The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/SB 1622
INTRODUCER: Rules Committee; Senator Trumbull and others
SUBJECT: Beaches
DATE: April 23, 2025
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Collazo Cibula JU Favorable
2. Hackett Fleming CA Favorable
3. Collazo Yeatman RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1622 repeals s. 163.035, F.S., which establishes procedures that a governmental entity
must follow when attempting to establish a “recreational customary use of property,” and
bypasses certain statutory procedures to declare the mean high water line to be the erosion
control line (ECL) in certain specified counties.
The customary use doctrine gives the public a right to use a portion of the dry sand area of a
privately-owned beach. The statutory procedures in s. 163.035, F.S., include:
• A public hearing to adopt a formal notice of intent to affected property owners, which notice
alleges the existence of a recreational customary use on their properties.
• A judicial proceeding to consider whether the alleged customary use has been ancient,
reasonable, without interruption, and free from dispute.
Repeal of the statute means a return to how customary use rights were determined prior to
enactment of the statute:
• A governmental entity may declare the existence of a customary use and adopt a local
customary use ordinance without following the procedures in s. 163.035, F.S.
• Property owners must file a lawsuit challenging the ordinance and demonstrate in court that
the public does not enjoy customary use rights over their privately-owned beaches.
• Courts will apply the common law doctrine of customary use when ascertaining, on a case-
by-case basis, whether the public enjoys customary use rights over privately-owned beaches.
REVISED: BILL: CS/SB 1622 Page 2
The bill also declares the mean high water line to be the ECL in certain counties. Specifically,
with respect to those counties adjacent to the Gulf of America having at least 3 municipalities
and an estimated population of less than 275,000, the bill:
• Bypasses certain existing statutory procedures for establishing the erosion control line (ECL)
on critically eroded beaches and declares the mean high water line to be the ECL.
• Directs the Board of the Internal Improvement Trust Fund to prepare and record, in the
official and platting records of the counties subject to the bill, certain documents confirming
the ECL’s location on critically eroded shorelines, but only if an ECL has not already been
established.
• Authorizes the Department of Environmental Protection to proceed with beach restoration
projects for areas it has designated as critically eroded, and provides that notwithstanding
existing law, such projects do not require public easements.
• Includes legislative declarations that the state does not intend to extend its ownership claims
beyond what it already owns, and that beach restoration projects for critically eroded beaches
are in the public interest.
The bill takes effect upon becoming a law.
II. Present Situation:
Customary Use
Establishment of the Customary Use Doctrine
In Florida, the public enjoys the right to access shorelines and beaches that are located below
what is called the “mean high tide line.” The State Constitution provides that “title to the lands
under navigable waters, within the boundaries of the state, which have not been alienated,
including beaches below mean high water lines, is held by the state, by virtue of its sovereignty,
in trust for all the people.”
1
This is known as the common law public trust doctrine.
However, the beaches of the state also include land beyond what is described in the public trust
doctrine. The dry sand beach located above the mean high water line may be owned privately, as
recognized by statute.
2
In fact, the part of the beach falling landward of the mean high water line
is usually owned by the owner of the adjacent lot. The only publicly-owned part of the beach is
that part falling between the mean high and low water lines, which is called the foreshore
region.
3
In the subsection of the State Comprehensive Plan addressing coastal and marine resources, the
Legislature seeks to “[e]nsure the public’s right to reasonable access to beaches.”
4
Like other
lands, the privately-owned portion of the beach may be subject to explicit or implied easements,
1
FLA. CONST. art X, s. 11.
2
See s. 177.28, F.S. (providing, with emphasis added, that the “[m]ean 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”).
3
Erika Kranz, Sand for the People: The Continuing Controversy Over Public Access to Florida’s Beaches, 83 FLA. BAR. J.
10, 11 (Jun. 2009), available at https://www.floridabar.org/the-florida-bar-journal/sand-for-the-peoplethe-continuing-
controversy-over-public-access-to-floridas-beaches/ (last visited Mar. 26, 2025).
4
Section 187.201(8)(b)2., F.S. BILL: CS/SB 1622 Page 3
limitations based on traditional rights of use, or common law prohibitions considered nuisances.
5
Courts have also recognized the public’s ability to access and use the dry sand areas of privately-
owned beaches for recreational purposes.
In 1974, the Florida Supreme Court established what has become known as the customary use
doctrine in Florida in City of Daytona Beach v. Tona-Rama, Inc.
6
In Tona-Rama, the Court
concluded that “[i]f the recreational use of the sandy area adjacent to the mean high tide has been
ancient, reasonable, without interruption and free from dispute, such use as a matter of custom,
should not be interfered with by the owner.” The Court also recognized, however, that “the
owner may make any use of his property which is consistent with such public use and not
calculated to interfere with the exercise of the right of the public to enjoy the dry sand area as a
recreational adjunct of the wet sand or foreshore area.”
7
In 2007, the Fifth District Court of Appeal issued its opinion in Trepanier v. County of Volusia,
8
which qualified the customary use doctrine as articulated by the Florida Supreme Court in Tona-
Rama. In Trepanier, the appellate court said:
While some may find it preferable that proof of these elements of custom be
established for the entire state by judicial fiat in order to protect the right of public
access to Florida’s beaches, it appears to us that the acquisition of a right to use
private property by custom is intensely local and anything but theoretical.
“Custom” is inherently a source of law that emanates from long-term, open,
obvious, and widely-accepted and widely-exercised practice. It is accordingly
impossible precisely to define the geographic area of the beach for which evidence
of a specific customary use must be shown, because it will depend on the
particular geography and the particular custom at issue.
9
The appellate court also held that a determination of customary use “requires the courts to
ascertain in each case the degree of customary and ancient use the beach has been subject
to ….”
10
Regulation of Beaches by Local Governments
The Florida Attorney General issued an opinion in 2002 addressing the regulation of the dry sand
portion of beaches. The City of Destin adopted a beach management ordinance to provide for the
regulation of public use and conduct on the beach. The Sheriff of Okaloosa County and the city
mayor inquired about the regulation.
11
The Attorney General issued three findings in its opinion:
• The city may regulate the beach in a reasonable manner within its corporate limits to protect
the public health, safety, and welfare. This regulation must have a rational relation to, and be
5
Id.
6
294 So. 2d 73 (1974).
7
City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73, 78 (1974).
8
965 So. 2d 276 (Fla. 5
th
DCA 2007).
9
Id. at 289.
10
Id. at 288 (quoting, with emphasis added, Reynolds v. County of Volusia, 659 So. 2d 1186, 1190-91 (Fla. 5
th
DCA 1995)).
11
Op. Att’y Gen. Fla. 2002-38 (2002). BILL: CS/SB 1622 Page 4
reasonably designed to accomplish, a purpose necessary for the protection of the public. The
city may not exercise its police power in an arbitrary, capricious, or unreasonable manner.
Such regulation may be accomplished regardless of the ownership of this area, with the
exception of state ownership, and without regard to whether the public has been expressly or
impliedly allowed to use that area of the beach by a private property owner who may hold
title to the property.
• The right of a municipality to regulate and control dry sand beach property within its
municipal boundaries is not dependent on the finding of the Florida Supreme Court in City of
Daytona Beach v. Tona-Rama, Inc.
• Private property owners who hold title to dry sand areas of the beach falling within the
jurisdictional limits of the city may use local law enforcement agencies for purposes of
reporting incidents of trespass as they occur.
12
In 2016, Walton County enacted an ordinance (the “Customary Use Ordinance”) which declared
that “[t]he public’s long-standing customary use of the dry sand areas of all of the beaches in the
County for recreational purposes is hereby protected.”
13
Except for the buffer zone described below, the ordinance prohibited any individual, group, or
entity from “imped[ing] or interfer[ing] with the right of the public at large, including the
residents and visitors of the County, [from] utiliz[ing] the dry sand areas of the beach that are
owned by private entities” for certain specified uses, including:
• Traversing the beach.
• Sitting on the sand, in a beach chair, or on a beach towel or blanket.
• Using a beach umbrella that is 7 feet or less in diameter.
• Sunbathing.
• Picknicking.
• Fishing.
• Swimming or surfing off the beach.
• Staging surfing or fishing equipment.
• Building sand creations.
14
However, the ordinance prohibited the public at large, including the residents and visitors of the
county, from using a 15-foot buffer zone located “seaward from the toe of the dune or from any
permanent habitable structure owned by a private entity that is located on, or adjacent to, the dry
sand areas of the beach, whichever is more seaward, except as necessary to utilize an existing or
future public beach access point for ingress and egress to the beach.”
15
It also prohibited the use
12
Id.
13
Walton County, Fla., Ord. No. 2017-10, ss. 1, 4 (adopted Mar. 28, 2017) (amending earlier Ord. No. 2016-23), available at
https://waltonclerk.com/vertical/sites/%7BA6BED226-E1BB-4A16-9632-BB8E6515F4E0%7D/uploads/2017-10.pdf; see
also Walton County, Fla., Ord. No. 2016-23, s. 1 (adopted Oct. 25, 2016) (the original customary use ordinance), available at
https://waltonclerk.com/vertical/sites/%7BA6BED226-E1BB-4A16-9632-BB8E6515F4E0%7D/uploads/2016-23.pdf.
14
Id. The ordinance defined the “dry sand area of the beach” as “the zone of unconsolidated material that extends landward
from the mean high-water line to the place where there is marked change in material or physiographic form, or to the line of
permanent vegetation, usually the effective limit of storm waves, whichever is more seaward.” Ord. No. 2017-10, s. 2, supra
note 13.
15
Ord. No. 2017-10, s. 3, supra note 13. BILL: CS/SB 1622 Page 5
of tobacco, possession of animals, or erection or use of tents by members of the public on the
privately-owned dry sand areas of the beach.
16
The county’s Customary Use Ordinance was not popular with beachfront homeowners because it
interfered with their “ability to keep their private beachfront property just that, private.”
17
Lionel
and Tammy Alford, owners of beachfront property in the county, sued the county in federal
district court seeking, among other things, a declaration that the ordinance was “void ab initio on
grounds that customary use is a common law doctrine reserved to the courts for determination on
a case-by-case basis, and therefore, the County exceeded its authority and acted ultra vires by
legislating customary use on a county-wide basis.”
18
The district court sided with the county and upheld the Customary Use Ordinance. Based on its
analysis of Tona-Rama and Trepanier, the district court concluded that the county did not act
outside its authority in adopting the ordinance.
19
The district court did note, however, that
“property owners have a right under Florida law to de novo as-applied judicial review and a
determination of the existence of customary use rights.”
20
The decision was appealed to the U.S.
Eleventh Circuit Court of Appeals, which directed, without explanation, that the district court
vacate the judgment, apparently in response to arguments that the legislative invalidation of the
ordinance by HB 631 (2018 Reg. Session) mooted the claim.
21
HB 631 (2018 Reg. Session)
While the Alfords’ case was pending in the U.S. Eleventh Circuit Court of Appeals, the
Legislature enacted a new law, HB 631, which it codified as s. 163.035, F.S., entitled the
“establishment of recreational customary use.” The statute establishes a process by which a
governmental entity may seek a judicial determination of the recreational customary use of
private beach property.
22
Under the statute, a governmental entity
23
may not adopt or keep in effect an ordinance or rule
that is based upon the customary use of any portion of a beach above the mean high water line,
unless the ordinance or rule is based upon a judicial declaration affirming recreational customary
use of the beach.
24
The governmental entity may seek a judicial determination of a recreational
customary use of private beach property by following the process outlined in the statute.
25
16
Ord. No. 2017-10, s. 5, supra note 13.
17
Amelia Ulmer, Ancient and Reasonable: The Customary Use Doctrine and Its Applicability to Private Beaches in Florida,
36 J. LAND USE & ENVTL. L. 145, 159 (2020) [hereinafter “Ancient and Reasonable”].
18
Alford, et al., v. Walton County, 2017 WL 8785115, at **1-2 (N.D. Fla. 2017).
19
Id. at *16.
20
Id.
21
Alford v. Walton County, 0:17-prici-15741 (11
th
Cir. June 27, 2018) (reflecting on the docket that the Court granted
appellants’ motion to vacate the district court’s order and judgment concerning customary use ordinance claim); Alyson
Flournoy et al., Recreational Rights to the Dry Sand Beach in Florida: Property, Custom and Controversy, 25 OCEAN &
COASTAL L.J. 1, 33 fn. 110 (2020) [hereinafter “Recreational Rights”].
22
Chapter 2018-94, s. 10, Laws of Fla. (enacting CS/HB 631 (2018 Reg. Session)).
23
The term “governmental entity” includes an agency of the state, a regional or a local government created by the State
Constitution or by general or special act, any county or municipality, or any other entity that independently exercises
governmental authority. Section 163.035(1), F.S.
24
Section 163.035(2), F.S.
25
Section 163.035(3), F.S. BILL: CS/SB 1622 Page 6
First, the governmental entity must adopt, at a public hearing, a formal notice of intent to affirm
the existence of a recreational customary use on private property. The notice must specifically
identify:
• The parcels of property, or the specific portions of the property, for which the customary use
affirmation is sought.
• The detailed, specific, and individual use or uses of the parcels to which the customary use
affirmation is sought.
• Each source of evidence the governmental entity will rely upon to prove that the recreational
customary use has been ancient, reasonable, without interruption, and free from dispute.
26
The governmental entity must provide notice of the public hearing to the owner of each parcel of
property at the address recorded in the county property appraiser’s records. The notice must be:
• Provided at least 30 days before the public meeting by certified mail with return receipt
requested.
• Published in a newspaper of general circulation in the area where the parcels of property are
located.
• Posted on the governmental entity’s website.
27
Second, within 60 days after adopting the notice of intent, the governmental entity must file a
Complaint for Declaration of Recreational Customary Use with the circuit court in the county
where the subject property is located. This cause of action is similar to a declaratory judgment.
28
The governmental entity must provide notice of filing the complaint to the owner of each parcel
as required above for the notice of intent. The notice must allow the owner to intervene in the
proceeding within 45 days after receiving the notice. The governmental entity must also provide
verification that the notice has been served to the property owners so that the court may establish
a schedule for the proceedings.
29
Proceedings under the statute are conducted de novo, which means anew. The court must
determine whether the evidence presented by the governmental entity demonstrates that the
recreational customary use or uses identified in the notice of intent have been ancient,
reasonable, without interruption, and free from dispute. No presumption exists regarding the
existence of a recreational customary use of the property in question. The governmental entity
bears the burden of proof to demonstrate that the recreational customary use exists. A parcel
owner who is subject to the complaint may intervene in the proceeding as a party defendant in
the proceeding.
30
These customary use provisions do not apply to a governmental entity having an ordinance or
rule that was adopted and in effect on or before January 1, 2016. Additionally, the provisions do
26
Section 163.035(3)(a), F.S.
27
Id.
28
A declaratory judgment is a binding adjudication in which a court establishes the rights of the parties without requiring
enforcement of its decision. It is generally used to resolve legal uncertainties for the parties. BLACK’S LAW DICTIONARY (12
th
ed. 2024).
29
Section 163.035(3)(b)1., F.S.
30
Section 163.035(3)(b)2., F.S. BILL: CS/SB 1622 Page 7
not deprive a governmental entity from raising customary use as an affirmative defense in any
proceeding that challenges an ordinance or rule that was adopted before July 1, 2018.
31
Executive Order 18-202
Governor Rick Scott signed Executive Order 18-202 (Jul. 12, 2018) only about two weeks after
HB 631 took effect.
32
In his executive order, Governor Scott directed state agencies to not adopt
any rule restricting public access to any state beach having an established recreational customary
use.
33
He also directed the Secretary of the Department of Environmental Protection and the
Director of the Florida State Parks System to engage in “appropriate efforts” to ensure access to
Florida’s public beaches.
34
To assist with implementing the executive order, Governor Scott also directed the Secretary and
Director to:
• Establish an online reporting tool for members of the public to report any violations of their
right to public beach access; identify and allocate staff to coordinate with the public in
reviewing complaints; and refer any such complaints to appropriate local authorities.
• Submit a report to the Legislature, on or before December 31, 2018, regarding comments
received through the public hotline.
• Serve as a liaison between local government entities and members of the public regarding the
appropriate implementation of HB 631 by county and municipal governments.
35
The Governor also urged all governmental entities not headed by an official serving at the
pleasure of the Governor, including county and municipal governments, to refrain from adopting
any ordinance or rule that would restrict or eliminate access to public beaches.
36
Following the executive order, not much changed for local governments. They still had to follow
the procedures in s. 163.035, F.S., to enact new customary use ordinances. And now they were
“urged” to not further restrict beach access.
37
Walton County Lawsuit
In 2018, consistent with the procedures outlined in s. 163.035, F.S., Walton County filed a
complaint in circuit court seeking a declaration affirming the existence of customary uses on
1,194 private properties in the county.
38
Specifically, the complaint sought a judgment declaring
that:
31
Section 163.035(4), F.S.
32
Fla. Exec. Order No. 18-202 (Jul. 12, 2018), available at https://clarkpartington.com/wp-content/uploads/2024/04/EO-18-
202.pdf.
33
Fla. Exec. Order No. 18-202, supra note 32, s. 1.
34
Fla. Exec. Order No. 18-202, supra note 32, s. 2.
35
Id.
36
Fla. Exec. Order No. 18-202, supra note 32, s. 3.
37
Ancient and Reasonable, supra note 17, at 161.
38
In re: Affirming Existence of Recreational Customary Use on 1,194 Private Properties Located in Walton County, Florida,
Case No. 2018-CA-000547 (Fla. 1
st
Cir. Ct. Dec. 11, 2018) (Complaint for Declaration of Recreational Customary Use)
available at http://publicfiles.surfrider.org/Legal/Complaint_for_Declaration_of_Recreational_Customary_Use_12-11-18.pdf
[hereinafter “Section 163.035, F.S., Complaint”]; see also s. 163.035(3)(b)1., F.S. (requiring governmental entities to file a
“Complaint for Declaration of Recreational Customary Use”). BILL: CS/SB 1622 Page 8
• The uses identified in the county’s 2017 Customary Use Ordinance were recreational
customary uses on each of the specific parcels listed in the complaint.
• The recreational customary uses identified in the formal notice of intent were ancient,
reasonable, without interruption, and free from dispute.
39
Litigating the case took almost 5 years. It was set to proceed with a 7-week bench trial beginning
on May 22, 2023, but never did. Ultimately, the property owners who were represented by
counsel and objected to the establishment of customary uses on their privately-owned beaches
either:
• Obtained a dismissal with prejudice and a finding that customary uses do not exist on their
beaches; or
• Negotiated a settlement agreement allowing the public a 20-foot transitory area for walking
and sitting, and a finding that customary uses do not exist on their beaches.
40
Out of the initial 1,194 properties at issue, the court only had to decide whether the public had
customary use rights over 95 unrepresented properties that never objected to the litigation.
Because there had been no opposition to the evidence presented by the county, the court
effectively had no choice but to conclude that the public had established customary use rights
over the 95 properties.
41
Coastal Management
Background
The 825 miles of sandy coastline fronting the Atlantic Ocean, the Gulf of America, and the
Straits of Florida are one of Florida’s most valuable natural resources.
42
Wide beaches provide
foraging and nesting habitat for shorebirds, and sea turtles use the beaches during summer
months to come ashore to nest. In all, there are more than 30 plants and animals considered rare
within the state that inhabit beaches and the adjacent habitats.
43
Florida’s beaches are also a primary attraction for almost 19 million tourists each year. Tourists
and residents alike visit the beaches for relaxation, boating, fishing, diving, and other
recreational activities. These factors make Florida's beaches an integral part of the state's
economy.
44
Beaches also provide a barrier against storms. The beach and dune system act as a buffer
between storm waves and coastal development or infrastructure. During storms, waves reach the
39
Section 163.035, F.S., Complaint, supra note 38, at 44-45.
40
In re: Affirming Existence of Recreational Customary Use on 1,194 Private Properties Located in Walton County, Florida,
Case No. 2018-CA-000547 (Fla. 1
st
Cir. Ct. Feb. 14, 2024) (Final Summary Judgment on Remaining Parcels attaching
Settlement Agreement), available at https://clarkpartington.com/wp-content/uploads/2024/04/Final-Judgment-on-Remaining-
Parcels-A5288243xA3759.pdf; see also Will Dunaway, Clark Partington, Attorneys at Law, Customary Use Litigation in
Walton County, Part II (Dec. 5, 2023), https://clarkpartington.com/2023/12/05/customary-use-litigation-in-walton-county-
part-ii/ (last visited Mar. 28, 2025).
41
Id.
42
Florida Department of Environmental Protection (DEP), Beaches, https://floridadep.gov/rcp/beaches (last visited Apr. 18,
2025).
43
Id.
44
Id. BILL: CS/SB 1622 Page 9
beach and dunes before they get to upland property. Beach and dune systems absorb the wave
energy, thereby greatly reducing damage to upland structures.
45
Unfortunately, erosion is a constant threat to this valuable resource. Beach erosion is caused by
coastal storms, imprudent constructions, sea level rise, and coastal inlets that interrupt sand
movement. Only nourishment, which is the placement of additional sand on the beach seaward of
the mean high tide line, makes it possible to reset the “erosion clock” and push back the tide.
46
Federal Shore Protection Program
In the late 1960s, Congress passed the Water Resources Development Act (WRDA), which
authorized the U.S. Army Corps of Engineers (USACE) to conduct studies, construct projects,
and research activities that will improve the rivers and harbors of the U.S. As a result, USACE
became the leading environmental preservation and restoration agency to carry out natural and
cultural resource management programs through its water resources projects.
47
The Shore Protection Program works directly with local governments to construct beach
restoration projects for the primary purpose of protecting upland developed properties.
48
As part
of this program, USACE performs nourishment to control beach erosion and to protect the
shoreline and related infrastructure. After detailed feasibility studies are conducted, projects are
individually authorized by Congress for construction and long-term maintenance. Authorized
projects usually have an authorization period of 50 years, during which time periodic beach
nourishment is conducted to maintain designed storm protection values. Under the program, the
federal government can fund the majority of the total project costs. The remaining non-federal
cost is the responsibility of the local sponsor and the state as cost-sharing partners.
49
USACE’s Jacksonville District is the entity responsible for constructing and maintaining 1,300
miles of Florida's 1,800 miles of coastline.
50
Florida’s Beach and Inlet Management Program
Recognizing that beach erosion is a statewide problem, the Legislature has created a
comprehensive statewide beach and inlet management program. It includes a required long-term
management plan and dedicated funding to partner with coastal communities for beach
restoration.
51
45
Id.
46
Recreational Rights, supra note 21, at 11.
47
U.S. Army Corp of Engineers (USACE), The U.S. Army Corps of Engineers: A Brief History, https://www.usace.army.mil/
About/History/Brief-History-of-the-Corps/Introduction/ (last visited Apr.18, 2025).
48
DEP, Office of Resilience and Coastal Protection, Hurricanes Ian and Nicole Recovery Plan for Florida’s Beach and Dune
System, 5 (Dec. 9, 2022), available at https://floridadep.gov/sites/default/files/2022-Hurricanes-Ian-and-Nicole-Recovery-
Plan_12-9-22%283%29.pdf.
49
Id.
50
USACE, Jacksonville District, Shore Protection, https://www.saj.usace.army.mil/Missions/Civil-Works/Shore-Protection/
(last visited Apr. 18, 2025).
51
Florida Shore and Beach Preservation Association, Beaches 2017 and Beyond: A Funding Initiative for Statewide Beach
Management, 1 (Oct. 3, 2016), https://www.fsbpa.com/Beaches2017.pdf [hereinafter “Beaches 2017”]. BILL: CS/SB 1622 Page 10
The Legislature adopted the Dennis L. Jones Beach and Shore Preservation Act
52
to protect,
preserve, and manage the state’s beaches and adjacent coastal systems. The Department of
Environmental Protection’s Beaches Programs, within the Office of Resilience and Coastal
Protection, has the primary mission of protecting, restoring, and managing Florida’s coastal
systems.
53
The act established three interrelated programs that the department administers to protect the
state’s beaches:
• The Coastal Construction Control Line Program.
54
• Beach Management Funding Assistance.
55
• The Beaches, Inlets and Ports Program.
56
These programs have been successful in generating state and local benefits. The department has
partnered with communities in the restoration or maintenance of at least 227 miles of eroding
shoreline.
57
Public Use
While some nourished beach miles are already in public ownership as parks and protected areas,
most are not. This is because a key impetus for nourishment is the protection of upland
structures, which are not typically located in parks and other protected areas.
58
When a beach is
nourished using federal or state dollars, the newly emergent dry sand beach that is created from
the submerged lands seaward of the mean high tide line belongs to the state up to the former
mean high tide line, which is re-designated as the erosion control line (ECL).
59
The beach that is landward of the ECL remains privately owned, while the new beach created by
nourishment remains in public ownership.
60
While the private property owner retains riparian
52
Parts I and II, ch. 161, F.S.; see also s. 161.011, F.S. (providing the short title). The act is also commonly referred to as the
“The Beach and Shore Preservation Act.” 42 FLA. JUR. 2D s. 50, Beach management plan under Beach and Shore
Preservation Act.
53
DEP, Beaches, https://floridadep.gov/rcp/beaches (last visited Apr. 18, 2025).
54
The Coastal Construction Control Line (CCCL) Program regulates structures and activities that can cause beach erosion,
destabilize dunes, damage upland properties or interfere with public access. CCCL permits also protect sea turtles and dune
plants. DEP, Coastal Construction Control Line Program, https://floridadep.gov/CCCL (last visited Apr. 18, 2025).
55
The Beach Management Funding Assistance Program is responsible for managing funding for critically eroded beaches.
The program provides and manages grants to local governments (up to 75 percent of project costs) for planning and
implementing beach and inlet management projects. DEP, Beaches Funding Program, https://floridadep.gov/rcp/beaches-
funding-program (last visited Apr. 18, 2025).
56
The Beaches, Inlets and Ports Program processes Joint Coastal Permit applications as well as Environmental Resource
Permit applications for navigational dredging of deepwater ports and inlets. These projects are reviewed to make sure that
any potential adverse impacts have been avoided or minimized, and that the projects meet the criteria for issuance that are
specified in statutes and rules. DEP, Beaches, Inlets and Ports Program, https://floridadep.gov/rcp/beaches-inlets-ports (last
visited Apr. 18, 2025); DEP, Beaches, https://floridadep.gov/rcp/beaches (last visited Apr. 18, 2025).
57
Beaches 2017, supra note 53, at 1.
58
See id.
59
Section 161.141, F.S.; see also s. 161.151(3), F.S. (defining the ECL).
60
Being open to public use does not necessarily mean that it is easily accessible. For example, many areas lack facilities for
parking or easy public transit access, thus, as a practical matter, their use is limited unless an individual lives or stays in the
immediate vicinity. BILL: CS/SB 1622 Page 11
rights
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over the newly created public beach, the public owns and has the right to use the newly
emergent dry sand beach.
62
This bifurcation of dry sand beach ownership remains until the
nourished public beach erodes back to the established ECL. Once this occurs, there is no longer a
publicly owned dry sand beach, and the common law boundary is reinstated.
63
As of 2020, new, publicly-owned dry sand beaches have been created along more than 229 miles
of Florida’s coastline under the department’s beach management program. Federal cost-share
represents a significant percentage of the funding for beach nourishment. Once a beach has been
nourished, it is eligible to be renourished at regular intervals.
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III. Effect of Proposed Changes:
The bill repeals s. 163.035, F.S., which establishes procedures that a governmental entity must
follow when attempting to establish a “recreational customary use of property,” and bypasses
certain statutory procedures to declare the mean high water line to be the erosion control line
(ECL) in certain specified counties.
Repeal of s. 163.035, F.S.
Section 1 of the bill repeals s. 163.035, F.S., which establishes procedures that a governmental
entity must follow when attempting to establish a “recreational customary use of property.”
As detailed above, the repealed statutory procedures include:
• A public hearing to adopt a formal notice of intent to affected property owners, which notice
alleges the existence of a recreational customary use on their properties.
• A judicial proceeding to consider whether the alleged customary use has been ancient,
reasonable, without interruption, and free from dispute.
Repeal of the statute means a return to how customary use rights were determined prior to
enactment of the statute:
• A governmental entity may declare the existence of a customary use and adopt a local
customary use ordinance without following the procedures in s. 163.035, F.S.
• Property owners must file a lawsuit challenging the ordinance and demonstrate in court that
the public does not enjoy customary use rights over their privately-owned beaches.
• Courts will apply the common law doctrine of customary use when ascertaining, on a case-
by-case basis, whether the public enjoys customary use rights over privately-owned beaches.
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“Riparian rights” are certain rights incident to land bordering upon navigable waters. They are rights of ingress, egress,
boating, bathing, and fishing and such others as may be or have been defined by law. Such rights are not of a proprietary
nature. They are rights inuring to the owner of the riparian land but are not owned by him or her. They are appurtenant to and
are inseparable from the riparian land. The land to which the owner holds title must extend to the ordinary high watermark of
the navigable water in order that riparian rights may attach. Conveyance of title to or lease of the riparian land entitles the
grantee to the riparian rights running therewith whether or not mentioned in the deed or lease of the upland. Section
253.141(1), F.S.
62
Recreational Rights, supra note 21, at 12.
63
Id.
64
Id. BILL: CS/SB 1622 Page 12
Critically Eroded Beaches
In Section 2 of the bill, the Legislature declares the ECL to be the mean high water line as
determined by a survey conducted by the Board of Trustees of the Internal Improvement Trust
Fund. The Legislature makes this declaration notwithstanding the procedures in s. 161.161(5)-
(6), F.S., which would otherwise apply to projects intended to restore and maintain critically
eroded beaches.
The bill also provides that if an ECL has not been established for a critically eroded shoreline,
the board must adopt the ECL by resolution and file:
• In the official records of the respective county, a copy of the resolution establishing the
location of the ECL; and
• In the book of plats of the respective county, a survey showing the area of beach to be
restored and the location of the ECL.
The bill also authorizes the Department of Environmental Protection to proceed with beach
restoration projects for any area designated by the department as critically eroded in the
Critically Eroded Beaches in Florida report dated August 2024.
65
Beach restoration projects
conducted pursuant to Section 2 of the bill do not require a public easement, notwithstanding s.
161.141, F.S., which would otherwise require one. Any additions to property seaward of the ECL
which result from the restoration project remain state sovereignty lands.
Section 2 of the bill only applies in those counties adjacent to the Gulf of America having:
• At least 3 municipalities.
• An estimated population of less than 275,000, according to the most recent population
estimate prepared pursuant to s. 186.901, F.S.,
66
excluding the inmate population.
The Legislature declares that there is no intention on the part of the state to extend its claims to
lands not already held by it, or to deprive any upland or submerged landowner of the legitimate
and constitutional use and enjoyment of his or her property. The Legislature also declares that
undertaking beach restoration projects for beaches that have been designated by the department
to be critically eroded is in the public interest.
Effective Date
The bill takes effect upon becoming a law.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
65
DEP, Office of Resilience and Coastal Protection, Critically Eroded Beaches in Florida (Aug. 2024), available at
https://floridadep.gov/sites/default/files/FDEP_Critically%20Eroded%20Beaches_08-2024_0.pdf.
66
This statute requires the Office of Economic and Demographic Research to annually provide the Executive Office of the
Governor population estimates of local governmental units as of April 1 of each year using accepted statistical practices. BILL: CS/SB 1622 Page 13
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
The repeal of s. 163.035, F.S., means the upland owners of privately-owned beaches will
either have to acquiesce to governmental entities’ customary use ordinances or incur the
legal costs associated with opposing customary uses on their particular beaches.
Accordingly, the bill may have a negative fiscal impact on the upland owners of
privately-owned beaches.
C. Government Sector Impact:
Under the bill, governmental entities will no longer have to follow the procedures of s.
163.035, F.S., to establish customary use rights over privately-owned beaches, which
could save them the legal costs associated with litigating the issue in court. Accordingly,
the bill may have a positive fiscal impact on governmental entities.
Because the bill directs the Board of the Internal Improvement Trust Fund to prepare and
record certain resolutions and surveys confirming the ECL’s location on certain critically
eroded shorelines, the Department of Environmental Protection (acting as staff to the
board) may incur costs associated with preparing and recording such documents.
However, it is anticipated that these costs will be minimal and covered using the
department’s existing budget allocations.
VI. Technical Deficiencies:
None. BILL: CS/SB 1622 Page 14
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill repeals section 163.035 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Rules on April 21, 2025:
With respect to those counties adjacent to the Gulf of America having at least 3
municipalities and an estimated population of less than 275,000, the committee substitute
revises the underlying bill to:
• Bypass certain existing statutory procedures for establishing the erosion control line
(ECL) on critically eroded beaches and declare the mean high water line to be the
ECL.
• Direct the Board of the Internal Improvement Trust Fund to prepare and record, in the
official and platting records of the counties subject to the bill, certain documents
confirming the ECL’s location on critically eroded shorelines, but only if an ECL has
not already been established.
• Authorize the Department of Environmental Protection to proceed with beach
restoration projects for areas it has designated as critically eroded, and provide that
notwithstanding existing law, such projects do not require public easements.
• Include legislative declarations that the state does not intend to extend its ownership
claims beyond what it already owns, and that beach restoration projects for critically
eroded beaches are in the public interest.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.