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HomeMy WebLinkAboutDocumentation_Regular_Tab 9A_11/8/2001 Pfl p r r Florida Fish and Wildlife Conservation Comm' iqn r., y ra James L."Jamie"Adams,Jr. Barbara C. Barsh Patrick E. Geraghty Quinton L. Hedgepeth, DDS H.A." r. Ha fma Bushnell Jacksonville Ft.Myers Miami Deltona Thomas B. Kibler David K. Meehan Julie K. Morris Tony Moss Edwin P. Roberts,DC John D.Rood Lakeland St.Petersburg Sarasota Miamf ' ' _.Pensacola Jacksonville ALLAN L.EGBERT,Ph.D.,Executive Director DIVISION OF LAW ENFORCEMENT VICTOR J.HELLER,Assistant Executive Director • ,^scso 620 South Meridian Street Tallahassee,FL 32399-1600 www.state.fl.us/gfc • cc: TOWN COMMISSION51(850) 10/1/99 -------------------- TDD(850)488-88-95542 September 23, 1999 Mr. Ben Saag, Town Manager j Town of Highland Beach 3614 South Ocean Boulevard Highland Beach, FL 33487 o�p Dear Mr. Saag: This letter is in response to Highland Beach resolution 741 and the town's request for designation of a portion of the Florida Intracoastal Waterway as an"No-Wake" boating restricted area. At the request of Governor Jeb Bush and Representative William Andrews, we have given your request every possible consideration. Unfortunately,we must deny the request at this time because there is no competent, substantial evidence that any of the statutory criteria for the establishment of boating restricted areas have been met. In order to promulgate a rule establishing a boating restricted area, the Commission must develop a statement of the facts and circumstances justifying the proposed rule. This enables the Joint Administrative Procedures Committee (JAPC) of the Florida Legislature to determine whether or not the rule exceeds our delegated authority. The statement must document that the creation of the restricted area is predicated upon a public safety concern and must set forth the facts that show one or more of the statutory criteria have been met. Valid criteria include boating accidents, obstructed visibility, hazardous tides or currents,vessel traffic congestion, and other navigational hazards. A proposed boating restricted area's history of boating accidents and its potential for future accidents are the most important factors that we consider. Resolution 741 recites that vessel have been damaged because of"the increased traffic and speed of boats on the Intracoastal Waterway." This does not seem to be borne out by the accident reports on file with this agency. I searched those records from 1996 through August 1999: there have been only four accidents reported in Highland Beach, one in 1996 and three in 1998. 1• Mr. Ben Saag September 23, 1999 Page 2 The 1996 accident involved a boat operator who was adjusting a radio under the boat's console when he ran into a dock. The operator had been drinking and was not keeping a proper look-out. The Florida Marine Patrol cited the operator for careless operation and for violation of a navigation rule resulting in an accident. The first accident in 1998 occurred when a south-bound Boca Raton police boat struck a north-bound cabin cruiser. The police officer had been studying the console gauges and had not been keeping a proper look-out. The officer who investigated the accident determined that the Boca Raton officer operated carelessly and had violated two navigation rules resulting in an accident,but apparently did not file any charges. The second accident in 1998 involved a boat that struck a dock piling during a docking maneuver. The Highland Beach officer who investigated the accident attributed it to operator inexperience and listed weather conditions as a contributing cause. No charges were filed. The final 1998 accident was a fire on board a docked sailboat in a canal off the Intracoastal Waterway behind Tranquility Drive. The Highland Beach Police and the Delray Beach Fire Department investigated and determined that the fire was caused by an electrical problem on the boat and that no boating violations occurred. There were no reports of any boating accidents occurring in 1997 or thus far in 1999. The four reported accidents,by themselves, do not demonstrate the need for rulemaking to establish a "No-Wake" boating restricted area. Although we do not have to wait for an accident to occur before we can take action to protect public safety, there must be a factual basis to support any contention that there is a realistic probability of future accidents. A mere speculative possibility will not suffice. The next factor considered is obstructions to visibility. The Florida Intracoastal Waterway traverses Highland Beach in a fairly straight line without bridges or major bends. Although the waterway does bend slightly in the vicinity of Intracoastal Drive,this bend does not significantly impair visibility. There are no other structures or features that obstruct visibility in any manner. The statute authorizing rulemaking also speaks to "tides." As tidal levels do not normally present any issue of public safety,we interpret this criterion to mean conditions of hazardous water levels or currents. Although this area is subject to the ebb and flow of the tides,the tidal currents are not significant and do not adversely affect vessel traffic safety. Vessel traffic congestion is an important factor. Resolution 741 mentions that there have been recent increases in vessel traffic on the Florida Intracoastal Waterway in Highland Beach. j The resolution recites.that the waterway is crowded and dangerous. The town did not, however, - provide a vessel count, traffic study, or any other information to support this assertion. There is Mr. Ben Saag September 23, 1999 Page 3 nothing in the record to suggest that the Highland Beach portion of the Florida Intracoastal Waterway has traffic levels different from any other location on that waterway throughout most of southeast Florida. Major highways, both nautical and land-based, have higher levels of traffic than do other thoroughfares. Certainly the Florida Intracoastal Waterway has more traffic and is more crowded than the nearby canals and back waters. This should be expected on a body of water the Legislature has declared, in chapter 72-55,Laws of Florida,to be "a nautical highway." It is no more surprising than would be an observation that US-1 or A-1-A have more vehicular traffic than does Highland Beach Drive. This higher usage, standing alone, is not a basis for slowing traffic. Over the past several years,numerous witnesses at rulemaking workshops and hearings have testified that slowing vessel traffic speeds can actually aggravate congestion under certain conditions. In the absence of any data showing what the traffic levels are and how they adversely impact vessel traffic safety, we cannot say that this congestion criterion has been met by competent, substantial evidence. The statute allows us to consider other navigational hazards. The Florida Intracoastal Waterway is at least 300 feet wide throughout its length within Highland Beach. It is not significantly shoaled nor are there any obstructions that extend into the waterway so as to create a navigational hazard. There are no boat ramps, fuel docks, or public marinas in the area. In short, there is nothing in the Florida Intracoastal Waterway within Highland Beach that would constitute a navigational hazard. You indicated in our September second telephone conversation that many town residents were interested in imposing the "No-Wake" restriction. You did not,however, suggest that these residents are boat owners or operators. It has been my experience in regulating the Florida Intracoastal Waterway that riparian property owners often are motivated by reasons other than public safety when seeking the establishment of boating restricted areas. Please remember,reasons other than public safety will not justify the imposition of a boating restricted area by rule. Control of noise is not a valid reason for the establishment of a restricted area. Counties may adopt vessel noise ordinances as provided in section 327.65, Florida Statutes. Erosion control is also not a valid justification. Section 327.33(2), Florida Statutes, specifically provides that vessel wake and shoreline wash resulting from the reasonable and prudent operation of a vessel do not constitute damage or endangerment to property unless there is negligence. As negligent operation is prohibited under both state and federal law, enforcement action may be taken without the creation of a restricted area. If your town's residents are concerned about repeatedly recurring boat wakes undermining their seawalls or damaging their docks,please remind them that the federal permits that authorized the Mr. Ben Saag September 23, 1999 Page 4 construction of those structure are conditioned on the structures not interfering with navigation. If a structure is unable to withstand the easily foreseeable force of the wakes of passing vessels, then it impermissibly interferes with navigation in violation of its federal permit. Such a structure must be reinforced so as to be able to withstand vessel wakes or removed from the waterway. I have solicited information and recommendations concerning Highland Beach's request from the our law enforcement officers and supervisors that are responsible for your area. I have also consulted with Coast Guard personnel from the Fort Lauderdale and Lake Worth Inlet Stations, with the Seventh Coast Guard District's Waterways Management Section, and with the Florida Inland Navigation District. The consensus is that this area does not meet the statutory criteria for the creation of a boating restricted area and that it would be inappropriate to initiate rulemaking at this time. If you have any questions or wish to discuss this matter further, you may contact me at (850)488-5600, extension 172. Sin ely, aZ , aptain Alan S. ar Office of Enforcement Policy and Planning ASR/ cc: Governor Job Bush Representative William F. Andrews v' Mr. Ben Saag September 23, 1999 Page 5 bcc: Allan L. Egbert, Ph.D. Dr. Cindy Littlejohn Col. Robert Edwards Chief John W. Walker Major Ken Clark Major Frank Feliciano Captain Ross Iseminger Mr. Joe Embres,USCG Mr. David Roach, FIND QUESTION : HOW IS THE SPEED LIMIT ON THE INTRACOASTAL WATERWAY CHANGED? ANSWER : The jurisdiction to make a change in the speed limit lies with the Florida Dept. of Environmental Protection(DEP). The Florida Division of Law Enforcement (904-488-5600-Ext.33) under its Office of Waterway Management is assigned this duty within the DEP. In considering this subject, a good analogy is with the speed limits on the Federal Interstate Highway System. There the Federal government sets the speed limit and counties or municipalities have the right to request a lower limit based on a set of circumstances which the requesting party believes to be more appropriate. The Office of Waterway Management receives a request from a municipality or county and starts collection of data re the request. Things considered include such things as requesting party information and data, Manatee involvement (incidents of injury, death, animal population, etc. ), area congestion, tide levels and currents, navigation hazards, records of incidents back to 1990, US Army Corps of Engineers and US Coast Guard input, and if no incidents are on record in Tallahassee, the District office contacted to assure accuracy of DEP data. If the request looks reasonable at this point, a Rule making process in started. Upon successful completion of this process, and any public input received has been evaluated, the changes are put into effect.by means of a new rule Where more than one municipality is involved(In the case of Highland Beach, both Boca Raton and Dekay would be involved in any proposed change since they occupy the western half of the ICWW along the Town's border)the DEP would require the county to make any request for any change in the speed limit. AGV 1/8/97 RESOLUTION NO. 7-01/02 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA, PALM BEACH COUNTY, FLORIDA, URGING THE STATE OF FLORIDA TO CREATE A NO-WAKE ZONE WITHIN THE BOUNDARIES OF THE VILLAGE OF TEQUESTA. WHEREAS, in recent years there has been an increase in traffic on the Intracoastal Waterway due to growth within the Village, as well as use by larger numbers of seasonal visitors; and WHEREAS, these circumstances have resulted in crowded and often dangerous conditions in the Intracoastal Waterway; and WHEREAS, the Village Council has a responsibility to its residents to ensure as safe an environment as feasible; and WHEREAS, the increased traffic and speed of boats on the Intracoastal Waterway has caused damage to watercraft within the Village and causes safety hazards for Village residents; NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA, PALM BEACH COUNTY, FLORIDA, as follows: Section 1. The Village Council of the Village of Tequesta strongly urges the State of Florida to create a No-Wake zone within the boundaries of the Village, for the safety and well being of its residents, as well as all persons who use the Intracoastal Waterway. Section 2. The Village Clerk is directed to transmit a copy of this resolution to Governor Jeb Bush; State Senator Jim Scott, State Representative Bill Andrews, and the Palm Beach County Board of Commissioners. THE FOREGOING RESOLUTION was offered by Councilmember , who moved its adoption. The Resolution was seconded by Councilmember and upon being put to a vote, the vote was as follows: FOR AGAINST The Mayor thereupon declared the Resolution duly passed and adopted this day of , A.D., 2001. Mayor Geraldine A. Genco ATTEST: Village Clerk Mary Wolcott