Sb-36 When Can a Navigation Rule Be Overlooked

Bill Impact Analysis
SB 1946 & 1086 – 2022 Amendments to Florida'due south Boating Laws

Thomas T. Ankersen, Legal Skills Professor & Director, UF Law Conservation Clinic & Florida Body of water Grant Legal Program
Colson Douglas, Legal Intern, UF Center for Coastal Solutions

The 2022 Florida Legislature passed 2 pregnant bills affecting Florida boating law. On June 29th the Governor signed both bills.

Senate Bill 1946 amends Affiliate 327 of the Florida Statutes to over again address the difficult question of anchorage limitations over state waters, a public policy conundrum that has vexed the State, local governments, and boaters for decades. Senate Beak 1086 is considerably broader, addressing among many issues: at-risk and derelict vessels, marine sanitation devices, no-belch zones in aquatic preserves, and vessel regulation in springs. SB 1086 too introduces a new vessel type into the lexicon of Florida boating law – "human-powered vessels." This analysis briefly describes the amendments to boating law introduced by these two bills and provides some context where appropriate.

I.     SB 1946 – Anchoring Limitation Areas – ALA'southward

Background. Despite local authorities efforts over the years, and with some exceptions, the legislature has non grant local governments the authorization to enact "length of stay" limitations on transient boaters anchoring in waters within the political jurisdiction of counties and municipalities. This issue was last addressed in amendments in 2022 and at that time the preemption of local regulation of anchoring was clarified and strengthened. After, local governments began appealing directly to the legislature to create geographically specific anchoring restricted areas past statute, and several succeeded, resulting in a growing patchwork of legislatively alleged anchoring restrictions across the land.
To address this, the 2022 legislature revisited Florida's primary boating law, Chapter 327 and created a framework for limited local anchoring regulation past counties. SB1946 amends § 327.4108 of the Florida statutes, creating an administrative framework for a new category of boating restricted areas, termed Anchoring Limitation Areas (ALA's). Private ALAs previously created by the legislature on an advertizement hoc basis, generally in urban South Florida, are preserved.

Monroe County. Monroe County is singled out and the entire county is designated as an ALA, contingent on the county completing certain deportment. A vessel in Monroe County may exist anchored in the same location for a maximum of 90 days. However, the Monroe County ALA does not have effect until Monroe Canton approves, permits, and opens new moorings for public use, including at to the lowest degree 250 moorings within 1 mile of the Key West Bight City Dock and at least l moorings within the Central West Garrison Bight Mooring Field. SB1946 as well requires the FWC to designate the areas inside 1 mile of the Fundamental Due west Bight City Dock as a priority for the investigation and removal of derelict vessels. Unlike the counties discussed beneath, FWC is charged with adopting rules to implement the Monroe County ALA.

All Other Counties. SB1946 now permits counties, except Monroe County every bit noted above, to establish ALAs subject to specific spatial limitations.

Urban Areas. SB 1946 restricts its awarding to "urban areas that take residential docking facilities and significant recreational canoeing traffic," only offers no additional guidance on how to delineate such areas.

ten% Aggregate Limit. The aggregate total of anchoring limitation areas in a county may not exceed x per centum of a county'southward delineated "navigable-in-fact waterways." SB1946 defines "navigable-in-fact waterways" as "waterways that are navigable in their natural or unimproved condition over which useful commerce or public recreation of a substantial and permanent graphic symbol is or may be conducted in the customary mode of trade and travel on h2o. The term does non include lakes or streams that are theoretically navigable; have a potential for navigability; or are temporary, precarious, and unprofitable, but the term does include lakes or streams that have practical usefulness to the public every bit highways for transportation."

100 Acre Size Limit. Whatsoever individual ALA must be less than 100 acres in size. However, the calculated size does non include any portion of the marked channel of the Florida Intracoastal Waterway contiguous to the ALA and whatsoever mooring field or marina.

Signage and Buoys. The ALA must as well provide notice to boaters through placement of buoys at the boundary of the anchoring limitation areas and signs identifying the duration of time beyond which anchoring is limited and identifying the county ordinance by which the ALA was created. The ALA must likewise be marked by buoys.

45 Day Length of Stay Limit. Subject to time limited exceptions for mechanical failure, provision for rubber harbor due to weather, and special events, a boater too may not anchor a vessel for more than 45 consecutive days in whatsoever 6-month period in an ALA. Governmental and commercial working vessels are also exempted.

FWC Notice. A county proposing establishment of an anchoring limitation area must provide notice to the FWC at least 30 days before introducing an ordinance to establish the anchoring limitation expanse. The FWC is required to publish discover of the proposed ordinance on its website and through the boating and navigation email list. SB 1946 does non announced to require FWC approval, only notice, which is a deviation from the Department 327.46 governing Boating Restricted Areas more than by and large.

Enforcement. SB 1946 describes the means by which a boater may offer proof that the vessel has non exceeded the limitations described in the statute, and provides for non-criminal penalties for violating the police, including fines and removal and impoundment of the vessel.

A Annotation on Municipalities. Municipalities, which are more likely to include "urban areas that take residential docking facilities and significant recreational boating traffic," receive no mention in the new police force. Just counties are given the authority to create ALA's. Thus, arguably Chapter 327'southward underlying preemption (southward. 327.60(2)(f)) that prohibits all local governments from restricting transient anchoring continues in forcefulness as to municipalities. Presumably, a municipality seeking to create an ALA inside its over water jurisdiction would be required to petition the canton to institute the ALA within the Metropolis. And, with procedural distinctions that depend on whether it is a charter or non-charter canton, a canton can create ALAs within municipal waters.

Ii.    SB 1086

Booze-Related Offenses. The primary revisions are the result of the 2022 United States Supreme Court determination in Birchfield five. North Dakota that prohibits warrantless blood tests incident to arrests for driving under the influence. The Court held that refusing a blood test may not subject a person to criminal penalties, and so the legislature removed the now unenforceable language and removed provisions relating to refusal of claret tests without a warrant and did then for both motor vehicles and vessels. SB1086 makes no changes to the penalties for a person who operates a vessel and fails to submit to a jiff or urine examination.

Navigation Rules. SB 1086 apology Affiliate 327's definition of "navigation rules" for purposes of bringing it and the statutes that utilize the rules upward to appointment with the federal police force, which controls. Florida police force essentially incorporates by reference the federal "rules of the road" as they are known to mariners, that employ in both international waters pursuant to a treaty (COLREG) and in "inland" waters, effectively making the federal police Florida constabulary. In order to bring these up to date the amended definition just references the almost recent federal re-adoption appointment which occurred in 2020.

Temporary Protection Zones for Space Launches and Recovery. The increment in space launches coupled with water-based space arts and crafts recoveries has prompted a new spatial and temporal boating restricted expanse. The police creates new Section 327.462 to allow law enforcement agencies to clear vessels from an surface area 500 yards from where infinite launch and recovery activities are taking identify, more than if warranted past public safe, as long every bit necessary to ensure security, but for no more than than 72 hours earlier a launch and 72 hours after a launch. It as well authorizes these agencies to maintain a 500-yard envelope around spacecraft related send vessels while they are navigating, with some limits applying within the ICW. Installation of these zones requires notice to FWC and the Coast Guard.

Regulation of Man-Powered Vessels. SB1086 creates new Section 327.371 bringing with it a new vessel definition to the Florida Statutes—"human being-powered vessel"—for the purposes of restricting the use of these vessels within the Intracoastal Waterway (ICW). "Human being-powered vessel" is defined every bit "a vessel powered just past its occupant or occupants, including, but not express to, a vessel powered but by the occupants' hands or feet, oars, or paddles." Essentially, human powered vessels cannot apply the ICW except to "expeditiously cantankerous the waterway to achieve other navigable waters, and in the example of emergencies. A violation is a noncriminal infraction.

Derelict Vessels (DVs). SB 1086 is a significant revision to Florida law addressing derelict vessels across several statutes.

       Chapter 823 is Florida's Public Nuisance Constabulary. Section 823.xi, Florida Statutes addresses DVs alleged to be public nuisances. The definition of derelict vessel in Section 823.11, Florida Statutes is amended to add detailed meaning to the previously used term "wrecked, junked or substantially dismantled," by explicitly defining each give-and-take in the term. Other definitional criteria are left untouched.

       Chapter 376 is Florida'southward Pollutant Belch Prevention and Removal Constabulary. In Department 376.15 relating to relocation and removal of DVs, the single word "leave" replaces the term "store, leave or carelessness." Leave is so divers to hateful "to allow a [derelict] vessel to remain occupied or unoccupied on the h2o of this land for more than 24 hours." (Brackets provided for context). Exceptions are fabricated for gunkhole accidents that are officially reported, hurricanes, and other "sudden events" outside the control of the possessor. These exceptions are subject to further requirements and limitations detailed in the new law.

The new law clarifies that DVs tin can non only exist removed and relocated, simply likewise "stored, destroyed and tending of." For the purposes of cost recovery, the police force includes, in addition to owners, "the party adamant to be legally responsible for the vessel being on the waters of this country in a derelict status." The law also expands the entities that can perform relocation, removal, storage, devastation and disposal to include "governmental subdivisions," when these have been authorized by a law enforcement agency or other agency conferred with this authority past the statute. The term "governmental subdivision" is not defined in the bill, the statute it apology, or elsewhere in the Florida Statutes.

Chapter 705 is Florida'south Lost and Abased Property Statute. DVs that have been declared to be a public nuisance are distinguished from other forms of lost or abandoned holding in terms of discover requirements. A unique written notice to be affixed to a vessel details the distinct process for DVs being processed every bit lost or abandoned, as well as vessel owner or other interested political party rights. This provision does non take issue until July 1, 2023.

In addition, to removal, relocation, destruction and disposal, DVs can be used as artificial reefs, if authorized by the law enforcement bureau or designee, subject to applicable permitting.

Vessels at Risk of Becoming Derelict – Relocation. SB 1086 apology Section 327.4107, which addresses vessels "at take a chance of condign derelict." The new constabulary somewhat changes 1 of the several criteria for establishing that a vessel is "at risk." Information technology removes the linguistic communication whether the vessel is "left or stored aground unattended in such a way that would prevent the vessel from getting underway," or is "stored or is sunk or partially sunk," only retains the language in the criteria that it is "listing due to water intrusion." Other criteria remain unchanged.

The amendment at present authorizes FWC and other law enforcement agencies to relocate an "at risk" vessel, when that vessel lies inside 20 feet of mangroves or upland vegetation (and be held harmless for any resultant liability unless the impairment occurs from gross negligence). The new provision too authorizes just does non require FWC to undertake a "derelict vessel prevention programme," which tin include, among other things, a "vessel turn-in program" that gives some protection from penalties to the owner of the vessel, and which addresses removal and destruction of abased vessels.

Anchoring Limitation Areas (ALA'due south). ALAs are addressed more extensively in SB 1946 that likewise passed in the 2022 Session, including a redundant provision making all of Monroe Canton an Anchorage Limitation Area, contingent on the County's installation of mooring fields. However, SB 1086 does uniquely add a temporal limitation to legislatively established ALAs in South Florida.

Protection Zones for Springs. SB 1086 apology Section 327.45 to qualify FWC to establish protection zones for first, 2nd and third magnitude springs and springs groups. In addition to restricting speed and operation, FWC can now prohibit anchoring, mooring, beaching, or grounding of vessels to prevent environmental harm to springs.
Boating Restricted Areas. SB 1086 amends Section 327.46 which authorizes local governments to create boating restricted areas by ordinance (subject to FWC approval). The subpoena clarifies that these can be created in the portion of the ICW within the local jurisdiction, within the boundaries of a permitted public mooring field and within a 100-foot buffer around a mooring field. It now requires vessel exclusion zones, such as swim areas. to exist marked with uniform h2o markers and non ropes.

Speed Zones and Special Hazards. SB 1086 creates new Section 327.463 entitled "Special hazards" for the purposes of restricting vessel speeds in proximity to emergency vessels such every bit law enforcement and firefighting vessels. When the emergency lights of these vessels are activated a vessel operator inside 300 anxiety of the emergency vessel must operate a "slow speed, minimum wake." This aforementioned requirement applies to whatsoever construction vessel or barge displaying an orange flag indicating it is actively engaged in construction activities. A detailed clarification of what constitutes "deadening speed, minimum wake" is provided "for the purposes of" the Special Hazards section. This description largely tracks FWC'south regulatory definition of the term in Florida Authoritative Code Dominion 68D-24. Non-criminal penalties are provided for.

No-Discharge Zones. The new constabulary creates Section 327.521, greatly expanding the potential for federally designated "no-belch zones" in Florida waters (currently there are merely iii) and includes additional requirements for the pump-out of marine sanitation devices. No belch zones prohibit the discharge of treated or untreated vessel wastewater into "Waters of the United states of america." These are established in several means, one of which is by application of a state. In this case, it would appear that SB 1086 serves as a legislative determination for Aquatic Preserves. Presumably, awarding volition be fabricated by FDEP as an authoritative matter. Responsibility then shifts to EPA to consider and designate the no-discharge determination within the boundaries of State-designated Aquatic Preserves. Penalties are provided for. Interestingly, a prior version of the Bill included "Open Shellfish Harvesting Waters" along with Aquatic Preserves, but this did non survive.

Marine Sanitation Devices. SB 1086 amends Section 327.53, Florida Statutes, dealing with marine sanitation, to add a provision requiring live-aboard vessels and houseboats with MSDs to keep a record of each pumpout, including date and location, for at least ane year. Marine composting toilets that conform to United States Coast Guard requirements are exempted.

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Source: https://ccs.eng.ufl.edu/state-policy-update-amendments-to-floridas-boating-laws-2021/