ARTICLES        Dean Maloney Law School Contest:  Third Place Winner Tranquil Waters: Federal, State and Local Governments Authority to Restrict or Exclude Vessels in Florida Waters Jody L. Brooks [1]

I. INTRODUCTION

     With a booming economy and rapidly growing population in Florida's coastal communities, conflicts over the recreational use of Florida's waterbodies abound. Jetski [2] riders annoy the canoeists, the speedboat enthusiasts' interests conflict with the enjoyment of the day sailor, fishermen grumble in the idle speed zones created for manatee protection, and fuel and oil discharges from motorized vessels pollute the water. The list of conflicts over the use of the waterways is endless. These conflicts include those created between competing human uses for space on the water and between man and nature. 

     As conflicts over the recreational uses of Florida's oceans, rivers and lakes increase, managers of the waterways must make hard decisions to resolve these conflicts. There are limited tools that management can utilize to resolve conflicts between recreational uses of the waterways. One management tool that can be utilized to help resolve user conflicts and assist in protecting one of Florida's most valuable natural resources is through the designation of exclusion or restrictive zones on water bodies. Federal, state, and local governments can exclude or restrict the use of vessels on the waterways for various purposes. This report examines sources of authority that government has to establish exclusion or restrictive zones on Florida's waterbodies and discusses the various implementing agencies. 

II. FEDERAL AUTHORITY

     The Commerce Clause of the United States Constitution gives Congress the power to regulate navigable waters. [3]  In theory, vessels should have the right to travel freely throughout navigable waters based on the "federal navigational servitude." [4]  Courts have upheld the federal government's power to regulate vessels based on the federal navigational servitude and in limited circumstances also through the use of the Property Clause of the United States Constitution. 

     The Property Clause of the United States Constitution provides, "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States. . ." [5]  Relying on the Property Clause, courts have held that the federal government has authority to regulate conduct on non-federal land when reasonably necessary to protect adjacent federal property. [6]  There is no clear answer on how far this reach goes. However, it has been determined that the federal reach of the Property Clause can extend to waters adjacent to federal lands. [7] 

III. FEDERAL IMPLEMENTING AGENCIES

     Congress has granted various federal agencies the authority to regulate vessels. The United States Coast Guard's primary concern and objective is safety; they have the authority to restrict speed, specify and regulate equipment requirements and exclude boats in conditions in which safety might be jeopardized. The United States Army through the Army Corps of Engineers can create military restricted and safety zones that exclude or restrict vessels in the name of national security and public safety. The United States Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) can regulate vessels to protect fish and wildlife. The National Park Service and National Oceanic and Atmospheric Association (NOAA) have the authority to restrict or exclude boats from the park service and national marine sanctuaries. 

A. UNITED STATES COAST GUARD

      The United States Coast Guard (USCG), an agency within the United States Department of Transportation, has the authority to limit access of all vessels in areas in which there are hazardous conditions. [8]  Based on navigability, vessel safety, and protection of the marine environment, the USCG has the authority to regulate vessels operating in the navigable waters of the United States. [9]  The USCG can also create safety zones in a water area for safety or environmental purposes. [10]  Access within the proscribed safety zones is limited to authorized persons, vehicles or vessels. [11]  Established security zones can also restrict access of vessels upon certain waterways. [12] 

     Unfortunately, there is no guidance as to the USCG's authority to create zones for environmental purposes. Is corralling an oil spill and preventing vessels in the area considered a safety zone created for an environmental purpose? Or does the USCG have broader authority to create restrictive zones that are not solely reactive, but proactive? Maybe the USCG, which is mostly known to be the safety patrol of the waterway, has broader authority than just keeping vessels safe and the waterways unobstructed. The USCG might have the authority to exclude or restrict vessels based on the environmental harms and not just safety concerns. [13]  Not only can unrestricted recreational boating be unsafe for boaters, it can also harm wildlife, pollute the waterway, and damage seagrass beds. It appears that the USCG has the authority to address conflicts between man and nature through the establishment of more waterway exclusion or restricted zones based on environmental concerns. 

B. UNITED STATES ARMY CORP OF ENGINEERS

     The United States Army Corps of Engineers, an agency under the United States Army, can create danger zones and restricted areas that can exclude or restrict vessels. [14]  These exclusions or restrictions are generally used for military security and operation, and for the protection of military bases. Danger zones and restricted area regulations shall, to the maximum extent practicable, provide for public access to the area and must be exercised so as not to unreasonably interfere with or restrict the food fishing industry. [15] 

C. UNITED STATES FISH AND WILDLIFE SERVICE AND THE NATIONAL MARINE FISHERIES SERVICE 

      The Endangered Species Act (ESA) and the Marine Mammal Protection Act give the United States Fish and Wildlife Service , an agency of the Department of Interior, and the National Marine Fisheries Service (NMFS), an agency of the Department of Commerce, broad authority to issue regulations which are deemed necessary and advisable to provide conservation of endangered species and protection of marine mammals. [16] 

     Regarding the West Indian manatee, most of this authority has been delegated to the State of Florida under a cooperative agreement as provided for in the ESA. [17]  The USFWS has designated manatee protection areas, also known as manatee sanctuaries, in which all waterborne activities are prohibited in these areas from November 15 through March 31 of each year. [18]  Boat access is limited to those residing within these sanctuaries. [19]  Further, the USFWS has the ability to establish manatee refuges in Florida, areas in which certain waterborne activities, such as boat speed, may be regulated. To date there are no designated manatee refuges, however there is a current initiative underway to assess and propose new manatee refuges and sanctuaries throughout Florida. [20] 

     The USFWS has the authority to restrict or exclude vessels within and bordering designated national wildlife refuges. [21]  In McGrail & Rowley v. Bruce Babbitt, a U.S. District Court found that the USFWS was acting within its authority in regulating plaintiff's catamaran tour operation through state-owned waters to federally-owned Boca Grande Key. [22]  Relying on the Property Clause, courts have held that the federal government has authority to regulate conduct on non-federal land when reasonably necessary to protect adjacent federal property. [23] 

D. NATIONAL PARK SERVICE

     The National Park Service (NPS), an agency of the Department of Interior, has broad statutory authority to regulate the use of national parks in ways which will conform to the fundamental purpose of the park. [24]  The NPS is responsible for conserving the resources of the park and providing visitors with recreational opportunities. Human recreational opportunities will vary from park to park and the NPS has substantial discretion in determining how best to manage park resources and provide for park visitors. [25] 

      Some national parks now exclude or restrict the use of personal watercraft in the parks, but allow other types of motorized vessels to operate in their waters. [26]  A final rule of the NPS was issued on March 21, 2000 that allows federal parks, on a park by park basis, to restrict or ban the use of personal watercraft in the park. At last count, twenty national parks exclude or severely restrict the use of personal watercraft in their parks. [27] 

E. NATIONAL OCEANIC AND ATMOSPHERIC ASSOCIATION

     The National Oceanic and Atmospheric Association (NOAA) has the regulatory authority to exclude or restrict vessels within established national marine sanctuaries. [28]  In Personal Watercraft Industry Association v. Department of Commerce, the D.C. Circuit Court held that NOAA's regulation of personal watercraft was not arbitrary and capricious and was rationally related to NOAA's objective of protecting the sanctuary's flora and fauna. [29]

IV. STATE REGULATION

     The state of Florida's power to regulate the waterways is through a broad grant of police power and the public trust doctrine. [30]  Such state regulations cannot conflict with federal laws. The Board of Trustees of the Internal Trust Fund can adopt rules regulating vessels upon sovereign submerged lands. The state can regulate vessels pursuant to the Florida Vessel and Safety Law. The Florida Fish and Wildlife Conservation Commission can restrict or exclude boats for safety reasons and wildlife protection. 

     Sovereign submerged lands are administered, controlled and managed by the Board of Trustees of the Internal Improvement Trust Fund. [31]  The Board of Trustees may adopt rules governing all uses of sovereignty submerged lands by vessels. [32]  Note that these regulations are limited to anchoring, mooring, or otherwise attaching to the bottom and can not interfere with the commerce or transitory operation of vessels through navigable water, but shall control the use of sovereignty submerged lands as a place of business or residence. [33]

A. FLORIDA VESSEL REGISTRATION AND SAFETY LAW

     The Florida Vessel Registration and Safety Law sets forth rules and regulations governing the operation and use of vessels. [34]  These safety regulations apply to all vessels operating upon the waters of the state unless expressly excluded. [35]  The State of Florida could establish legislation that would created exclusion zones or restrict vessels based on the health, safety and welfare of the user groups.

B. FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION AND FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

     The Florida Fish and Wildlife Conservation Commission (FWC) has the authority to establish restricted areas on the waters of the state for the purpose of public safety , including establishing boat speeds. [36]  These restricted areas are to be established through consultation and coordination with local governments. [37]  It is not clear why an agency that was created to protect the environment has policies based on a public safety rather than on environmental protection.

i. Personal Watercraft

     Florida has a statute that regulates the use of personal watercraft. [38]  The statute does not place any restrictions on where personal watercraft can be operated, but restricts the time of operation, age of driver and other safety restrictions on their use. [39]  The statute might need revising now that local governments can no longer make or enforce specific personal watercraft regulations. User conflicts over the appropriate use of personal watercraft will continue if regulations are not put into place to help resolve the conflicts.

ii. Manatee Sanctuaries 

     For manatee protection, the Florida Manatee Sanctuary Act gives the FWC the authority to restrict and exclude vessels and establish boat speeds. [40]  The Fourth District Court of Appeal upheld the constitutionality of this statute. [41]  FDEP's, rule on establishing boat speeds has also been upheld. [42] 

iii. Canoe Trails and Airboats

     The FDEP may establish restrictions on the use of motorized watercraft within any defined canoe trail. [43] There is also a statutory provision which prohibits the use of airboats on the Wekiva River System. [44]  Likewise, airboats are excluded from operating in parts of the Myakka River which is a designated Wild and Scenic River. [45]

V. LOCAL REGULATION

     Subject to federal or state preemption considerations, local governments can adopt regulations relating to the operation and equipment of vessels upon waterways in their jurisdiction. However, in Florida, effective July 1, 2000, local regulations cannot discriminate against personal watercraft. [46]  This newly enacted legislation appears to have broad implications on local government's ability to enforce or establish personal watercraft regulations. Personal watercraft use has been one of the most contentious recreational use conflicts that managers have to contend with. Now that the state has appeared to preempt local efforts to control these conflicts, will the state now designate areas in which personal watercraft should be excluded or restricted due to safety and environmental considerations.

A. ORDINANCES AND LOCAL LAWS OF MUNICIPALITIES AND COUNTIES 

     Counties and municipalities which expend money for patrol and regulation of their waterways have the authority to regulate vessels residing in their respective counties and municipalities. [47]  Local governments may adopt an ordinance or local law relating to the operation and equipment of vessels which do not conflict with state law and do not apply to the Florida Intracoastal Waterway. [48] 

     One example of a local ordinance restricting the use of vessels is in Clearwater, Florida which prohibits any vessel or watercraft within the waters of a described area located on Clearwater Beach. [49]  The City of Jacksonville has designated minimum wake zones, certain no skiing zones on the St. Johns River and idle speed zones and no motorized watercraft zones in Huguenot Memorial Park. [50] The City of Jacksonville Beach prohibits the operation of a boat parallel to the shoreline within two hundred (200) yards of the shoreline. [51]  Most coastal communities have some type of local regulation that restricts the use or excludes certain types of vessels on their waterways. It will be interesting to see what the implications of the amendment to section 327.60, F.S. will be on local ordinances that specifically target personal watercraft.

B. PERSONAL WATERCRAFT

     Courts have generally upheld local ordinances that exclude personal watercraft from various waterways. Weden v. San Juan County, 958 P.2d 273 (Wash. 1998); Lee v. Lippi, 693 So.2d 686 (Fla. DCA 1997). Courts have upheld exclusion zones not solely on public safety issues. Water pollution concerns [52] and wildlife protection [53] have been found to be rationally based reasons for the exclusion of personal watercraft and the courts have upheld ordinances which single out personal watercraft but allow other types of motorized vessels.

     A lawsuit over Monroe County's personal watercraft exclusion zone ordinances is currently pending in the United States District Court of the Southern District of Florida. [54] In light of the nondiscrimination language that was recently added to the local regulation statute, does this case now become moot. Has the Florida legislature specifically preempted local ordinance regulation of personal watercraft with one sentence that reads, "Any ordinance or local law which has been adopted pursuant to this section or to any other state law may not discriminate against personal watercraft as defined in s. 327.02."? (emphasis added) The newly enacted language appears to retroactively render local government regulation on personal watercraft ineffective. It appears that the useful tool that local governments have been utilizing in addressing user conflicts on the waterway has been eliminated. 

C. AIRBOATS 

     A recent decision in Florida's Tenth Judicial Circuit upheld a Lakeland City ordinance banning airboats on lakes within the municipality. [55] The court determined that the right of navigation is not a fundamental right and the city's reason for banning them, because they are a nuisance, was rationally based. [56] 

IV. CONCLUSION 

     For more tranquil Florida waters , federal, state, and local governments can exclude or restrict vessels from their respective waterways. Based on the waterway and the objective of the regulatory agency, vessels can be restricted and excluded in a variety of ways. There is federal, state, and local government authority to regulate vessels which are utilizing waterways within parks, refuges, sovereign submerged lands and other waterbodies. Public safety is not the only factor that can be considered in regulating vessels. Wildlife protection, environmental protection, and pollution control can also be rational reasons for excluding or restricting vessels from particular waterbodies.

     After the latest Florida legislative session, local governments cannot discriminate against personal watercraft. More regulation on where personal watercraft can be operated that is compatible with other recreational uses and the environment will need to addressed by the State of Florida. Current state regulations only regulate who, when, and how personal watercraft can be operated. To address the user conflicts the state must include in its legislation where personal watercraft can safely be used. Maybe a land use type zoning concept could be applied to Florida waterbodies so that all user groups will be given adequate space for their chosen water recreation.

[1]  University of Florida, Levin College of Law, J.D. Candidate 2000.
[2]  A trade name for thrill craft known as "personal watercraft."
[3]  James Splett, Personal Watercraft Use: A Nationwide Problem Requiring Local Regulation, 14 J. Envtl. L & Litig. 185, 210 (1999). Citing Gibbons v. Ogden, 22 U.S. (9 Wheat) 1 (1984.
[4]  See id.
[5]  See McGrail v. Babbitt, 986 F. Supp. 1386, 1394 ( S.D. Fla. 1997).
[6]  See id.
[7]  See id.
[8]  See 33 U.S.C.S. §§ 1225, 1231.
[9]  See 33 U.S.C.S. § 1222(1).
[10]  See 33 C.F.R. § 165.20 (1998).
[11]  See id. 
[12]  See 33 C.F.R. § 165.30 (1998). 
[13]  See 33 U.S.C.S. § 1224. 
[14]  See 33 C.F.R. §§ 334.1- 334.2 (1998).
[15]  See 33 C.F.R. § 334.3 (1998).
[16]  See 16 U.S.C.A. § 1533 (d) and 16 U.S.C.A. §§ 1361-1421h. 
[17]  See 16 U.S.C.A. § 1535.
[18]  See 50 C.F.R. § 17.108 (a) (1998). List of designated manatee protection areas.
[19]  See 50 C.F.R.§ 17.108 (b) (1998).
[20]  Personal communication with William Brooks, USFWS Endangered Species Biologist, September 4, 2000.
[21]  See 16 U.S.C.S. § 668dd (1998). Through the National Wildlife Refuge System Administration Act, access rules for boats have been established by the USFWS to protect manatees within the Merritt Island National Wildlife Refuge.
[22]  See 986 F. Supp. 1386, 1394 ( S.D. Fla. 1997).
[23]  See id.
[24]  See 16 U.S.C. §§ 1-3 (1998). 
[25]  See 63 Fed. Reg. 49,312-49,317 (1998).
[26]  See id. Personal Watercraft refers to a vessel, usually less than 16 feet in length, which uses an inboard, internal combustion engine powering a water jet pump as its primary source of propulsion. The vessel is intended to be operated by a person or persons sitting, standing or kneeling on the vessel, rather than within the confines of the hull. 
[27]  Chattahoochee National Recreation Area, Cape Hatteras National Seashore, Voyageurs National Park and St. Croix National Recreation Area are a few of the parks that recently banned personal watercraft.
[28]  See 16 U.S.C. §§ 1431-1445.
[29]  See 48 F. 3d 540 (D.C. Cir. 1995).
[30]  See FLA. CONST. art. X, § 11.
[31]  See Fla. Stat. § 253.03(7)(b) (1997).
[32]  See id.
[33]  See id.
[34]  See Fla. Stat. Chapter 327 (1997).
[35]  See Fla. Stat. § 327.58 (1999).
[36]  See Fla. Stat. § 327.46 (1999).
[37]  See id.
[38]  See Fla. Stat. § 327.39 (1999).
[39]  See id.
[40]  See Fla. Stat. § 370.12 (2) (1999).
[41]  See Marine Industries Ass'n .of South Florida, Inc. v. Fl. Dept. of Environmental Protection, 672 So. 2d 878 (Fla. 4 DCA 1996).
[42]  See State of Florida v. Rawlins, 623 So. 2d 598 (Fla. 5 DCA 1993).
[43]  See Fla. Stat. § 260.017 (1999).
[44]  See Fla. Stat. § 369.309 (1999).
[45]  See Fla. Stat. § 258.501 (15) (1999).
[46]  "Any ordinance or local law which has been adopted pursuant to this section or to any other state law may not discriminate against personal watercraft as defined in s. 327.02." S.B. 386, 2000 Reg. Sess. page 29 lines 20-22. Signed by Governor Bush on June 26, 2000. 
[47]  See Fla. Stat. § 327.22(1) (1999).
[48]  See Fla. Stat. § 327.60(1) (1999).
[49]  See Code of Ordinances City of Clearwater, Florida, Section 33.114. 
[50]  See Code of Ordinances City of Jacksonville, Florida, Section 614.132 Regulations on operation of boats and Section 614.145 Regulation of the operation of motorized watercraft at Huguenot Memorial Park.
[51]  See Code of Ordinances City of Jacksonville Beach, Florida, Section 6-51 Operation of boat prohibited within certain distance of shoreline.
[52]  See Lake Tahoe Watercraft Recreation Ass'n v. Tahoe Reg'l Planning Agency, 1998 U.S. Dist. LEXIS 17230.
[53]  See Weden v. San Juan County, 135 Wash. 2d 678 (1998).
[54]  See Personal Watercraft Industry Ass' n v. Monroe County N. 98-10081 (S.D. Fla. filed Oct. 13, 1998).
[55]  See Moore v. State of Florida, ER FALR 98:267.
[56]  See id at 2.