The proposed rule amendments clarify the required application criteria, application review process, and notice and posting procedures for municipalities and counties seeking to establish boating restricted areas pursuant ....

 

FISH AND WILDLIFE CONSERVATION COMMISSION

Vessel Registration and Boating Safety

RULE NOS.:RULE TITLES:

68D-21.001Requirements for Applications

68D-21.002Procedures for Reviewing Applications

68D-21.003Procedures for Providing for Public Notice and Participation

68D-21.004Criteria for Approval of Ordinances

68D-21.005Seasonal or Year-round Boating Restricted Areas

PURPOSE AND EFFECT: The proposed rule amendments clarify the required application criteria, application review process, and notice and posting procedures for municipalities and counties seeking to establish boating restricted areas pursuant to section 327.46(1)(c), F.S. The proposed rule amendments also set forth the right to request an administrative hearing to challenge the agency’s determination of municipalities and counties applications seeking to establish boating restricted areas and update existing documents incorporated by reference. In addition, the agency is proposing to create Rule 68D-21.005, F.A.C. which sets forth the necessary criteria for establishing seasonal and year-round boating restricted areas.

SUMMARY: The amendments to the rules will improve counties and municipalities understanding of the requirements to apply to the Commission to establish a boating restricted area and explains the review process and posting procedures. In addition, the right to challenge the Commission’s determination.

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 the statement of estimated regulatory costs, or to provide a proposal for lower cost regulatory alternatives must do so in writing within 21 days of this notice.

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: Kate Grimes, Boating and Waterways Section, Division of Law Enforcement, 620 South Meridian Street, Tallahassee, Florida 32399, [e-mail]; [phone].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

68D-21.001 Requirements for Applications.

(1) No change

(2) No change

(3) No change

(a) and (b) No change

(c) A certified copy of the adopted ordinance for which approval is sought, including proof that the applicant has followed the required procedures for ordinance notice and adoption as set forth in ch.166, F.S. A county or municipality may submit a draft ordinance for informal agency review and discussion approval  prior to adoption. 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., which authorizes authorizing regulation of vessel speed or operation being proposed by the ordinance.

(e) No change

1. through 3. No change

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.

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) No change

(g) Identification of the provision under section 327.46(1)(c) 1. through 3., F.S. on which the county or municipality is seeking to establish the proposed boating restricted area.

(h) 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.

(i) (h) An appendix containing all evidence listed in paragraph (h 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, 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. Proof that the applicant has followed the required procedures for ordinance notice and adoption as set forth in ch. 166, Florida Statutes.

(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) bBy 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 bBy email as ) 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, Amended 11-10-21, _____.

 

68D-21.002 Procedures for Reviewing Applications.

(1) Upon receipt of all statements and other documents specified above, the Boating and Waterways Section will determine whether or not the application is complete.

(a) If the application is not substantially complete or has not been completed substantially correctly, the Boating and Waterways Section will within 30 days of receipt return it to the applicant with a statement of the items that are missing or that must be corrected.

(b) If the application is substantially complete and only minor additions or corrections are required, the Boating and Waterways Section will within 30 days following receipt notify the applicant of the apparent errors or omissions and request the required additional or corrected information. If the requested additional or corrected information is not received within 30 days, the Boating and Waterways Section will return the application to the applicant with a statement of the items that are missing or that must be corrected.

(1) (2) Within 30 days following receipt of a completed application, Tthe Boating and Waterways Section shall will provide notice the applicant within 30 days as to whether the application is complete or what information is needed to complete the application of such receipt to the applicant by mail or by email using the same method by which the application was submitted and to the public as provided in Rule 68D-21.003, F.A.C.

(2) (3) The Boating and Waterways Section will review and act upon a complete application within 90 days of receipt following receipt of a completed application, review and act upon the application as follows:

(a) The Boating and Waterways Section will determine whether or not each boating-restricted area created in the ordinance is authorized under Section 327.46(1)(b) or (c), F.S. If any boating-restricted area created in the ordinance is not authorized pursuant to one of those paragraphs, the application will be denied. As provided in subsection 68D-21.001(1), F.A.C., approval is not required for ordinances unless a in which every boating-restricted area set forth established therein is authorized under Section 327.46(1)(b), F.S.  Where the ordinance includes boating restricted areas under both 327.46(1)(b) and (c) F.S., the Commission will only review those that are being created pursuant to subsection (c).

(b) The Boating and Waterways Section will determine whether or not the required consultation and coordination set forth in Rule 68D-21.001(3)(f) above has taken place each boating-restricted area established in the ordinance was developed prior to adoption of the ordinance:.

1. For municipal ordinances, in consultation and coordination with the governing body of the county in which the boating-restricted area is located,

2. For county ordinances, in consultation and coordination with the governing body of each municipality in which a boating-restricted area is located unless all boating-restricted areas are located in unincorporated portions of the county,

3. For boating-restricted area on navigable waters of the United States, in consultation and coordination with the United States Coast Guard and the United States Army Corps of Engineers.

If the required consultation and coordination has not taken place, the application will be denied. This paragraph shall not be construed to require an applicant to wait indefinitely for a response to a request for consultation and coordination. If a municipality or county has made such a request for consultation and coordination in writing and has not received a response within 30 days, the Boating and Waterways Section will, if requested, attempt to facilitate such consultation and coordination. If a response is still not forthcoming, the Boating and Waterways Section will conclude that the municipality, county, or federal agency to whom the request was addressed has no objection to the proposed ordinance and no further consultation or coordination will be required.

(c) The Boating and Waterways Section will determine whether or not review the application and appendix submitted establish a prima facie showing to determine whether competent, substantial evidence exists that the ordinance is necessary to protect public safety by evaluating if at least one of pursuant to the criteria set forth in Rule 68D-21.004, F.A.C., has been met.

(d) If there is a prima facie showing that the ordinance is necessary to protect public safety and that at least one of the criteria in Rule 68D-21.004, F.A.C., has been met, the Boating and Waterways Section will:

1. Review all written public comments received within 21 days following the notice provided to the public as required in Rule 68D-21.003, F.A.C., and all testimony, evidence, and exhibits presented at a public hearing if one was requested,

2. Review all comments provided by the United States Coast Guard and the United States Army Corps of Engineers received prior to the determination.

3. Conduct a public hearing within the applicant’s jurisdiction if a written request for such a hearing is received within 21 days following the notice provided to the public as required in Rule 68D-21.003, F.A.C.

(e) Based on the totality of the information received, the Boating and Waterways Section will determine whether or not there is substantial competent evidence that the ordinance is necessary to protect public safety.

1. An ordinance will be considered necessary to protect public safety only if it is required for the purposes of protecting human life and limb, vessel traffic safety, and, as defined in Rule 68D-23.103, F.A.C., maritime property.

(d) 2. No ordinance establishing a boating restricted area will be approved for the purpose of noise abatement or for the protection of shoreline, shore-based structures, or upland property from vessel wake or shoreline wash. As provided in Section 327.33(2), F.S., “vessel wake and shoreline wash resulting from the reasonable and prudent operation of a vessel shall, absent negligence, not constitute damage or endangerment to property.” The wake resulting from the reasonable and prudent operation of a vessel is a force which should be anticipated by the owners of property adjacent to the navigable waters of this state.

(3) (4) Upon completing its review, tThe Boating and Waterways Section will issue a determination approving or denying the application. act to approve or deny the application within the time limits specified in Section 327.46(1)(c), F.S. The Boating and Waterways Section will provide notice Upon approval or denial of the application, the Boating and Waterways Section will provide notice of the approval or denial as provided in Rule 68D-21.003, F.A.C. If no request for review is timely received, this notice will constitute final agency action.

(5) The Florida Fish and Wildlife Conservation Commission, sitting as agency head at its next available regularly scheduled meeting, will review any approval or denial determination made by the Boating and Waterways Section upon timely receipt of a request for review. Any substantially affected person may request review of the approval or denial; the request must be received by the Boating and Waterway Section within 21 days following the notice provided to the public as required in Rule 68D-21.003, F.A.C.

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

 

68D-21.003 Procedures for Providing for Public Notice and Requesting Administrative Hearing participation.

(1) Public Notice. The Boating and Waterways Section will provide notice of complete applications received, public meetings or hearing concerning applications, and denial or approval of applications: on the Boating and Waterways Section’s web page at http://www.myfwc.com/boating. In addition, notice will be sent and to all parties listed in the “Boating and Waterways Section’s Ppublic Ddistribution Llist – Ordinances Rules, Regulations, and Waterway Management Notifications.” in which Aany member of the public may join the distribution list by submitting a request to [e-mail] mailing or email address found below in paragraph 68D-21.003(2)(a), F.A.C.

(2) Anyone who wishes to challenge the Commission’s determination may do so by filing a petition for administrative hearing pursuant to chapter 120, Florida Statutes.  Petitions must be received by the Commission within 21 days of posting of the determination approving or denying the application to the Boating and Waterways Section, 620 South Meridian Street, Tallahassee, Florida 32399-1600, or by email to [e-mail].  

(2) Public Participation.

(a) Members of the public may provide written comments, recommendations, requests, inquiries, or other correspondence to the Boating and Waterways Section at 620 South Meridian Street, Tallahassee, FL 32399-1600; or by email at [e-mail]. Any attachments to emails must be in one or more of the following file formats, as appropriate: Microsoft Word Document (.doc or .docx); Rich Text File (.rtf); Portable Document Format (.pdf); Joint Photographic Experts Group format (.jpg or .jpeg); or Tagged Image File Format (.tif or .tiff).

(b) If a public hearing is requested under subparagraph 68D-21.002(3)(d)3., F.A.C., or review by the agency head is requested under subsection 68D-21.002(5), F.A.C., members of the public may:

1. Testify at the hearing or Commission meeting,

2. Submit relevant and material exhibits to the record of the proceeding.

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

 

68D-21.004 Criteria for Approval of Ordinances.

(1) No change.

(2) No change.

(3) An ordinance establishing an “idle speed, no wake” or “slow speed, minimum wake” boating restricted area will be approved to close the gap with a “slow speed, minimum wake” zone where there are two or more existing or newly created boating restricted areas that are separated by 500’ or less, such that acceleration of vessels between the areas is unsafe or presents risk of collision.

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

(a) No change

(b) No change

(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 (05/2024), available at https://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX and incorporated by reference herein;, or Florida Boating Accident Self Report, form FWCDLE 146C (05/2024), available at https://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX and incorporated by reference herein; ; , supplied by the Commission as provided in Section 327.302, F.S.; or any United States Coast Guard forms related to rRecreational bBoating aAccidents Report, form CG-3865; United States Coast Guard Report or of mMarine cCasualty, iInjury or dDeath., 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. and III. No change

b. through d. No change

4. No change.

(d) An area tThat 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: 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.

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. iImposition 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  exclusion of the specified vessels the specified classes of vessels must be excluded from the area in order is necessary 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, _________.

 

68D-21.005 Seasonal or Year-round Boating Restricted Areas.

(1) 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).

(2) 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.

Rulemaking Authority 327.04, 327.46 FS. Law Implemented 327.46 FS. History–New ________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Kate Grimes, Boating and Waterways Section, Division of Law Enforcement, 620 South Meridian Street, Tallahassee, Florida 32399, [e-mail]; [phone].

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

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: May 2, 2024

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: May 8, 2024