Derelict Vessel and Related Mooring Issues

1. Derelict Vessel and Related Mooring Issues LT. Roger Young FWC Officer Les Miller SPPP Officer David Albonetti FWC Officer Pat Stelmach SPPD Waterfront & Boating Access Summit October 14, 2006

2. Derelict Vessels and Related Mooring Issues: Derelict Vs. Anchored Vessels In order to understand the issues of derelict vessels, we must first discuss the issues of unregulated anchoring & mooring.

3. The Issues: • The problems associated with unregulated anchoring • The law and legal constraints on anchoring regulation • Current solutions • Potential solutions

4. The Problems Associated WithUnregulated Anchoring Sanitation and Pollution • Black water & grey water • Bilge water contaminants • Bottom paint leachate • Fuel leakage • Littering • Abandoned or derelict vessels

5. The Problems Associated WithUnregulated Anchoring Damage to seabed • Ground tackle (scouring) • Dragging damage • Crushing & Shading Shoreside damage • Mangroves and other vegetation • Damage from wading and climbing • Littering

6. The Problems Associated WithUnregulated Anchoring Dangers to Navigational Safety • Improper location • Too close to channels/mooring fields • Too far from upland facilities • Anchor lights (missing or inadequate) • Improper anchoring equipment or techniques (dragging or breaking free)

7. The Problems Associated WithUnregulated Anchoring Long-Term Anchored Storage of Vessels • Accumulate in inappropriate locations • Unattended vessels: • No anchor watch (dragging, lights, bilge) • Not properly maintained • Ignored by owners (out of sight . . .) • Tend to become derelict

8. The Problems Associated WithUnregulated Anchoring Other Perceived Problems • Aesthetic nuisances • Decrepit, “ugly” vessels • Laundry in the rigging • Noise from generators/music • Forced proximity to strangers • Trespassing for water access • Fear of crime

9. The Issues: • The problems associated with unregulated anchoring • The law and legal constraints on anchoring regulation

10. Anchoring Mooring Live-aboard Floating Structure Definitions:

11. Definitions: (16)  "Live-aboard vessel" means: (a) Any vessel used solely as a residence; or (b) Any vessel represented as a place of business, a professional or other commercial enterprise, or a legal residence. A commercial fishing boat is expressly excluded from the term "live-aboard vessel."

12. Definitions: (9)  "Floating structure" means a floating entity, with or without accommodations built thereon, which is not primarily used as a means of transportation on water but which serves purposes or provides services typically associated with a structure or other improvement to real property. . . . Incidental movement upon water or resting partially or entirely on the bottom shall not, in and of itself, preclude an entity from classification as a floating structure.

13. Definitions: The term "floating structure" includes, but is not limited to, each entity used as a residence, place of business or office with public access, hotel or motel, restaurant or lounge, clubhouse, meeting facility, storage or parking facility, mining platform, dredge, dragline, or similar facility or entity represented as such. Floating structures are expressly excluded from the definition of the term "vessel" provided in this section.

14. Who can regulate anchoring? The federal government: • Coast Guard - DHS • US Army Corps of Engineers • NOAA (sanctuary regulations) • National Park Service (park regulations) • USF&W (refuge regulations)

15. Who else can regulate anchoring? The state government: • Fish & Wildlife Conservation Commission (for public safety) • Department of Environmental Protection (within recreation areas, parks, aquatic preserves, etc.)

16. Who else can regulate anchoring? Local government (Counties and Municipalities): • Live-aboard vessels & floating structures • Non-live-aboard vessels that are withdrawn from navigation (i.e., those no longer exercising “rights of navigation”)

17. 327.60  Local regulations; limitations.— • No ordinance or local law may apply to the Florida Intracoastal Waterway • Ordinances and local laws are enforceable only when they are not in conflict with chapter 327 (including any amendments) or the rules adopted under chapter 327 (including 68D-23, Florida Admin. Code)

18. 327.60  Local regulations; limitations.— (2) Nothing contained in the provisions of this section shall be construed to prohibit local governmental authorities from the enactment or enforcement of regulations which prohibit or restrict the mooring or anchoring of floating structures or live-aboard vessels within their jurisdictions. However, . . .

19. 327.60  Local regulations; limitations.— local governmental authorities are prohibited from regulating the anchorage of non-live-aboard vessels engaged in the exercise of rights of navigation.

20. “Rights of Navigation” "Public rights on navigable waters are not restricted to navigation in the strict sense, but include such incidental rights as are necessary to render the right of navigation reasonably available." 65 C.J.S. Navigable Waters § 42.

21. “Rights of Navigation” These incidental rights include the right of the vessel to anchor so long as it does not unreasonably obstruct navigation. The common-law includes rights of anchorage as an element of the exercise of rights of navigation. Attorney General Opinion 85-45 (May 31, 1985)

22. “Rights of Navigation” As anchoring is one of the rights of navigation, the very act of anchoring is the exercise of a right of navigation. Therefore, if the vessel is not a live-aboard, local governments cannot regulate its anchoring while that vessel remains a "vessel in navigation."

23. Marking Requirements: Local ordinances regulating vessels are not enforceable until they are marked “in accordance with the permitting requirements set forth in Chapter [68D]-23, Florida Administrative Code.” Lee County v. Lippi, 662 So.2d 1304, 1307 (Fla. 2 DCA 1995). “The Division [of Law Enforcement] will not issue any permit authorizing the placement of regulatory markers for . . . ordinances regulating the anchoring of non-live-aboard vessels in navigation, in violation of Section 327.60(2), F.S.” Fla. Admin Code R. 68D-23.101(3).

24. No Longer in Navigation When does a vessel cease exercising rights of navigation? • When it ceases to be a vessel. • When it is withdrawn from navigation.

25. The Issues: • The problems associated with unregulated anchoring • The law and legal constraints on anchoring regulation • Current solutions

26. Current Solutions(Solutions that can be implemented without legislation.) The Enforcement Method • Regulation by appropriate authorities • Strict enforcement of current laws The Voluntary Compliance Method • Managed mooring fields/anchorages • Peer pressure • Other non­regulatory approaches

27. Current Solutions (Enforcement) Regulation by appropriate authorities • Federal Rule USCG – 33 C.F.R. Part 110 (Anchorages) NOAA – 15 C.F.R. Part 922 (Sanctuaries) USF&W 50 C.F.R. Part 32 (Refuge reg.s) • State Rule FWCC – Rule 68D-24 (Public Safety) DEP – Rule 18-20 (Aquatic Preserves) or Rule 62D-2 (State Rec. Areas & Parks)

28. Current Solutions (Enforcement) Strict enforcement of current laws • Anchor lights or other Nav. Rules • Interference to navigation • Abandoned property (inoperative or partially dismantled) • Derelict vessel (junked, wrecked, or substantially dismantled)

29. Current Solutions (Enforcement) Strict enforcement of current laws • Registration and numbering • MSDs and holding tanks • PFDs and other safety equipment • Boating privilege suspension (violator education, BUI refusal) • Outstanding warrants

30. Current Solutions (Vol/Compliance) Managed Mooring fields/anchorages • Invite participation, not require it • Entice participation with amenities

31. Current Solutions (Vol/Compliance) Peer pressure and Other non-regulatory approaches • Education and public information • “Neighborhood watch” type organizations • Work with potential vendors to meet needs • Provide charts/guides to anchorage locations • Use community oriented policing techniques

32. The Issues: • The problems associated with unregulated anchoring • The law and legal constraints on anchoring regulation • Current solutions • Potential solutions

33. Potential Solutions(Solutions that will require legislation.) Seek grant funding Additional rulemaking authority Provide a model anchoring ordinance Remove restrictions on local authority

34. Potential Solutions Seek grant funding for: • Managed mooring fields/anchorages • Upland facilities tied to boating access • Charts, guides, and waterway marking • Pump-out facilities and dump stations • Enhanced enforcement (over current levels)

35. Potential Solutions Additional rulemaking authority: • FWCC – Add “natural resource protection” to the purposes for regulation in § 327.46, FS. • DEP/BOTIITF – Allow regulation under chapters 253 and 258, FS., to protect resources on submerged lands not within parks and preserves.

36. Potential Solutions Provide a model anchoring ordinance The model ordinance could be: • Specified in statute, or • FWC directed to develop it by rule. Local governments wanting to regulate anchoring: • Could adopt only the model ordinance • Other ordinances would not be allowed

37. Potential Solutions Model anchoring ordinance – Potential benefits include: • Uniformity and predictability • Easier educational effort • Greater voluntary compliance • Facilitates enforcement across jurisdictional lines

38. Potential Solutions Remove restrictions on local authority to regulate anchoring • Local government could experiment with local answers to meet local needs • Regulation and enforcement would be neither consistent nor predictable • Enforcement would be fragmented • County, state, and federal officers would not necessarily know the lower level ordinances

39. Derelict Vessels • The key to enforcement is prevention. • Interrupt the process BEFORE the vessel is derelict. • Early intervention is essential.

40. Derelict Vessels Derelict vessel – any vessel as defined by Florida law, which is left, stored, or abandoned: (2006 Legislature) • In a wrecked, junked, or substantially dismantled condition upon public waters. • At any port in this state without the consent of the agency having jurisdiction thereof. • Docked or grounded at or beached upon the property of another without the consent of the owner of the property.

41. Derelict Vessels "Lost property" means all tangible personal property which: • Has no identifiable owner • Has been mislaid on public property • In substantially operable, functioning condition or has an apparent intrinsic value to the rightful owner

42. Derelict Vessels "Abandoned property" means all tangible personal property which: • Has no identifiable owner • Disposed on public property • In a wrecked, inoperative, or partially dismantled condition or has no apparent intrinsic value Vessels determined derelict by FWC, County or Municipal authorities are included within this definition.

43. Derelict Vessels “Store or leave” any derelict vessel • $1000, 1 year jail, or both • Probation and restitution (if ordered by court) • Vessel is abandoned property • Removed at owners expense • No vehicle or vessel registration until reimbursement is made

44. Derelict Vessels Removal of abandoned property: • Any law enforcement officer (or code enforcement officer if designated by the city or county) • No FWC delegation • Take possession if easily removable • 5-Day notice (owner must remove or show reasonable cause for failure to do so) • Remove and dispose at owners expense(agency pays and seeks reimbursement)

45. Derelict Vessels Removal of lost property: • Any law enforcement officer (or code enforcement officer if designated by the city or county) • No FWC delegation • Take possession if easily removable • 5-day notice (owner must remove or show reasonable cause for failure to do so) • Remove and store at owners expense (agency pays and seeks reimbursement) • Advertise (first 45 days) and auction (after 90 days)

46. QuestionsandDiscussion

47. The End