State Policy Update: Amendments to Florida’s Boating Laws, 2021

 

Bill Impact Analysis
SB 1946 & 1086 – 2021 Amendments to Florida’s Boating Laws

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

The 2021 Florida Legislature passed 2 significant bills affecting Florida boating law. On June 29th the Governor signed both bills.

Senate Bill 1946 amends Chapter 327 of the Florida Statutes to 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 Bill 1086 is considerably broader, addressing among many issues: at-risk and derelict vessels, marine sanitation devices, no-discharge zones in aquatic preserves, and vessel regulation in springs. SB 1086 also 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’s

Background. Despite local government efforts over the years, and with some exceptions, the legislature has not grant local governments the authority 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 2017 and at that time the preemption of local regulation of anchoring was clarified and strengthened. Subsequently, local governments began appealing directly to the legislature to create geographically specific anchoring restricted areas by statute, and several succeeded, resulting in a growing patchwork of legislatively declared anchoring restrictions across the state.
To address this, the 2021 legislature revisited Florida’s primary boating law, Chapter 327 and created a framework for limited local anchoring regulation by 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). Individual ALAs previously created by the legislature on an ad hoc basis, mostly 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 actions. A vessel in Monroe County may be anchored in the same location for a maximum of 90 days. However, the Monroe County ALA does not take effect until Monroe County approves, permits, and opens new moorings for public use, including at least 250 moorings within 1 mile of the Key West Bight City Dock and at least 50 moorings within the Key West Garrison Bight Mooring Field. SB1946 also requires the FWC to designate the areas within 1 mile of the Key West Bight City Dock as a priority for the investigation and removal of derelict vessels. Unlike the counties discussed below, FWC is charged with adopting rules to implement the Monroe County ALA.

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

Urban Areas. SB 1946 restricts its application to “urban areas that have residential docking facilities and significant recreational boating traffic,” but offers no additional guidance on how to delineate such areas.

10% Aggregate Limit. The aggregate total of anchoring limitation areas in a county may not exceed 10 percent of a county’s 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 character is or may be conducted in the customary mode of trade and travel on water. The term does not 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 as highways for transportation.”

100 Acre Size Limit. Any individual ALA must be less than 100 acres in size. However, the calculated size does not include any portion of the marked channel of the Florida Intracoastal Waterway contiguous to the ALA and any mooring field or marina.

Signage and Buoys. The ALA must also 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 also be marked by buoys.

45 Day Length of Stay Limit. Subject to time limited exceptions for mechanical failure, provision for safe harbor due to weather, and special events, a boater also may not anchor a vessel for more than 45 consecutive days in any 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 area. The FWC is required to publish notice of the proposed ordinance on its website and through the boating and navigation email list. SB 1946 does not appear to require FWC approval, only notice, which is a departure from the Section 327.46 governing Boating Restricted Areas more generally.

Enforcement. SB 1946 describes the means by which a boater may offer proof that the vessel has not exceeded the limitations described in the statute, and provides for non-criminal penalties for violating the law, including fines and removal and impoundment of the vessel.

A Note on Municipalities. Municipalities, which are more likely to include “urban areas that have residential docking facilities and significant recreational boating traffic,” receive no mention in the new law. Only counties are given the authority to create ALA’s. Thus, arguably Chapter 327’s underlying preemption (s. 327.60(2)(f)) that prohibits all local governments from restricting transient anchoring continues in force as to municipalities. Presumably, a municipality seeking to create an ALA within its over water jurisdiction would be required to petition the county to establish the ALA within the City. And, with procedural distinctions that depend on whether it is a charter or non-charter county, a county can create ALAs within municipal waters.

II.    SB 1086

Alcohol-Related Offenses. The main revisions are the result of the 2016 United States Supreme Court decision in Birchfield v. 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, so the legislature removed the now unenforceable language and removed provisions relating to refusal of blood tests without a warrant and did so 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 breath or urine test.

Navigation Rules. SB 1086 amends Chapter 327’s definition of “navigation rules” for purposes of bringing it and the statutes that apply the rules up to date with the federal law, which controls. Florida law essentially incorporates by reference the federal “rules of the road” as they are known to mariners, that apply in both international waters pursuant to a treaty (COLREG) and in “inland” waters, effectively making the federal law Florida law. In order to bring these up to date the amended definition simply references the most recent federal re-adoption date which occurred in 2020.

Temporary Protection Zones for Space Launches and Recovery. The increase in space launches coupled with water-based space craft recoveries has prompted a new spatial and temporal boating restricted area. The law creates new Section 327.462 to allow law enforcement agencies to clear vessels from an area 500 yards from where space launch and recovery activities are taking place, more if warranted by public safety, as long as necessary to ensure security, but for no more than 72 hours before a launch and 72 hours after a launch. It also authorizes these agencies to maintain a 500-yard envelope around spacecraft related transport 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 Human-Powered Vessels. SB1086 creates new Section 327.371 bringing with it a new vessel definition to the Florida Statutes—“human-powered vessel”—for the purposes of restricting the use of these vessels within the Intracoastal Waterway (ICW). “Human-powered vessel” is defined as “a vessel powered only by its occupant or occupants, including, but not limited to, a vessel powered only by the occupants’ hands or feet, oars, or paddles.” Essentially, human powered vessels cannot use the ICW except to “expeditiously cross the waterway to reach other navigable waters, and in the case 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 Law. Section 823.11, Florida Statutes addresses DVs declared 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 word in the term. Other definitional criteria are left untouched.

       Chapter 376 is Florida’s Pollutant Discharge Prevention and Removal Law. In Section 376.15 relating to relocation and removal of DVs, the single word “leave” replaces the term “store, leave or abandon.” Leave is then defined to mean “to allow a [derelict] vessel to remain occupied or unoccupied on the water of this state for more than 24 hours.” (Brackets provided for context). Exceptions are made for boat accidents that are officially reported, hurricanes, and other “sudden events” outside the control of the owner. These exceptions are subject to further requirements and limitations detailed in the new law.

The new law clarifies that DVs can not only be removed and relocated, but also “stored, destroyed and disposed of.” For the purposes of cost recovery, the law includes, in addition to owners, “the party determined to be legally responsible for the vessel being on the waters of this state in a derelict condition.” The law also expands the entities that can perform relocation, removal, storage, destruction and disposal to include “governmental subdivisions,” when these have been authorized by a law enforcement agency or other agency conferred with this authority by the statute. The term “governmental subdivision” is not defined in the bill, the statute it amends, or elsewhere in the Florida Statutes.

Chapter 705 is Florida’s Lost and Abandoned Property Statute. DVs that have been declared to be a public nuisance are distinguished from other forms of lost or abandoned property in terms of notice requirements. A unique written notice to be affixed to a vessel details the distinct process for DVs being processed as lost or abandoned, as well as vessel owner or other interested party rights. This provision does not take effect 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 agency or designee, subject to applicable permitting.

Vessels at Risk of Becoming Derelict – Relocation. SB 1086 amends Section 327.4107, which addresses vessels “at risk of becoming derelict.” The new law somewhat changes one of the several criteria for establishing that a vessel is “at risk.” It removes the language 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,” but retains the language in the criteria that it is “listing due to water intrusion.” Other criteria remain unchanged.

The amendment now authorizes FWC and other law enforcement agencies to relocate an “at risk” vessel, when that vessel lies within 20 feet of mangroves or upland vegetation (and be held harmless for any resultant liability unless the damage occurs from gross negligence). The new provision also authorizes but does not require FWC to undertake a “derelict vessel prevention program,” which can 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 abandoned vessels.

Anchoring Limitation Areas (ALA’s). ALAs are addressed more extensively in SB 1946 that also passed in the 2021 Session, including a redundant provision making all of Monroe County 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 amends Section 327.45 to authorize FWC to establish protection zones for first, second 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 amendment 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 be marked with uniform water markers and not 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 as law enforcement and firefighting vessels. When the emergency lights of these vessels are activated a vessel operator within 300 feet of the emergency vessel must operate a “slow speed, minimum wake.” This same requirement applies to any construction vessel or barge displaying an orange flag indicating it is actively engaged in construction activities. A detailed description of what constitutes “slow speed, minimum wake” is provided “for the purposes of” the Special Hazards section. This description largely tracks FWC’s regulatory definition of the term in Florida Administrative Code Rule 68D-24. Non-criminal penalties are provided for.

No-Discharge Zones. The new law creates Section 327.521, greatly expanding the potential for federally designated “no-discharge zones” in Florida waters (currently there are only 3) and includes additional requirements for the pump-out of marine sanitation devices. No discharge zones prohibit the discharge of treated or untreated vessel wastewater into “Waters of the United States.” These are established in several ways, 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, application will be made by FDEP as an administrative 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 not 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 one year. Marine composting toilets that conform to United States Coast Guard requirements are exempted.