Lake Ellen Access: Dedication, History, and Navigable Waters

October 5, 2026 BOCC Agenda, Item 19 (County Attorney memo, pp. 413-422) · October 4, 2026

The short version

· The County Attorney's memo (Agenda pp. 413 to 422, updated September 2026) says the public's right to use Lake Ellen requires one of two things: the lake is a public, navigable waterbody, or the dedication of Lake Ellen Drive includes a public right to use and access the lake (p. 413).

· The 1961 plat dedicates the streets as "public highways." It does not mention the lake. The memo calls that language "lacking in clarity and description" (pp. 414, 421).

· The county has acted as if the lake is public at times, but the memo says the public's use "would ideally need to be documented and described" to make that argument (p. 422).

· Navigable status turns on whether Lake Ellen was navigable in 1845. The state has not determined that (pp. 413, 415 to 418).

· The memo's conclusion: neither question can be resolved "with any degree of certainty absent judicial review" (p. 413).

What the dedication actually says

The subdivision, Lake Ellen Estates Unit One, was platted in 1961. The plat says the developer "does hereby dedicate to the perpetual use of the public as public highways the streets as shown hereon," and reserves the right to take the streets back if the public abandons them or the law discontinues them (p. 414).

The plat drawing shows Lake Ellen Drive running "all the way up to the shores of Lake Ellen," where it ends at a spot marked "Proposed Ramp." The north end of the road serves no platted lots, and a recent survey shows the county's right of way "extends all the way into the waters of Lake Ellen" (p. 414).

The memo says there are no separately recorded documents about the county's right of way, so the question "largely involves interpreting the dedication language found on the Plat" (p. 420). It then calls the words "public highway" "lacking in clarity and description," and asks four questions it does not answer (p. 421):

· Is the right of way only for vehicles going in and out?

· If so, for which properties, since no lots depend on this part of the road?

· Is it also meant to provide a public access point to the lake?

· Does the dedication include littoral rights to use the lake?

What the history of use shows

The memo's record of how the county and the public have treated the lake points in more than one direction (p. 414).

The memo says parts of this history help the county. It cites the public's "apparent historical use" of the lake for "bathing, fishing, and boating," and a ramp the state operated for years. It says the county's own actions, the easement and two ordinances, "reflect that it understood Lake Ellen to be a public waterbody" (p. 422).

It also lists the limits. Public use alone making a lake navigable has "significant equitable appeal" but "limited judicial support" (p. 418). The court case behind the idea was a dissenting opinion decided before the main Florida navigability ruling (p. 417, footnote 2). And footnote 6 says the extent of the public's use "would ideally need to be documented and described in order to properly craft the argument" (p. 422).

A 2018 reader letter on the ramp

A citizen sent Wakulla Reports a letter to the editor that ran in The Wakulla News, "Failure of vision at Lake Ellen" (August 2, 2018, page 4). It gives one lakefront property owner's account of the ramp's past. It is an opinion piece, not a county record, and the points below are the writer's claims. Wakulla Reports has not confirmed them.

· The writer says the state wildlife agency "gave back to the county the Lake Ellen Boat Ramp" after a death at the lake, and that the county then closed the ramp and "over the following years opened and closed it multiple times."

· The writer says the agency returned it because it "did not want the liability of having a boat ramp next to a swimming area."

· The writer says four deaths have occurred at the lake, two of them after the commissioners reopened the ramp, and points to a Tallahassee Democrat clipping and a WCTV story as sources.

· The writer describes the 2018 ordinance as allowing swimming at county boat ramps, parks and facilities, and says he has spoken against the ramp and swimming area since the 1970s.

What the law says: navigable waters

Whether Lake Ellen is a public waterbody "held by the state ... in trust for all the people" turns on whether it "was a navigable waterbody in 1845" (p. 417). Most of the memo's legal analysis is about that one question.

The test

· Article X, Section 11 of the Florida Constitution says the state holds title to lands under navigable waters "in trust for all the people," if those lands have not been sold off (p. 415).

· The date that counts is 1845, when Florida was admitted to the union. Only a water body "navigable in its natural state" then is state-owned (p. 415).

· Navigability "is based on the water body's potential for commercial use in its ordinary and natural condition" (p. 416).

· The Florida Supreme Court has said the "capacity for navigation, not usage for that purpose, determines the navigable character" of the water (p. 416).

The limits

· Section 253.141(2) says navigable waters do not extend to lakes lying over areas "conveyed to private individuals" by the federal government or the state "without reservation of public rights" (p. 416).

· A "meandered" lake is one whose shoreline appears on an original government survey or plat. The Florida Supreme Court has said "nonmeandered lakes and ponds are not to be classified as navigable bodies of water," though it also called the tests "at best broad guidelines" (p. 417).

· Of about 7,000 Florida waterbodies, only 200 are meandered. The memo says it is unknown whether Lake Ellen is meandered, or whether an original survey of the lake exists (p. 418).

What the state has said about Lake Ellen

· The Department of Environmental Protection said on at least two occasions that it was unable to determine whether Lake Ellen is state owned. In June 2017 it sent two letters saying it lacked enough information (pp. 415, 417).

· Lake Ellen has been included in the state's water quality assessments, which "target publicly owned lakes" (p. 417).

· A November 15, 2017 internal DEP email says, "We know that Lake Ellen is non-sovereign," but "neglects to explain the reasoning behind that conclusion" (p. 418). As of September 21, 2026, the county "has not been provided with a copy" of the determination behind it (p. 415, footnote 1).

The deeds

The memo says it "appears that at some point the submerged lands underlying Lake Ellen were conveyed into private ownership." Deeds to property along the lake appear to include parts of the lake bottom (Official Records Book 1027, pp. 77 to 79). But that is "not dispositive," because when the state conveys land under navigable water, the title passes "subject to the public easements and to the riparian rights allowed by law" (p. 418).

Note: Wakulla Reports posted a short video navigating the Wakulla County Property Appraiser's website showing the lake being deeded to the bottom.

The public-use route

If the meander question cannot be answered, the memo says a court would have to review the lake's capacity for navigation around 1845. The public's historical use for boating, fishing and bathing "would likely support the County's argument." Evidence of actual use for commerce before 1845 "would be particularly compelling," but even without it, the lake's capacity to support navigation or commerce "is the critical issue" (p. 418).

How the pieces connect

The dedication argument depends on the navigability question. Florida case law says water rights come with a street easement "only when and at the points where the street ... extends to a navigable body of water" (p. 419). Even if the lake is private, the memo says a government can hold littoral rights, which include access to the water, and "Governmental entities can be littoral owners" (p. 419).

The county's argument is that the road is dedicated to the public, touches the water, and the plat does not reserve the ramp area for the developer. Ambiguities in a plat are "construed in favor of the public," and there is a "strong presumption" that what a plat shows is dedicated to the public. The memo calls this "a compelling argument" (p. 421).

Then it adds a caution. These are "merely arguments that may be presented to a court," and using a road dedication to give the public rights on a private lake "appears to be a somewhat novel one" (p. 422). The memo also notes the county "could itself presumably become a littoral owner by simply obtaining a fee interest abutting the Lake" (p. 422).

The memo's own summary: neither question "is capable of being resolved with any degree of certainty absent judicial review" (p. 422).

What it could cost, and the questions for residents

This post is not about whether there should be public access to Lake Ellen. It is about what it takes to get that access legally, and what the county is willing to spend to get there.

Item 19 lists the budget impact of buying the property as the purchase price plus due diligence, legal fees, recording and closing costs (p. 343). It gives no figure for defending a lawsuit. Any purchase price, settlement, judgment or legal fee would be paid with county funds, which means taxpayers pay.

What the memo and legal references say, with the caution that this is not legal advice and we found no Florida case on these exact facts:

· Under the memo's own test, sovereign status depends on whether the lake was navigable in 1845, not on who owns the parcels today (p. 415).

· The memo says the county's theories are "merely arguments" and "somewhat novel," and that neither question can be settled "absent judicial review" (p. 422).

· Inverse condemnation is a claim that government action took private property for a public use without compensation. A Florida county attorneys' association paper lists the elements and says the government's intent does not matter and physical occupation is not required (pp. 2 to 3).

· The same paper says sovereign immunity is not a defense to inverse condemnation, and that a successful plaintiff recovers attorney's fees and costs (pp. 4 to 5).

· A Florida Bar Journal article says navigability is decided case by case in court, depends on historical evidence and expert witnesses, and calls that method "cost prohibitive."

The memo says the deeds along the lake appear to include lake bottom (p. 418). If Lake Ellen is not navigable, the owners of that bottom could raise claims against the county if it buys the property and opens the area to the public. Whether such a claim would succeed depends on facts the packet does not give.

Questions for the Board and the County Attorney

1. Has the county assessed in writing the risk of inverse condemnation or trespass claims from owners of lake bottom if it buys the property and opens the area to the public?

2. If a court has to decide whether Lake Ellen is navigable, what is the budget, and who sets the limit?

3. Will the county formally request the 2017 state determination that it says it was never given (p. 415, footnote 1)?

4. If the county buys the property, does it plan to open the lake itself to the public, or only the parcel it owns?

5. If neighboring owners challenge the purchase, who pays to defend it?

Questions for residents

1. Are you willing to pay, through county funds, for a purchase, legal fees and possibly years of court review to settle whether Lake Ellen is navigable?

2. Would you support buying the whole 150-acre lake bottom to control access? The agenda packet has no cost estimate for that.

3. Should the Board set a spending limit before it chooses between continuing negotiations and closing the access area?

Sources

· Wakulla County Board of County Commissioners, October 5, 2026 Final Agenda packet, Item 19, County Attorney memorandum "Lake Ellen" (Nabors, Giblin & Nickerson, P.A.), packet pp. 413 to 422. Page cites in this post are to the packet's page numbers.

· "Failure of vision at Lake Ellen," Readers Write, The Wakulla News, August 2, 2018, p. 4 (opinion letter sent in by a citizen; author omitted).

· Florida Association of County Attorneys, Inverse Condemnation Avoidance and Defense (written materials, 2018), faca.fl-counties.com.

· The Florida Bar Journal, Sovereignty Lands in Florida: It's All About Navigability (Part I), floridabar.org.

· October 5, 2026 Final Agenda packet, Item 19 request, p. 343 (budgetary impact).

· Cited by that letter and not independently reviewed by Wakulla Reports: Tallahassee Democrat clipping (tallahassee.newspapers.com/clip/11643543/tallahassee_democrat) and a WCTV story (wctv.tv/home/headlines/8236252).

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