Derelict Vessel and Related Mooring Issues LT. Roger Young FWC Officer Les Miller SPPP Officer David...

Derelict Vessel and Derelict Vessel and Related Mooring Related Mooring

IssuesIssues LT. Roger Young FWC Officer Les Miller SPPP LT. Roger Young FWC Officer Les Miller SPPP Officer David Albonetti FWC Officer Pat Stelmach Officer David Albonetti FWC Officer Pat Stelmach

SPPDSPPD

Waterfront & Boating Access SummitWaterfront & Boating Access Summit

October 14, 2006October 14, 2006

Derelict Vessels and Derelict Vessels and Related Mooring Issues:Related Mooring Issues:

Derelict Vs. Anchored VesselsDerelict Vs. Anchored Vessels

In order to understand the In order to understand the issues of derelict vessels, we issues of derelict vessels, we must first discuss the issues must first discuss the issues of unregulated anchoring & of unregulated anchoring & mooring.mooring.

The Issues:The Issues: The problems associated The problems associated

with unregulated anchoringwith unregulated anchoring

The law and legal constraints The law and legal constraints on anchoring regulationon anchoring regulation

Current solutionsCurrent solutions

Potential solutionsPotential solutions

The Problems Associated WithThe Problems Associated With

Unregulated Unregulated AnchoringAnchoring

Sanitation and PollutionSanitation and Pollution Black water & grey waterBlack water & grey water Bilge water contaminantsBilge water contaminants Bottom paint leachateBottom paint leachate Fuel leakageFuel leakage LitteringLittering Abandoned or derelict Abandoned or derelict

vesselsvessels


Unregulated Unregulated AnchoringAnchoringDamage to seabedDamage to seabedGround tackle (scouring)Ground tackle (scouring)Dragging damageDragging damageCrushing & ShadingCrushing & Shading

Shoreside damageShoreside damageMangroves and other vegetationMangroves and other vegetationDamage from wading and Damage from wading and

climbingclimbingLitteringLittering


Unregulated Unregulated AnchoringAnchoringDangers to Navigational SafetyDangers to Navigational Safety Improper locationImproper location

Too close to channels/mooring fieldsToo close to channels/mooring fieldsToo far from upland facilitiesToo far from upland facilities

Anchor lights Anchor lights (missing or (missing or inadequate)inadequate)

Improper anchoring equipment or Improper anchoring equipment or techniques techniques (dragging or breaking (dragging or breaking free)free)



Long-Term Anchored Storage Long-Term Anchored Storage

of Vesselsof Vessels

Accumulate in inappropriate locationsAccumulate in inappropriate locations

Unattended vessels:Unattended vessels: No anchor watch (dragging, lights, bilge)No anchor watch (dragging, lights, bilge)

Not properly maintainedNot properly maintained

Ignored by owners (out of sight . . .)Ignored by owners (out of sight . . .)

Tend to become derelictTend to become derelict



Other Perceived ProblemsOther Perceived Problems Aesthetic nuisancesAesthetic nuisances

Decrepit, “ugly” vesselsDecrepit, “ugly” vessels Laundry in the riggingLaundry in the rigging

Noise from generators/musicNoise from generators/music Forced proximity to strangersForced proximity to strangers Trespassing for water accessTrespassing for water access Fear of crimeFear of crime



The law and legal The law and legal constraints on anchoring constraints on anchoring regulationregulation

Definitions:Definitions:

AnchoringAnchoring

MooringMooring Live-aboardLive-aboard

Floating StructureFloating Structure

Definitions:Definitions:(16) "Live-aboard vessel" means:(16) "Live-aboard vessel" means:

(a) Any vessel used (a) Any vessel used solely as a residencesolely as a residence; or; or

(b) Any vessel represented as a place of (b) Any vessel represented as a place of business, a professional or other commercial business, a professional or other commercial enterprise, or a enterprise, or a legal residencelegal residence..

A commercial fishing boat is A commercial fishing boat is expressly expressly excludedexcluded from the term "live-aboard vessel." from the term "live-aboard vessel."

Definitions:Definitions: (9) "Floating structure" means a floating (9) "Floating structure" means a floating entity, with or without accommodations built entity, with or without accommodations built thereon, which is not primarily used as a thereon, which is not primarily used as a means of transportation on water but which means of transportation on water but which serves purposes or provides services typically serves purposes or provides services typically associated with a structure or other associated with a structure or other improvement to real property.improvement to real property. . . .. . .

Incidental movement upon water or resting Incidental movement upon water or resting partially or entirely on the bottom shall not, in partially or entirely on the bottom shall not, in and of itself, preclude an entity from and of itself, preclude an entity from classification as a floating structure.classification as a floating structure.

Definitions:Definitions:The term "floating structure" includes, but is The term "floating structure" includes, but is not limited to, each entity used as a not limited to, each entity used as a residence, place of business or office with residence, place of business or office with public access, hotel or motel, restaurant or public access, hotel or motel, restaurant or lounge, clubhouse, meeting facility, storage lounge, clubhouse, meeting facility, storage or parking facility, mining platform, dredge, or parking facility, mining platform, dredge, dragline, or similar facility or entity dragline, or similar facility or entity represented as such.represented as such.

Floating structures are expressly excluded Floating structures are expressly excluded from the definition of the term "vessel" from the definition of the term "vessel" provided in this section. provided in this section.

WWho can regulate ho can regulate anchoring?anchoring?

The federal government:The federal government: Coast Guard - DHSCoast Guard - DHS US Army Corps of EngineersUS Army Corps of Engineers NOAA (sanctuary regulations)NOAA (sanctuary regulations) National Park Service (park National Park Service (park

regulations)regulations) USF&W (refuge regulations)USF&W (refuge regulations)

WWho else can regulate ho else can regulate anchoring?anchoring?

The state government:The state government:

Fish & Wildlife Conservation Fish & Wildlife Conservation Commission (for public Commission (for public safety)safety)

Department of Environmental Department of Environmental Protection (within recreation Protection (within recreation areas, parks, aquatic areas, parks, aquatic preserves, etc.)preserves, etc.)

WWho else can regulate ho else can regulate anchoring?anchoring?

Local government (Counties Local government (Counties and Municipalities):and Municipalities):

Live-aboard vessels & floating Live-aboard vessels & floating structuresstructures

Non-live-aboard vessels that Non-live-aboard vessels that are withdrawn from navigation are withdrawn from navigation (i.e., those no longer (i.e., those no longer exercising “exercising “rights of rights of navigationnavigation”)”)

327.60 Local regulations; 327.60 Local regulations; limitations.—limitations.—

No ordinance or local law may apply No ordinance or local law may apply to the Florida Intracoastal Waterwayto the Florida Intracoastal Waterway

Ordinances and local laws are Ordinances and local laws are enforceable enforceable onlyonly when they are not when they are not in conflict with chapter 327 in conflict with chapter 327 (including any amendments) or the (including any amendments) or the rules adopted under chapter 327 rules adopted under chapter 327 (including 68D-23, Florida Admin. (including 68D-23, Florida Admin. Code)Code)


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


local governmental authorities local governmental authorities

are prohibitedare prohibited from regulating from regulating

the anchorage of non-live-the anchorage of non-live-

aboard vessels engaged in the aboard vessels engaged in the

exercise of rights of navigation.exercise of rights of navigation.

““Rights of Navigation”Rights of Navigation”

"Public rights on navigable waters "Public rights on navigable waters are not restricted to navigation in are not restricted to navigation in the strict sense, but include such the strict sense, but include such incidental rights as are necessary incidental rights as are necessary to render the right of navigation to render the right of navigation reasonably available."reasonably available."

65 C.J.S. 65 C.J.S. Navigable WatersNavigable Waters § 42. § 42.


These incidental rights include the These incidental rights include the right of the vessel to anchor so long as right of the vessel to anchor so long as it does not unreasonably obstruct it does not unreasonably obstruct navigation.navigation.

The common-law includes rights of The common-law includes rights of anchorage as an element of the anchorage as an element of the exercise of rights of navigation.exercise of rights of navigation.

Attorney General Opinion 85-45 (May 31, 1985)Attorney General Opinion 85-45 (May 31, 1985)


As anchoring is one of the rights of As anchoring is one of the rights of navigation, the very act of anchoring is navigation, the very act of anchoring is the exercise of a right of navigation.the exercise of a right of navigation.

Therefore, if the vessel is not a live-Therefore, if the vessel is not a live-aboard, local governments cannot aboard, local governments cannot regulate its anchoring while that vessel regulate its anchoring while that vessel remains a "vessel in navigation."remains a "vessel in navigation."

Marking Requirements:Marking Requirements:

Local ordinances regulating vessels are not Local ordinances regulating vessels are not enforceable until they are marked “in accordance enforceable until they are marked “in accordance with the permitting requirements set forth in with the permitting requirements set forth in Chapter [68D]-23, Florida Administrative Code.”Chapter [68D]-23, Florida Administrative Code.”

Lee County v. Lippi, 662 So.2d 1304, 1307 (Fla. 2 DCA 1995).Lee County v. Lippi, 662 So.2d 1304, 1307 (Fla. 2 DCA 1995).

““The Division [of Law Enforcement] will not issue The Division [of Law Enforcement] will not issue any permit authorizing the placement of any permit authorizing the placement of regulatory markers for . . . ordinances regulating regulatory markers for . . . ordinances regulating the anchoring of non-live-aboard vessels in the anchoring of non-live-aboard vessels in navigation, in violation of Section 327.60(2), F.S.”navigation, in violation of Section 327.60(2), F.S.”

Fla. Admin Code R. 68D-23.101(3).Fla. Admin Code R. 68D-23.101(3).

No Longer in NavigationNo Longer in Navigation

When does a vessel cease When does a vessel cease exercising rights of exercising rights of

navigation?navigation?

When it ceases to be a vessel.When it ceases to be a vessel.

When it is withdrawn from When it is withdrawn from navigation.navigation.



The law and legal The law and legal constraints on anchoring constraints on anchoring regulationregulation


Current SolutionsCurrent Solutions(Solutions that can be implemented without (Solutions that can be implemented without legislation.)legislation.)

The Enforcement MethodThe Enforcement Method Regulation by appropriate Regulation by appropriate

authoritiesauthorities Strict enforcement of current lawsStrict enforcement of current laws

The Voluntary Compliance MethodThe Voluntary Compliance Method Managed mooring fields/anchoragesManaged mooring fields/anchorages Peer pressurePeer pressure Other nonOther non regulatory approachesregulatory approaches

Current SolutionsCurrent Solutions (Enforcement)(Enforcement)

Regulation by appropriate Regulation by appropriate authoritiesauthorities

Federal RuleFederal RuleUSCG – 33 C.F.R. Part 110 (Anchorages)USCG – 33 C.F.R. Part 110 (Anchorages)NOAA – 15 C.F.R. Part 922 (Sanctuaries)NOAA – 15 C.F.R. Part 922 (Sanctuaries)USF&W 50 C.F.R. Part 32 (Refuge reg.s)USF&W 50 C.F.R. Part 32 (Refuge reg.s)

State RuleState RuleFWCC – Rule 68D-24 (Public Safety)FWCC – Rule 68D-24 (Public Safety)DEP – Rule 18-20 (Aquatic Preserves) or DEP – Rule 18-20 (Aquatic Preserves) or

Rule 62D-2 (State Rec. Areas & Rule 62D-2 (State Rec. Areas & Parks)Parks)


Strict enforcement of current Strict enforcement of current lawslaws

Anchor lights or other Nav. RulesAnchor lights or other Nav. Rules

Interference to navigationInterference to navigation

Abandoned property (inoperative Abandoned property (inoperative or partially dismantled)or partially dismantled)

Derelict vessel (junked, wrecked, Derelict vessel (junked, wrecked, or substantially dismantled)or substantially dismantled)


Strict enforcement of current Strict enforcement of current lawslaws

Registration and numberingRegistration and numbering

MSDs and holding tanksMSDs and holding tanks

PFDs and other safety equipmentPFDs and other safety equipment

Boating privilege suspension Boating privilege suspension (violator education, BUI refusal)(violator education, BUI refusal)

Outstanding warrantsOutstanding warrants

Current SolutionsCurrent Solutions (Vol/Compliance)(Vol/Compliance)

Managed Mooring Managed Mooring fields/anchoragesfields/anchorages

Invite participation, not require itInvite participation, not require it Entice participation with amenitiesEntice participation with amenities

Current SolutionsCurrent Solutions (Vol/Compliance)(Vol/Compliance)

Peer pressure and Peer pressure and

Other non-regulatory approachesOther non-regulatory approaches Education and public informationEducation and public information ““Neighborhood watch” type organizationsNeighborhood watch” type organizations Work with potential vendors to meet needsWork with potential vendors to meet needs Provide charts/guides to anchorage locationsProvide charts/guides to anchorage locations Use community oriented policing techniquesUse community oriented policing techniques



The law and legal constraints The law and legal constraints on anchoring regulationon anchoring regulation


Potential solutionsPotential solutions

Potential SolutionsPotential Solutions(Solutions that will require legislation.)(Solutions that will require legislation.)

Seek grant fundingSeek grant funding

Additional rulemaking authorityAdditional rulemaking authority

Provide a model anchoring ordinanceProvide a model anchoring ordinance

Remove restrictions on local authorityRemove restrictions on local authority

Potential SolutionsPotential Solutions

Seek grant funding for:Seek grant funding for:

Managed mooring fields/anchoragesManaged mooring fields/anchorages

Upland facilities tied to boating accessUpland facilities tied to boating access

Charts, guides, and waterway markingCharts, guides, and waterway marking

Pump-out facilities and dump stationsPump-out facilities and dump stationsEnhanced enforcement Enhanced enforcement (over current levels)(over current levels)

Potential SolutionsPotential SolutionsAdditional rulemaking Additional rulemaking

authority:authority:

FWCC – Add “natural resource FWCC – Add “natural resource protection” to the purposes for protection” to the purposes for regulation in § 327.46, FS.regulation in § 327.46, FS.

DEP/BOTIITF – Allow regulation under DEP/BOTIITF – Allow regulation under chapters 253 and 258, FS., to protect chapters 253 and 258, FS., to protect resources on submerged lands not resources on submerged lands not within parks and preserves.within parks and preserves.

Potential SolutionsPotential Solutions Provide a model anchoring Provide a model anchoring ordinanceordinance

The model ordinance could be:The model ordinance could be:Specified in statute, orSpecified in statute, orFWC directed to develop it by rule.FWC directed to develop it by rule.

Local governments wanting to regulate Local governments wanting to regulate anchoring:anchoring:Could adopt only the model ordinanceCould adopt only the model ordinanceOther ordinances would not be allowedOther ordinances would not be allowed

Potential SolutionsPotential Solutions

Model anchoring ordinance – Model anchoring ordinance – Potential benefits include:Potential benefits include: Uniformity and predictabilityUniformity and predictability Easier educational effortEasier educational effort Greater voluntary complianceGreater voluntary compliance Facilitates enforcement across Facilitates enforcement across

jurisdictional linesjurisdictional lines

Potential SolutionsPotential Solutions Remove restrictions on local Remove restrictions on local authority to regulate anchoringauthority to regulate anchoring

Local government could experiment Local government could experiment with local answers to meet local needswith local answers to meet local needs

Regulation and enforcement would be Regulation and enforcement would be neither consistent nor predictableneither consistent nor predictableEnforcement would be fragmented Enforcement would be fragmented County, state, and federal officers would County, state, and federal officers would

not necessarily know the lower level not necessarily know the lower level ordinancesordinances

Derelict VesselsDerelict VesselsThe key to enforcement is The key to enforcement is

prevention.prevention.

Interrupt the process BEFORE Interrupt the process BEFORE the vessel is derelict.the vessel is derelict.

Early intervention is Early intervention is essential.essential.

Derelict VesselsDerelict VesselsDerelict vesselDerelict vessel – any vessel as – any vessel as

defined by Florida law, which is left, defined by Florida law, which is left, stored, or abandoned: stored, or abandoned: (2006 (2006 Legislature)Legislature)

In a wrecked, junked, or substantially In a wrecked, junked, or substantially dismantled condition upon public waters.dismantled condition upon public waters.

At any port in this state without the At any port in this state without the consent of the agency having jurisdiction consent of the agency having jurisdiction thereof.thereof.

Docked or grounded at or beached upon Docked or grounded at or beached upon the property of another without the the property of another without the consent of the owner of the property.consent of the owner of the property.

Derelict VesselsDerelict Vessels"Lost property" means all tangible "Lost property" means all tangible

personal property which:personal property which:

Has no identifiable ownerHas no identifiable owner

Has been mislaid on public propertyHas been mislaid on public property

In substantially operable, In substantially operable, functioning condition or has an functioning condition or has an apparent intrinsic value to the apparent intrinsic value to the rightful ownerrightful owner

Derelict VesselsDerelict Vessels"Abandoned property" means all "Abandoned property" means all tangible personal property which:tangible personal property which:

Has no identifiable ownerHas no identifiable owner

Disposed on public propertyDisposed on public property

In a wrecked, inoperative, or partially In a wrecked, inoperative, or partially dismantled condition or has no dismantled condition or has no apparent intrinsic valueapparent intrinsic value

Vessels determined derelict by FWC, County or Vessels determined derelict by FWC, County or Municipal authorities are included within this Municipal authorities are included within this definition.definition.

Derelict VesselsDerelict Vessels““Store or leave” any derelict vesselStore or leave” any derelict vessel

$1000, 1 year jail, or both$1000, 1 year jail, or bothProbation and restitution Probation and restitution (if ordered by (if ordered by

court)court)

Vessel is abandoned propertyVessel is abandoned property Removed at owners expenseRemoved at owners expense

No vehicle or vessel registration No vehicle or vessel registration until reimbursement is madeuntil reimbursement is made

Derelict VesselsDerelict VesselsRemoval of abandoned property:Removal of abandoned property:Any law enforcement officer (or code Any law enforcement officer (or code

enforcement officer if designated by the enforcement officer if designated by the city or county)city or county)

No FWC delegationNo FWC delegationTake possession if easily removableTake possession if easily removable5-Day notice (owner must remove or show 5-Day notice (owner must remove or show

reasonable cause for failure to do so)reasonable cause for failure to do so)Remove and dispose at owners expenseRemove and dispose at owners expense

(agency pays and seeks reimbursement)(agency pays and seeks reimbursement)

Derelict VesselsDerelict VesselsRemoval of lost property:Removal of lost property:Any law enforcement officer Any law enforcement officer (or code (or code

enforcement officer if designated by the city or county)enforcement officer if designated by the city or county)

No FWC delegationNo FWC delegationTake possession if easily removableTake possession if easily removable5-day notice 5-day notice (owner must remove or show reasonable (owner must remove or show reasonable

cause for failure to do so)cause for failure to do so)

Remove and store at owners expense Remove and store at owners expense (agency pays and seeks reimbursement)(agency pays and seeks reimbursement)

Advertise Advertise (first 45 days) (first 45 days) and auction and auction (after 90 (after 90 days)days)

QuestionsQuestionsandand

DiscussionDiscussion

The EndThe End

Derelict Vessel and Related Mooring Issues LT. Roger Young FWC Officer Les Miller SPPP Officer David...

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