Anchoring (and Mooring) Away: Government Regulation and the Rights of Navigation in Florida

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1 Session Title: Managed Mooring Fields and Harbor Management Plans Thursday, November 2, :55am Anchoring (and Mooring) Away: Government Regulation and the Rights of Navigation in Florida Tom Ankersen University of Florida Levin College of Law, Conservation Clinic 153

2 154

3 Community Guide to Creating a Managed Anchorage and Mooring Field Conservation Clinic University of Florida College of Law Boating and Waterway Management Program Florida Sea Grant A well planned and executed Managed Anchorage and Mooring field (MAMF) can be beneficial to residents, boaters and the local government by encouraging tourism and providing for the efficient use of waterfront resources to enhance public access to the marine environment. 1 2 Overview 2 Step Process in creating a MAMF Project Initiation Technical Legal Public (Educational) Project Development Legal Technical Public (Legal) Florida Sea Grant and Conservation Clinic Experience The Conservation Clinic and Florida Sea Grant have worked with communities to address harbor management around Florida. 3 4 Existing & Proposed Florida MAMFs Fort Myers (****) Fort Myers Beach (2004) Key West (2004/5) Marathon Boot Key (2002) Sarasota (pending 2005) Sarasota Sailing Squadron (pending 2005) Stuart (2001) Vero Beach (1988) 49 moorings 70 moorings 49 moorings, 24.3 acres 64 moorings, 250 anchor 109 moorings, 110 acres 69 moorings, 26.1 acres 57 moorings, 9 acres MAMF Administration Vero Beach municipal Fort Myers Beach concessioned Sarasota City Island not for profit

4 Matanzas Pass, Fort Myers Beach Vero Beach Municipal Mooring Field offers long-term and transient moorings. Anchoring limited outside mooring field by city ordinance (Length of Stay Regulation). Fees support facilities including fueling facility, pump-out facility and restrooms. Employees include harbormaster, assistant harbor master and part time employees. Harbormaster resides at the anchorage. There is also an advisory board to the anchorage. Establishes Enterprise Fund money that it earns goes back to support the anchorage and harbor. 7 8 Fort Myers Beach Concession 70 moorings Fees depend on size and length of stay vary between $6.50 and $10.00 per day. Facilities include dinghy docks, restrooms, and garbage disposal. Private Marina manages mooring field under concession from city. Sarasota City Island Not for Profit Sarasota Sailing Squadron seeking to formalize its historic anchorage Membership based Still in the permit process 9 10 Introductory Principles Two sets of introductory principles are useful to keep in mind throughout the process of creating a mooring field. Principles of Anchoring Principles of Harbor Management See Thomas Ankersen and Richard Hamann, Anchoring Away: Government Regulation and the Rights of Navigation in Florida, Sea Grant (August 1999). Principles of Anchoring 1. Federal, state and local laws apply to anchored boats. 2. Boats must anchor so that they are not harming any other vessels, damaging property or injuring people, or preventing access to boats or property

5 Principles of Anchoring 3. Boats should not anchor in sea grass or coral areas because of the damage that the anchors can do to these habitats. 4. Boats should be able to get underway within a reasonable amount of time. 5. Safety of the crew and boat is a primary concern. 13 Principles of Harbor Management 1. A harbor management plan should be developed. 2. The plan should be based on objective data obtained by inventories of natural and cultural resources. 3. The plan should be based on consensus. 14 Principles Harbor Management 4. A local board should be created that includes boaters in order to create the local harbor management plan. 5. The local board should appoint a harbormaster to implement the harbor management plan. 6. The harbor management plan should focus on providing adequate space via moorings or anchoring areas both for transient boaters and for safe shelter during storm events. 15 Principles Harbor Management 7. The harbor management plan should provide for a dinghy dock and on-shore facilities for boaters. 8. The harbor management plan should provide for signage in the harbor. 9. The board should inquire into funding mechanisms for harbor signs, moorings, improvements and amenities (dinghy dock, showers, laundry facilities, etc.). 16 Principles of Harbor Management 10.Try to get Special Anchorage Designation. 11.Create a dispute resolution mechanism. 12.Obtain the right to use the submerged lands. Project Initiation: Develop Baseline First, a community should develop baseline technical and legal data. This first step will determine the legal and technical feasibility of going forward and should provide for public input

6 Develop Baseline Technical Data Preliminary technical review. Develop baseline information for the public process. Create maps of your harbor that: Locate current obstructions Locate regulatory jurisdictions Locate environmental restraints e.g., sea grasses, oyster beds Locate access to channels, channel markers, Show depths Illustrate navigation constraints Illustrate physical constraints e.g., bottom holding characteristics Example St. Johns River Water Management District Depth Data: St. Augustine Harbor Boater Characteristics Boat traffic Types of patrons: transient versus local Current use Expected use Seasonality Assess boater needs 21 Consider Shoreline Resident Needs and Expectations 22 Services and Amenities Potential Recreational Boater Needs and Wants Mooring Master (office) Security measures Hot showers and restrooms Drinking water Secure dinghy docks Pump-out station (or boat) Fueling Groceries, ship stores Boat yard for repairs Laundry facilities Trash pickup, recycling Recreational opportunities Shore-side transportation Bicycle racks Develop Baseline Technical Data Harbor Maps that: Show study area boundaries Locate current obstructions (e.g., shoals) Locate regulatory jurisdictions and zones Locate environmental restraints e.g., sea grasses, oyster beds Show navigation and anchoring constraints Localized damage (e.g., seagrass scarring)

7 Develop Baseline Legal Data Determine jurisdiction of bottom land Political (local government authority) Regulatory (DEP, USCG, ACOE etc.) Determine ownership of bottom land Include these determinations in the maps created in the baseline technical data OWNERSHIP OF SUBMERGED LANDS AND OVERLYING WATERS State of Florida owns the submerged lands administered by Governor and Cabinet sitting as the Board of Trustees of Internal Improvement Trust Fund. DEP serves as staff Overlying waters also subject to public trust Administered by DEP Permitting of Mooring Field Aquatic Preserves DEP and U.S. Army Corps of Engineers - have permitting authority over submerged lands and overlying waters Aquatic Preserve designation presents an additional regulatory overlay U.S. Coast Guard has authority over navigation safety and signage US FWS & Fl. FWCC have authority over protected species (e.g. Manatees) 27 MAMF s located within aquatic preserves will be subject to the Florida Aquatic Preserve Act and DEP Regulations. This will impose separate criteria for obtaining a permit. For approval of the project it must be found to be IN the public interest. Public Interest determination is based on a balancing of factors as outlined in (2) of the Florida Administrative Code. Projects in more pristine and less developed aquatic preserves are subject to and even higher standard in the public interest analysis. 28 Aquatic Preserves and the Public Interest Important Factors to Consider Benefits Public access. Improve & enhance public health, safety,and welfare. Improve public land management. Improve & enhance public navigation. Improve & enhance water quality. Costs Reduced or degraded water quality. Reduced or degraded natural habitat and function. Harm to endangered species or their habitats. Adverse cumulative impacts. 29 Other Important Aquatic Preserve Considerations Activities in aquatic preserves with management plans must be consistent with the preserve management plan. Docking facilities (moorings included) are subject to additional criteria in (5) of the F.A.C. Revenue generating docking facilities are subject to additional criteria in (5)(d)of the F.A.C

8 So What About MAMFs in Aquatic Preserves? Public recreation is allowable within aquatic preserves. Important Aquatic Preserve Goals Protect waters through regulation of human activity, so that the public may continue to use the waters for recreation including boating. Encouraging the protection, enhancement, or restoration of aquatic preserves. 31 The Lease is the Law The State regulates the MAMF through the Submerged Lands Lease (and the DEP Permit) These are obtained through a joint application process The Lease incorporates The DEP Permit, and all local government governance documents These include The authorizing ordinance The Harbor Management Plan 32 The Lease is the Law Key lease & permit provisions encountered in MAMF s surveyed Nearly all moorings must be made available to public on a first-come firstserve basis (90% Sarasota & FMB) Commercial activities generally prohibited Use of revenue may be restricted Manatee education plan must be put in effect 33 THE 2005 WORKING WATERFRONTS LEGISLATION AND MAMFs To address concerns over access to marine waters, and the decline in working waterfronts the legislature enacted Chapter , Florida Statutes Especially relevant aspects of the law: Requires DEP to develop a general permit for mooring fields 50,000 sq. feet or less General permit is a simplified permit process 50,000 sq. ft. is a little less than 1 acre (43,560 sq.ft) 34 Mooring Radius 2005 WORKING WATERFRONTS LEGISLATION The Legislature also requires coastal counties to include regulatory incentives & criteria that encourage preservation of recreational and commercial working waterfronts in their future land use element The express purpose of this is to provide access to navigable waters of the state for the public. Which is something a managed anchorage and mooring field will help to accomplish

9 Establish Parameters of Harbor Management Plan Use principles of harbor management Determine whether mooring field will be municipal, concession or non-profit Solicit public input Project Development The successful establishment of a mooring field requires the completion of three concurrent processes once the baseline data is gathered. Technical Process Legal Process Public Process Technical Process of establishing a mooring field: Develop permit(s) application information Navigational Biological Water quality Hydrology This may require a coastal engineering consultant Technical Process: Signs Establish signage needs and permit requirements. Federal Permits Rivers and Harbors Act, Section 10, USACOE State Permits Uniform waterway markers Fla. Stat See Thomas Ankersen, Richard Hamann, Melissa Gross-Arnold, Regulatory Requirements for Private Aids to Navigation (Aug. 1998) Legal Steps in establishing a managed mooring field and anchorage 1. Confirm the ownership of submerged lands. 2. Confirm relevant political jurisdiction. 3. Review Local Government Comprehensive Plans to determine whether a MAMF will be consistent with the plan. 4. Initiate Drafting of Proposed Ordinance or Resolution see Thomas Ankersen, Christopher H. Pearce, An Annotated Model Municipal Harbor Management Ordinance (Aug. 2001). 5. Select administration option. 1. Governmental - Municipal 2. Concession - Draft agreement between local government and concessionaire. 3. Not-For Profit Organization Legal Steps in establishing a managed mooring field and anchorage 6. Obtain authorizations. 1. Submerged lands lease 2. Environmental Resource Permit - DEP 3. Obstructions to Navigation section 10 Rivers and Harbor Act (USACOE) 4. Special Anchorage Area Designation U.S. Coast Guard 7. Resource Agency Consultations 1. Fish and Wildlife Service 2. Fish and Wildlife Conservation Commission 3. Other

10 Legal: Apply to be a Special Anchorage Area Special anchorage areas are designated by the U.S. Coast Guard and provide certain navigational and regulatory benefits. They become marked on nautical charts They eliminate the need to display an anchor light at night 43 Legal: Prepare Rules for Boaters that would be appended to use agreement Examples from Fort Myers Beach Comply with U. S. Coast Guard regulations and safety standards and Chapter 327 of the Florida Statutes Be in good operational condition, capable of maneuvering under its own power Have current registration or acceptable documentation otherwise Have Liability Insurance coverage Contain a U. S. Coast Guard approved marine sanitation device, that complies with the U. S. Coast Guard requirements governing the installation and use of such devices upon that particular vessel 44 Public Input Legal: Prepare Harbormaster s Operations and Management Handbook Provide two or three different opportunities for public input prior to establishing a MAMF. The public should be provided the opportunity to sit down with the planners with the maps and the Harbor Management Plan created in the baseline step and determine: Any information that is missing from the maps such as other environmental constraints or user conflicts Location of amenities, e.g., dinghy dock, bathrooms, pump out station etc Public: Potential Issues Length of stay Live aboards You may want to encourage some live aboards in order to foster a sense of community and increase security (campground host) Fee structure Tiered fees graduated downward according to length of stay Relationship between harbormaster and boaters. LENGTH OF STAY Many jurisdictions regulate length of stay on waters within their jurisdictions However, this is not required in order to have a MAMF

11 LIVE-ABOARDS (& length of stay within the MAMF) A MAMF may consider restricting & varying length of stay within the mooring field The State generally discourage live-aboards but they are allowed in some instances (e.g. Ft. Myers Beach) Pursuant to the FMB Lease a Live-Aboard is: A vessel docked at the facility and inhabited by a person for any 5 consecutive days or a total of 10 within a 30 day period. If allowed, live-aboard status cannot exceed 6 months within any 12 month period There can be significant benefits to at least some liveboards 49 Fee Schedule Considerations Different Transient vs. Live-Aboard fees Reduced rate for off-peak season Monthly facility fee for amenities not included in base rate Ex.: Vero Beach fees support facilities including fueling facility, pump-out facility and restrooms. Reduced rate or tiered fees, graduated down for long-term stay Ex: vary between $6.50 and $10.00 per day. 50 Amenity & Service Considerations Included Services Are they covered in the basic fee structure? Services Provided at Additional Cost Will boaters expect the service to be at an additional cost? Consider a monthly flat fee 51 Regulating Activities Within the MAMF Reference local noise ordinance in MAMF Ordinance Reference Fla. Stat. Chapter 327 regarding vessel operational requirements in MAMF ordinance Prohibit other nuisance-like activities in MAMF Ordinance (VB) Rowdy Conduct (VB, FM) Hanging laundry (VB, FM, S) 52 Regulating Activities Within the MAMF Hours for Repairs, or Not Allow Repairs (VB, FM, S, M) Consider Major or Refitting Vessels vs. Minor Limit For Sale Signage (FM, S) No Advertising or Soliciting (FM, S) Leashed pets only (VB, FM, S) Operational Hours for Noise & Machinery (FM, S, M) Prohibit grills on the dock (FM, S) Fishing in designated areas, or not at all (S) Swimming Prohibited (S,??) Feeding Wildlife Prohibited (S) 53 Other Important Considerations In Establishing a MAMF 1. Insurance Requirements Proof of Insurance (M, S, FMB) 2. Clear Dispute Resolution Processes 3. Schedule Inspections & Maintenance During Off-Peak Season (ie, September for VB)

12 COASTAL ENGINEERING CONSULTANTS INC. Technical Considerations Vessel Types & Sizes Subsurface Conditions Tidal Parameters Wind Exposure & Fetch Mooring Radius Overlap COASTAL ENGINEERING CONSULTANTS INC. MOORING SYSTEMS Anchors Down Lines Buoys Pendants Hardware COASTAL ENGINEERING CONSULTANTS INC. MOORING COMPONENTS Town of Ft. Myers Beach City of Sarasota Technical and Financial Resources Technical Assistance Team (FDEP) Waterfronts Florida Office of Boating and Waterways (FWC) Florida Boating Improvements Trust Fund Florida Inland Navigation District Clean Vessel Act grant program (FDEP) Florida Sea Grant (technical) 58 QUESTIONS???

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