68D-21.004. Criteria for Approval of Ordinances

(1) Any ordinance submitted pursuant to Section 327.46(1)(c), F.S., and in compliance with Chapter 68D-21, F.A.C., is subject to review and approval by the Commission.

(2) An ordinance establishing either an “idle speed, no wake” or a “slow speed, minimum wake” boating restricted area will be approved for areas not more than 300 feet from a confluence (intersection) of water bodies presenting a blind corner, a bend in a narrow channel or fairway, or such other area if an intervening obstruction to visibility may obscure other vessels or other users of the waterway.

(a) A blind corner is presented where an intervening obstruction to visibility prevents the operator of a vessel on one of the water bodies from seeing a vessel on the other water body at a distance of 300 feet or less from the confluence.

(b) A bend or other intervening obstruction to visibility in a narrow channel, fairway, or other similar water body within the meaning of Inland Navigation Rule 9 (33 U.S.C. §2009) as adopted by Section 327.33, F.S., is presented where a decision sight distance of less than 300 feet exists and prevents the operator of a vessel from seeing other vessels or other users of the waterway.

(3) An ordinance establishing a “slow speed, minimum wake” boating-restricted area or numerical speed limit boating-restricted area regulated at 25 or 30 miles per hour will be approved for areas:

(a) Subject to hazardous water levels or currents if:

1. The boating-restricted area established in the ordinance is active and enforceable only when the water levels are at or above flood stage on a river gauge operated or reported by the National Weather Service’s River Forecast Center (http://www.srh.noaa.gov/serfc/) or at the equivalent level on a river gauge operated or reported by the United States Geological Survey’s National Water Information System (http://waterdata.usgs.gov/fl/nwis/rt) and the specific gauge and flood stage water level is specified in the ordinance.

2. A navigation chart published by the National Oceanic and Atmospheric Administration’s National Ocean Service identifies the area as being subject to hazardous tides or currents.

3. Creditable data demonstrate that the area is subject to water levels or currents that endanger vessels operating in the area or the occupants of such vessels.

(b) Containing a documented navigational hazard of a nature that vessel operation in its vicinity at speed in excess of slow speed, minimum wake endangers the vessel or its occupants. Navigational hazards are presumed to exist within the marked boundaries of mooring fields as permitted by Section 327.40, F.S.

(c) Subject to unsafe levels of vessel traffic congestion, seasonally or year-round, such that:

1. The traffic density including concentration of fishing vessels or any other vessels would require that vessels slacken speed under Inland Navigation Rule 6(a)(ii) (33 U.S.C. §2006) as adopted by Section 327.33, F.S., or

2. It presents a significant risk of collision or a significant threat to boating safety.

3. Unsafe levels of vessel traffic congestion, a significant risk of collision, or a significant threat to boating safety may be demonstrated by:

a. Accident reports – The following reports of boating accidents are acceptable if prepared contemporaneously with the boating accident being reported and if such reports reflect law enforcement’s determination that vessel traffic congestion or the speed, wake, or operation of a vessel involved in the accident was a primary contributing factor in the accident:

I. Florida Boating Accident Investigation Report, form FWCDLE 146, or Florida Boating Accident Self Report, form FWCDLE 146C, supplied by the Commission as provided in Section 327.302, F.S.; United States Coast Guard Recreational Boating Accident Report, form CG-3865; United States Coast Guard Report of Marine Casualty, Injury or Death, form CG-2692. The current versions of these forms are adopted by reference in subsection (7); prior editions of these forms are also acceptable.

II. A law enforcement agency’s official offense or incident report prepared and signed by an officer authorized under Section 327.70, F.S., to enforce the provisions of Chapters 327 and 328, F.S.

III. Medical records, including EMS and medical examiner reports, if they document death or injuries as a result of a boating accident and specify the nature and location of the boating accident;

b. Uniform boating citations issued on citation forms supplied by the Commission as provided in Section 327.74, F.S., or written warnings if the violation alleged in the citation or warning is related to the cited vessel’s speed, wake, or operation. Citations and written warnings unrelated to vessel speed, wake, or operation will not be considered, nor will verbal warnings. In no event will citations or written warnings issued for violations of Chapter 328, or Sections 327.50, 327.53, 327.54, 327.65, 327.66, F.S., be considered.

c. A vessel traffic study demonstrating that vessel traffic congestion or the speed, wake, or operation of vessels in the area create unsafe levels of vessel traffic congestion, a significant risk of collision, or a significant threat to boating safety. The conclusions of the study, as determined by the Boating and Waterways Section, must be based upon sufficient facts or data, be the product of reliable principles and methods, and apply the principles and methods reliably to the facts or data considered. In assessing the creditability of a vessel traffic study, the following factors (as applicable) shall be among those considered:

I. Whether the study’s methodology can be or has been tested (i.e., whether the study’s methodology can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability),

II. Whether the study’s methodology has been subject to peer review and publication,

III. The known or potential rate of error of the study’s methodology,

IV. The existence and maintenance of standards and controls; and,

V. Whether the methodology has been generally accepted in the scientific community.

Vessel traffic studies must identify the number of vessels transiting the proposed boating restricted area each hour for no less than six hours out of each twenty-four-hour period documented and provided to the Commission. When this minimum threshold is met, the area will be evaluated taking all other relevant factors into consideration, including width of the waterway, vessel types using the waterway, navigational hazards, and other conditions specific to the proposed boating restricted area.

d. Other creditable data. For the purposes of this subparagraph, “other creditable data” means facts or data that are of a type reasonably relied upon by experts in the fields of boating safety, maritime safety, navigation safety, ports and waterways safety assessments, or vessel traffic management, as contemplated in Section 90.704, F.S.

4. When relying upon vessel traffic studies for reviews under this rule, video surveillance made during a vessel traffic study may be submitted with a corresponding log documenting number of vessels, vessel types, examples of careless or reckless operation of vessels, navigation rule violations, actions taken to avoid collisions, unsafe vessel speeds, near misses of navigational hazards by vessels, or any other specific criteria the applicant wants considered, along with relevant video time stamps for each item. Without such a corresponding log documenting the specific identified issues, video surveillance will not be considered. Video surveillance which has been altered or edited will not be considered.

(d) That could have been established as an idle speed, no wake boating-restricted area under Section 327.46(1)(b)1., F.S., provided the applicant demonstrates by competent substantial evidence how the specific regulation will adequately solve public safety concerns in the area.

(4) An ordinance establishing a vessel exclusion zone (an area from which all vessels or certain classes of vessels are excluded) will be approved if the area is reserved exclusively:

1. As a canoe trail or otherwise limits vessel propulsion if the applicant demonstrates by competent substantial evidence how the restriction is necessary to protect public safety pursuant to Section 327.46, F.S., and if:

a. One of the following restrictions, as defined in Rule 68D-23.103, F.A.C., is imposed: “No Motorized Vessels” or “No Motorboats” or “Motorboats Prohibited;” “No Power-driven Vessels;” “No Internal Combustion Motors;” “Manually Propelled Vessels Only;” and,

b. Imposition of the restriction will not unreasonably or unnecessarily endanger navigation or interfere with the use of a navigation channel that is lawfully marked with lateral aids to navigation.

2. For a particular specified activity (e.g.: sailing instruction, marine research, water skiing, personal watercraft use, sailboard use, etc.) if the applicant demonstrates by competent substantial evidence how certain classes of vessels (including all vessels if appropriate under the prevailing circumstances) endanger or are likely to endanger those participating in the specified activity and that the specified classes of vessels must be excluded from the area in order to adequately protect the safety of those participating in the specified activity.

(5) The Commission may approve an ordinance creating a year-round boating restricted area when the documentation provided reflects competent substantial evidence that such a restriction is necessary to protect public safety throughout the entire year. When vessel traffic studies alone are relied upon to apply for a year-round boating restricted area, the studies must document the area for a minimum of four consecutive, non-holiday (those days not identified as “holidays” in Rule 68D-23.103, F.A.C.) days, for each season (spring, summer, fall, and winter).

(6) The Commission may approve an ordinance creating a seasonal boating restricted area when the documentation provided reflects competent substantial evidence that such a restriction is necessary to protect public safety throughout the requested season. When vessel traffic studies alone are relied upon to apply for a seasonal boating restricted area, the studies must document the area for a minimum of four consecutive, non-holiday days (those days not identified as “holidays” in Rule 68D-23.103, F.A.C.), for each season sought to be regulated. For purposes of this chapter, a seasonal boating restricted area shall mean a boating restricted area in force and effect for any time period less than a complete calendar year.

(7) The following forms are adopted and incorporated by reference:

(a) Florida Boating Accident Investigation Report, form FWCDLE 146 (07/2010), available at https://www.flrules.org/Gateway/reference.asp?No=Ref-13212 and Florida Boating Accident Self Report, form FWCDLE 146C (07/2010), available at https://www.flrules.org/Gateway/reference.asp?No=Ref-13213 supplied by the Commission as provided in Sections 327.301 and 327.302, F.S. These forms may also be obtained from the Boating and Waterways Section, 620 South Meridian Street, Tallahassee, FL 32399-1600.

(b) United States Coast Guard Recreational Boating Accident Report, form CG-3865 (Rev. 09/18), as provided in 33 C.F.R. §§173.55, 173.57, available at https://www.flrules.org/Gateway/reference.asp?No=Ref-13214. This form may also be obtained from Commandant (CG-5422), U.S. Coast Guard Headquarters, 2100 Second St. S.W., Stop 7581, Washington, DC 20593-7581.

(c) United States Coast Guard Report of Marine Casualty, Commercial Diving Casualty, or OCS Related Casualty, form CG-2692 (Rev. 07/19), available at https://www.flrules.org/Gateway/reference.asp?No=Ref-13215. This form may also be obtained from the Coast Guard Sector Office, Coast Guard Marine Inspection Office or Coast Guard Group Office nearest the scene of the marine casualty, or from Commander, USCG Seventh District, Brickell Plaza Federal Building, 909 S.E. 1st Avenue, Miami, FL 33131-3050.

Rulemaking Authority 327.04, 327.302, 327.46 FS. Law Implemented 327.302, 327.46 FS. History–New 10-6-10, Amended 6-24-21.