activities on uplands shall implement applicable best management practices that have been selected, developed, or approved by the Trustees or other land managing agencies.

(i) Equitable compensation shall be required when the use of uplands will generate income or revenue for a private user or will limit or preempt use by the general public. The Trustees shall award authorization for such uses on the basis of competitive bidding rather than negotiation unless otherwise provided herein or determined by the Trustees to be in the public interest pursuant to the results of an evaluation of the impacts, both direct and indirect, which may occur as a result of the proposed use. Relevant factors to be considered in the evaluation shall include those specified in subsection 18-2.018(1), F.A.C. The Trustees shall make its final determination at a regularly scheduled meeting of the Governor and Cabinet. The Trustees reserve the right to reject any and all bids. Equitable compensation under this paragraph shall be waived in instances where all of the following conditions are met:

1. The managing entity proposes subleasing property to a duly-registered, not-for-profit corporation;

2. The sublease is directly related to the purpose of the primary lease; and,

3. The lessee submits to the Board a certification that the first two conditions are met.

(j) The successful bidder shall pay all costs of legal advertisement, title work, all costs associated with estimating value, taxes or assessments for any activity requiring such items.

(k) Appraisal services shall be obtained through the Division in accordance with the procedures and requirements provided in Chapter 18-1, F.A.C., except as follows:

1. For single family or platted lots, any state-certified appraiser can be solicited and used for appraisal services.

2. The appraisal service fee shall be paid by the applicant. No appraisal work will proceed until the Division receives the appraisal fee. When appraisal services are required prior to an applicant being identified, funding will be provided by the requesting agency or the Division and shall be reimbursed to that agency or the Division by the purchaser, lessee or sublessee. If the applicant withdraws its application after appraisal services have begun and any appraisal expenses have been incurred, the appraisal fee will be non-refundable. If no services have begun and no expenses have been incurred, the appraisal fee is refundable upon written request of the applicant. For sales for which the applicant paid for the appraisal services and submitted a qualified competitive bid but the bid was awarded to another bidder, the winning bidder shall reimburse the applicant who paid for the appraisal services.

(l) Single use properties may be managed for compatible secondary uses as long as those uses do not interfere with or detract from the designated primary purpose.

(m) Individual resources on multiple use properties may be managed at less than full potential in order to provide the most beneficial combination of uses.

(n) It shall be the Trustees policy to provide for public access upon uplands to the greatest extent practicable unless the Trustees determine that public access is not in the public interest or conflicts with the parcel's management criteria or plan.

(o) Requests by local governmental agencies for any activity on uplands shall be by formal action by the appropriate governing board.

(p) All authorizations must contain a provision allowing for access for inspection by department staff.

(3) Standards and Criteria. The following standards and criteria must be met for approval of the following described authorizations to use state-owned uplands.

(a) Leases and Subleases.

1. Unless determined by the Trustees to be in the public interest, the term of any lease or sublease shall not exceed a maximum term of fifty years. Specific terms are as follows:

a. Sublease terms shall not exceed 50 years or a period conterminous with the principal lease if the remaining lease term is less than 50 years.

b. The standard lease term for agricultural or grazing leases shall not exceed ten years.

c. Oil, gas, and other mineral interest leases shall be limited to a primary term of ten years.

2. Leases and subleases shall be noticed pursuant to Chapter 18-2, F.A.C., and applicable law.

3. Lessees and sublessees shall be responsible for acquiring all permits and paying any and all ad valorem taxes, drainage, special assessments or other taxes.

4. Lessees shall be required to provide level one environmental reports and information regarding uses of land which may involve hazardous or toxic waste.

5. Lessees shall be responsible for preparing either a management plan or a land use plan as follows:

a. All lessees of conservation lands shall prepare and submit to the Division parcel-specific management plans in accordance with Section 253.034(5), F.S., and Rule 18-2.021, F.A.C. No physical alteration of the leased premises shall occur unless such activity has been authorized via an approved management plan.

b. All lessees of nonconservation lands shall prepare and submit to the Division parcel-specific land use plans in accordance with Section 253.034(5), F.S. No physical alteration of the leased premises shall occur unless such activity has been authorized via an approved land use plan.

c. For agricultural and grazing leases, a certified agricultural operational report, documenting the status of operations on the leases area, shall be submitted to the division annually, one month prior to the end of the lease year. Such report shall include, at a minimum, the following:

(I) The kind and location of the crop or livestock grown;

(II) The stewardship practices utilized;

(III) The capital improvements completed;

(IV) A schedule for installing future improvements;

(V) Types and amounts or pesticides, herbicides, and fertilizers used; and,

(VI) A detailed description of how the implementation of best management practices were carried out during the lease year including, but not limited to, muck soil measurement and plans for best management practices for the following year.

d. Oil, gas, or mineral lessees shall provide a notarized annual report to the Trustees in accordance with Section 253.511, F.S., documenting the status of operations on the leased area. Failure to submit this report within 90 days following the anniversary of the respective lease shall be grounds for termination in accordance with the terms and conditions of the lease.

6. Additional specific criteria for subleases are as follows:

a. Subleases shall be in compliance with the lease and management plan or land use plan for the master lease.

b. Subleases of conservation lands which are 160 acres or greater in size shall be reviewed by the council.

7. Additional specific criteria for agricultural and grazing leases are as follows:

a. New agricultural lessees shall totally compensate the vacating lessees for ratoon, stubble or other residual crops.

b. Site-specific minimum stewardship measures shall be required.

c. The lessee will not cause or allow damage to the leased premises or remove soil, sod, muck, or other materials from the leases premises.

8. Additional specific criteria for oil and gas leases are as follows:

a. After the cessation of any oil, gas, or mineral lease, the site shall be restored by the lessee to the original condition to the greatest extent practicable.

b. An oil and gas lease within the corporate limits of any municipality; or, in the tidal waters abutting or immediately adjacent to the corporate limits of a municipality; or, within 3 miles of the corporate limits of a municipality may be approved only if a resolution of approval has been received from the municipality. In addition, a public hearing, in the vicinity of the lease, must be held if the lease is within 3 miles of an incorporated city, town or, beach.

c. An oil and gas lease on an improved beach, as defined in Section 253.61, F.S., located outside of an incorporated town or municipality; or, abutting or immediately adjacent to an improved beach within the tidal waters of the state; or, within 3 miles of an improved beach into such tidal waters of the state, may be approved only if a resolution of approval has been received from the county within which the beach is situated.

d. Applicants for mineral leases, other than oil and gas, shall obtain written consent from the owners of the surface overlying the mineral interest.

e. Commencement of the required mitigation or other action necessary to satisfy net positive benefit will be required only if and when the lessee conducts any physical activity on the surface of the leased property or if the grant of rights under the oil and gas lease precludes or affects the use of the surface of the leased property for any use other than oil and gas exploration.

f. Drilling, exploration, or production of oil and gas is prohibited within the boundaries of the South Florida Water Management District's water conservation areas on lands where title is vested in the Trustees.

g. Oil, gas or mineral leases shall clearly specify the particular mineral to be drilled or mined and the manner in which it may be extracted.

h. Prior to extracting any oil, gas, or minerals, lessees may be required to provide financial security against damages caused by its activities on uplands. Examples of acceptable forms of security include a surety or property bond, an irrevocable letter of credit, or payment into the Department of Environmental Protection's Petroleum Exploration and Production Bond Trust Fund. Examples of factors to be considered by the Trustees in determining whether to require such security include: the potential for air, water, or ground pollution; destruction of wildlife or marine productivity; and damage which impairs the health and general welfare of the citizens of the state. Such security as provided in Section 253.571, F.S., shall be forfeited to the Trustees to pay for any damages caused by such mining or drilling activities. The department shall notify the lessee and give lessee time to take corrective action before applying the security to correct the violation. Should the lessee not respond in the time provided, or if an emergency situation exists, the department shall take immediate remedial or corrective action without further notice.

i. Lessees shall complete the drilling of at least one test well on the leased area within the first 2 1/2 years of the lease term and complete drilling of at least one additional well every 2 1/2 years thereafter until the total number of wells drilled equals one half the number of sections encompassed in the lease. The lessee shall provide a written designation describing the two sections of land to which such well shall apply. For purposes of this provision a well drilled on lands validly pooled with state leasehold acreages shall be considered to have been drilled on the respective Trustees' lease.

j. If no test well for an oil or gas lease is completed within the first 2 1/2 years of the lease term or each succeeding 2 1/2 year period, the lease shall become void at the end of the applicable 2 1/2 year period as to all of the land covered by the lease, except for that upon which wells have been drilled in accordance with the provisions of Section 253.55, F.S.

k. Wells required in the several periods of said lease shall be drilled in accordance with the provisions of Chapter 253, F.S., in an efficient, diligent and workmanlike manner, and in accordance with the best practice, to a depth of 6000' feet before the abandonment thereof, unless oil or gas has been found in paying quantities at a lesser depth.

l. Drilling operations shall be conducted in accordance with the provisions of Section 253.55, F.S.

m. The 2 1/2 year drilling periods described in subparagraphs j. and k. above shall be extended upon documentation by the applicant prior to expiration that additional time is necessary to obtain all permits. Such additional time may not exceed one year.

(b) Disposal of Trustees-owned Uplands.

1. Examples of conditions under which the Trustees may convey an upland parcel include:

a. The parcel was vested in the state pursuant to Chapter 18296, Laws of Florida, 1937 (Murphy Act), and is 10 acres or less in size and has a market value of $250, 000 or less; or

b. The parcel has been designated surplus pursuant to Chapter 253.034, F.S.; or

c. The Trustees determine that conveyance of the parcel by sale, gift or exchange provides a greater benefit to the public than its retention in state ownership.

2. Parcels to be conveyed pursuant to this subsection shall be noticed in accordance with Rule 18-2.019, F.A.C., and applicable law.

3. Conveyance of property pursuant to this section shall be in accordance with the following requirements:

a. Property and improvements shall be sold "as is", with no warranties nor representations whatsoever.

b. The cost of title insurance, documentary stamp tax, recording fees, any property taxes due, abstract, title certificate, survey, all costs associated with estimating value, legal advertisement and purchaser's legal fees shall be the responsibility of the purchaser.

c. Property shall be conveyed by quitclaim deed without warranties and shall reserve or contain a reservation prescribed in Section 270.11, F.S., unless waived by the Trustees pursuant to Section 270.11(2)(a), F.S., or exempt from the requirement for reservation pursuant to Section 253.03(3) or 253.62, F.S.

d. Closings shall be in accordance with a sales contract executed by the Trustees.

4. A state agency, any lessee of state-owned lands that is a county or municipality, or the Division may apply for an exchange of state-owned uplands for a parcel of privately-owned uplands by certifying:

a. That it needs a parcel of private land for a particular use; and,

b. That it manages uplands vested in the Trustees which it wishes to use for a state agency exchange. If no uplands managed by the state agency can be identified as excess to its management needs, then uplands which have been selected through the land disposal process may be used instead.

5. Other governmental agencies may apply for an exchange by:

a. Certifying that they need a parcel of Trustees-owned uplands for a specific project; and,

b. Certifying that they own or can acquire exchange property suitable to the Trustees.

6. Exchanges may be applied for by private landowners only if they own or can acquire land on an approved state acquisition list and the parcel sought by the private landowner has been selected for conveyance through the land disposal process.

(c) Use Agreements.

1. Use agreements may be executed when it is determined that the use or management of uplands does not require a lease, sublease, easement, or other similar form of approval.

2. Use agreements shall be limited to a term of five years.

3. Geophysical testing agreements shall be limited to a term of one year.

4. Geophysical testing on uplands shall require a use agreement from the Trustees and a permit for geophysical testing acquired from the Bureau of Geology, Department of Environmental Protection pursuant to Chapter 62C-26, F.A.C.

5. A separate approval for geophysical testing shall not be required when geophysical operations are conducted by the current leaseholder upon land subject to a valid oil, gas or mineral lease granted by the Trustees.

6. The protection of uplands from unnecessary environmental damage shall be achieved by requiring all parties who conduct geophysical testing to strictly follow the Bureau of Geology's guidelines, procedures, and operational requirements for geophysical testing as specified in Chapters 62C-25 and 62C-26, F.A.C.

7. After completion of any geophysical testing upon uplands, the parcel shall be returned to the original condition prior to the conducting of geophysical testing.

8. Geophysical testing for oil and gas within the boundaries of the South Florida Water Management District's water conservation areas on lands where title is vested in the Trustees is prohibited.

9. The applicant for a geophysical use agreement shall submit a field operations report to the Department of Environmental Protection, Bureau of Geology, within thirty days after the completion of any survey activities conducted under a geophysical testing use agreement. The report shall contain the following:

a. A narrative description of the work performed, including the type of data obtained and the types of logs produced from the operations;

b. Maps, plats or charts indicating the area in which any exploration was conducted, specifically identifying the lines of geophysical traverses and/or locations where geophysical exploration was conducted, accompanied by a reference sufficient to identify the data produced from each activity;

c. The dates and times during which the actual exploration was performed;

d. The nature and location of any environmental hazards created by the activity;

e. A description of any damage to or loss of state property which resulted from the reported activities; and,

10. Upon written request, the applicant shall provide to the Bureau of Geology, at no cost, one copy of the information described in subparagraphs a. through c. below, if available. Where possible, the information may be furnished in the form of paper copies as opposed to mylar, film or tape. Duplicates shall be furnished upon request at cost of reproduction. The Bureau of Geology shall also have the right to inspect and/or copy at cost, factual and physical exploration results, logs, records and any other processed records excluding interpreted data, including but not limited to the following:

a. Blackline or blueline paper copies of final stacked sections and migrated sections. Paper copies of section chosen for State use shall be made at one-half scale, (2 1/2'' inches per second);

b. Post-plot maps at a scale of 1:48, 000 (1' inch equals 4, 000 feet) whenever possible or a readable and legible scale for the dimensions of the survey; and,

c. Gravity data reduced or compiled in profile form and magnetometer data corrected for International Geomagnetic Reference Field in profile form whenever available. Data shall include how reductions and corrections were made.

(d) Easements.

1. If a requested easement is located on lands under lease, sublease, management or other use, the applicant shall obtain permission from the authorized managing entity for the easement prior to application to the Trustees.

2. Applications for easements shall be noticed pursuant to Chapter 18-2, F.A.C., and applicable law.

3. If the requested easement is for the benefit of the authorized managing entity and the lease, sublease, etc. provides for the granting of an easement related to the functional use of the property, the authorized managing entity for the property may process and grant the easement. In such case, a copy of any easement granted shall be provided to the Division by the managing entity.

(e) Release of Reservation, Deed and Dedication Restrictions and Reverters.

1. The right of entry for the purpose of exploration and for phosphate, minerals, metals and petroleum or any interest as reserved pursuant to Section 270.11, F.S., in any contract or deed for sale of land executed by the Trustees is hereby released, provided that the property is, or ever has been, a contiguous tract of less than 20 acres in the aggregate and under the same ownership. This provision does not release the Trustees' oil, gas, or other mineral interest.

2. The right of entry for the purpose of exploration for phosphate, minerals, metals and petroleum or any interest as reserved pursuant to Section 270.11, F.S., in any contract or deed for sale of land executed by the Trustees for parcels 20 acres or greater shall be released, in whole or in part, to the record surface owners, provided the owners certify that the parcel will be a permanent building site and the land use will not involve phosphate, mineral, metal or petroleum extraction. This provision does not release the Trustees' oil, gas, or other mineral interest.

3. Canal and drainage reservations as reserved by the Trustees shall be released to the record owner(s), provided recommendation from the water management district with jurisdiction has been obtained, and the Trustees determine there is no further need for the reservation.

4. Road right-of-way reservations as reserved by the Trustees shall be released to the record owner(s), provided recommendation from the transportation authority with jurisdiction has been obtained, and the Trustees determine there is no further need for the reservation.

5. Deed or dedication restrictions or reverters shall be released to the record owner(s) if the Trustees determine that there is no longer any present or future public purpose for retaining them and that the affected parcel contains no fragile environmental, historical, archaeological or recreational resources which would require protection through continued enforcement of the restrictions or reverters.

(f) Letters of authorization.

1. Letters of authorization are issued upon receipt by the Division of a written request for an incidental, one-time use, and a determination by the Division that the requested activity will result in no permanent alteration of Trustees-owned uplands, and will not adversely affect the management of the land.

2. Letters of authorization shall contain a condition that the grantee accept all liability associated with the proposed use and shall be countersigned by the grantee.

Notes

Fla. Admin. Code Ann. R. 18-2.018

Rulemaking Authority 253.03(7)(a), 253.034 FS. Law Implemented 253.001, 253.02, 253.03, 253.034, 253.04, 253.111, 253.115, 253.42-.44, 253.47, 253.51-.61, 253.62, 253.77, 253.82, 259.035, 270.07, 270.08, 270.11 FS.

New 6-4-96, Amended 4-17-02, 5-15-08, 5-29-08, Amended by Florida Register Volume 42, Number 031, February 16, 2016 effective 3/2/2016.

New 6-4-96, Amended 4-17-02, 5-15-08, 5-29-08, 3-2-16.