Boating, Waterways, and the Rights of Navigation in Florida

It’s official! The U.S. Coast Guard’s recommended equipment list has been revised. Now, in addition to anchors, fire extinguishers, emergency signals and personal flotation devices, American boaters are advised to pack a lawyer.²

Florida boasts one of the most complex and ecologically productive systems of coastal bays, bights, sounds, passes, inlets, cuts, canals and harbors in the United States, as well as an extensive network of maintained inland waterways. In 2017, Florida led the nation in numbers of registered vessels with 944,162 (up from 931,450 in 2016, and up from 915,713 in 2015) which all share the state’s waterways with an estimated one million more non-registered vessels.³ A 2007 study found that the number of Florida registered vessels alone logged 21.7 million boating trips.⁴ This same study, prepared for the Florida Fish and Wildlife Conservation Commission (FWC), concluded that these boating trips and their related commercial activities contributed $17.6 billion dollars to Florida’s economy in 2007.⁵ Although the Great Recession hit U.S. recreational boating hard, the industry has since entered into a robust recovery. In fact, the National Marine Manufacturer’s Association (NMMA) reported in 2014 that direct sales of products and services increased, and had nearly reached the pre-recession high of $39.5 billion by 2006.⁶ Moreover, the NMMA found that Florida led all states in total expenditures for new marine products,⁷ and that the total economic impact of recreational boating in the state by 2014 exceeded $10 billion annually, with a $10.3 billion impact in 2016.⁸

As commercial and recreational uses of the Florida waterway system continue to expand with population growth, new coastal development, and a healthy marine industry, the potential for conflicts among boaters, natural resources, and different user groups will also increase.⁹ Faced with these competing pressures, state and local governments are forced to reconcile conflicting demands for use of the same limited geographic space and natural resources. As a result, the right to freely navigate on Florida waters (which can involve the act of anchoring), continues to engender considerable controversy, including complex litigation in state and federal courts. (Florida is not the only state experiencing such conflicts).¹⁰ This Florida Sea Grant publication intends to provide a free public resource to anyone seeking concise information about these types of complex issues faced by vessel operators, citizens, local government officials, and regulators in Florida.

We begin our analysis by offering a taxonomy of vessels on the water, followed by a brief discussion of the often-confused distinction between Florida boating law—the focus of this report—versus maritime law (also referred to as admiralty law), which is doctrinally a distinct body of law. We then turn to the federal interest in navigation, including the federal navigation servitude, preemption and federal supremacy considerations, as well as relevant federal statutes and the congressionally adopted international COLREGs—known by mariners and boaters as the Rules of the Road. Next, state and local efforts to address navigation, including anchoring in Florida, are examined along with the small number of judicial opinions construing such efforts. As explained in our analysis, the Florida Legislature continues to limit the authority of local governments to regulate navigation. However, despite substantial amendments, the statutes limiting local regulation still contain some ambiguity when it comes to the meaning of the term in navigation, which has yet to be defined anywhere in Florida Statutes.

In addition to its police powers, we consider the state’s proprietary authority over the lands underlying navigable waters, including the still unresolved question of the scope of that authority when such submerged lands have been transferred from the sovereign. We also address the effect of riparian rights of adjacent landowners on boating law and new Florida state-wide anchoring and mooring statutes that were enacted after FWC completed an eight yearlong anchoring and mooring Pilot program to develop recommendations for addressing governmental regulation of anchoring and mooring. We conclude by noting that recent amendments to Florida’s boating law include: restrictions on local government regulation, guidelines for the creation of boating restricted areas, legal requirements for mooring fields, no anchor zones in proximity to marine infrastructure, statutorily created limited anchoring areas, and greater law enforcement authority to deal with derelict vessels and vessels at-risk of becoming derelict – all of which can make a difference in promoting statewide consistency for the use of Florida’s waterways.¹¹

1. Taxonomy of Vessels on Florida Waters

   Florida has over a million registered recreational vessels plying its waters,^IA1 along with many more commercial vessels, vessels registered in other states, vessels that do not have to be registered, vessels that have not yet been classified for purposes of regulation. And this does not include the myriad artificial contrivances that may not even qualify to be vessels under Florida law. Human ingenuity and technology have conspired to create a growing array of craft that can navigate on or in Florida waters, creating conflicts among vessel types and vessel uses, and posing a regulatory challenge for state agencies and local governments tasked with managing the increasing human use of waters in the state. The key to understanding how vessels are regulated in Florida is to understand how they are defined, and for what purpose. Over the years, the Florida Legislature and state agencies have continued to add or amend statutory definitions for the many types of regulated vessels. Local governments have also sought to define vessel types in response to local issues, sometimes in ways that can conflict with state law.

   To assist with the understanding of Florida’s complex vessel management system, we scoured the statutes and regulations for terms that define the types of vessels using Florida waters and then classified these into the broader categories we thought they best fit. We then created a comprehensive chart that lists these vessel types by category, then provides their definitions, the legal context in which they are defined and additional commentary where needed.

   In this blog we discussed why this definitional probe matters, especially for local governments seeking to regulate vessels within their waters. We then focus on the key definition of the term vessel and the Florida-based United States Supreme Court case that brought it to the forefront, and provide a brief overview of another keyset of vessel definitions – found in the so called Rules of the Road – the federal Federal Inland Navigation Rules administered by the U.S. Coast Guard.

   Why This Matters

   How a vessel is defined or described by law determines whether and how it is regulated, and by whom. As a general proposition, Florida waters and the vessels navigate them are governed by the three levels of government, federal, state and local. The federal government maintains primacy in maritime matters. However, federal maritime law will defer to state boating laws where the matter is one that has great local significance, and the state law does not threaten the uniformity of federal law. This deference is referred to as the maritime but local doctrine.^IA2 There are some notable exceptions, such as preemptive vessel safety and equipment mandates under the Federal Boating Safety Act.^IA3

   The State of Florida has two primary statutes devoted to boating regulation, Chapters 327 (Vessel Safety) and 328 (Vessels: Title Certificates; Lien; Registration). Most of the terms discussed here can be found in these statutes, and the rules that implement them. Florida local government authority to regulate vessels is significantly circumscribed by these statutes under the legal doctrine of preemption. Generally speaking, preemption means that the local government cannot regulate in an area where the legislature has determined that state law should govern.^IA4

   However, local governments with significant boating activity often have whole chapters in their local code devoted to the regulation of the waterways and shoreside support facilities within their jurisdiction.^IA5 To the extent any of these local regulations broaden, narrow or otherwise contravene state law, they may be preempted, resulting in unwanted litigation. Mismatches can arise between state statutes and local codes because local governments pay insufficient attention to the state law governing vessels when drafting regulations to address local circumstances, or because local codes become out of sync with state law as state laws are amended and local laws are not kept current.

   The threshold question. Is it even a vessel?

   An analysis of boating law almost always begins with this seemingly simple question. Is it even a vessel? The answer is mostly yes. Most anything that is or could be propelled through the water by any means is a vessel. But not everything. The starting point for defining vessel is the federal definition found in the United States Code, which compiles and codifies all federal statutes. An indication of its historical importance, the term vessel can be found with other foundational definitions in the very first chapter of the Code – Title I – the basic dictionary for all the U.S. law that follows. Section 3 of Title I provides that: “The word “vessel includes every description of watercraft or other artificial contrivance used or capable of being used, as a means of transportation on the water.^IA6

   As might be expected, Florida’s vessel definition closely tracks the federal definition. Florida defines vessel to be …every description of watercraft, barge, and airboat, other than a seaplane on the water, used or capable of being used as a means of transportation on water.^IA7

   It is not clear why Florida chose to specifically list barges and airboats in its definition, nor is it clear why Florida did not include the broad term artificial contrivance used in the federal definition, which is also not defined in federal law, and is essentially a catch all to remove any doubt. It may be that barges, which typically have no means of propulsion, were too similar to floating structures, which by their own Florida definition do not qualify as vessels.^IA8 And it may be that airboats were considered sufficiently unique in their means of propulsion to justify calling them out specifically.

   The term watercraft itself has no relevant federal definition.^IA9 In a bit of circular logic, one State statute that does defines watercraft simply defines it as a vessel – e.g. vessel or craft designed for navigation on the water.^IA10

   Most importantly, however, both the federal and state definitions share the operative language used or capable of being used as a means of transportation on the water, terminology made famous by the United States Supreme Court in Lozman v. City of Riviera Beach, a Florida case involving a floating home.

   The Lozman Case

   In 2013, the U.S. Supreme Court addressed whether federal admiralty law applied in a case in which the City of Riviera Beach sought to remove a floating home moored at one of its public marinas.^IA11 After ongoing disputes between Mr. Lozman, (owner of the floating home), and the City regarding unpaid dockage fees and refusal to leave the marina (among other issues), the City sought relief in federal admiralty court under the theory that the floating home was committing the federal maritime tort of trespass. If the City prevailed, it would be authorized to remove the floating home and seek monetary damages. The key issue in the case was whether Lozman’s floating home met the federal definition of vessel because it was capable of being used…as a means of transportation on the water.^IA12 If it met that definition, then the City could proceed under admiralty jurisdiction. Taking an expansive view, both the lower courts ruled in favor of the City, deciding that it was at least conceivable that the floating home could be used as a means of transportation.^IA13 Lozman appealed to the U.S. Supreme Court, which took the case.

   

   Mr. Lozman argued that his floating home was not capable being used as a means of transportation on water, and hence not a vessel and not subject to federal maritime jurisdiction. Lozman argued that his floating home had no means of propulsion and was dependent on shore-side electrical power. The Supreme Court agreed, narrowing the federal meaning of vessel, and establishing a new test to determine what constitutes a vessel. That methodology is now often referred to as the reasonable observer test. Justice Breyer colorfully wrote the Supreme Court’s Opinion, explaining:

   Not every floating structure is a vessel. To state the obvious, a wooden washtub, a plastic dishpan, a swimming platform on pontoons, a large fishing net, a door taken off its hinges, or Pinocchio (when inside the whale) are not vessels, even if they are artificial contrivance[s] capable of floating, moving under tow, and incidentally carrying even a fair-sized item or two when they do so. Rather, the statute applies to an artificial contrivance . . . capable of being used . . . as a means of transportation on water. 1 U.S.C. §3 (emphasis added). [T]ransportation involves the “conveyance (of things or persons) from one place to another. And we must apply this definition in a practical, not a theoretical, way. Consequently, in our view a structure does not fall within the scope of this statutory phrase unless a reasonable observer, looking to the home’s physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water.

   (emphasis added). The Supreme Court then applied its new practicality-premised reasonable observer test to Mr. Lozman’s floating home:

   But for the fact that it floats, nothing about Lozman’s home suggests that it was designed to any practical degree to transport persons or things over water. It had no rudder or other steering mechanism. Its hull was unraked, and it had a rectangular bottom 10 inches below the water. It had no special capacity to generate or store electricity but could obtain that utility only through ongoing connections with the land. Its small rooms looked like ordinary nonmaritime living quarters. And those inside those rooms looked out upon the world, not through watertight portholes, but through French doors or ordinary windows. Although lack of self-propulsion is not dispositive, e.g., The Robert W. Parsons, 191 U.S. 17, 31, 24 S. Ct. 8, 48 L. Ed. 73 (1903), it may be a relevant physical characteristic.

   The Court concluded, “we can find nothing about the home that could lead a reasonable observer to consider it designed to a practical degree for transportation on water.

   The Lozman opinion removed one class of objects that occupy space on the water from the ambit of federal law and ensured that recourse for legal actions involving floating homes (as distinguished from house boats), and similar floating platforms incapable of use as a means of transport would remain in state courts. Moreover, given the similarity in definitions, it seems likely that Florida Courts would turn to the practical reasonable observer test when confronted with cases involving what constitutes a vessel under Florida law.^IA14 Floating homes without any means of transport are considered within the definition of Floating structures found at Section 327.02(14), and in that definition, they are expressly excluded from broader definition of vessel in that same section of the statute, leaving local governments free to regulate them.^IA15

   The Rules of the Road: Another Authoritative Source for Vessel Definitions

   The federal navigation rules, or Rules of the Road as they are commonly referred to, developed over centuries if not millenia, to manage maritime traffic, prevent collisions at sea, and assign liability for those collisions.^IA16 There are 2 similar sets of rules, one for international waters and one for national waters. The international rules, known as the COLREGS were created under the 1972 Convention on the International Regulation of Collisions at Sea. The United States adopted these rules in 1977.^IA17 The Inland Rules, as they are known, were adopted 1980 to reconcile sometimes conflicting state and regional approaches to navigation and establish a coherent set of navigation rules throughout the United States. Originally codified in statute,^IA18 the Inland Rules were moved to the Code of Federal Regulations for ease of revision and placed under the authority of the United States Coast Guard.^IA19 Florida has also incorporated the Inland Rules in Chapter 327 and applies them to assign liability in cases involving the reckless and careless operation of vessels,^IA20 and in the installation and use of lights and shapes on vessels for safety purposes.^IA21 Unlike most vessel definitions in Chapters 327 and 328, the Inland Navigation Rule definitions tend to distinguish vessels by the way they are being used at the time of use. For example, Florida defines a sailboat as a vessel whose sole source of propulsion is wind, ignoring the fact that many, if not most, sailboats also have a motor to assist with propulsion when needed. The Inland Rules recognize this duality in sailboats. Thus, a sailboat is only a sailboat when it is actually sailing, and not motoring.

   The Vessel Taxonomy Chart

   The vessel definition chart linked here lists more than 50 unique vessel definitions found in the Florida Statutes and regulations, and in a few cases in federal law as well. These definitions are taxonomically classified based on what the author’s believe is the regulatory interest that best suits them. Accurately describing and distinguishing vessels based on their use and the regulation of that use illustrates the difficulty in devising an appropriate, state-wide regulatory and management framework. At the same time, waterfront local governments that often bear the brunt of the disputes that arise both among vessel types and between vessels and shoreside owners. Faced with such disputes they may be quick to enact a local solution without adequate consideration of the statewide framework or fail to keep pace with state regulatory change. Chapter 327 provides little local home rule space to regulate vessels. Ensuring that local vessel definitions align with state law represents a key step in avoiding the preemptive effect of state vessel law.

2. The United Nations Convention on the Law of the Sea (UNCLOS)

   With 14 deep-water seaports and favorable proximity to cruise ship destinations, Florida hosts foreign-flagged vessels every day.⁴⁹ As a result, it is important to consider Florida’s connection to maritime commerce through the United States’ relationship with the international treaty known as the United Nations Convention on the Law of the Sea (UNCLOS) – sometimes referred to simply as The Law of the Sea.⁵⁰

   Although the United States has not ratified this treaty,⁵¹ it does recognize UNCLOS’s role in international relations and abides by much of its framework.⁵² Rooted in some of the oldest concepts of international law and customs, UNCLOS was adopted in 1982 and was substantially amended in 1994. Currently, 167 nations have ratified the Convention, which both establishes a regime of rights and imposes a series of duties upon the parties to the agreement.⁵³ It also defines maritime boundaries and legal jurisdictions, addresses rights of access to ocean resources, includes provisions for environmental protection, and sets rules governing the behavior of vessels.

   With regards to the navigational rights of vessels, the treaty includes Part II, Territorial Sea & Contiguous Zone, Subsection A Rules Applicable to All Ships, Article 17, the Right of Innocent Passage. This Article states that ships of all States, whether coastal or landlocked, enjoy the right of innocent passage . . .⁵⁴ Article 18 goes on to explain what this means:

   Article 18: Meaning of Passage

   1. Passage means navigation through the territorial sea for the purpose of:
      1. traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or
      2. proceeding to or from internal waters or a call at such roadstead or port facility.
   2. Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only insofar as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.⁵⁵

      Article 19 of UNCLOS explains the Meaning of Innocent passage and enumerates acts of foreign vessels that could violate true innocent passage. Passage is considered innocent so long as it is not prejudicial to the peace, good order, or security of the coastal State.⁵⁶ After 9-11, the import of the term security of the coastal state has taken on a more intense meaning. In addition, to the extent that harm to a coastal state’s natural resources are linked to national security, the UNCLOS could provide stronger international enforcement of domestic environmental protection laws.

      However, for foreign vessels operating pursuant to Innocent Passage on the waters of coastal States, like the United States, the right to stop and anchor is a limited right under UNCLOS. In other words, as described in Article 18, a foreign-flagged vessel that stops and anchors in a coastal State’s waters may do so only in so far as [stopping and anchoring] are incidental to ordinary navigation or are rendered necessary . . .

      Beyond this limitation, UNCLOS also specifically requires foreign-flagged vessels to adhere to the laws of coastal States regulating the use of waters. For example, as stated by Article 21 of UNCLOS, [f]oreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations and all generally accepted international regulations relating to the prevention of collisions at sea.⁵⁷ Article 21 also provides that coastal States may adopt laws and regulations relating to the right of innocent passage with respect to the following:

      1. the safety of navigation and the regulation of maritime traffic;
      2. the protection of navigational aids and facilities and other facilities or installations;
      3. the protection of cables and pipelines;
      4. the conservation of the living resources of the sea;
      5. the prevention of infringement of the fisheries laws and regulations of the coastal State;
      6. the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof;
      7. marine scientific research and hydrographic surveys; and
      8. the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State.⁵⁸

   The significance of this limitation is that it indicates a consensus, even at the international level, that certain state interests must take precedence over the freedom of the seas concept, including the related freedom to navigate or anchor at will. Further advancing this point, although UNCLOS identifies the principle of the freedom of the high seas in Article 87 (which includes the freedom of navigation),⁵⁹ it restricts the high seas to only include areas of the world’s oceans that remain outside of the various maritime jurisdictions claimed by coastal States.⁶⁰ So, despite this freedom under UNCLOS, foreign-flagged vessels arriving in territorial waters of a coastal State must nonetheless comply with local laws regarding navigation and anchoring.⁶¹

   There has been steady U.S. Presidential support over the last two decades urging the Senate to ratify UNLCOS, yet to no avail.⁶² If the United States ever becomes a signatory to and ratifies UNCLOS, many states, including Florida, will need to examine current regulations to ensure concurrency with U.S. Federal Law, as well as with UNCLOS’ provisions. However, where federal authority does not preempt state regulation, and where state regulation would not conflict with UNCLOS (if ratified by the United States), Florida will continue to have the authority to regulate a significant degree of vessel activity within its jurisdiction.

3. Federal, State, and Local Territorial Waters

   The geopolitical concept of federal, state, and local territorial waters drives the legal doctrines that attempt to sort out the rights of navigation in Florida. These different levels of government all enjoy certain rights to determine what happens on the submerged lands and overlying water column within their political boundaries. The term territorial waters or territorial sea is used in international law to describe the area within 12 nautical miles of the shoreline over which nation-states have full sovereignty.⁶³ However, the term is also useful in describing the geographic basis of relative political power in domestic law. As sovereigns, nations have plenary authority to delegate attributes of sovereignty to political sub-units (e.g. states), and those sub-units (e.g. counties and municipalities) may do the same. In the United States, this has been accomplished through federal statutes, state constitutions, enactment of state statutes, local government ordinances and court decisions.

   In the case of Florida, when the U.S. Congress approved the Florida Constitution, the state’s boundaries were defined to extend three leagues (nine nautical miles) along the south and west coasts, and to the edge of the Gulf Stream along the east coast.⁶⁴ In 1962, the Florida Constitution was amended to fix the eastern coastal boundary at three geographic miles.⁶⁵ Finally, the State Constitution was again revised in 1968, effectively combining the two prior constitutions by establishing a three geographic mile limit except where the edge of the Gulf Stream is found beyond three geographic miles, in which case it is the location of the Gulf Stream that controls.⁶⁶

   Disagreement over the meaning and extent of the delegation of sovereign powers to states within the federal territorial sea led to the federal Submerged Lands Act of 1953, which confirmed the maritime boundaries described in state constitutions, and the ownership of the submerged lands within those boundaries.⁶⁷ The U.S. Supreme Court subsequently confirmed Florida’s boundaries.⁶⁸ At least one Florida court has been required to evaluate the east coast’s ambulatory Gulf Stream boundary, where the event prompting the case occurred more than three geographical miles off the east coast of Florida, but not quite to the edge of the Gulf Stream.⁶⁹ In that case, the fact that the State’s boundary may change according to the fluctuating position of the Gulf Stream was challenged, but the court found nothing inherently wrong with such a boundary.⁷⁰

   In Florida, county territorial waters are legislatively established, while municipal boundaries, including water boundaries, are established by municipal charter, and approved by the Florida legislature. Chapter 7 of the Florida Statutes provides legal descriptions of each of Florida’s 67 counties.⁷¹ For coastal counties, the statute simply extends the county boundary to offshore waters within the jurisdiction of the State of Florida,⁷² effectively deferring to the State Constitution. Inland water boundaries are more complicated. In some cases, county boundaries are set along the thread (centerline) of rivers and streams, and there are a number of instances where lakes can be found in two or more counties.⁷³ Municipal boundaries can be even more complicated. In many cases, municipal boundaries end at the water’s edge. However, there are also many instances where municipal boundaries extend into adjacent waters, sometimes even to the limits of the state’s jurisdiction.⁷⁴ To make things more complicated in Florida, many coastal communities were developed by dredging and channelizing low lying areas for the purpose of creating waterfront homes on canals. Whether or not the ownership of the submerged lands in these canals was transferred by dedication in a recorded plat, retained by the original developer, or reverted to the State, can sometimes be a question that can cause considerable confusion. Physically distinguishing between the territorial waters of counties and municipalities greatly confounds efforts to address regulatory and management conflicts and can be confusing to navigators and resource users. Moreover, there is no central geographic database depicting the territorial boundaries of Florida’s municipalities.

   The establishment of county and municipal boundaries creates the presumptive authority to exercise the state’s police powers over local territorial waters under a legal doctrine referred to as home rule, sometimes described as the state-local analogy to federalism.⁷⁵ The Florida Constitution provides for two types of counties, charter and non-charter, and for the creation of municipalities. The Florida Constitution states that charter counties shall have all powers of local self-government not inconsistent with general law. . .,⁷⁶ and that non-charter counties shall have the power of self-government as is provided by general or special law.⁷⁷ Thus, while charter counties are afforded constitutional home rule authority, non-charter counties must rely on a statute to obtain the same authority. Despite the constitutional distinction, the Florida Legislature has provided much of that home rule authority to non-charter counties.⁷⁸ The Constitution also directly confers home rule authority on municipalities, providing that they may exercise any power for municipal purposes except as otherwise provided by law.⁷⁹ A further distinction between charter and non-charter counties bears on their relationship to municipalities. Charter counties may preempt municipal regulations and prevail where a conflict between ordinances exist, whereas non-charter counties may not preempt municipal regulations and are deemed not effective where a conflict in ordinances exist.⁸⁰ For a charter county to exercise this function through an amendment, it requires dual elector approval both countywide and within the affected municipal areas under the constitutional transfer of powers limitations.⁸¹ These distinctions enable charter counties to address navigation related conflicts that extend into municipal territorial waters, should they choose to do so. On the other hand, a municipality in a non-charter county may enact local laws covering their territorial waters regardless of inconsistency with county law.

4. Relationship to Federal Maritime and Admiralty Law

   It is beyond the scope of this publication to provide an in-depth discussion about U.S. Admiralty and Maritime law and jurisdiction, however, it is important to highlight the relationship of that body of law (Admiralty Law and Maritime Law are often used interchangeably) with Florida’s state law and local government regulation of navigation.

   Founded on ancient maritime customs, many of which are still applicable today, admiralty law involves both important procedural rules that apply to cases in federal court under admiralty jurisdiction and special substantive rules. If one desired to delve into the history of the ancient principles and customs dating back to the Laws of Oleron and King Henry I that evolved into modern day maritime law, then one could start by reading one of the first U.S. cases that interpreted the source of U.S. admiralty law and jurisdiction. The DeLovio v. Boit case⁸², decided in 1815 in the Circuit Court, District of Massachusetts, was an influential opinion regarding the Constitutional jurisdiction of U.S. maritime law and admiralty courts at the time. The opinion, written by Justice Joseph Story, was important because it was considered a scholarly analysis of maritime law history, newly formed U.S. Constitutional powers of the U.S. admiralty courts, and set the course for

   U.S. maritime law’s jurisprudence to evolve away from mother England’s admiralty law and customs. Article III, Section 2 of the U.S. Constitution establishes the jurisdiction of the federal courts to determine certain types of cases including, ...all cases of admiralty and maritime jurisdiction;…. In the DeLovio opinion, Justice Story interpreted this phrase as follows:

   What is the true interpretation of the clause ‘all cases of admiralty and maritime jurisdiction? ‘If we examine the etymology, or received use, of the words ‘admiralty’ and ‘maritime jurisdiction,’ we shall find, that they include jurisdiction of all things done upon and relating to the sea, or, in other words, all transactions and proceedings relative to commerce and navigation, and to damages or injuries upon the sea.

   Thus, the main objectives of modern admiralty law and jurisdiction, which is a jurisdiction normally conferred to federal courts sitting in admiralty, include facilitating maritime commerce, protecting workers engaged in such commerce, resolving legal disputes involving maritime issues occurring on navigable waters, and establishing a specialized forum in federal court for such matters. Title 28 U.S.C. Section 1333 confers admiralty jurisdiction to the U.S. District Courts but reserves concurrent jurisdiction in state courts for certain types of cases in which state law may also apply to a case (for example personal injury or negligence cases).⁸³

   Determining whether or not a legal issue falls under federal maritime law jurisdiction, normally depends on whether the matter occurred on the navigable waters of the United States and whether or not the legal issue involved a vessel. The legal definition of navigable waters for purposes of maritime jurisdiction has evolved over time but first included the ocean and any coastal waters affected by the ebb and flow of the tide. Since early U.S. commerce depended heavily on transportation of goods and people over rivers, streams, and lakes, early

   U.S. case law and Congressional regulatory authority expanded the reach of the term navigable waters to include more than just coastal waters. Specifically, in 1870, the U.S. Supreme Court ruled in The Daniel Ball⁸⁴ case that:

   Some of our rivers are as navigable for many hundreds of miles above as they are below the limits of tidewater, and some of them are navigable for great distances by large vessels which are not even affected by the tide at any point during their entire length. A different test must therefore be applied to determine the navigability of our rivers, and that is found in their navigable capacity. Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used or are susceptible of being used in their ordinary condition as highways for commerce… . And they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the states, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other states or foreign countries in the customary modes in which such commerce is conducted by water.

   The name of the vessel involved in this case was The Daniel Ball. The case was brought by the U.S. Government which filed an action against the owners of The Daniel Ball for operating on the Grand River in Michigan without receiving the proper commercial license for transporting people and goods. The owners of The Daniel Ball argued the federal government’s power to regulate interstate commerce did not apply to their activities because they operated only within the confines of the State of Michigan on portions of the river. But as a result of the

   U.S. Supreme Court’s ruling against The Daniel Ball, the term navigable waters expanded to any waters that are navigable in fact or susceptible to being used for commerce for purposes of federal admiralty jurisdiction and U.S Commerce Clause jurisdiction

   Today, the definition of navigable waters has become more nuanced and asserting federal maritime jurisdiction requires a showing not only of a matter occurring on navigable waters, but also a nexus or connection with traditional maritime activity. As discussed later in this publication, the term navigable waters has also taken on different meanings for different regulatory purposes under federal law – for instance defining applicability of the Clean Water Act as well as regulatory authority of the U.S. Environmental Protection Agency and the U.S. Army Corp of Engineers. Determining whether an activity or a legal dispute has a connection to traditional maritime activity sometimes hinges on the definition of vessel. For instance, sometimes a legal question may arise over an incident or contractual situation involving a structure connected to a wharf, or dock, or some contrivance of a floating object on navigable waters.

   The federal definition of vessel as codified at Title 1, Section 3 of the United States Code states, The word vessel includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water. (July 30, 1947, ch. 388, 61 Stat. 633). Such a broad definition fails to provide much guidance for determining whether a floating object is a vessel under federal law, and has led to a wide variety of interpretations in federal case law.⁸⁵ But in 2005, the U.S. Supreme Court determined that use of a vessel as a means of transportation must be a practical possibility rather than merely a theoretical one when analyzing the attributes of a floating object to determine if it is a vessel subject to admiralty jurisdiction.⁸⁶ For example, a vessel that has sat idle for an extended period of time and lacks the proper equipment or integrity to serve as a means of transportation on water may be deemed to be a dead ship or withdrawn from navigation.⁸⁷

   Whether an apparent vessel is in navigation for purposes of asserting federal maritime law against it has influenced Florida’s local government regulation of navigation in state waters. When Florida entered statehood in 1845, it was granted ownership of the submerged lands by way of the Equal Footing Doctrine which included not only submerged lands beneath navigable rivers, streams, and lakes, but also the submerged lands along the coastline to its jurisdictional limits offshore. This ownership gave the state authority to regulate navigation on state waters. Today, Florida’s jurisdiction extends to three nautical miles off the east coast and in some places to the boundary of the gulf stream and nine nautical miles into the Gulf of Mexico. As a result, Florida state jurisdiction to regulate navigation within its own territorial jurisdiction coexists in the same navigable waters where federal admiralty jurisdiction may exist. And to the extent the State of Florida grants local governments authority to regulate some aspects of navigation (i.e., speed zones, vessel restricted or excluded areas, mooring fields, and anchoring ordinances), those regulations also coexist on the same navigable waters where federal admiralty jurisdiction may exist. As a result, when a vessel is cruising Florida’s territorial waters, it is literally navigating through multiple layers of federal, state, and local jurisdictions; federal, state, and local laws – all coexisting to regulate different aspects of a vessel’s activity on the water. One federal admiralty case in particular which occurred at a municipally owned marina, located in the territorial waters of Florida, actually tackled the long-standing broad definition of vessel under federal law and affected the entire U.S. commercial marine industry as a result.

   In 2013, the U.S. Supreme Court case, Lozman v. City of Riviera Beach, Fla., addressed whether admiralty jurisdiction, applied to a case in which the City of Riviera Beach brought an in rem case against a floating home moored at one of its public marinas.⁸⁸ After ongoing disputes between Mr. Lozman, (owner of the floating home), and the City regarding unpaid dockage fees and refusal to leave the marina among other issues,⁸⁹ the City sought relief in federal admiralty court under the legal theory that the floating home was committing the maritime tort of trespass. If the City prevailed in admiralty court, it would be authorized to remove the floating home and seek monetary damages.

   The key phrase at issue in the case was whether or not Lozman’s floating home was capable of being used…as a means of transportation on the water.⁹⁰ Prior to the U.S. Supreme Court hearing the case, both the lower federal District Court and Circuit Court of Appeals ruled in favor of the City, deciding that the floating home was indeed a vessel subject to federal admiralty jurisdiction. the lower courts essentially determined that the federal definition of vessel was after all very broad and it was conceivable that the floating home could be used as a means of transportation. But Mr. Lozman appealed to the U.S. Supreme Court. As a result, the central question for the Supreme Court to decide when it accepted the case was whether or not the floating home met the federal definition of a vessel. If yes, admiralty jurisdiction would apply to the City’s case, because the alleged maritime trespass had occurred on navigable in fact waters and because the floating home met the legal definition of a vessel capable of being used in a way that gave it a connection to traditional maritime activities.

   Relying on the broad definition of vessel as well as conflicting interpretations between the Federal Circuit Courts of Appeal regarding that key phrase within the definition of vessel, Mr. Lozman argued that his floating home was not a vessel subject to federal maritime jurisdiction whatsoever. Lozeman argued that his floating home had no means of propulsion and was dependent on shore-side electrical power. In other words, it was not capable of being used as a means of transportation on the water. Answering this question resulted in the

   U.S. Supreme Court establishing a new methodology in federal maritime law for determining if a floating object can be considered a vessel as defined by the federal code. That methodology is now often referred to as the reasonable observer test. In what was documented as Chief Justice Roberts’ favorite case of the 2013 term, Justice Breyer wrote the Supreme Court’s Opinion. His opinion explained the floating home was not a vessel subject to admiralty jurisdiction and described why the reasonable observer test should be applied to questions regarding whether a floating object is a vessel (citations omitted):

   Not every floating structure is a vessel. To state the obvious, a wooden washtub, a plastic dishpan, a swimming platform on pontoons, a large fishing net, a door taken off its hinges, or Pinocchio (when inside the whale) are not vessels, even if they are artificial contrivance[s] capable of floating, moving under tow, and incidentally carrying even a fair-sized item or two when they do so. Rather, the statute applies to an artificial contrivance . . . capable of being used . . . as a means of transportation on water. 1 U.S.C. §3 (emphasis added). [T]ransportation involves the conveyance (of things or persons) from one place to another. And we must apply this definition in a practical, not a theoretical, way. Consequently, in our view a structure does not fall within the scope of this statutory phrase unless a reasonable observer, looking to the home’s physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water.

   The Supreme Court’s Opinion further clarified its ruling by describing the attributes of the floating home (citations omitted):

   Though our criterion is general, the facts of this case illustrate more specifically what we have in mind. But for the fact that it floats, nothing about Lozman’s home suggests that it was designed to any practical degree to transport persons or things over water. It had no rudder or other steering mechanism. Its hull was unraked, and it had a rectangular bottom 10 inches below the water. It had no special capacity to generate or store electricity but could obtain that utility only through ongoing connections with the land. Its small rooms looked like ordinary nonmaritime living quarters. And those inside those rooms looked out upon the world, not through watertight portholes, but through French doors or ordinary windows. Although lack of self-propulsion is not dispositive, e.g., The Robert W. Parsons, 191 U.S. 17, 31, 24 S. Ct. 8, 48 L. Ed. 73 (1903), it may be a relevant physical characteristic. And Lozman’s home differs significantly from an ordinary houseboat in that it has no ability to propel itself. Cf. 33 CFR §173.3 (2012) (Houseboat means a motorized vessel . . . designed primarily for multi-purpose accommodation spaces with low freeboard and little or no foredeck or cockpit (emphasis added)). Lozman’s home was able to travel over water only by being towed.

   . . . .

   The home has no other feature that might suggest a design to transport over water anything other than its own furnishings and related personal effects. In a word, we can find nothing about the home that could lead a reasonable observer to consider it designed to a practical degree for transportation on water.

   As a result of the Lozman opinion, the Supreme Court has continued to decrease the potential for a wide variety of subjective interpretations by narrowing the range of objects on water falling under admiralty jurisdiction as vessels. Furthermore, the Court noted that an object is a vessel where a reasonable observer, looking to its characteristics and activities, would consider it practically designed for transportation.⁹¹ The ramifications for Florida’s regulatory scheme mean that where floating homes are found around the state, they may be in a class all their own, subject to state and local regulations, but outside the realm of federal maritime law. But only a reasonable observer will know whether a floating home is a vessel or not! Floating structures, live-aboard vessels, and houseboats are all now defined terms under the Florida Statutes (See Section I.A).

This section discusses the provisions in federal constitutional and statutory law that serve as the basis for federal jurisdiction over navigation. Additionally, this section addresses federal limits on state and local authority to regulate anchorages.

1. Federal Constitutional Authority over Navigable Waters

   Under the Commerce Clause of the United States Constitution,⁹² the federal government has authority to control the navigable waters of the nation.⁹³ There are two related aspects to this authority. First, there is a federal power to regulate activities affecting navigable waters because of their relationship to interstate commerce. Second, there is a federal navigational servitude, which was recognized in some of the earliest decisions examining the scope of Congressional authority under the Commerce Clause. The navigational servitude encompasses the power of Congress to regulate navigation, prohibit or remove obstructions to navigation, and improve or destroy the navigable capacity of the nation’s waters.⁹⁴ When Congress acts within the scope of the navigational servitude, state regulatory power and private riparian rights must give way.⁹⁵

   One purpose of the navigational servitude is to protect the public’s rights of access and use of navigable waters.⁹⁶ In this sense, access and use constitute rights of navigation. Congress can protect these rights, but the extent to which private parties can independently assert a right of access and use pursuant to the navigation servitude is not as clear.⁹⁷

   Even if private parties could bring an action to assert rights to navigate under the federal navigational servitude, they may still be subject to reasonable regulation because the right to navigate, moor, or anchor a vessel has never been recognized as a fundamental right.⁹⁸ If it were fundamental, constitutional principles would require any regulation curtailing the right to withstand a high level of judicial review, and would only be upheld in limited circumstances (i.e., where it passed the stringent standard of strict scrutiny).⁹⁹ Under the lower rational basis standard of review, a regulation limiting the exercise of the right of navigation will be upheld as valid unless the regulation lacks a rational relation to a legitimate government purpose.¹⁰⁰

   A navigational servitude case arose in Crystal River, Florida in the 1980’s when the owner of land surrounding a spring known as Three Sisters Springs attempted to prevent public access to the spring and its run (channel) by claiming ownership of the submerged land.¹⁰¹ The case was heard at the U.S. District Court, Middle District of Florida. The main question the court focused on was whether the spring and its run, (which connected to Kings Bay, Crystal River, and ultimately the Gulf of Mexico), were considered navigable waters and therefore subject to the navigational servitude.¹⁰² If subject to the navigational servitude, the spring would be legally considered open to public navigation. The land owner attempting to exclude public navigation into the spring placed much emphasis on the U.S. Supreme Court’s holding in Kaiser Aetna v. United States. That case found that a historically privately owned pond in Hawaii that had been dredged and newly connected to existing navigable waters of the Pacific Ocean was subject to regulation by the Army Corps of Engineers – but that the pond’s owners could not be required to open [the pond] to the public without compensation.¹⁰³ The U.S. District Court, Middle District of Florida disagreed that the Kaiser case applied to the Three Sisters Springs case and explained that Kaiser was a unique case where the body of water in question was undeniably historically private and that the private pond was dredged and connected to navigable waters by means of private funding.¹⁰⁴ The District Court found that Three Sisters Spring and run, on the other hand, had been navigable waters since at least the 1920’s, was accessed and used by the public and commercial entities, and showed evidence of being affected by the tide.¹⁰⁵ The court ultimately concluded that the spring and its run were navigable waters at all material times and hence subject to the navigation servitude.¹⁰⁶

2. Federal Statutory Authority over Navigation, Including Anchoring

   Numerous federal statutes affect the use and management of the navigable waters of the United States. With regards to government authority over navigation, the two most significant are the Submerged Lands Act and the Rivers and Harbors Act. The Submerged Lands Act (SLA) transferred title to the states of land underlying navigable waters,¹⁰⁷ but it reserved certain federal interests, including navigation.¹⁰⁸ The Rivers and Harbors Act established the authority of the United States to regulate navigation and vested that authority in the Department of the Army (Corps of Engineers).¹⁰⁹ In addition to these Acts, the Coastal Zone Management Act (CZMA) serves as another significant federal law affecting the use and management of waters in coastal areas.

   The U.S. Coast Guard is charged with regulating and enforcing various aspects of the right of navigation.¹¹⁰ The U.S. Army Corps of Engineers and the Environmental Protection Agency regulate dredging, filling, and placement of structures in navigable waters,¹¹¹ and the U.S. Fish and Wildlife Service and the National Marine Fisheries Service have jurisdiction over endangered and threatened species, including marine mammals.¹¹² Finally, federal lands, including those beneath navigable waters, are administered by several agencies, including but not limited to: the National Park Service (national parks and monuments),¹¹³ the U.S. Fish and Wildlife Service (national wildlife refuges),¹¹⁴ the Bureau of Ocean Energy Management (renewable energy-related management functions),¹¹⁵ and the National Oceanic and Atmospheric Administration (national marine sanctuaries).¹¹⁶

   1. The Submerged Lands Act (SLA)

      Under the Submerged Lands Act (SLA),¹¹⁷ Congress confirmed both state ownership of submerged lands and control of the overlying waters, although it reserved significant power to the federal government.¹¹⁸ The SLA recognized, and established each state’s claim of title and ownership¹¹⁹ as well as management and administrative responsibility¹²⁰ over submerged lands beneath navigable waters within the respective state boundaries. In addition, the U.S. Supreme Court has characterized the SLA as a transfer to the states of rights to submerged lands and waters.¹²¹ Congress’ goal in passing the SLA was to decentralize management of coastal areas and foster greater local control to better meet the needs of the state and boaters.¹²² Congress stated that because management of submerged lands is directly tied to local activities, any conflict of interest arising from the use of the submerged lands should be and can best be solved by local authorities.¹²³ The SLA, however, expressly reserved in the federal government the power to regulate these lands for the purposes of commerce, navigation, national defense, and international affairs.¹²⁴ The statutes discussed below implement this authority.

   2. The Rivers and Harbors Act

      Pursuant to the Rivers and Harbors Act, the federal government exercises control over activities relating to maritime commerce and navigation. The Act is composed of a series of appropriations statutes authorizing federal public works projects on navigable waters. Due to provisions prohibiting discharge of refuse into the navigable waters, it has also been described as the country’s oldest environmental statute.¹²⁵

      1. Obstructions to Navigation.

         The U.S. Army Corps of Engineers exercises jurisdiction under the Rivers and Harbors Act.¹²⁶ Under the Act, the Corps has authority to regulate the creation of any obstruction . . . to the navigable capacity of any of the waters of the United States, including the building of any structure.¹²⁷ Corps regulations define permanent mooring structures and a permanently moored floating vessel as structures subject to regulation.¹²⁸ Although the limits for defining when a moored vessel becomes permanently moored have not been established, several judicial decisions have upheld the regulation of moored structures, including houseboats.¹²⁹

         The Corps regulates activities under Sections 9 and 10 of the Rivers and Harbors Act of 1899 by requiring permits.¹³⁰ In recognition that some activities may have minimal obstructive impact, the Corps has established Nationwide Permits for installation of some types of moorings.¹³¹ Permanent moorings and moored vessels that do not qualify for Nationwide Permits must be individually permitted.¹³² In determining whether to issue permits, the Corps may be required to consult with certain entities for wildlife conservation purposes. For example, the Fish and Wildlife Coordination Act requires that the Corps consult with the U.S. Fish and Wildlife Service, in the Department of the Interior, as well as applicable state entities when issuing permits under the Rivers and Harbors Act.¹³³ In certain circumstances, the Corps may also need to consult the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service in order to address impacts to endangered and threatened species.¹³⁴ From a navigational perspective, the Corps also reaches out to the U.S. Coast Guard for guidance. In a Memorandum of Agreement between the Corps and the Coast Guard, both parties have agreed that the Coast Guard will be informed and will provide the Corps feedback regarding permits the Corps receives relating to fixed and floating structures upon the navigable waters of the United States.¹³⁵

      2. Anchorage Grounds and Special Anchorage Areas.

         The Secretary of the Department of Homeland Security is authorized to establish anchorage grounds through the Rivers and Harbors Act of 1915,¹³⁶ and special anchorage areas may also be established by rule.¹³⁷ The Secretary has further delegated this authority to the Coast Guard.

         Anchorage grounds may be established on navigable waters of the United States wherever the maritime or commercial interests of the United States require such anchorage grounds for safe navigation.¹³⁸ In addition, the Secretary is granted the authority to adopt suitable rules and regulations governing the use of such anchorage grounds.¹³⁹ The Coast Guard has established nine anchorage ground regulations in Florida, primarily for large commercial vessels using major ports.¹⁴⁰

         Of greater significance to recreational boaters, special anchorage areas afford vessels less than 65 feet in length exemption from displaying anchorage lights, otherwise required by the Inland Navigation Rules, while anchored in the designated area.¹⁴¹ Like anchorage grounds, special anchorage areas may also contain additional area specific rules.¹⁴² The Coast Guard has designated a number of special anchorage areas in Florida.¹⁴³ There is potential value in identifying special anchorage areas because their designation at the federal level establishes an area presumptively preserved for navigation (anchoring) that may be protected from incompatible uses. Beyond designating anchorage grounds and special anchorage areas, however, the Coast Guard has construed its jurisdiction relatively narrowly under the Rivers and Harbors Act and has deferred to local law with regard to the regulation of anchoring in Florida.¹⁴⁴

         For more details and a list of Florida’s anchorage grounds and special anchorage areas, see Section (II(C)(5)(e) discussing the authority of the Coast Guard.

   3. Coastal Zone Management Act

      The Coastal Zone Management Act (CZMA)¹⁴⁵ encourages states to take an active role in the management and control of the submerged lands and coastal waters within the territorial boundaries of the state.

      The Act authorizes states to develop Coastal Zone Management Plans and provides incentives for states with approved plans.¹⁴⁶A significant feature of the Act is its consistency requirement. Once the federal government approves a state coastal management plan, ¹⁴⁷ this requirement acts as an incentive for states because it forces federal agencies to ensure the consistency of their activities with the state’s plan. Where federal agency action will cause certain reasonably foreseeable coastal effects, the federal agency must submit the proposed action to the relevant state agency for a consistency review¹⁴⁸ evaluating whether the activity is consistent to the maximum extent practicable with the policies in the state’s coastal management plan.¹⁴⁹ The state may then decide whether to object to the activity. Where a federal agency is issuing permits or licenses, a slightly different process applies, but the state is similarly provided the opportunity to object.¹⁵⁰ The significance of the consistency requirement lies largely in its potential to invert the supremacy of federal regulatory authority, such as the authority to regulate aspects of navigation, to a position that is inferior to state regulation.

      The State of Florida has successfully argued in one federal district court case involving anchoring that the CZMA authorizes local regulations such as prohibitions on anchoring.¹⁵¹ In Murphy v. Dept. of Natural Resources, residents of an area known as houseboat row in Key West filed a suit seeking a declaratory judgment that Florida Statutes sections 253.67 through 253.71¹⁵² were unconstitutional because the State’s control over the water column is narrowly circumscribed by federal law.¹⁵³ The state maintained that it had authority to regulate anchoring because, although the federal government reserves the right under the Submerged Lands Act to use the water column above submerged lands for navigation, this does not prohibit the state from regulating anchoring in the absence of affirmative action by the federal government.¹⁵⁴ The court agreed with the state, finding that the state’s exercise of control over the water column as an incident to its ownership of sovereign submerged lands was specifically sanctioned in the CZMA.¹⁵⁵

      The court noted that the CZMA encourages the states to exercise effectively their responsibilities in the coastal zone through the development and implementation of [federally approved] management programs.¹⁵⁶ The court found that Congress considered navigation, as one of the areas the States should include in their management plans.¹⁵⁷ The court reasoned that because the state’s Coastal Zone Management Plan was approved by the U.S. Secretary of Commerce, the plan did not encroach on any federal power over navigation.¹⁵⁸

      Florida has an adopted and federally approved Coastal Management Program, which largely consists of 24 statutes designed to protect the state’s natural, cultural, historic, and economic coastal resources.¹⁵⁹ The Florida Department of Environmental Protection, along with other partner agencies, is charged with administering the Program, which must be updated as the laws that comprise the Program are amended.¹⁶⁰ Interestingly, Florida’s Program does not include Chapter 327 as an enforceable policy despite it being Florida’s primary boating law and a key statute conferring navigation rights in the state.¹⁶¹ The rationale for excluding Chapter 327, which creates enforceable policies concerning navigation and other matters of apparent coastal zone importance is unclear. Because of the reverse federalism policy that undergirds the CZMA, if Chapter 327 were included in the Program, the State would presumably be in a better position to argue that inconsistent federal regulations would be impermissible.

3. Federal Limits on State and Local Authority to Regulate Navigation and Anchoring

   This section addresses potential federal limitations on the state’s authority to regulate navigation and anchoring. While we focus on anchoring, these principles generally hold true for other attributes of navigation. To understand these limitations, it is necessary to review the basis for federal supremacy in this area of law. As previously noted, Congress has authority to regulate matters affecting interstate commerce, and the federal navigational servitude is constitutionally derived from the Commerce Clause.¹⁶² Under the Supremacy Clause of the U.S. Constitution, federal law governs over conflicting state law,¹⁶³ and Congress may preempt local laws pursuant to this authority.¹⁶⁴

   Three distinct limits on state regulatory authority are derived from these principles. First, where a state law, such as a law regulating navigation and anchoring, actually conflicts with a federal law, the state law will be void.¹⁶⁵ Second, where Congress has spoken so as to preclude state regulation in a given area of law, state regulation is preempted.¹⁶⁶ Third, even when state regulation is neither in conflict nor preempted, the doctrine known as the Dormant Commerce Clause prohibits states from unduly burdening interstate commerce.¹⁶⁷ The following sections address the potential impact of these limits on state and local efforts to regulate navigation and anchoring.

   1. Actual Conflict with Federal Laws

      The Supremacy Clause of the U.S. Constitution places federal law above state law when conflicts arise between the two separate bodies of law. Therefore, any state law regulating navigation and anchoring that conflict with validly exercised federal law will be invalid. A state law conflicts with federal law either when it is not possible to comply with both the state and federal law at the same time,¹⁶⁸ or when the state law prevents implementation of the federal law.¹⁶⁹

      Currently, there are few federal anchoring regulations with which state laws and regulations might conflict. In a legal opinion, the Coast Guard asserted that neither the Rivers and Harbors Act nor its implementing regulation provide any substantive anchoring regulation, and characterized its own authority to regulate as merely the authority to establish general and special anchorage areas where and when needed.¹⁷⁰ In Murphy v. Department of Natural Resources, the court accepted the Coast Guard’s position as meaning that no Federal law exists in the area of anchorage and mooring.¹⁷¹

      The circumstances considered in Graf v. San Diego Unified Port District,¹⁷² a California case, provide an example of how the Coast Guard has worked with local governments to deal with potentially conflicting anchorage regulations. In that case, the San Diego Unified Port District sought to update its Port District Master Plan by incorporating a new small craft anchorage plan for an area of the San Diego Bay.¹⁷³ The California Coastal Commission certified the plan, and the Port District thereafter made the plan part of the District’s coastal plan by accepting the certification.¹⁷⁴ Before this plan was established, however, the Coast Guard had already designated the entire San Diego Bay a federal anchorage area.¹⁷⁵ To avoid conflict between state regulations (i.e., the Port District’s certified plan) and federal regulations (i.e., the Coast Guard’s designation), the Port District requested that the Coast Guard actually modify its regulation of the Bay to allow the state and federal regulations to co-exist.¹⁷⁶ The Coast Guard willingly complied and made the appropriate changes through the Federal rule-making process. ¹⁷⁷

      The Port District’s governing board (the Port Commissioners) then adopted local ordinances creating smaller anchorages in Central San Diego Bay and made it a crime to remain anchored beyond a certain date in South San Diego Bay.¹⁷⁸ Graf, who owned a boat anchored in Fort Emory Cove, located in South San Diego Bay, and also founded the Fort Emory Cove Boat Owners Association, received notice from the harbor police (by a posting on his boat) that he was in violation of the new ordinance, and that failure to weigh anchor and vacate the area could result in both impoundment of his vessel and a criminal misdemeanor offense charge.¹⁷⁹ Graf challenged the new ordinances as unconstitutional on several grounds, but the court dismissed all of his arguments.¹⁸⁰ Finding the ordinances constitutional, the court further stated, [t]hus the jurisdiction to establish and enforce the anchorage and nonanchorage areas in San Diego Harbor is concurrent. The Coast Guard recognizes the right of the San Diego Port District to establish these anchorages and enforce the provisions of the anchorages by ordinance and to punish violators by enforcing criminal laws against them.¹⁸¹

   2. Preemption: Barber v. State of Hawaii and Local Anchoring Regulations

      The Doctrine of Preemption is also founded on the supremacy of federal regulatory authority.¹⁸² Preemption occurs where Congress has demonstrated intent to exclusively occupy an area of law.¹⁸³ If such intent is contained in the language of the federal law at issue, the preemption is said to be express.¹⁸⁴ If, however, instead of existing within the language of the law itself, such intent is inferred from a pervasive legislative scheme dominating (i.e., leaving no room for state law to supplement) an entire field of law, then the preemption is considered implied.¹⁸⁵ In either case, preemption will not occur unless it is determined to be the clear and manifest purpose of Congress.¹⁸⁶

      The relatively sparse body of federal law concerning anchoring contains no provision expressly preempting state authority. Several analysts have extensively surveyed federal law and concluded that Congress never intended to preempt state authority to regulate anchorages.¹⁸⁷ The Coastal Zone Management Act of 1972,¹⁸⁸ and the general principles set forth in Executive Order 13132 of August 4, 1999 support that conclusion.¹⁸⁹

      State authority to regulate anchorages was upheld against a preemption challenge in a landmark case originating in the Hawaiian Islands.¹⁹⁰ In Barber v. State of Hawaii, a citizens’ group known as the Hawaiian Navigable Waters Preservation Society (Preservation Society), acting on behalf of boaters, brought suit challenging the constitutionality of state regulations affecting their rights of navigation, including anchoring in state waters.¹⁹¹ The state’s Department of Transportation had promulgated rules requiring boaters to obtain a permit to moor only in designated locations at established moorings if the vessel were to remain for longer than 72 hours.¹⁹² The rules were adopted to provide for the safety of boaters and other recreational users of the area.¹⁹³ The lower court granted summary judgment in favor of the state, and the Preservation Society appealed.¹⁹⁴

      On appeal, the Preservation Society argued that Hawaii’s regulations were in conflict with federal regulations, and that even absent conflict, federal regulation was so extensive that Congress intended to preempt state action in terms of regulating navigation and anchoring in state waters.¹⁹⁵ The United States Court of Appeals, Ninth Circuit, found these arguments unpersuasive.¹⁹⁶ The court noted that the Submerged Lands Act was not intended to reserve exclusive federal jurisdiction over waters above submerged lands, but to confer concurrent jurisdiction on the state.¹⁹⁷ The court was also unwilling to find implicit preemption based on what it deemed the far from extensive body of federal law affecting anchorages.¹⁹⁸ The court indicated that the Secretary of Transportation and the Coast Guard had discretionary authority and may act to affect all navigational issues, but they need not and they have not.¹⁹⁹

      As discussed above, it seems clear that federal law does not expressly preempt local anchorage regulations. However, the existence of an implied intent to preempt may not be as clear. While the Ninth Circuit found no implied preemption in Barber, it is unclear how other federal circuits or the U.S. Supreme Court might rule on the issue, especially if faced with facts different than those considered by the court in Barber. For example, if the anchorage at issue is a Coast Guard designated special anchorage area or anchorage grounds, a court may be more inclined to find that preemption exists. Recalling the facts considered by the California court in the above-discussed case of Graf v. San Diego Unified Port District, this very issue might have become a problem for the Port District if the Coast Guard decided not to change its regulations to allow concurrency between the federal and local regulations that applied in San Diego Bay.

   3. Dormant Commerce Clause Impact on State Regulation of Navigation and Anchoring

      Even in the absence of direct conflict with federal law or express or implied preemption by Congress, the U.S. Constitution’s Commerce Clause may still restrict state laws where such laws operate either to directly discriminate against interstate commerce or to excessively burden interstate commerce.²⁰⁰ This restriction results from interpretation of the Constitution that has developed into the legal doctrine known as the dormant Commerce Clause. Under this doctrine, the Commerce Clause is said to be dormant because Congress has not made active use of its power. Thus, even where Congress has not acted, courts interpret the dormant Commerce Clause to limit states’ ability to adopt and implement regulation that either directly discriminates against interstate commerce or, if it does not directly discriminate, regulation that excessively burdens interstate commerce.²⁰¹

      State regulation directly discriminates against interstate commerce when it treats out of state commercial interests different than commercial interests within the state. If a court finds that a regulation directly discriminates, the regulation is likely to be deemed unconstitutional as a violation of the dormant Commerce Clause.²⁰² However, when evaluating state regulations indirectly burdening interstate commerce, courts follow a fact-based balancing test that weighs the local (i.e., intrastate, not interstate) benefits of the state regulation against the burden on interstate commerce.²⁰³ Under this test, courts will uphold the regulation, unless the burden imposed on [interstate] commerce is clearly excessive in relation to the [alleged] local benefits.²⁰⁴

      In addition to rejecting the preemption arguments based on direct conflict with federal law and express or implied preemption by federal law, the Ninth Circuit in Barber, discussed above, also refused to use the dormant Commerce Clause to invalidate the state regulation.²⁰⁵ The court determined that the state’s interest in regulating the particular activity it was attempting to regulate was substantial, while the burden on interstate commerce was indirect and minor.²⁰⁶ The court was swayed by evidence indicating that the conduct the state regulation was designed to protect against posed a substantial threat to public safety.²⁰⁷ The court also evaluated the direct and indirect impact Hawaii’s anchoring and mooring regulations imposed on interstate commerce²⁰⁸ and determined that the state was not directly regulating interstate commerce because the state’s anchoring and mooring regulation did not specifically target interstate vessels.²⁰⁹ The court made this finding despite the fact that the state regulation imposed a higher mooring fee on nonresidents than on residents. The court recognized past judicial decisions refusing to find this sort of disparate fee structure discriminatory because state residents already pay state taxes, whereas nonresidents do not. Thus, to summarize the dormant Commerce Clause analysis in Barber, the court found that Hawaii’s public safety interest in regulating the conflicting uses between recreational ocean users and vessels conducting passive mooring activities outweighed any small burden on interstate commerce,²¹⁰ and therefore the mooring regulation was not a violation of the Commerce Clause.²¹¹

      Overall, the result of this case indicates that federal law does not preempt local/state regulation of anchoring. Judicial decisions addressing various federal laws have consistently indicated that Congress has not occupied the field in this aspect of navigation, thereby refusing to find an implied intent to preempt state regulation.²¹² The Coast Guard takes the position that, [u]p to this point, Congress has not demonstrated an express or implied intent to preempt state regulation of anchorages.²¹³ Regarding other aspects of maritime regulation, there are various cases in which courts have held that federal law trumps local/state legislation.²¹⁴ However, there have also been a series of cases in which courts have found that federal law does not preempt local/state legislation.²¹⁵

   4. Navigation Rules (a.k.a The Rules of the Road) and COLREGs

      No discussion of the interaction between federal, state and local government law on navigational issues in Florida would be complete without addressing the role of the Navigation Rules otherwise known by the boating community as: The Rules of the Road.

      There are two sets of Navigation Rules that vessels moving in, across, and out of Florida waters, into U.S. waters and international waters are required to follow.²¹⁶ One set of rules is often referred to as the International Rules or COLREGS and the other set of rules is often referred to as the Inland Rules.²¹⁷ There is minimal difference between the two sets of rules, which establish, among other things, lighting on vessels at night and the order and hierarchy upon which vessels have the right of way under various meeting scenarios. In essence, these rules are very similar to the way that highway traffic rules govern the movement of land-based vehicles. The primary intent of the rules is to prevent collisions between vessels at sea and to ensure the safe operation of vessels in navigable waters.

      Which set of rules a vessel should follow depends on what side of a line of demarcation the vessel is located.²¹⁸ The Secretary of Homeland Security, is delegated the authority to identify the lines of demarcation separating the high seas from inland waters. As the name implies, Inland Rules are followed when vessels are on the ‘inland’ side of a line of demarcation, whereas the International Rules are followed once the vessel crosses over the line and is transiting outside the inland area.²¹⁹

      1. The International Rules or COLREGS.

         The International Rules or COLREGS were created out of the Convention on the International Regulations for Preventing Collisions at Sea in 1972.²²⁰ Many of the worlds’ countries are parties to the Convention and as a result, vessels flying the flags of countries that have ratified the treaty, including the United States, are required to follow the International Rules.²²¹ Congress officially adopted the COLREGS under the name of the International Navigational Rules Act of 1977, thus giving them the force of law within U.S. territorial waters.²²²

      2. The Inland Rules.

         For many decades, the rules of navigation for vessels operating in the United States were different across the country. There were distinct navigation rules ranging from local rules to the Western Rivers rules, the Great Lakes rules and the Motorboat Act of 1940.²²³ In the early 1960’s, as the international convention began efforts to draft international rules, the United States simultaneously made efforts to unify the country’s internal conglomerate of rules.²²⁴ The nation’s rule unification efforts; however, were temporarily placed on hold while the International Rules were finalized and ultimately accepted and signed into law in 1977. ²²⁵ Upon acceptance of the International Rules, the Secretary of Transportation created the Rules of the Road Advisory Committee, whose efforts led to the formal standardization of the Inland Rules in 1980.²²⁶

         The Inland Navigation Rules are now encompassed in the Code of Federal Regulations – 33 C.F.R. parts 83 – 90. Rules 1 through 38 are the heart of the Rules, governing vessel behavior, movement across the water, signaling, and determining what vessel is the give-way vessel in any situation.²²⁷ There are also five annexes contained in the Rules, which proscribe technical lighting and signal requirements, distress signals, and additional special rules for fishing vessels and pilots.²²⁸

      3. Preemption and Concurrency with State and Local Law.

         Previously in this publication we have discussed the Doctrine of Preemption in which superior Federal law essentially trumps State or local laws. The Inland Navigation Rules provide an example of express preemption. In 2004, upon passage of the federal Maritime Transportation Act, the U.S. Coast Guard received delegated authority to issue inland navigation regulations.²²⁹ After a regulatory change in 2010, the Inland Navigation Rules were transferred from the United States Code to the Code of Federal Regulations enabling the Coast Guard to more easily modify the Rules.²³⁰ In 2012, the Coast Guard amended the Inland Navigation Rules based on a 2009 Preemption memorandum issued by President Obama.²³¹ The memorandum directed agencies to include preemption provisions in the codified regulations when regulatory preambles discussed its intention to preempt State law through the regulation.²³² The language in the Rules was amended to specifically and expressly make the Rules supreme over State and local law by adding the following sentence to Inland Rule 1: The regulations in this subchapter (subchapter E, 33 CFR parts 83 through 90) have preemptive effect over State or local regulation within the same field.²³³

         Florida had previously incorporated the Navigation Rules by including the term in the definitions section of Chapter 327, Florida Statutes. But keeping in line with the superior federal law when it was amended to expressly preempt State law, Florida amended its definition of Navigation Rules to make sure to reference the most recent Congressional amendments including the preemption language.²³⁴ The ultimate meaning of the interplay between Florida’s incorporation of the Code of Federal Regulations (C.F.R.’s) codifying the Navigation Rules is that not only is Florida law preempted by federal law, but federal law is also specifically incorporated into Florida law. Thus, Florida law and Federal law are essentially one and the same with regards to the Rules of the Road.

         As a result, where Section 327.33 (Reckless or careless operation of a vessel) of the Florida Statutes states in subsection (3) that [e]ach person operating a vessel upon the waters of this state shall comply with the navigation rules, this is specifically referring to the Rules of the Road as codified in Title 33 of the

         U.S. Code. Florida law also prescribes civil and criminal penalties for those boaters who violate the Navigation Rules while operating a vessel on waters within Florida’s jurisdiction.²³⁵ But in addition to the Rules of the Road, Florida Statutes and local government ordinances also impose other regulations on navigation in state waters such as vessel speed, no-entry areas to protect wildlife and the environment, boating restricted areas, vessel exclusion zones, and criminal laws for boating under the influence, reckless or careless operation of a vessel, and vessel homicide.

   5. U.S. Coast Guard Authority and Federal Regulations
      1. General Authority.

         The U.S. Coast Guard is the nation’s lead maritime service executing a variety of maritime safety and security missions inland, along the coasts, and in international waters. The organization’s foundation dates back to 1790 when then Secretary of the Treasury Alexander Hamilton envisioned and Congress authorized the creation of the Revenue-Cutter Service – a fleet of ships built to protect the country’s revenue.²³⁶ In 1915, the term Coast Guard was officially implemented when the Revenue-Cutter Service and the Life-Saving Service merged.²³⁷ As the country has grown, so has the Coast Guard. Other maritime services have become incorporated into the Coast Guard, such as the Steamboat Inspection Service, the Lighthouse Service, and the Bureau of Marine Inspection and Navigation, and new missions have formed as threats and priorities facing the nation have changed.²³⁸

         Today, the Coast Guard has 11 primary missions: search and rescue, aids to navigation, drug interdiction, living marine resources, marine safety, defense readiness, migrant interdiction, marine environmental protection, ice operations, law enforcement, and ports, waterways and coastal security. The expansiveness of these missions is partially due to the Coast Guard’s structural organization and delegated authority.

         While the Coast Guard is considered one of the nation’s five armed services, it is unique in that it resides under the Department of Homeland Security versus the Department of Defense. As a result of this unique position and diverse mission set, members of the Coast Guard have been given domestic law enforcement authority not instilled in the other armed services.²³⁹ Specifically, the Coast Guard through its members may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States.²⁴⁰

      2. Authority to Regulate Vessel Navigation.

         The Ports and Waterways Safety Act of 1972, in addition to various other statutes, provides the Coast Guard with authority to protect vessel safety, the environment, the waterways, and their surrounding infrastructure.²⁴¹ The Coast Guard can control vessel traffic independently or holistically through the creation of vessel traffic systems, restricted navigation areas, safety zones, security zones, and anchorage areas. The Coast Guard’s authority to regulate navigation expands from the nation’s inland waters to the coastal waters and high seas, concurrently with State and local regulations where applicable and not otherwise preempted.

      3. Aids to Navigation System.

         The Coast Guard administers the nation’s Aids to Navigation System which consists of Federal aids to navigation operated by the Coast Guard, aids to navigation operated by the other armed services, and private aids to navigation operated by other persons.²⁴² The Aids to Navigation System encompasses a variety of fixed and floating markers with varying lights, colors, shapes, sound signals, and electronic signals utilized in conjunction to best mark navigation routes for vessels and draw attention to hazards to navigation. Along the coast and in international waters surrounding the nation, the National Oceanic and Atmospheric Administration (NOAA) charts the waters depicting the location of markers, hazards, and channels using information from the Coast Guard and the Army Corps of Engineers. The Coast Guard primarily maintains all aids to navigation that mark federal channels, including the Intracoastal Waterway, and relies on routine inspections, and reports of discrepancies from the Coast Guard Auxiliary, members of the maritime industry, and the boating public to ensure that aids are continuously watching properly.

      4. Regulated Navigation Areas (RNA’s) and Limited Access Areas.

         The Coast Guard is authorized to create Regulated Navigation Areas (RNA) to ensure the safe and secure movement of vessel traffic within U.S. waters. RNAs are created with a specific intent to address a certain area of concern along the waterway and allows the Coast Guard to control the movement or function of vessels based upon certain requirements such as size, speed, or draft.²⁴³ RNAs are created and disestablished as needed, yet they are generally permanent in nature with regulations being published in 33 CFR part 165 subpart F. There are currently five RNA regulations published for Florida.²⁴⁴

         Safety Zones. Safety zones are created to limit access into a certain area of water or shoreline to protect the public.²⁴⁵ A safety zone may be fixed to a certain area, such as a set of coordinates or geographic references, or may be mobile based on the circumstances of the situation. Safety zones differ from RNAs in that they completely restrict entry into a designated area unless specific authorization has been given.²⁴⁶ While there are a variety of safety zones established and denoted in 33 CFR part 165 subpart F, the majority of the Coast Guard’s issued safety zones are temporary in nature and are not published in the Code of Federal Regulations. There are a variety of reasons that a Coast Guard unit may establish a permanent or temporary safety zone. There are less than 10 permanent safety zones published for Florida, including a recurring zone around a fireworks event and a zone to restrict traffic in a channel during periods of restricted visibility.²⁴⁷ On some occasions, a Coast Guard unit must create a quick and/or short-term safety zone, which cannot be published due the nature of the circumstances. Situations that require last minute and/or short-term safety zones can include an adrift mine or for search and rescue/recovery/salvage needs arising from a boat accident.

         Security Zones. Security zones are created to restrict access into a certain area of water or shoreline in order to protect an entity (person, vessel, or facility) from harm. ²⁴⁸ There are a handful of permanent security zones in Florida, including zones around cruise ships as the ships enter and depart port and while they are moored.²⁴⁹ Like safety zones, security zones can be fixed to a certain location, can be mobile, and can be temporary in nature.²⁵⁰ A presidential visit to a waterfront property often triggers the need for a temporary and last minute security zone. As with safety zones, a list of permanent security zones can be found in 33 CFR part 165 subpart F.

      5. Regulation of Anchoring.

         The Coast Guard plays an important, albeit limited regulatory role regarding the anchorage of vessels in coastal waters. As previously mentioned, Congress has delegated authority to the Coast Guard to create two main types of anchorage areas—anchorage grounds and special anchorage areas.²⁵¹ For more information regarding historical authority of anchorage grounds and special anchorage areas (See Section II.B.2.b of this publication).

         Anchorage Grounds. Every anchorage ground is unique and the regulations establishing each area contain specific requirements for anchoring within the designated grounds.²⁵² Florida has nine designated anchorage ground regulations that can be found in 33 CFR part 110 subpart B: Fort George Inlet (near Mayport), St. Johns River, Port of Palm Beach, Port Everglades, Miami, Key West, Tampa Bay, St. Joseph Bay, and the Tortugas Harbor, in vicinity of Garden Key, Dry Tortugas. While several of these regulations establish a single anchorage ground area, others establish multiple anchorage ground areas. Additionally, some of the anchorage grounds are designated for specific uses such as vessels carrying explosives or areas for aircraft carriers and deep draft vessels.²⁵³

         Special Anchorage Areas. Special anchorage areas are designed to establish anchorage areas for small vessels away from main channels and fairways.²⁵⁴ A vessel less than 65 feet in length, when at anchor in a special anchorage area, is exempt from having to display anchorage lights at night.²⁵⁵ Special anchorage areas in Florida can be found in 33 CFR part 110 subpart A and include the following areas: St. Johns River, Indian River at Sebastian, Indian River at Vero Beach, Okeechobee Waterway along the St. Lucie River in Stuart, Marco Island Manatee River in Bradenton and Apollo Beach.

      6. Rulemaking Process.

         Authority to establish anchorage grounds, special anchorage areas, and RNA’s has been delegated to Coast Guard District Commanders and authority to establish safety zones and security zones has been further delegated to Coast Guard Captains of the Ports.²⁵⁶ In order to establish or modify one of the above-mentioned federal regulations, the Coast Guard follows a formal rule-making process. This process consists of the applicable Coast Guard unit discovering an area of concern, discussing the concern with applicable stakeholders, drafting the proposed rule, and then publishing the proposed rule in the Federal Register for comment and public notice.²⁵⁷ After a specified period of time, the Coast Guard then reviews any comments or concerns received and if no further outreach is required, a Final Rule is created and published in the Federal Register.²⁵⁸ The creation of each regulation is unique despite following the formal rule-making process and at times, a significantly abbreviated process is completed in order to expedite the regulation for emergent safety or security reasons.²⁵⁹ Outreach seeking public comment regarding a regulation may also be published in the Local Notice to Mariners.²⁶⁰ Additionally, notification of enforcement may also be published in the Local Notice to Mariners, and for short term or emergency zones, notification will generally include on scene law enforcement presence and a Broadcast Notice to Mariners over Channel 16, VHF marine radio.

   6. Federal Channels & Ports (including the Intracoastal Waterway)

      The Rivers and Harbors Appropriation Act of 1899, vested authority in the Army Corps of Engineers to create and maintain the nation’s federal channels.²⁶¹ Several years later Congress expanded this authority allowing individuals and municipalities to make improvements to waterways at their own expense with the caveat that any such effort would be contingent upon approval by the Chief of Engineers.²⁶² In 1913, Congress further addressed waterway improvement concerns by establishing procedures in order to determine which proposed waterway projects were deserving of federal funding support.²⁶³ Competition between major port cities for federal funding continues more than a century later.

      1. Florida’s Ports and deep draft channels.

         There are approximately 12,000 miles of inland waterways and approximately 13,000 miles of deep and shallow draft channels throughout the nation.²⁶⁴ Florida contains a multitude of waterways including: deep draft channels, shallow draft inlets, inland channels transecting the state and the Florida Keys, and a large portion of the Intracoastal Waterway system. Florida’s deep draft channels connect the high seas to various ports including Port Miami, Port Everglades, Port of Jacksonville, and Port Tampa Bay (Florida has 14 statutory deep-water ports).²⁶⁵ These deep draft channels have controlling depths ranging from over 30 feet to over 40 feet, some of which have already been dredged deeper, primarily to accommodate the world’s largest ships transiting the newly widened Panama Canal.²⁶⁶

         In response to the Panama Canal expansion project (as well the construction of larger, deeper draft cargo vessels seeking access to Florida), Florida’s deep-water ports competed for state and federal funding to dredge federal shipping channels deeper. In addition, more funding was needed for ports to construct new capital infrastructure improvements necessary to receive the new massive ships. In 2012, even the Obama Administration announced support through an initiative titled We Can’t Wait, for the modernization and expansion of several major East Coast ports including PortMiami and the Port of Jacksonville.²⁶⁷ Port Everglades and Port Canaveral also embarked on major port expansion projects including the deepening and widening of federal channels, terminals and berthing improvements.²⁶⁸

         By June 2016, the Panama Canal expansion project was complete, allowing New Panamax vessels to transit the canal. The first of these giant cargo ships to transit the widened and deepened canal was a Chinese cargo ship named Cosco Shipping Panama loaded with 9,472 shipping containers.²⁶⁹ PortMiami was the first Florida port to host one of these mega ships transiting the Canal – with the first Neopanamax ship arriving on July 9, 2016. This was only possible after PortMiami completed its dredging project making Government Cut (the port’s federal channel) 50-52 feet deep (from its previous depth of 44 feet). ²⁷⁰ Soon after, PortMiami made Florida maritime history by hosting the largest cargo ship ever to visit a Florida port in June 2017. (However, that vessel, the Maersk Shanghai, transited the Suez Canal after leaving Xiamen, China).²⁷¹ In May 2018, The Florida Department of Transportation published an excellent in-depth study on the expansion of the Panama Canal, its impact to Florida’s seaports, and its impact to Florida’s economy. The report is called Panama Canal Expansion and Florida Seaports; A Preliminary Study of Post Panamax Vessel Calls and Pacific Region Container Volumes.²⁷²

      2. Channels, Inlets, and the ICW.

         Shallower channels and inlets also line Florida’s coastline, some connecting the high seas to smaller commercial ports, some passing through various Keys, and others connecting the high seas to smaller towns predominately used for recreational and local level commercial endeavors, such as fishing and tourism. Furthermore, a unique series of shallow channels transect the state and connect the Atlantic portion of the Intracoastal Waterway (ICW) to the Gulf of Mexico portion of the Intracoastal Waterway. These series of channels include the St. Lucie Canal along the eastern side of the state that stretches west into Lake Okeechobee. Lake Okeechobee includes two channel routes, which then connect to the Caloosahatchee Canal along the western portion of the Lake. The Caloosahatchee Canal then connects the Lake to the western side of the state ending in Fort Myers.

         The Intracoastal Waterway is a unique channel system that stretches and interconnects Norfolk, Virginia to the Florida Keys, and also connects the Caloosahatchee River near Fort Myers to Brownsville, Texas by outlining the Gulf of Mexico.²⁷³ The Intracoastal Waterway enables shallow draft vessels to transit in the shelter of barrier islands or in channels near to the coastline. The depths of the Intracoastal Waterway are generally maintained at nine feet but can range from seven feet to 12 feet depending on the area.²⁷⁴

         Various federal and state regulations impact vessel traffic along Florida’s waterways including federal channels, non-federal channels, and along the coastline. Federal regulations that can impact federal channels include the Coast Guard’s establishment of regulated navigation areas and safety and security zones to control traffic for safety and security reasons. Additionally, the Florida Fish and Wildlife Conservation Commission (FWC) has established certain waterway restrictions along federal channels including boating restricted areas and manatee protection rules. These state regulations include speed restrictions and limitations to activities in certain areas.²⁷⁵

      3. Locks and Bridges.

         There are a series of locks and fixed and movable bridges impacting various channels throughout Florida’s waterway system. While the locks are located upon inland waters, bridges can be encountered while entering port, or traversing through inland channels or the Intracoastal Waterway. The Army Corps of Engineers manages the holistic operation of the lock systems and maintains applicable lock information in 33 CFR part 207. Actual operation of the locks may be conducted directly by the Corps or operated by another agency or contractor.

         The U.S. Coast Guard oversees the management and overarching operation of bridges that span across navigable channels to ensure the public right of navigation.²⁷⁶ This authority stems from a variety of Acts including but not limited to the Rivers and Harbors Appropriation Act of 1899, the Act of March 23, 1906, and the General Bridge Act of 1946.²⁷⁷ The majority of bridges in Florida are owned and operated by state and local municipalities. The Coast Guard’s Seventh District Bridge Administration Branch located in Miami, Florida reviews and permits all bridge construction operations, as well as oversees the operating schedule of all moveable bridges in Florida. Bridge information can be found in 33 CFR Chapter 1 Subchapter J, with specific Florida related drawbridge operation regulations located in 33 CFR parts 117.258 – 117.341.

Coastal and Great Lakes states vary markedly in their approach to local regulation of vessel navigation, but most seek to balance state and local interests to some extent. The approaches of these states range on a continuum from allowing considerable local regulatory discretion to completely preempting local authority. In the most common approach, the state preempts local regulatory authority and then, usually after review for policy consistency by the state agency charged with boating management, returns it upon petition by the local government. The following paragraphs contain examples from across the continuum.

Maine gives local governments broad authority to regulate mooring in harbors within their jurisdiction,²⁷⁸ but does not otherwise allow for local authority over boating regulation. Minnesota gives considerable authority to local governments to regulate many aspects of boating as long as the provisions do not conflict with state law,²⁷⁹ and local water surface use ordinances must also be approved by the state’s Commissioner of Natural Resources prior to adoption.²⁸⁰ In Connecticut, local governments can pass any local regulation dealing with the operation of boats within its territorial limits upon submission to the Commissioner of Environmental Protection, and such regulation will take effect in 60 days as long as it is not disapproved by the Commissioner.²⁸¹ California also allows local governments to pass provisions regulating boating, but only provisions pertaining to time of day restrictions, speed zones, special-use areas, and sanitation and pollution control.²⁸² Moreover, local governments in California must submit these types of local provisions—which cannot conflict with applicable state laws or regulations—to the state’s Department of Boating and Waterways 30 days prior to the local provision going into effect.²⁸³

Wisconsin allows local governments to enact ordinances that are not contrary to existing state law and that relate to the equipment, use, or operation of boats or to any other activity regulated by the Wisconsin boating law;²⁸⁴ however, when it comes to certain inland lakes, these ordinances must be submitted to the state (i.e., the Wisconsin Department of Natural Resources) for review as to uniformity, enforcement, and the local situation prior to final adoption.²⁸⁵ Based on this review, the state issues an advisory report that includes any suggested changes prior to adoption.²⁸⁶ Moreover, for most ordinances in Wisconsin, the state and certain organizations have a right to object to the ordinance and initiate a hearing process.²⁸⁷ Wisconsin also explicitly allows local regulation that protects natural resource values.²⁸⁸ Both Connecticut and Wisconsin consider the consistency among local regulations of water bodies over which two or more local governments share jurisdiction.²⁸⁹ Delaware, Rhode Island, Mississippi, and Georgia allow local governments to petition the state to allow local regulations, but often require the local government to demonstrate why the special regulation is necessary, and often delineate criteria for state review of proposed ordinances.²⁹⁰

Some states simply prohibit, with very limited exception, the authority of local government to regulate boating. Louisiana prohibits local boating regulations except for certain speed restrictions,²⁹¹ and Maryland allows no regulations inconsistent with state regulations.²⁹² Texas grants no authority to local government to regulate navigation.²⁹³

This section discusses the sources of state jurisdiction over activities on lands underlying navigable waters as well as Florida’s state and local laws relevant to boating and waterway management.

1. The Proprietary and Regulatory Source of State Authority

   Florida’s authority to regulate activities on navigable waters has two fundamental foundations – proprietary and regulatory. As discussed in Section II.B.1., the Submerged Lands Act confirmed the state’s ownership of the beds (submerged lands) of all navigable waters. This proprietary authority is limited by the public trust doctrine, which imposes on the state a special duty to protect the trust resources (i.e., submerged lands and overlying water) for the benefit of the public. In certain circumstances, the state has transferred title of these beds to private entities or local governments, therefore potentially giving rise to conflicts between public use and private ownership. Additionally, riparian rights associated with the private ownership of land adjacent to water might also give rise to this type of conflict. The second foundation, the state’s inherent police power, provides authority to the state to regulate a broad range of activities for the protection of its citizens. To the extent that the state also delegates this power to local governments, local governments may also have concurrent regulatory authority over waters within their jurisdiction.

   1. The Public Trust Doctrine and Sovereign Submerged Lands

      The public trust doctrine traces its lineage to ancient Roman law, which essentially stated that the ocean, the seashore areas affected by the ebb and flow of the tides, and running rivers or streams were for the common usage of all.²⁹⁴ The doctrine survived through the centuries and emerged as part of the common law of England, and thereafter in the original American Colonies.²⁹⁵ After the United States acquired the territory known as East and West Florida by treaty of cession from Spain, this territory was held subject to the Constitution and laws of the United States. Moreover, [t]he lands under navigable waters, including the shores, were held by the United States for the benefit of the whole people, to go to the future state for the use of the whole people of the state.²⁹⁶ Under the Equal Footing Doctrine, the state of Florida gained and continues to hold title to the beds of all waters in the state that were navigable at the time it entered the Union, and these beds are known as sovereign submerged lands.²⁹⁷

      Today, the public trust doctrine remains part of the modern law of the United States and is specifically recognized in Florida law – through Florida Supreme Court decisions and through incorporation in the Florida Constitution at Article X, Section 11 Sovereignty Lands. The Florida Supreme Court has repeatedly and unquestionably continued to uphold the Public Trust Doctrine throughout the last century.²⁹⁸ As stated by the Florida Supreme Court in 1957:

      …[I]t is well settled in Florida that the State holds title to lands under tidal navigable waters and the foreshore thereof (land between high and low water marks). As at common law, this title is held in trust for the people for purposes of navigation, fishing, bathing and similar uses.

      Such title is not held primarily for purposes of sale or conversion into money. Basically, it is trust property and should be devoted to the fulfillment of the purposes of the trust, to wit: the service of the people.²⁹⁹

      However, consonant with the common law rule, the State may dispose of submerged lands under tidal waters to the extent that such disposition will not interfere with the public’s right of navigation, swimming and like uses. Moreover, any person acquiring any such lands from the State must so use the land as not to interfere with the recognized common law riparian rights of upland owners (an unobstructed view, ingress and egress over the foreshore from and to the water). Upland owners have been granted additional statutory riparian rights which must be recognized.³⁰⁰Article X, Section 11 of the Florida Constitution now provides the following legally binding language incorporating the Public Trust Doctrine:

      SECTION 11. Sovereignty lands.—The title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people. Sale of such lands may be authorized by law, but only when in the public interest. Private use of portions of such lands may be authorized by law, but only when not contrary to the public interest. History.—Am. H.J.R. 792, 1970; adopted 1970.

      The public trust doctrine requires that the state manage submerged lands for the use and benefit of the public.³⁰¹ The management responsibility for submerged lands has been delegated by the state legislature to the government cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees).³⁰² Because the state is acting in a proprietary capacity as a landowner, it has greater authority to restrict the use of both the submerged lands and overlying waters than would be the case for private lands where only regulatory authority would apply.³⁰³ However, because the public trust doctrine imposes a duty on the state to use and manage the lands for the benefit of the public it also serves as a limitation on the power of the Board of Trustees.³⁰⁴ Navigation, commerce, fishing, and swimming are generally accepted as the public rights protected by the public trust doctrine.³⁰⁵

      It should be noted that there are many instances throughout Florida where the State has conveyed ownership of submerged lands to private entities or local governments. For example, all of St. Augustine Harbor is owned by the City of St. Augustine.³⁰⁶

      Efforts by the state or local governments to unduly restrict navigation and associated anchoring may amount to a breach of the state’s obligations under the public trust doctrine because the Florida Supreme Court has explicitly identified navigation as a trust purpose.³⁰⁷ Yet, we find no cases in Florida – and only limited case law elsewhere – that articulate the public trust doctrine as a limitation on state or local authority to regulate navigation. ³⁰⁸ Nevertheless, when considering the right to navigate, the state must balance the right against other rights protected for trust purposes.³⁰⁹ Furthermore, the Board of Trustees enjoys considerable discretion in their decisions concerning the management of trust lands.³¹⁰

   2. Privately Owned Submerged Lands and Public Navigation Rights

      Despite the presumption that the State owns and manages submerged land subject to the public trust doctrine, there are examples where title to submerged lands in Florida have been converted to private ownership. This circumstance gives rise to questions regarding the manner in which private ownership of submerged land affects the public right to navigate over those submerged lands, in addition to other public rights protected by the public trust doctrine.

      The state, as holder of title to submerged land, may sell, lease, or otherwise divest itself of submerged land. However, when divesting such land, the state is strictly limited by the Florida Constitution’s requirement that a transfer of title of submerged land to a private person or entity be in the public interest.³¹¹ The Florida Supreme Court has also determined that the state has the authority to transfer title of submerged land under navigable waters to a private entity, but may only do so subject to the Florida Constitution’s requirement that the rights of the people of the state are not invaded or impaired.³¹² Normally, in real estate transfers, a title that is fee simple means it contains all the rights enjoyed by complete ownership—sometimes referred to as the whole bundle of sticks in real estate law jargon. Although fee simple title normally includes the right to exclude others, in the case of sovereign submerged lands, it may be that the public’s right to navigation on waters covering submerged lands survives the transfer of submerged lands into private ownership.

      As far back as 1931, this question was raised in a lawsuit in the U.S. District Court of the Southern District of Florida. The District Court’s ruling was reversed on appeal by the U.S. Circuit Court of Appeals, Fifth Circuit, demonstrating the complexity and often misunderstood aspects of private ownership of submerged land where the navigable waters above submerged lands remain subject to the public right of navigation.

      In the case of Silver Springs Paradise Co. v. Ray,³¹³ two contending glass-bottom boat operators were competing for the thriving eco-tourism business at the now famous Silver Springs near Ocala, Florida. Ray argued that by virtue of owning title to several large tracts of land (over which the Silver Springs Run flowed), that were purchased by his predecessor in interest prior to Florida becoming a State, the title to his property also included title to the submerged lands of Silver Springs and Silver Springs Run.³¹⁴ Ray further asserted that such private ownership of the submerged land granted him the right to exclude the use of the navigable waters by others—hoping to exclude his competitor from transporting tourists to see the head springs, underwater sights and creatures.³¹⁵ The competitor business, Silver Springs Paradise Co., owned upland property further downstream along the run, and contended that the public right of navigation existed for the entire length of the Silver Springs Run and all the way to the head springs because the waterbodies were navigable waterways protected by the Public Trust Doctrine.³¹⁶

      The Court found no need to examine the title history or actual title ownership of the submerged lands and ruled that even if Ray was deemed to hold the submerged land in private ownership, such ownership did not trump the public’s right of navigation. The Court explained:

      The public right of navigation entitles the public generally to the reasonable use of navigable waters for all legitimate purposes of travel or transportation, for boating or sailing for pleasure, as well as for carrying persons or property gratuitously or for hire, and in any kind of water craft the use of which is consistent with others also enjoying the right possessed in common. As to that right a riparian owner, though he also has a qualified or bare technical title to the soil covered by the navigable water opposite his upland, is entitled to no preference or priority, his right in that regard being only concurrent with that of other members of the public, and to be exercised in a way not inconsistent with the enjoyment of the same right by others. He cannot, any more than can one who has no title to riparian or submerged land, acquire an exclusive right to use navigable water opposite his upland for travel or navigation for purposes of business or of pleasure or diversion.³¹⁷

      However, over the years Florida has passed special legislation intended to encourage the development of coastal areas. For instance, the Riparian Act of 1856,³¹⁸ the Butler Act of 1921,³¹⁹ and the Bulkhead Act of 1957³²⁰ were legislative efforts that allowed riparian or coastal landowners to obtain title to submerged lands if they captured and filled-in the submerged lands by constructing bulkheads or other improvements. The newly filled-in land would essentially become new dry land, and the improver could then apply to the State to receive

      title. In these situations, the ability of vessels to navigate over submerged lands was obviously practically extinguished by virtue of filling in once navigable water.

      Sarasota County Anglers Club, Inc. v Burns highlights this circumstance and illustrates that the in the public interest requirement might not always align with the rights of navigation protected by the public trust doctrine.³²¹ In that 1967 case, a local fishing club filed suit against the Town of Longboat Key and the Board of Trustees seeking declaratory action and an injunction to stop the filling of submerged land that had been transferred to private ownership.³²² The area in question, the fishing club argued, had previously been fished by both members of the club and members of the general public, and that allowing the filling of the submerged lands would be to the detriment of the public’s fishing, boating and bathing rights.

      The lower court rendered an extensive opinion approving the fill project. The First District affirmed the lower court’s finding that the plaintiffs were not in a position to maintain the action, having failed to show the manner in which their harm as private citizens differed from the general public. The court concluded that the plaintiffs had asserted no allegation that the statutes under which the Trustees and the Town of Longboat Key have acted are invalid in any respect, nor is there any allegation that either of these public bodies, charged with the duty to protect the public interest in this area of government, has acted in bad faith, or has in any way abused or exceeded its statutory powers. In reaching this conclusion, the appellate court cited with approval the following excerpt from the lower court:

      The title to public bottoms is vested in the State as a public trust to be held for the benefit of all the people. The trust, however, does not go to the extent of requiring that every part of public bottoms must be forever maintained in a state of nature for use in that condition by any citizen who would prefer that no change be made. If this were true no docks could be built, no piers constructed and no bridges (except suspension bridges) erected over any public bottoms. The economic development of the state public health and safe navigation often require the draining of marshes, the dredging of channels and the filling of some areas to produce firm land. It is quite obvious that the public interest demands that there be some impairment of the individual citizen’s right to enjoy absolute freedom in the use of public bottoms.³²³

      The reach of the public trust doctrine in relation to submerged land in private ownership was further expounded upon in a case before the Florida Second District Court of Appeals in 2014. In 5F, LLC v. Dressing, the appeals court considered whether riparian owners have a common law right to construct wharves and piers upon privately-owned submerged lands.³²⁴ The court answered this question in the affirmative, holding:

      [T]here is a common law qualified riparian right . . . to construct piers or wharves from the riparian owner’s land onto submerged land to the point of navigability but not beyond the low water line, subject to the superior and concurrent rights of the public and to applicable regulations. This is true regardless of whether the submerged lands are held in trust by the State or privately held.³²⁵

      In this case, waterfront property owners obtained the necessary permits to build a pier extending from their property onto the privately-owned submerged land of 5F, LLC.³²⁶ The submerged land had originally been owned by the state but was passed to 5F, LLC in 2011 through a series of conveyances. Seven months after the pier was constructed, 5F raised an objection to the pier and sued the riparian property owners. The lower court found that the riparian owners had a common law right to build the pier.³²⁷

      The appellate court affirmed, citing extensive authority for the right of riparian property owners to wharf out to the low water line, subject only to the public trust. The court noted that while 5F owned the submerged land, it had not argued that the constructed pier interfered with the public’s superior right to the land, and therefore the property owners were within their riparian rights to construct the pier. The court further stated that even if the submerged lands were privately owned, such a conveyance would not entirely extinguish the State’s right to oversee their use.³²⁸

      Two years later, however, the First District reached an apparently conflicting conclusion about the State’s responsibility over formerly held submerged lands. In Herbits v. Board of Trustees of Internal Improvement Trust Fund,³²⁹ a condominium group in Miami challenged a 2004 decision by the Board of Trustees of the Internal Improvement Trust Fund to approve a City of Miami request for a partial modification of deed restrictions on former sovereign submerged lands. At the time of conveyance to the city in 1949, the deed required that the city use the property for public and municipal purposes only.³³⁰ The modification allowed the city to lease the submerged land for a proposed state-of-the-art yacht marina and mixed-use development. The condominium group specifically alleged that in approving the modification, the Board had disclaimed its obligation to consider the public interest and had invented a new legal standard that would exempt this SSL (sovereign submerged land) from the requirements of the Florida Constitution.³³¹ The appellate court disagreed, stating that the land ceased to be sovereignty submerged land upon conveyance to the city of Miami. Therefore, the Board was not bound by regulatory obligations to consider the public’s interest when making proprietary decisions concerning activities on sovereignty lands. In so holding, the court stated, [t]he property in question is no longer ‘sovereign’ submerged land and is no longer owned by the State of Florida. The Board’s only interest is a distant proprietary role completely separate and disconnected from any rulemaking or other action subject to the jurisdiction of the APA.³³²

      Thus, the extent to which private ownership of submerged lands may impact the rights of navigation and the applicability of the public trust doctrine to former state sovereignty submerged lands remains an open question and appears to be determined on a case-by-case basis.³³³

   3. Landowner Rights and Riparian Waters

      With a considerable amount of waterfront property in Florida, any discussion relating to the regulation of navigation should acknowledge certain rights called riparian rights, which are private rights enjoyed by owners of land abutting navigable waterways.³³⁴ In connection with their ownership of land, riparian landowners hold certain rights related to the use of riparian waters, and these rights are distinct from the rights of the general public. American courts first recognized riparian rights in the early-nineteenth century.³³⁵ A substantial body of law has developed in the United States to govern the rights of riparian landowners.

      Similarly, Florida courts have also established a significant body of law related to riparian rights.³³⁶

      Despite the fact that riparian landowners enjoy distinct rights, these rights are restricted (or qualified) in certain ways. The public’s rights pursuant to the previously discussed public trust doctrine, the federal government’s power to regulate under the federal navigational servitude, and state and local government police powers all restrict the rights of riparian landowners. The Florida Legislature has also adopted statutes codifying, or otherwise affecting, the common law’s riparian rights principles,³³⁷ and these statutes can also operate to restrict the enjoyment of riparian rights. Furthermore, it is important to point out that riparian ownership gives rise to rights pertaining to the use of water, and not the right to actually own the water resource itself.³³⁸ When it comes to navigation, the way that private riparian rights interact with the rights of the public (and vice-versa) can result in disputes between boaters and private landowners,³³⁹

      The most fundamental element for enjoying riparian rights is ownership of land contiguous to water—not land merely near or in close proximity to water.³⁴⁰ Ownership of such land confers legally-protected property rights with constitutional protection from government takings of the land.³⁴¹ As mentioned above, however, significant interest also exists in preserving the public’s use of navigable water under the public trust doctrine, ensuring the general welfare of the public through police powers, and safeguarding the federal government’s interest in safety and efficiency.

      Because private property does not ordinarily extend to the land beneath navigable waters, the boundary between private property and navigable public water is an important consideration when defining private riparian rights. Florida’s courts and the Florida Constitution define this boundary as the mean high water line for the boundary associated with navigable tidal waters.³⁴² This line is described as the average reach of the high tide over the preceding 19 years.³⁴³ Courts have also established the ordinary high-water line as the boundary for navigable freshwater. The ordinary high-water line is determined by looking to the physical characteristics associated with the boundary and is described as the point up to which the presence and action of the water is so continuous as to destroy the value of the land for agricultural purposes…[it] is not the highest point to which the stream rises….³⁴⁴

      Specific riparian rights recognized by courts consist of the right to access the water, the right to wharf out (i.e., build a dock or a pier), the right to an unobstructed view of the water, the right to reasonably use the surface water, and the right to title to land created by accretion or reliction.³⁴⁵ Although characterizing the rights to access, unobstructed view, and reasonable use can be difficult when applied to a particular conflict or landowner, the concepts expressed in these rights are relatively simple. On the other hand, accretion and reliction is not as simple. Accretion is a gradual and imperceptible accumulation of sediment along a shoreline, and reliction is an increase in sediment along a shoreline due to the gradual and imperceptible withdrawal of water. Contrast both accretion and reliction with avulsion, which occurs suddenly. When an avulsive event adds new sediment, the riparian owner does not have a claim to title to that land, and in theory would lose the riparian rights that accrue to a landowner whose property line is the mean or ordinary high waterline. Similarly, when an avulsive event removes sediment, the riparian owner retains title to the newly submerged land, and would seem to retain the riparian rights, which presumably extend beyond the avulsed property.

      The U.S. Supreme Court recently considered whether a Florida law fixing the shoreline boundary for erosion control purposes, and thus effectively taking away riparian landowners’ right to accretion, constituted a taking. This case, Stop the Beach Renourishment, Inc. v.

      Florida Dept. of Environmental Protection,³⁴⁶ gives an example of an occasion where a court must balance the interests of private riparian owners with those of the greater public. In Stop the Beach Renourishment, Inc., the Court found that the state law establishing the shoreline boundary was not a taking in violation of private riparian property rights because any future private riparian interests in accretions were inferior to those of the state’s interest in filling its own seabed, and because a statutory scheme guaranteed the right even after the property no longer reached the mean high water line. ³⁴⁷

   4. The State’s Inherent Police Power and Navigation

      States have an inherent power to protect the public’s health, safety, and welfare through regulation, often referred to as the police power.³⁴⁸ As political subdivisions of the state,³⁴⁹ local governments in Florida share the state’s police power because the state delegates the power to the local governments.³⁵⁰ Courts have a long history of upholding local regulations affecting navigation.³⁵¹ The U.S. Supreme Court in 1858 addressed whether a local government could either prohibit vessels from remaining in a harbor thoroughfare or require those vessels to display a light after dark.³⁵² The Court found such regulations necessary and indispensable in every commercial port, for the convenience and safety of commerce.³⁵³ The Court also noted that local authorities have a right to prescribe at what wharf a vessel may lie, and how long she may remain there, . . . where she may anchor in the harbor, and for what time.³⁵⁴

      Although local governments may invoke their police power to regulate navigation, they may only do so if the regulation is necessary to protect the public health, safety and welfare. Yet, anyone challenging such a regulation on these grounds must show that the adoption of the regulation is arbitrary and unreasonable, and thus not reasonably related to the protection of the public’s health, safety, and welfare. Courts have developed what is known as the fairly debatable test to determine whether a regulation is arbitrary and unreasonable.³⁵⁵ This test is intended to give significant deference to the legislative judgment of local governments, and requires a determination that no fairly debatable grounds exist for finding that the regulation at issue protects the health, safety, and welfare of the public.³⁵⁶

      Challenges to the exercise of police power under this standard are rarely successful. In Dennis v. Key West, however, the Florida Third District Court of Appeal struck down a local regulation that prohibited live-aboard vessels not moored or docked within a local yacht club or public dock.³⁵⁷ The Court ruled that the regulation was an abuse of police power because there was no discernible relationship between [the] regulation and the health, welfare, or safety of the general populace.³⁵⁸ No other courts have reached this conclusion, and in a subsequent decision, the same Third District Court of Appeal upheld a ban on live-aboard vessels in the City of Miami.³⁵⁹ In this decision, Dozier v. City of Miami, the Court found that both testimony before the City Commission as well as the language of the ordinance established that the ordinance was designed to address problems of water pollution, navigational hazards and visual intrusion, thus justifying regulation under the police power.³⁶⁰

   5. Geographic Limitations to Municipal Police Powers

      At least two examples exist in Florida where municipalities lacing regulatory authority over waterways actually expanded their political boundaries to encompass waterways located outside of the municipal jurisdiction. These two examples, involving the Cities of Fernandina Beach and Bradenton Beach, illustrate two of the different approaches cities might consider when seeking to regulate activities on waters located outside of their municipal jurisdiction but within the boundaries of the surrounding county. In both Fernandina Beach and Bradenton Beach, the municipal governments wanted to create mooring fields and needed political control of the submerged lands where the mooring fields were proposed to be located.³⁶¹

      The two legal methods for municipal boundary changes are through annexation or special legislation. More particularly, municipalities can either annex the submerged land underneath the adjacent water (like in Fernandina Beach),³⁶² or seek special legislation from the Florida Legislature modifying the local boundaries to include the adjacent waterways (like in Bradenton Beach). ³⁶³ In theory, annexation occurs either where a city sees a need in the surrounding, unincorporated area for the city’s services, or where the residents in the unincorporated area want such services.³⁶⁴ Since municipalities are governmental entities created by statute, they may also seek special legislation modifying their jurisdictional boundaries.

      Transferring power is another potential way to address the need to regulate over extra-jurisdictional waters. Pursuant to Article VIII, Sect. 4 of the Florida Constitution, powers exercised by the various local governments may be transferred among the local governments. This may be accomplished either by local resolution approved by voters in both the transferring government and the government receiving the powers or by state legislation. ³⁶⁵ Examples of legislation providing for the transfer or joint exercise of power include the Florida Interlocal Service Boundary Agreement Act.³⁶⁶ The legislature adopted this Act as an alternative to the annexation procedures under the Municipal Annexation or Contraction Act.³⁶⁷ Essentially, this Act makes it easier for municipalities and counties to cooperate to determine where a boundary should be established in order to most efficiently and effectively provide services.

      In addition to power transfers that involve boundary modifications, various provisions in Florida law also allow local governments to enter into agreements to jointly exercise power with other local governments or public entities. Thus, where a county or municipality seeks to exercise its police powers over waters outside its jurisdiction, it might be able to do so without modifying boundaries. Interlocal agreements authorized by the Florida Interlocal Cooperation Act³⁶⁸ are principle examples of such joint exercise of power.

2. Statutory Basis for Regulating Navigation in Florida
   1. Chapter 253, Florida Statutes: State Authority to Regulate Navigation and Anchoring and to Manage Anchorages

      Under Chapter 253, Florida Statutes, the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees),³⁶⁹ holds sovereignty submerged lands in trust for the public.³⁷⁰ To the extent activities are conducted in navigable waters over sovereignty submerged lands, the Board of Trustees is vested with general authority to regulate, subject perhaps to the caveat that the right of navigation is protected by the public trust doctrine, which serves as a limitation on state authority,³⁷¹ and by the federal interest in navigation discussed previously. Chapter 253, however, provides more specific and limited regulatory authority.

      Section 253.03(7)(b), Florida Statutes, authorizes the Board of Trustees to:

      … adopt rules governing all uses of sovereignty submerged lands by vessels, floating homes, or any other watercraft, which shall be limited to regulations for anchoring, mooring, or otherwise attaching to the bottom; the establishment of anchorages; and the discharge of sewage, pumpout requirements, and facilities associated with anchorages. The regulations must not interfere with commerce or the transitory operation of vessels through navigable water, but shall control the use of sovereignty submerged lands as a place of business or residence.³⁷²

      The Board of Trustees has not exercised this statutory authority to adopt rules regulating anchoring. The Department of Environmental Protection (DEP), which acts as staff for the Board of Trustees,³⁷³ began a rule-making process in 1994. However, that process was held in abeyance pending implementation of an administrative effort in Southwest Florida to develop a non-regulatory solution to anchorage management. This regulatory effort was never resumed.

      Section 253.035, Florida Statutes, entitled Coastal anchorage areas, provides for special anchoring restrictions applicable only to commercial fishing vessels, stating that:

      On or after January 1, 1993, if an anchorage area at a deep-water port has been formally designated by the United States Coast Guard, it shall be unlawful for commercial vessels waiting to enter the port to anchor outside the anchorage area.³⁷⁴

   2. State Authority to Allow Local Regulation of Navigation and Anchoring

      While it has not promulgated administrative rules specifically regulating anchoring or anchorages, the Board of Trustees does require some form of approval for any activity on sovereignty submerged lands.³⁷⁵ The term activity is defined to include …any use of sovereignty lands which requires board approval for consent of use, lease, easement, sale, or transfer of interest in such sovereignty lands or materials. Activity includes, but is not limited to, the construction of docks, piers, boat ramps, boardwalks, mooring pilings, dredging of channels, filling, removal of logs, sand, silt, clay, gravel or shell, and the removal or planting of vegetation on sovereignty lands.

      ³⁷⁶ The term dock is defined to mean a fixed or floating structure, including . . . mooring pilings, lifts, davits and other associated water-dependent structures used for mooring and accessing vessels.³⁷⁷

      The Board of Trustees’ Florida Administrative Code Rule 18-21 provides a framework for various forms of consent required in order for a party to conduct activities on sovereignty submerged lands.³⁷⁸ The relevant forms of consent include consent by rule,³⁷⁹ letter of consent,³⁸⁰ and a lease,³⁸¹ each being applicable under different circumstances. Consent by rule allows use of sovereignty submerged lands for relatively small-scale activities, for example the installation of mooring pilings associated with private docking facilities or the construction of a single, small dock for a private home.³⁸² A letter of consent is required for docks too large to qualify for consent by rule and for certain minimum-size piers,³⁸³ certain boat ramps, and certain channels.³⁸⁴ A lease is required for all revenue-generating activities, open-water mooring fields, and for structures that don’t qualify for the consent by rule or letter of consent.³⁸⁵ Thus, a mooring field established in waters over sovereignty lands would require a lease from the state.³⁸⁶

   3. Chapter 327, Florida Statutes: Florida Vessel Safety Law and State Preemption of Local Regulation of Navigation and Anchoring

      The Florida Fish and Wildlife Commission (FWC) administers Chapter 327 of the Florida Statutes, which is known as the Florida Vessel Safety Law.³⁸⁷ This law primarily relates to various safety considerations, such as accident procedures, the safe operation of vessels, personal watercraft requirements, and uniform waterway markings. However, Chapter 327 also includes restrictions on local government regulation of boating-related activities, including navigation and anchoring restrictions.

      1. A Short History of Chapter 327, Florida Statutes.

         The predecessor to the current version of Florida’s Vessel Safety Law was enacted in 1959³⁸⁸ at a time when surface water use, resource demand, and the number of vessels were minimal. That statute was originally enacted as the Florida motorboat registration and certification act,³⁸⁹ and was prompted by the federal Boating Act of 1958. Originally codified as Chapter 371, Florida Statutes, it was later re-codified in 1981 as Chapter 327. In 1999, laws dealing with boat registration were moved from Chapter 327 to Chapter 328 (which was renamed to Vessels: Title Certificates; Liens; Registration) and the title of Chapter 327 was changed to what we now recognize as Florida Vessel Safety Law.³⁹⁰

         Prior to 2009, Chapter 327 contained two sections that both preserved and limited the regulatory authority of local governments with regards to vessels and the act of anchoring or mooring a vessel. Those sections were 327.22 and 327.60.³⁹¹ Section 327.22(1) regulated the operation and equipment of vessels.³⁹² This section preserved a local government’s authority to regulate resident vessels where the local government spends money on boating-related activities such as the patrol and maintenance of water bodies.³⁹³ A case dating back to 1980 explained that a resident vessel is one that is normally stored within the city or county imposing the regulation, and not one that is merely being operated on waters within that jurisdiction.³⁹⁴ Section 327.22(1), which was repealed in 2009, gave local governments the following authority:

         Nothing in this chapter shall be construed to prohibit any municipality or county that expends money for the patrol, regulation, and maintenance of any lakes, rivers or waters, and for other boating-related activities in such municipality or county, from regulating vessels resident in such municipality or county. Any county or municipality may adopt ordinances which provide for enforcement of non-criminal violations of restricted areas which result in the endangering or damaging of property, by citation mailed to the registered owner of the vessel. Any such ordinance shall apply only in legally established restricted areas which are properly marked as permitted pursuant to SS. 327.40 and 327.41. Any county and the municipalities located within the county may jointly regulate vessels.

         The import of this provision for local regulation of anchoring was unclear. One interpretation was that it could be read to approve local government regulation of resident vessels, including limitations on navigation and anchoring. Regardless of whether the provision was interpreted this way, it would have required local enforcement authorities to distinguish resident from non-resident vessels.

         Previous editions of this publication noted that despite the history of changes to Florida’s boating law, Chapter 327 continued to retain vestiges of repealed provisions and some obtuse terminology that resulted in general policy confusion, especially with regard to the term … in navigation as used at the end of Section 327.60(2) up until 2009.

         In 2007, the City of Marco Island, found itself in court litigating the very question of what in navigation means under the pre-2009 version of Section 327.60(2) while defending its own anchoring ordinance that applied to non-live-aboard vessels.³⁹⁵ The City’s ordinance specifically prohibited vessels from anchoring within 300 feet of shore for more than twelve consecutive hours. The owner of a 42-foot motor yacht intentionally violated the ordinance to challenge its constitutionality.³⁹⁶ In subsequent legal proceedings the City defended its ordinance, arguing that the term in navigation as stated in Section 327.60(2) (prior to the 2009 amendments) did not include the act of anchoring. The City claimed any vessel at anchor anywhere in its jurisdiction was subject to local government regulation, and that the City was free to determine at what point a vessel at anchor could be considered no longer in navigation. The yacht owner argued the ordinance was unconstitutional on ten grounds.

         The Collier County Court Judge agreed with four of the ten arguments challenging the constitutionality of the City’s ordinance. For one, the court found that the ordinance violated the express prohibition of Section 327.60(2) (prior to the 2009 amendment). The court also found the ordinance was an invalid exercise of the City’s police powers because of the express prohibition in Section 327.60(2), and that the ordinance violated Article VIII, Section 2 of the Florida Constitution because it directly conflicted with State law. The court’s final basis for finding the ordinance invalid focused on the meaning of in navigation. After noting that 327.60(2) prohibited local regulation of non-live-aboard vessels in navigation, the Court’s Order stated:

         However, the parties dispute the meaning of the phrase in navigation. Plaintiff [City] suggests that ‘in navigation’ refers to vessels actually traversing the waterways, not to anchoring. Therefore, Plaintiff [City] argues, the provisions in the ordinance that regulate anchoring do not violate state law because ‘in navigation’ does not include anchoring.

         Rather than search for a legal meaning of in navigation or for legal authority supporting the proposition that anchoring can be construed as an aspect of navigation incidental to the right of navigation, the Court simply exercised principles of statutory interpretation to determine what the phrase in navigation means. The Court stated the following:

         It is a cardinal rule of statutory interpretation that courts should avoid readings that would render part of a statute meaningless. [Citations omitted] To accept Plaintiff’s [City’s] interpretation of in navigation is to render this statute meaningless. If a vessel in navigation, by definition, cannot be anchored, then there would be nothing to regulate, and the prohibition would be unnecessary. [Citations omitted] A reasonable construction of this statute, and the only construction that gives it meaning, is that in navigation includes anchoring.³⁹⁷

         In a round-about way the Collier County Court actually concluded that the act of anchoring is, in fact, a necessary element of being engaged in navigation. Although the City appealed the County Court ruling above, the City ultimately abandoned its appeal when Chapter 327 was amended in 2009 resulting in changes to Section 327.60(2) which more clearly preempted local government authority to regulate anchoring.

         However, this Collier County Court case is still worth examining because the County Court’s Order in the case illustrates the legal ambiguity of the term in navigation under Florida law and whether the act of anchoring confers special status to a vessel as being engaged in navigation.

         For many years prior to 2006, Section 327.60(2) used the phrase engaged in the exercise of rights of navigation in the same context.³⁹⁸ When this phrase was in effect, it was neither defined judicially nor statutorily. However, a 1985 Florida Attorney General opinion did state that the right of navigation includes the right to anchor or moor.³⁹⁹ The same Attorney General opinion also noted that such a right does not include the right to anchor indefinitely.⁴⁰⁰ In addition, the Coast Guard has stated:

         While a right to remain aboard the vessel for a reasonable period appurtenant to transit, anchoring and navigation is part of the navigational servitude, this does not extend to utilizing a vessel as a residence. Such usage may be regulated by the City as long as reasonable provision is made for those individuals who reside aboard vessels appurtenant to navigation.⁴⁰¹

         As part of a 2010 Florida House of Representatives House Staff Analysis report for proposed Bill 1361,⁴⁰² comments from FWC regarding the term in navigation were included. These comments explained that the term is not defined within Florida Statutes but that Federal admiralty law defines in navigation so broadly that it would include all vessels except for a vessel rendered practically incapable of transportation or movement.⁴⁰³ The comments go on to explain that under existing statutes, local governments already have the authority to regulate floating structures being used as living space if those structures are incapable of transport on the water.

         The validity of local ordinances regulating navigation and anchoring may depend on whether a local ordinance defines live-aboard vessel more broadly than the statutory definition provided in Section 327.02(22) Live-aboard vessel. If the ordinance defines it more broadly, it may be considered preempted by Chapter 327. Several local ordinances attempt to define live-aboard differently from the state statute. One local government, for example, defines on-board living as eating, sleeping and carrying on other living activities for a period in excess of 48 hours aboard any vessel while it is moored or docked on the waters within the city.⁴⁰⁴ This definition could be interpreted as broader than the residency test established by Chapter 327, and thus sweep non live-aboards under its ambit. If so, a court might strike down the ordinance on the basis of it conflicting with Chapter 327.⁴⁰⁵

         In addition to the City of Marco Island case described above, two Florida trial courts have addressed local restrictions on anchoring in the context of the statute prior to the 2009 amendments.⁴⁰⁶ In State v. Hager,⁴⁰⁷ the court upheld a 72-hour length-of-stay restriction, giving deference to the City of Clearwater’s determination that a vessel anchored for greater than 72 hours during any 30-day period was no longer engaged in navigation. After determining that the vessel was a non live-aboard, the court examined whether the language in the 1990 version of Section 327.60(2), which stated anchorage . . . in the exercise of the rights of navigation, included anchoring for more than 72 hours. The court found that [n]o authority ha[d] been cited which establishes a legal time frame within which to determine when, if ever, an anchored vessel is under navigation, and concluded that, while 72 hours may appear unnecessarily restrictive, the city’s ordinance was valid.⁴⁰⁸

         A trial court in a 1991 case, State v. Frick,⁴⁰⁹ reached the opposite conclusion, refusing to define the rights of navigation in terms of an arbitrary time period of 72 hours. This court noted that [t]he length of time that a boat remains anchored may be only one criteria determining whether it is involved in navigation. In finding the Riviera Beach ordinance invalid, the court determined that innocent boaters either genuinely exercising the rights of navigation or forced out of necessity, weather, or unforeseen conditions to stop for longer than 72 hours would violate the ordinance.

         Although not resolving the length-of-stay issue, these cases seem to suggest that length-of-stay restrictions are more likely to be upheld if they permit vessels to remain for a longer time frame and make adequate provision for contingencies such as safe harbor during storms. New statutes enacted in 2017 that impose state-wide anchoring restrictions in Florida waters do just that and are discussed in detail later in this publication.

      2. The 2009 and 2017 Amendments to Chapter 327, Florida Statutes.

         Prior to 2009, Sections 327.22 and 327.60 were treated as the two main statutes dealing with authority of local governments to regulate anchoring. In 2009, the legislature repealed Section 327.22, and transferred the section’s core concept of local government regulation of vessels to the newly amended Section 327.60. This revised version of Section 327.60 specifically listed certain prohibitions against local government regulations dealing with the operation of vessels, including anchoring regulations. The 2009 amendments clearly preempted Florida’s local governments from [r]egulating the anchoring of vessels other than live-aboard vessels outside the marked boundaries of mooring fields permitted as provided in s. 327.40. The same statute was again slightly amended in 2017 to clarify that although local governments are preempted from regulating the anchoring of vessels outside the marked boundaries of mooring fields (except for regulating the anchoring of live-aboards, commercial vessels, and floating structures), local governments absolutely possess authority to adopt local regulations relating to the operation of vessels.⁴¹⁰ However, while Boating restricted areas, vessel exclusion zones, and signage relating to vessel operation may all be created by a local government ordinance, such ordinance must first be approved by FWC prior to adoption. The 2017 amendments also added an important new subsection that clarifies local governments may adopt regulations to deal with lost or abandoned vessels. Other aspects of state preemption over local government regulation of vessels remained in Chapter 327.

         But what is increasingly clear regarding the history of legislative changes to Chapter 327, is that the State of Florida has preempted local governments from regulating the anchoring for vessels outside of mooring fields (while carving out an exception to allow local government anchoring regulations concerning live-aboard vessels, floating structures, and commercial vessels (that are not commercial fishing vessels).

         Presented in its entirety below, Section 327.60 as of 2018 now reads:

         327.60. Local regulations; limitations⁴¹¹

         1. The provisions of this chapter and chapter 328 shall govern the operation, equipment, and all other matters relating thereto whenever any vessel shall be operated upon the waters of this state or when any activity regulated hereby shall take place thereon.
         2. This chapter and chapter 328 do not prevent the adoption of any ordinance or local regulation relating to operation of vessels, except that a county or municipality may not enact, continue in effect, or enforce any ordinance or local regulation:
            1. Establishing a vessel or associated equipment performance or other safety standard, imposing a requirement for associated equipment, or regulating the carrying or use of marine safety articles;
            2. Relating to the design, manufacture, or installation of any marine sanitation device on any vessel, except as authorized in subsection (4);
            3. Regulating any vessel upon the Florida Intracoastal Waterway;
            4. Discriminating against personal watercraft;
            5. Discriminating against airboats, for ordinances adopted after July 1, 2006, unless adopted by a two-thirds vote of the governing body enacting such ordinance;
            6. Regulating the anchoring of vessels outside the marked boundaries of mooring fields permitted as provided in s. 327.40, except for:
               1. Live-aboard vessels; and
               2. Commercial vessels, excluding commercial fishing vessels;
            7. Regulating engine or exhaust noise, except as provided in s. 327.65; or
            8. That conflicts with any provisions of this chapter or any amendments thereto or rules adopted thereunder.
         3. This section does not prohibit local government authorities from the enactment or enforcement of regulations that prohibit or restrict the mooring or anchoring of floating structures, live-aboard vessels, or commercial vessels, excluding commercial fishing vessels, within their jurisdictions or of any vessels within the marked boundaries of mooring fields permitted as provided in s. 327.40. (emphasis added)
            1. A local government may enact and enforce regulations that require owners or operators of vessels or floating structures subject to the marine requirements of s. 327.53 to provide proof of proper sewage disposal by means of an approved sewage pumpout service, approved sewage pumpout facility, or approved waste reception facility when anchored or moored for more than 10 consecutive days within the following areas:
               1. Marked boundaries of a permitted mooring field under the jurisdiction of the local government;
               2. No-discharge zones as published in Volume 53, No. 13 of the Federal Register, page 1678 (1988); Volume 64, No. 164 of the Federal Register, pages 46390-46391 (1999); and Volume 67, No. 98 of the Federal Register, pages 35735-35743 (2002); or
               3. No-discharge zones established pursuant to 40 C.F.R. s. 1700.10.
            2. Before a local government may adopt an ordinance to enact and enforce such regulations, the local government must ensure that there are approved sewage pumpout services, approved sewage pumpout facilities, or approved waste reception facilities available within its jurisdiction. Any ordinance adopted pursuant to this subsection may not take effect until reviewed and approved as consistent with this subsection by the commission (FWC).
            3. This subsection does not prohibit a local government from enacting or enforcing such sewage pumpout requirements for live-aboard vessels, floating structures, and commercial vessels, excluding commercial fishing vessels, within any areas of its jurisdiction.
            4. The commission may adopt rules to implement this subsection.
         4. A local government may enact and enforce regulations to implement the procedures for abandoned or lost property that allow the local law enforcement agency to remove a vessel affixed to a public dock within its jurisdiction that is abandoned or lost property pursuant to s. 705.103(1). Such regulation must require the local law enforcement agency to post a written notice at least 24 hours before removing the vessel.

            Much of the language of this statute originated from the repealed Section 327.22. However, the 2009 and 2017 amendments have structured the statute in a way that specifically lists each area where the legislature has determined local governments shall have no authority, or limited authority to regulate certain boating activities and anchoring.

            Any local regulations and ordinances conflicting with Section 327.60 would likely be deemed preempted by this state law and therefore invalid.

            As a result, the only valid local ordinances imposing anchoring restrictions will be those that pertain to live-aboard vessels, floating structures, and commercial vessels that are not commercial fishing vessels, and vessels attempting to anchor within the boundaries of legally established mooring fields. Another recent amendment also created a no anchoring buffer of 100 feet outward from the boundaries of permitted mooring fields.⁴¹²⁴¹³

            However, where a vessel is situated outside a mooring field and its 100-foot buffer, the key question concerning local government enforcement of anchoring ordinances is whether or not the vessel is a live-aboard vessel, a floating structure, or a commercial vessel that is not a fishing vessel. If the answer is that the vessel is one of these types, then the vessel may be subject to a local anchoring ordinance.

      3. Defining Live-Aboard Vessels Under Chapter 327, Florida Statutes.

         As previously discussed in Section I A of this publication, Section 327.02(22), Florida Statutes currently defines live-aboard vessels. But the definition has been tweaked several times over the years by the Legislature to clarify exactly how to identify (and therefore regulate) live-aboard vessels. Prior to 2009, live-aboard vessels were simply defined as:

         Live-aboard vessel means:

         1. Any vessel used solely as a residence; or
         2. Any vessel represented as a place of business, a professional or other commercial enterprise, or a legal residence.

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

         As may be apparent to some readers, this definition raised questions about whether or not a vessel was being used solely as a residence and generated some ambiguity in exactly how to determine which vessels fit within this definition.

         For instance, a 1985 opinion by the Florida Attorney General concluded that a vessel may qualify as a live-aboard if it can be proven by a combination of the operator’s subjective intent and objective facts that the operator intends to use the vessel as a legal residence.⁴¹⁴ Such a foggy analysis was hard to have any practical application for local governments.

         But in 2009, the definition of live-aboard vessel was amended by the Florida Legislature to read (additions emphasized):

         Live-aboard vessel: means:

         1. any vessel used solely as a residence and not for navigation; or
         2. any vessel represented as a place of business, or a professional or other commercial enterprise; or
         3. any vessel for which a declaration of domicile has been filed pursuant to s. 222.17.

         A commercial fishing boat is expressly excluded from the term live-aboard vessel.⁴¹⁵

         The phrase … and not for navigation was added to help clarify how to identify live-aboard vessels. That new phrase, (…and not for navigation) made determining whether or not a vessel is engaged in navigation one of the key considerations in defining a vessel’s status for the purposes of local regulation. In other words, if what appears to be a live-aboard vessel is being used as a residence, but is also engaged in navigation, then local governments may not regulate the anchoring of such vessel. If anchoring is considered a right incidental to ordinary navigation, and therefore also protected by the public trust doctrine, then the legal question remains whether or not a vessel at anchor, even a live-aboard vessel, is in navigation. The term …and not for navigation arguably had the legal effect of making live-aboard vessels that were used as a residence while also occasionally used for navigation, potentially exempt from being defined as a live-aboard. But in 2017, the definition of live-aboard vessel was once again amended in an apparent attempt to burn the fog off of this ambiguity.

         The 2017 amendment added yet another phrase to further narrow the legal definition of live-aboard to include that live-aboard vessels also lack an effective means of propulsion for safe navigation. As a result, the definition of live-aboard vessel now includes subsection (c) and reads as follows (2017 additions emphasized):

         Live-aboard vessel means:

         1. A vessel used solely as a residence and not for navigation;
         2. A vessel for which a declaration of domicile has been filed pursuant to s. 222.17; or
         3. A vessel used as a residence that does not have an effective means of propulsion for save navigation.

         A commercial fishing vessel is expressly excluded from the term live-aboard vessel.

         A new trend emerging in Florida that this publication’s authors predict will present new regulatory challenges to local governments will be what, if any, regulations should apply to moored vessels that are advertised for rent as floating hotel rooms on a nightly or weekly basis. Examples of moored vessels being rented on short-term vacation rental websites are increasingly more common. Some short-term vacation rental websites maintain webpages devoted specifically to vessel rentals. Monroe County has already taken legal action against an owner of such a vessel for violating its transient rental license ordinance.⁴¹⁶

   4. Other State and Local Government Regulations in Florida Addressing Navigation & Anchoring
      1. Florida Statutes § 327.4107, Vessels at risk of becoming derelict on waters of this state.

         The public price tag for the identification and removal of derelict vessels in the wake of major hurricanes is staggering. Following Hurricane Irma in 2017, the Florida Fish and Wildlife Conservation Commission (FWC) and the United States Coast Guard spent approximately $35 million to assess and remove from state waters 2,680 vessels affected by the storm.⁴¹⁷ While the majority of the assessed vessels were pulled from state waters by responsible parties or insurance companies, 945 were not immediately claimed and had to be removed by the United States Coast Guard. The FWC arranged for temporary storage facilities to house the storm-damaged vessels while attempts were made to reach the vessel owners. Fewer than 20 percent of the stored boats were ultimately claimed. The remainder were destroyed at an additional cost to the public. As of November 2018, 291 vessels were awaiting a $3 million grant for final removal and disposal in 2019.⁴¹⁸ Hurricane Michael, in October 2018, wrecked further havoc. The FWC and United States Coast Guard are working to remove between 390 and 450 vessels deposited in the waters of Bay, Gulf, and Wakulla counties by the storm. These numbers are in addition to the approximately 350 derelict vessels occurring from other sources around the state.⁴¹⁹

         Due to Florida’s large boating community, it was inevitable that the state would face deteriorated and abandoned vessels with unidentifiable owners. Hundreds of these vessels, largely the product of owner neglect or natural disasters like hurricanes, are littered across the coastline.

         These vessels pose navigational and environmental hazards to state waterways and their removal and disposal is a drain on public resources. Removal costs run between $350 to $450 per foot of vessel length, with costs varying considerably depending on a vessel’s condition.⁴²⁰ Florida’s local governments spend anywhere from $500,000 to $1 million each year removing orphaned vessels from state waters.⁴²¹ In 2014, for example, local governments removed 166 derelict vessels from state waters at an approximate cost of $665,500.⁴²²

         The Florida Fish and Wildlife Conservation Commission (FWC) has taken the lead on combating this statewide issue and has made great strides over the years by collaborating with local law enforcement, and county environmental, boating, and waterway entities. Recent state legislation has strengthened this effort by improving the identification and removal process.

         In 2016, the Legislature passed a proactive law prohibiting vessels at risk of becoming derelict to anchor on, moor on, or occupy the waters of the state.⁴²³ Importantly, the new legislative language includes mechanisms for law enforcement to formally identify vessels before they enter a severely deteriorated state. Prior to the law’s enactment, the FWC had no authority under Florida law to regulate the condition of vessels on state waters or to require vessel owners to maintain their vessels unless the vessel was actually a hazard to navigation, discharging contaminates, derelict (in a wrecked, junked, or substantially dismantled state), or in violation of some other vessel safety law.

         FWC officers or law enforcement agencies now have the authority to make a determination that a vessel is at risk of becoming derelict and issue a uniform boating citation by mail to the registered owner. A vessel is considered on the verge of being derelict and at risk under the following conditions: 1) The vessel is taking on or has taken on water without an effective means to dewater; 2) Spaces on the vessel that are designed to be enclosed are incapable of being sealed off or remain open to the elements for extended periods of time; 3) The vessel has broken loose or is in danger of breaking loose from its anchor: 4) The vessel is left or stored aground unattended in such a state that would prevent the vessel from getting underway, is listing due to water intrusion, or is sunk or partially sunk.⁴²⁴ A violation is considered a noncriminal infraction in which civil penalties may be assessed.

         Penalties range from $50 for a first offense; $100 for a second offense occurring 30 days after the previous offense; and $250 for a third or subsequent offense occurring 30 days or more after a previous offense.

         In addition to the legislative improvements in the derelict vessel management system, the FWC also continues to maintain a statewide vessel tracking database that depicts the location of identified derelict vessels. As of September 2018, there were approximately 363 identified derelict vessels in state waters logged into the database.⁴²⁵ Given the extensive manpower required to identify these vessels, FWC estimates that this number represents approximately 70 percent of the actual derelict vessels that exist in state waters.⁴²⁶ For the last three years, the Legislature has allocated funds to a FWC administered grant program to help local governments cover the cost of removing derelict vessels.⁴²⁷

      2. Florida Statutes § 823.11

         Florida Statutes § 823.11 defines derelict vessel and outlines procedures for handling these hazards to navigation. As noted in Section I.A., a derelict vessel is a vessel . . . that is left, stored, or abandoned . . . in a wrecked, junked, or substantially dismantled condition upon any public waters.⁴²⁸ While law enforcement officers are given authority to remove derelict vessels from public waters, there are many caveats that impact each case including trying to identify an owner, minimizing potential environmental impacts during removal, and securing funding for the removal process.⁴²⁹

      3. Florida Statutes, Chapter 705, Lost or Abandoned Property.

         In addition to specific derelict vessel statutes, FWC and local law enforcement may also use abandoned property statutes to help combat the growing problem of derelict and abandoned vessels. Florida Statute Section 705.101(3) defines abandoned property to specifically include the term derelict vessel.⁴³⁰ FWC maintains a webpage devoted specifically to answering frequently asked questions about derelict or abandoned vessels and the legal process for seeking to obtain title to an abandoned vessel.⁴³¹ Florida law currently does not allow anyone who attempts to salvage or actually salvages an abandoned vessel to claim title to it. Doing so without actually obtaining title through the statutory and local law enforcement claims process could constitute criminal theft. And persons who intentionally abandon or scuttle a vessel in Florida waters as a means of cheaply disposing of it could be committing a felony dumping crime, in violation of Section 403.413, Florida Statute. In fact, Subsection 403.413(1)(i), Florida Statutes also defines a vessel as a boat, barge, or airboat or any other vehicle used for transportation on water. Section 403.413(4)(b), Florida Statutes makes it a crime to dump or litter …in or on any freshwater lake, river, canal, or stream or tidal or coastal water of the state, including canals. When any litter is thrown or discarded from a boat, the operator or owner of the boat, or both, shall be deemed in violation of this section. Dumping litter overboard that weighs less than 500 pounds or intentionally abandoning a vessel in Florida waters that weighs less than 500 pounds will get a person charged with a misdemeanor. Anything over 500 pounds (think any motorized vessel) and the violator can be charged with a felony!

         While the aforementioned statutes and legislative efforts have been beneficial in combating the rising tide of derelict vessels, the FWC and other boating stakeholders continue to search for ways to improve the system, allocate funding to address the derelict/abandoned vessel problem, and deal with what often times becomes a local blight problem.

      4. Florida Statutes § 327.4108, Anchoring of vessels in anchoring limitation areas.

         First enacted in 2016 through House Bill 1051, this statute represents a new method of regulating anchoring in state waters. The statute identifies specific locations in Florida that are considered to be …densely populated urban areas, which have narrow state waterways, residential docking facilities, and significant recreational boating traffic….⁴³² Subsection 327.4108(2) states, To promote the public’s use and enjoyment of the designated waterway, except as provided in subsections (3) and (4), a person may not anchor a vessel at any time during the period between one-half hour after sunset and one-half hour before sunrise in an anchoring limitation area. This new statutory night-time anchoring prohibition was amended in 2017 to add more locations, and now the current statute (as of 2018) designates the following areas as anchoring limitation areas:

         1. The section of Middle River lying between Northeast 21st Court and the Intracoastal Waterway in Broward County.
         2. Sunset Lake in Miami-Dade County.
         3. The sections of Biscayne Bay in Miami-Dade County lying between:
            1. Rivo Alto Island and Di Lido Island.
            2. San Marino Island and San Marco Island.
            3. San Marco Island and Biscayne Island.

         Thus, rather than carve out an exception in Section 327.60, Florida Statutes to permit Broward or Miami-Dade Counties the freedom to regulate and enforce anchoring restrictions in local waterways through their own anchoring ordinances, or delegate to the FWC rule-making authority to enact lawful anchoring restrictions in these areas, the state has used its own law-making power to pinpoint a few places that it believed needed such a night-time anchoring prohibition. The targeted areas apparently have been popular locations to anchor and have generated concern about overuse and congestion. As a result, the legislative effort to take a top-down approach using state legislation to address a local boating conflict was undertaken and became a newsworthy topic.⁴³³

         The statute also provides methods to enforce the anchoring restrictions (including removal and impoundment of the vessel violating the statute for up to 48 hours by law enforcement) and establishes non-criminal monetary penalties that may be assessed by local law enforcement to violators. Operators of vessels who are cited with a violation for anchoring in an anchoring limitation area are also responsible for storage fees if their vessel is removed and impounded under this new statute.

         The statue does provide for three exceptions when a vessel may anchor in these areas regardless of the new restrictions. Those are: (1) Mechanical issues – if the vessel suffers a mechanical failure such that unreasonable harm to the vessel or persons on board would occur if the vessel did not anchor (however, this exception gives a 3-day limit as to how long the disabled vessel may remain),⁴³⁴ (2) Weather issues – if imminent or existing weather conditions in the vicinity pose an unreasonable risk of harm to the vessel or persons on board requiring the vessel to anchor (this exception lasts until weather conditions no longer pose such a risk or, during a hurricane or tropical storm, weather conditions are deemed to no longer pose an unreasonable risk of harm when the hurricane or tropical storm warning have expired),⁴³⁵

         (3) Special local marine events – if regattas, races, marine parades, tournaments, exhibitions or other special public events including local government waterfront activities, or fireworks displays are taking place in the vicinity, then a vessel may anchor in these areas. This exception lasts …for the lesser of the duration of the special event or 3 days.⁴³⁶

         Notably, the statute appears to lack defined jurisdictional boundaries for exactly where the boundaries of these anchoring limitations lie.

         General descriptions of areas or sections lying between identified bodies of land may present problems in defining exactly where the outlying boundaries of these anchoring limitation areas exist. It also remains to be seen if other local governments around Florida will begin their own lobbying efforts to amend this statute to include their own congested waterways and problem anchor areas. Section 327.4107 concludes by stating This section shall remain in effect notwithstanding the Legislature’s adoption of the commission’s recommendations for the regulation of mooring vessels outside of public mooring fields pursuant to 327.4105. Thus, it appears this new method of state regulation of anchoring in local waters may be here to stay.

      5. Florida Statute § 327.4109, Anchoring or mooring prohibited; exceptions; penalties.

         This statute, signed into law in 2017, establishes new, state-wide prohibitions against anchoring or mooring in generic locations that are typically found within a certain distance of marinas, boat ramps, vessel launching or loading facilities, and near repair facilities. The statute also specifically prohibits vessels and floating structures from anchoring with, mooring to, or tying off to an unpermitted, unauthorized, or otherwise unlawful object that is on or affixed to the bottom of the waters of this state. Summarized below, the statewide, generic locations where vessels or floating structures are now prohibited from anchoring or mooring anywhere in Florida include areas:

         1. Within 150 feet of any marina, boat ramp, boatyard, or other vessel launching or loading facility;
         2. Within 300 feet of a superyacht repair facility. For purposes of this subparagraph, the term superyacht repair facility means a facility that services or repairs a yacht with a water line of 120 feet or more in length; or
         3. Within 100 feet outward from the marked boundary of a public mooring field, or a lesser distance if approved by FWC upon request of a local government within which the mooring field is located. FWC may adopt rules to implement this subparagraph.

         Because the statute mandates that vessels may not anchor or moor within 100 feet outward from the marked boundary of public mooring fields, the new statute has the effect of creating a 100-foot no anchor buffer zone around public mooring fields which previously had not existed under Florida law. As a result, this additional 100-foot no anchor buffer zone surrounding mooring fields will have to be a new consideration by local governments when planning and identifying suitable locations to establish a public mooring field.

         This new statute, however, does ensure that certain types of vessels are exempt from having to comply with its anchoring and mooring prohibitions, and those are the following:

         1. Vessels owned or operated by a governmental entity.
         2. Construction or dredging vessels on an active job site.
         3. Commercial fishing vessels actively engaged in commercial fishing.
         4. Vessels actively engaged in recreational fishing if the persons onboard are actively tending hook and line fishing gear or nets.

         Similar to Section 327.4108, Florida Statutes discussed above, Section 327.4109 also carves out certain exceptions when any vessel may anchor or moor in these prohibited areas regardless of the prohibitions. Those exceptions are: (1) Mechanical – If a vessel suffers a mechanical failure that poses an unreasonable risk of harm to the vessel or the persons onboard such vessel. The owner or operator of the vessel may anchor or moor for 5 business days or until the vessel is repaired, whichever occurs first. (2) Weather issues – If imminent or existing weather conditions in the vicinity of the vessel pose an unreasonable risk of harm to the vessel or the persons onboard such vessel. The owner or operator of the vessel may anchor or moor until weather conditions no longer pose such risk. During a hurricane or tropical storm, weather conditions are deemed to no longer pose an unreasonable risk of harm when the hurricane or tropical storm warning affecting the area has expired.

         Unlike Section 327.4108, there is no exception for special local events.

         Any vessel operator found to be in violation of the anchoring and mooring prohibitions of this new law, can be cited by local law enforcement with a non-criminal infraction, punishable as provided in Section 327.73(1)(bb), Florida Statutes, which means a fine up to $50 for a first offense, a fine up to $100 for a second offense, and a fine up to $250 for a third offense. Any person cited with an infraction of these anchoring or mooring prohibitions is required to appear in county court. Failing to appear in county court for a noticed court date as required, can subject the violator to a subsequent criminal misdemeanor offense!

      6. Florida Statutes § 327.46, Boating-Restricted Areas and Vessel Exclusion Zones.

         This section grants authority to the FWC and local governments to establish rules and ordinances for any purpose necessary to protect the safety of the public but only if such restrictions are necessary based on boating accidents, visibility, hazardous currents or water levels, vessel traffic congestion, or other navigational hazards or to protect seagrasses on privately owned submerged lands.⁴³⁷ While the FWC may establish boating restricted areas via the rule-making process afforded to state agencies under the Florida Administrative Procedure Act (Chapter 120, Florida Statutes), local governments also have the authority to establish boating-restricted areas by ordinance.⁴³⁸

         However, Section 327.46(1)(c) requires that some types of boating-restricted areas adopted by counties or cities shall not take effect until the [FWC] has reviewed the ordinance and determined by substantial competent evidence that the ordinance is necessary to protect public safety pursuant to this paragraph.⁴³⁹ Those would include ordinances establishing an idle speed, no wake boating-restricted area within 300 feet of a confluence of water bodies creating a blind corner, a bend in a narrow channel, or other area where visibility is obscured; ordinances establishing slow speed, minimum wake, or numerical speed limit boating-restricted areas within 300 feet of the same kind of visibility-obscured areas, high traffic areas, hazardous conditions, or known dangerous areas; and ordinances establishing vessel exclusion zones if the areas are reserved exclusively for a canoe trail, or limited to vessels under oars or under sail. Section 327.46(1)(c) also creates a procedure with applicable time frames for local governments to seek the required FWC approval.⁴⁴⁰ Another important aspect of Section 327.46(1)(c) requires each proposed boating-restricted area or vessel exclusion zone to be developed in consultation and coordination with the applicable governing body of the local government, and if the proposed boating-restricted area is to be on navigable waters of the United States, then the U.S. Coast Guard and the U.S. Army Corp of Engineers must also be consulted.⁴⁴¹ Thus, although local governments do have authority to enact local ordinances addressing the above type of safety issues within their jurisdictions, that authority is limited by Section 27.46 and requires oversight by FWC.

         It is important to note, however, that Section 327.46 requires boating-restricted areas, and the restrictions which apply therein, to be necessary based on boating accidents, visibility, hazardous currents or water levels, vessel traffic congestion, or other navigational hazards.⁴⁴² Therefore, local ordinance proposals relating to boating-restricted areas must be supported by some kind of statistical, factual, or testimonial evidence sufficient to justify why a boating-restricted area is necessary.

         Section 327.46(1)(b) does grant local governments some authority to enact ordinances without FWC approval related to establishing idle speed, no wake boating-restricted areas so long as they apply to generically designated areas described in subsection 327.46 (1)(b)(1), (1)(b)(2), and (1)(b)(3). Below are excerpts taken directly from Section 327.46(1)(b) that describe the generic locations on Florida waterways where the Legislature expressly permits local governments to establish boating-restricted areas without FWC approval or consultation:

         Boating-restricted areas . . . [designating] an idle speed, no wake [zone may be established in the following areas]:⁴⁴³

         Within 500 feet of any boat ramp, hoist, marine railway, or other launching or landing facility available for use by the general boating public on waterways more than 300 feet in width or within 300 feet of any boat ramp, hoist, marine railway, or other launching or landing facility available for use by the general boating public on waterways not exceeding 300 feet in width.

         Within 500 feet of fuel pumps or dispensers at any marine fueling facility that sells motor fuel to the general boating public on waterways more than 300 feet in width or within 300 feet of the fuel pumps or dispensers at any licensed terminal facility that sells motor fuel to the general boating public on waterways not exceeding 300 feet in width.

         Inside or within 300 feet of any lock structure.

         Boating-restricted areas . . . [designating] a slow speed, minimum wake [zone may be established in the following areas]:⁴⁴⁴

         Within 300 feet of any bridge fender system.

         Within 300 feet of any bridge span presenting a vertical clearance of less than 25 feet or a horizontal clearance of less than 100 feet.

         On a creek, stream, canal, or similar linear waterway if the waterway is less than 75 feet in width from shoreline to shoreline.

         On a lake or pond of less than 10 acres in total surface area.

         Boating-restricted areas . . . [designating] a vessel exclusion [zone may be established in the following areas]:

         If the area is designated as a public bathing beach or swim area.

         Within 300 feet of a dam, spillway, or flood control structure.⁴⁴⁵

      7. Florida Statutes § 327.41, Uniform Waterway Regulatory Markers.

         A necessary component of boating-restricted areas is the need for local governments to properly mark the types of zones they create.

         Section 327.41, Uniform Waterway Regulatory Markers, requires local governments to apply for a permit through the FWC to install waterway markers.⁴⁴⁶ This ensures that all waterway markers are uniform throughout the state and are also in compliance with U.S. Coast Guard requirements.⁴⁴⁷

      8. Florida Statutes § 327.44, Interference with Navigation; Relocation or Removal; Recovery of Costs.

         Even though boating-restricted areas do not specifically address anchoring, a catch-all statute indicates that enforcement authorities may prevent anchoring wherever it presents certain dangers to the public. Subsection 327.44(2) states:

         A person may not anchor, moor, or allow to be anchored or moored, except in case of emergency, or operate a vessel or carry on any prohibited activity in a manner which unreasonably or unnecessarily constitutes a navigational hazard or interference with another vessel.

         Anchoring or mooring under bridges or in or adjacent to heavily traveled channels constitutes interference if unreasonable under the prevailing circumstances.⁴⁴⁸

         In addition to the general power to both remove non-compliant vessels⁴⁴⁹ and issue non-criminal citations (which can become a second-degree misdemeanor if the vessel operator who is cited fails to respond within 30 days to the citation),⁴⁵⁰ the statute now also provides more specific and robust enforcement power. Section 327.44 now specifically protects FWC and local law enforcement from liability for damage they might cause to a vessel while exercising their power to remove or relocate, unless the damage results from willful misconduct or gross negligence.⁴⁵¹ Furthermore, the statute also allows enforcement authorities to recover from vessel owners any costs incurred while removing or relocating such vessels.⁴⁵²

   5. The Inland Navigation Districts

      The Legislature has granted nonregulatory waterway management authority to the state’s inland navigation districts. The Florida Inland Navigation District (FIND) and the West Coast Inland Navigation District (WCIND) serve as the local sponsors for the Atlantic Intracoastal Waterway and the Gulf Intracoastal Waterway.⁴⁵³ This authority consists primarily of financing channel maintenance to maintain navigation but can also include waterway access amenities such as boat ramps and waterfront facilities.

      The FIND is an independent special taxing district that covers an area extending along Florida’s east coast from Duval to Dade counties.⁴⁵⁴ FIND is governed by a twelve-member board with one representative from each county within the district.⁴⁵⁵ Florida’s governor appoints the board members to staggered four-year terms.⁴⁵⁶ The WCIND is also a special taxing district, covering four counties: Manatee, Sarasota, Charlotte and Lee.⁴⁵⁷ The WCIND is governed by a four-member board comprised of one county commissioner from each of the four counties within its jurisdiction.⁴⁵⁸

      In 1998, the Legislature added anchorage management to the list of activities for which the FIND and the WCIND are permitted to aid and cooperate with the federal government, state, member counties and local governments.⁴⁵⁹

      1. Regional Waterway Management Systems.

         In association with WCIND, DEP, and the four counties in its jurisdiction, Florida Sea Grant developed a tool called Regional Waterway Management Systems (RWMS) to address waterway management issues. This tool involves the application of science and geospatial technology to evaluate how to best balance the health of coastal ecosystems with the maintenance of safe navigation in coastal communities. The RWMS tool essentially uses a geospatial framework to map channel depths, produce a census of actual boating populations, and evaluate the spatial extent of natural resources at a regional level to determine which channels are most appropriate for navigation improvements (i.e., dredging) and how to implement related regulatory policy.⁴⁶⁰ In issuing certain general permits to WCIND for dredging channels in Manatee, Sarasota, and Lee Counties, DEP has incorporated this system into its regulations.⁴⁶¹

1. Managed Mooring Fields (MMFs)

   To better manage and accommodate navigation within their jurisdictions, a number of local governments around the state of Florida have established Managed Mooring Fields (MMFs). A MMF is an area specially designated and managed by a local government or some other entity for the mooring of vessels to mooring ball devices. Some local governments with established MMFs include Fort Myers, Fort Myers Beach, Key West, Marathon, Sarasota, Stuart, Vero Beach, Miami and Fernandina Beach, among others. These MMFs range in size, accommodating anywhere from a mere handful of vessels to more than a hundred.

   There is a distinct difference between anchorages and mooring fields. Anchorages are areas designated for the anchoring of vessels using ground tackle carried on the vessel; mooring fields are areas where vessels tie up to a buoy attached to ground tackle that is maintained in place on the submerged land. Vessels entering the mooring field, tie off to the buoy without needing to drop their own anchor. In some situations, the mooring buoy devices can be moved to different locations within the mooring field, but mooring fields must be planned with consideration of vessel size limits and a radial swing around the mooring buoy to factor in vessel movement with current, tide and wind in order to prevent moored vessels from swinging into each other.

   Anchoring within a MMF is typically prohibited, though it could conceivably be allowed through proper zoning of the field and ordinance language. Local governments often use MMFs to encourage tourism by creating convenient and safe opportunities for cruisers to stop in an area to either anchor or tie to a mooring. A well-designed MMF includes amenities such as dinghy docks, fueling stations, holding tank pump-out stations, garbage disposal facilities, and shower and restroom facilities. Many MMFs provide 24-hour security through an on-site harbormaster.

   Local governments face a number of regulatory hurdles before they can establish MMFs. Initially, the ownership of the beds underlying the water in question must be determined. In most cases, ownership of the beds will lie in the hands of the State and the use of it for a MMF must be authorized through a Sovereign Submerged Lands Lease granted by the Board of Trustees of the Internal Improvement Trust Fund.⁴⁶² The local comprehensive plan must be evaluated and amended if necessary to ensure the MMF will be consistent with that plan, ⁴⁶³ and any Manatee Protection Plan that has been adopted by the local government must also be considered. All applicable regulatory authorizations from the state and federal governments must also be obtained.⁴⁶⁴ Permits may also be required by the U.S. Army Corps of Engineers for activities on navigable waters. Consideration should also be given to seeking designation of a new MMF as a special anchorage area under Coast Guard regulations, also discussed above. Environmental considerations should also be factored into the location and size of a proposed mooring field.

   The Florida Department of Environmental Protection has created General Permit criteria under its rule-making authority that define the conditions necessary for local governments to establish a public mooring field. Florida Administrative Code, Section 62-330.420(1) states, A general permit is granted to any local government to construct, operate, and maintain a public mooring field for up to 100 vessels,⁴⁶⁵ including a dinghy dock and sewage pumpout dock directly supporting the mooring field. The General Permit conditions require local governments to develop a Mooring Field Management Plan which must explain existing or proposed land-based support facilities, project design, and implementation details.

   Section 62-330.342(3)(b), F.A.C. establishes Siting Criteria for local government mooring fields which include: 1.) proximity to navigational channels so that no new dredging is necessary to create access to the mooring field, 2.) dinghy dock and pumpout dock locations with adequate circulation and flushing based on a bathymetry plan, 3.) proposed drafts and types of vessels that will use the mooring field, 4.) there must be an existing or permitted land-based support facility that is operational prior to the mooring field’s use, 5.) mooring fields must not be located in a customarily used navigational channel, or within setbacks established by the U.S. Army Corps of Engineers for federal channels, 6.) mooring fields may not be located in waters that have been classified by the Florida Department of Agriculture and Consumer Services as restricted for shellfish harvesting, 7.) and they may not be located where they would adversely affect critical habitat designated by the U.S. Fish & Wildlife Service or U.S. National marine Fisheries Service for any federally-listed threatened or endangered species under the Endangered Species Act.

   A local government may either choose to operate a MMF itself,⁴⁶⁶ enter into a concession agreement with a private company allowing for private management,⁴⁶⁷ or allow for management by a non-profit organization. The operation of a MMF is typically governed by the adoption of an ordinance or resolution. Activities addressed in such ordinances generally include the length of time a vessel may remain in the MMF, the establishment of fees, safety and insurance considerations, operational hours for noise and machinery, requirements relating to the display of signs, sanitation requirements, provisions regarding fishing, swimming, and other recreational activities, and the restrictions on feeding wildlife. Essentially, a MMF is like a neighborhood community on the water with land-based support and rules that everyone must abide by.

   The Conservation Clinic at the University of Florida Levin College of Law has drafted a model harbor management ordinance, that has been used by some local governments as a guide in preparing their local ordinance establishing a MMF.

   In 2017, the City of Miami considered placement of a mooring field within the confines of the famous Miami Marine Stadium Basin to deal with anchoring problems in the Basin, but reconsidered the idea after the Virginia Key Advisory Board (an advisory board appointed by the City Commission which reviews and makes recommendations regarding issues related to Virginia Key) unanimously recommended the City not pursue the establishment of a mooring field at that location.⁴⁶⁸ The City of Miami currently has a 225-vessel public mooring field located near Dinner Key off Coconut Grove. Other public mooring fields in Florida are located in the Cities of Fernandina Beach, St. Augustine, Titusville, Vero Beach, Sarasota, Marathon (Boot Key Harbor), Key West, and Ft. Myers.

2. The Florida Fish & Wildlife Conservation Commission’s Anchoring and Mooring Pilot Program & 2017 Proposed Report of Findings and Recommendations.

   In 2009, the Florida Legislature directed the FWC to establish a Pilot Program, often referred to as the Anchoring and Mooring Pilot Program. Section 327.4105, Florida Statutes required the FWC, in consultation with DEP, to explore options for regulating the anchoring or mooring of non live-aboard vessels outside the marked boundaries of public mooring fields.⁴⁶⁹

   The stated goals of this Pilot Program were to (1) promote and establish mooring fields, (2) promote public access to State waters, (3) enhance navigation safety, (4) protect maritime infrastructure, (5) protect the marine environment, and (6) deter improperly stored, abandoned, or derelict vessels.⁴⁷⁰ The statute establishing the Pilot Program directed FWC to choose five different municipalities to create operational mooring fields as a prerequisite to being allowed to enact anchoring ordinances in their respective local jurisdictions. Once each of the five local governments chosen to take part of the Pilot Program installed a properly approved and permitted mooring field, it was then authorized to seek approval from FWC to enact an anchoring ordinance regulating vessels anchored outside of the mooring field.

   Section 327.4105 required FWC to choose two locations off the east coast, two off the west coast, and one in Monroe County for experimentation with mooring fields & anchoring ordinances under the pilot program. FWC selected the local governments of St. Augustine, St. Petersburg, and Sarasota, as well as Martin County (in partnership with the City of Stuart) and Monroe County (in partnership with the cities of Key West and Marathon) for participation in the Pilot Program. Each of these five local governments were permitted to enact anchoring ordinances that otherwise would have been preempted by the 2009 version of Section 327.60, Florida Statutes.⁴⁷¹ The ordinances that the local governments enacted only became effective and enforceable after approval by FWC.⁴⁷²

   All five of the Pilot Program’s designated local governments established operational mooring fields and adopted FWC-approved anchoring ordinances.⁴⁷³ Although the program was set to expire in July of 2014, the Legislature (at the recommendation of FWC) extended the program through July 2017. One reason FWC recommended an extension to the program was that the process for developing, approving, and adopting various anchoring ordinances became much lengthier than originally predicted.⁴⁷⁴ Additionally, FWC asserted that it needed more time to collect data and receive public input in order to address the effectiveness of the program. After July 1, 2017, the Pilot Program was not extended by the Legislature, so it has now expired. As a result, by operation of Section 327.4105(6), Florida Statutes, . All

   ordinances enacted under this section shall expire concurrently with the expiration of the pilot program and shall be inoperative and unenforceable thereafter. Section 327.4105, Florida Statutes was formally repealed in 2018 by the Florida Legislature.⁴⁷⁵

   However, Section 327.4105(5), Florida Statutes required FWC to submit a report of its findings and recommendations to the Governor,

   the President of the Senate, and the Speaker of the House of Representatives by January 1, 2014 and shall submit an updated report by January 1, 2017. FWC’s report, submitted ahead of this deadline, is entitled Anchoring and Mooring Pilot Program; Proposed Report of Findings and Recommendations. The Executive Summary of the report provides background on the issues of anchoring and mooring that are also discussed in this publication which gave rise to the need for creating the Pilot Program. Rather than detail all of FWC’s findings and recommendations from its report in this publication (a ‘.pdf’ version can be downloaded from FWC’s website),⁴⁷⁶ the key findings and recommendations (some of which were subsequently adopted by the Legislature into state statute) are outlined verbatim below [and noted in brackets if implemented]:

   Recommendations related to promoting the establishment and use of public mooring fields

   • Protect further safety of mooring field users – Provide an allowance for a 300-foot buffer extending beyond mooring field boundaries, within which anchoring is prohibited. [Rather than a 300-foot buffer, a 100-foot no anchor buffer was included in Section 327.4109(1)(a)(3), Florida Statutes].
   • Authority to regulate the anchoring of vessels on State waters should be retained by the State. If, however, the Legislature chooses to grant such authority to local governments, local governments must make available permitted public mooring fields of adequate capacity within a reasonable distance to any anchoring restricted area, and at a reasonable cost. Furthermore, local governments should not be allowed to restrict all anchoring within the area authorized for them to regulate, and an exemption should be created to provide relief should mooring field capacity be met.
     • If the State chooses to grant such authority to local governments, it should be granted to counties only.
     • Quantify the economic benefits of moorings fields.
     • Document the environmental benefits of mooring fields.

       Recommendations related to promoting public access to the waters of this state, enhancing navigational safety, and protecting maritime infrastructure

   • Anchoring Limited Area – Establish a universal, statewide prohibition against allowing an anchored vessel to come within 150 feet of any marina, boat ramp or other vessel launching and loading facility, with some safe harbor exceptions (such as bad weather conditions, government-owned vessels, commercial fishing vessels, and active recreational fishing vessels). [Section 327.4109, Florida Statues, Anchoring or mooring prohibited; exceptions; penalties was adopted in 2017 to include this anchoring prohibition.]

     Recommendations related to the prevention of derelict vessels

     • Place a hold on titles of vessels deemed derelict when requested by an investigating law enforcement agency.
     • Limit who may renew a vessel registration to only the owner(s) of record or a person in possession of a power of attorney from the owner.
     • Increase penalties for repeat violations of expired vessel registrations – When using or storing a vessel on State waters, and the vessel registration is expired by six months or more, increase the penalty to a second-degree misdemeanor for second or subsequent violations (current law is a non-criminal infraction no matter how many times the owner is cited).
     • Waive the requirement for the owner of a derelict vessel to be notified via certified mail, but only in the circumstance where the owner has received face- to-face notification by a law enforcement officer. An exception/waiver should be created for a vessel that has become derelict as a result of a declared natural disaster or a state of emergency.
     • Add an inoperability condition for a vessel to be designated at risk of becoming derelict:
     • For sailing vessels – there is no working steering system and the rigging and sail(s) are not present and working, or the vessel is not equipped with a functioning motor.
     • For all other vessels – the vessel is not equipped with a functioning motor, controls, and a steering system.

       [Some of these recommendations were adopted in 2017 at Section 327.4107, Florida Statutes, Vessels at risk of becoming derelict on waters of this state.]

       Recommendations related to protecting the marine environment

   • Prohibit a vessel or floating structure from being moored to unauthorized moorings. A penalty is recommended – the first violation would result in a non-criminal infraction; the second and subsequent violations would result in a second-degree misdemeanor. An exception should apply to private moorings lawfully owned by an adjacent upland riparian landowner or to private moorings placed on privately owned bottomland. [This recommendation was adopted in 2017 in Section 327.4109(4), Florida Statutes]

   Unresolved issues for which there are no recommendations by FWC, yet recognized as important.

   Stored vessels, inoperable vessels that are anchored or unlawfully moored and used as residences, marine sanitation concerns, and setbacks from shorelines or private docks are unresolved issues at this time:

   • Stored Vessels – there are concerns that long-term storage of vessels at anchor on State waters, which are left unattended for long periods of time, could become derelict in the future. If that happens, it can result in costs to the State, local governments, or other organizations for removal and clean-up. Developing a recommendation for a statewide law to address this issue has not been determined at this time (Dec. 31, 2017); however, several of the above recommendations would serve as reasonable and effective remedies to many of the problems associated with long-term storage of vessels: 300-foot buffer around mooring fields; creating anchoring limited areas; increase penalties for repeat violations of expired vessel registrations; add an inoperability condition for a vessel to be designated at risk of becoming derelict; and prohibit a vessel or floating structure from being moored to unauthorized moorings.
   • Inoperable vessels being used as residences – many local governments have concerns related to inoperable vessels that are stored on State waters and used as residences. Those concerns include marine sanitation issues, the potential of those vessels becoming derelict, the potential for those vessels causing property damage, etc. Some of those vessels, particularly those that are incapable of navigation, may be better addressed through clarifying statutory authority already granted to local governments in s. 327.60(2)(f), F.S. Local regulations; limitations, which provides local governments the authority to regulate live-aboard vessels outside the marked boundaries of permitted mooring fields.
   • Marine sanitation issues – many marinas on Florida’s waterways offer pump-out services, but there are considerable expanses of State waters where these services are limited. While local efforts to require proof of pump-out have demonstrated varying levels of success throughout the pilot program, attempting to enact such a requirement on a statewide basis would be costly and extremely difficult to implement; however, this topic warrants further consideration in the future, perhaps resulting in enhancements to Florida’s maritime sanitation law and/or further expansion of pump-out services around the State.
   • Setbacks from shorelines and private docks – the establishment of setbacks, within which anchoring is limited, from private property along the shoreline of waters of the State, has been on ongoing discussion throughout the timeframe of the pilot program. While there has been much discussion about this issue, there is still no consensus to establishing a statewide setback that would be practical in every setting in Florida. There also has been no consensus to giving local governments the authority to establish such a setback on State waters within their jurisdiction.

Navigation rights are protected by the U.S. Constitution’s Commerce Clause and the federal navigation servitude as well as the Public Trust Doctrine. Anchoring that is incidental to the exercise of these rights of navigation remains protected by federal law and the Public Trust Doctrine. However, in Barber, the Ninth Circuit Court of Appeals concluded that while the federal government may preempt state and local anchorage regulation, it has not done so. In fact, there is ample federal authority which suggests that Congress intended for states to assume a substantial role in the regulation of navigation, including anchoring, as long as it does not unduly circumscribe the protected federal interests. However, federal law offers little guidance concerning how far a state or local government may regulate navigation and anchoring within its own jurisdiction before it interferes with the federal interest.

In Florida, the Legislature has authorized the Board of Trustees to regulate anchoring, but the Board has not exercised this authority. The Legislature has, however, preempted local governments from regulating the anchoring of non live-aboard vessels. In 2009 and 2017, the Legislature reworked the statutory scheme dealing with state preemption of vessels in navigation and associated anchoring by repealing Section 327.22, Florida Statutes and amending Section 327.60, Florida Statutes. These changes now clearly list several prohibitions on local government regulations related to vessels and their operation including anchoring.

After the FWC submitted its report Anchoring and Mooring Pilot Program; Proposed Report of Findings and Recommendations, the 2017 Florida Legislature further amended Chapter 327, Florida Statutes and adopted new statutes that created statewide anchoring and mooring prohibitions as well as limited anchoring areas in two Florida counties. Additionally, After FWC’s report, the Florida Legislature enacted new statutes to address derelict vessels and empowered law enforcement officials to be more assertive in identifying and taking action against vessels at-risk of becoming derelict.

Arguably, these statutory changes make Florida’s boating law less confusing because it is now clear that local governments may not regulate the navigation, including anchoring, of non live-aboard vessels outside of mooring fields. However, local governments may clearly regulate the anchoring of live-aboard vessels, commercial vessels (excluding commercial fishing vessels), and floating structures. Despite newly adopted statutes that help clarify Florida’s law regarding anchoring and mooring, the question still remains – when a live-aboard is engaged in, or exercising the rights of navigation, is that vessel no longer subject to the anchoring prohibitions applicable to live-aboard vessels? Or put another way, when a live-aboard vessel is no longer in navigation remains a mariner’s mystery.