These rule amendments will provide clarity regarding the application and approval process for ordinances creating boating restricted areas.

 

FISH AND WILDLIFE CONSERVATION COMMISSION

Vessel Registration and Boating Safety

RULE NOS.:RULE TITLES:

68D-21.001Requirements for Applications

68D-21.004Criteria for Approval of Ordinances

PURPOSE AND EFFECT: These rule amendments will provide clarity regarding the application and approval process for ordinances creating boating restricted areas.

SUMMARY: These rules provide guidelines for local governments regarding applications for approval of ordinances establishing boating restricted areas, and the proposed changes are intended to provide clarity regarding the application and approval process. Specific proposed changes include defining “launching and landing facilities,” adding written warnings to the proofs considered in assessing whether there is competent substantial evidence to support that a boating restricted area is necessary to protect public safety, and providing clarification of traffic congestion metrics. These updates will add transparency to the ordinance application process used by local governments to establish boating restricted areas, such as slow speed zones, within their jurisdictions. The overall result of these rule amendments will be a more efficient application and ordinance review process.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The nature of the rule and the preliminary analysis conducted to determine whether a SERC was required.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 327.04, 327.46 FS.

LAW IMPLEMENTED: 327.46, FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Major Robert Rowe, Division of Law Enforcement, Boating and Waterways Section, 620 South Meridian St., Tallahassee, Florida 32399-1600, [phone], [e-mail].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

68D-21.001 Requirements for Applications.

(1) Approval by the Florida Fish and Wildlife Conservation Commission is not required for ordinances adopted pursuant to Section 327.46(1)(b), F.S. Regulatory markers necessary for implementing those ordinances must be permitted as required in Sections 327.40 and 327.41, F.S., and as provided in Chapter 68D-23, F.A.C.

(2) Any municipality or county application for approval of an ordinance establishing a boating-restricted area pursuant to Section 327.46(1)(c), F.S., must be submitted to: Florida Fish and Wildlife Conservation Commission, Division of Law Enforcement, Boating and Waterways Section.

(3) Each application must include:

(a) The name of the applicant municipality or county.

(b) The name, mailing address, telephone number, and any email address or facsimile number of the applicant’s:

1. Primary contact person; and,

2. Attorney or qualified representative.

(c) A certified copy of the adopted ordinance for which approval is sought. A county or municipality may submit a draft ordinance for review and approval. Approval, if granted, is conditioned upon the draft ordinance being adopted without amendment and does not become effective until a certified copy of the ordinance as adopted is received by the Boating and Waterways Section. If the draft ordinance is amended, approval of the draft ordinance will be rescinded and the ordinance as adopted will be reviewed.

(d) A statement identifying the provision within Section 327.46(1)(c), F.S., authorizing regulation of vessel speed or operation by the ordinance.

(e) One or more scaled drawings no larger than 8 1/2 inches by 11 inches, reproducible in black and white on standard office photocopying equipment which clearly show the following:

1. The jurisdictional boundaries of the municipality or county enacting the ordinance and, for county ordinances, the jurisdictional boundaries of any municipality in which a boating-restricted area is located.

2. The exact boundaries of each boating-restricted area established by the ordinance and the restrictions on vessel operation imposed within each boating-restricted area.

3. Any other known boating-restricted area (federal, state, county, other municipality, etc.) located within 2,500 feet of any boating-restricted area established by the ordinance.

4. The location of any of the following within a proposed boating-restricted area or used as a basis for establishing a boating restricted area, identified with a label or legend as to whether or not it is available for use by the general public:

a. Any boat ramp, hoist, marine railway, or other launching or landing facility. For purposes of this Chapter, and in interpreting s. 327.46, F.S., a “launching or landing facility” shall be any improvement built or installed upon land that facilitates a vessel transitioning from the land to the water and vice versa. A launching or landing facility shall not include any amenity built near or adjacent to the water which does not facilitate a vessel transitioning from the land to water, or vice versa.

b. Any fuel pump or dispenser at any marine fueling facility or licensed terminal facility.

c. Any lock structure.

d. Any designated public bathing beach or swim area.

5. The location of any of the following within a proposed boating-restricted area or used as a basis for establishing a boating restricted area:

a. Any bridge, including any bridge fender system, if present.

b. Any dam, spillway, or flood control structure.

c. Any confluence of water bodies presenting a blind corner.

d. Any bend or other intervening obstruction to visibility that may obscure other vessels or other users of the waterway in a narrow channel, fairway, or other similar area within the meaning of Inland Navigation Rule 9 (33 U.S.C. §2009) as adopted by Section 327.33, F.S.

e. Any specific hazards to navigation (with a label or legend describing the hazard).

6. If relied upon as a basis for establishing the boating-restricted area, the location and description of any of the following within the proposed boating restricted area boundary:

a. Any specific area subject to unsafe levels of vessel traffic congestion, together with documentation showing these unsafe levels, as provided in Rule 68D-21.004.

b. Any specific area subject to hazardous water levels or currents, together with documentation showing these hazardous levels, as provided in Rule 68D-21.004.

c. Any reported boating accident for which speed, wake, or operation of a vessel was a primary contributing factor .

d. Any issuance of a Uniform Boating Citation or written warning related to vessel speed, wake, or operation. The Applicant shall be responsible for reviewing citations and written warnings to ensure they are relevant to the application as provided in Rule 68D-21.004(3)(c)3.b. Applications submitted with citations or written warnings that are outside the scope of Rule 68D-21.004(3)(c)3.b. will be denied without prejudice to the Applicant reapplying with only citations and written warnings identified in Rule 68D-21.004(3)(c)3.b.

7. The shoreline-to-shoreline width of the body of water upon which the boating restricted area is to be established and, if the water body is a lake or pond, the total surface area expressed in acres.

(f) Documentation that the ordinance was developed, prior to presenting language for adoption, in consultation and coordination with:

1. The governing body of every other county or municipality sharing jurisdiction over the area in which the boating-restricted area is located.

2. The United States Coast Guard if the boating-restricted area is to be established on navigable waters of the United States as defined in 33 C.F.R. §2.36(a) (2009), which is adopted by reference and is available at http://www.gpoaccess.gov/cfr/index.html.

3. The United States Army Corps of Engineers if the boating-restricted area is to be established on navigable waters of the United States as defined in 33 C.F.R. §329.4 (2009), which is adopted by reference and is available at http://www.gpoaccess.gov/cfr/index.html.

(g) A summary of the facts and circumstances the applicant contends justifies the establishment of the restriction on speed or operation and a list of the evidence in support of that contention the applicant desires for the agency to review.

(h) An appendix containing all evidence listed in paragraph (g), above, except that the appendix need not include the following:

1. Copies of Boating Accident Reports or Boating Accident Investigation Reports if those reports are identified by law enforcement agency case number and provided in a list. If the Boating and Waterways Section does not have a copy on file of one or more such reports, it will request that the applicant supplement the application appendix with copies of those reports.

2. Copies of Florida Uniform Boating Citations or written warnings if identified by citation number or warning number in a list. If one or more citations or written warnings are not already entered into the ArrestNet Database maintained by the Commission Field Services Section, the Boating and Waterways Section will request the applicant to supplement the application appendix with copies of those citations or warnings. The applicant can request information regarding citations or warnings that are contained within the ArrestNet database by emailing [e-mail].

(i) Proof that the applicant has at its own cost published, as provided by Sections 50.011-.031, F.S., once a week for 2 consecutive weeks, prior notice of the public hearing on the ordinance in a newspaper of general circulation in the area(s) affected by the ordinance.

(j) The signature of the applicant’s attorney or qualified representative.

(k) The date the application is submitted.

(4) Complete applications may be submitted:

(a) By mail or in person to the Fish and Wildlife Conservation Commission, Boating and Waterways Section, 620 South Meridian Street, Tallahassee, FL 32399-1600, or

(b) As a Portable Document Format (.pdf) file attached to an email addressed to [e-mail].

(5) The Boating and Waterways Section will not process partial or incomplete applications.

Rulemaking Authority 327.04, 327.46 FS. Law Implemented 327.46 FS. History–New 10-6-10.

 

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. The United States Coast Pilot (http://www.nauticalcharts.noaa.gov/nsd/cpdownload.htm) identifies the area as being subject to hazardous tides or currents.

2. 3. A navigation chart published by the National Oceanic and Atmospheric Administration’s National Ocean Service (http://www.nauticalcharts.noaa.gov/) identifies the area as being subject to hazardous tides or currents.

3. 4. 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 seasonal 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, or wake, or operation of a vessel involved in the accident was a primary contributing factor in caused or contributed to 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, as provided in 33 C.F.R. §§173.55, 173.57; United States Coast Guard Report of Marine Casualty, Injury or Death, form CG-2692, as provided in 46 C.F.R. §4.05-10. The current versions of these forms are adopted by reference in subsection (7) (5); 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, or 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, Florida Statutes 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 if the conclusions of the study are, as determined by the Boating and Waterways Section, must be based upon sufficient facts or data, be are the product of reliable principles and methods, and apply if the study has applied 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 transmitting 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 68D-23.103) 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 68D-23.103), 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)(5) 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-_____ and Florida Boating Accident Self Report, form FWCDLE 146C (07/2010), available at https://www.flrules.org/Gateway/reference.asp?No=Ref-_____, 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) (Rev. 07/08), as provided in 33 C.F.R. §§173.55, 173.57, available at https://www.flrules.org/Gateway/reference.asp?No=Ref-_____. 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, or downloaded at http://www.uscgboating.org/assets/1/Publications/cg3865bar form2008.pdf.

(c) United States Coast Guard Report of Marine Casualty, Commercial Diving Casualty, or OCS Related Casualty Injury or Death, form CG-2692 (Rev. 07/19) (Rev. 06/04), as provided in 46 C.F.R. §4.05-10 available at https://www.flrules.org/Gateway/reference.asp?No=Ref-_____. 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, or downloaded at http://www.uscg.mil/forms/CG/CG_2692.pdf.

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

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Major Robert Rowe, Division of Law Enforcement, Boating and Waterways Section, 620 South Meridian St., Tallahassee, Florida 32399-1600, [phone], [e-mail].

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Florida Fish and Wildlife Conservation Commission

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: December 17, 2020

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: August 5, 2020