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Town aims to reel in boat speeds

FWC will need to approve ordinance being put together by town staff

March 4, 2020
By NATHAN MAYBERG ( , Fort Myers Beach Bulletin, Fort Myers Beach Observer

After hearing the calls of residents at Bay Beach Lane upset with the way Lee County and the Florida Fish and the Wildlife Conservation Commission raised the boating speeds in a manatee zone, Town Manager Roger Hernstadt said the council will take up a local ordinance at its March 13 meeting which could reduce the speed back to a no-wake zone.

Any local ordinance would need to be reviewed by the FWC for final approval. A second hearing of the ordinance also would be required meaning that whatever is changed won't happen in time for the current season, as the manatee zone speed limit goes back to no-wake from April through November.

Hernstadt said the focus of the ordinance will be "safety and environmental. We're going to make the best case for that" to the FWC, he said. "Out staff has been in touch with the FWC."

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Lee County and the Florida Fish and Wildlife Conservation Commission increased the speed from a no-wake zone last year to a 25 mph zone for the season of November through April. The town council will be hearing a proposed ordinance being put together by town staff March 13 to change the speed back to a no-wake zone.


While members of the Waterside Dock Association have alleged that the increased wakes have impacted their docks and threaten their boats and the safety of those who use the docks, Hernstadt said that issue does not rise to the level of concern the FWC needs to approve a change in the boating speeds.

Hernstadt said the presence of the threatened manatees in the area, long considered an endangered species by the federal government until 2017, along with dolphins, are matters which he said could result in the FWC dropping the speed limit to no wake. Dolphins and mammals are federally protected species under the Marine Mammal Protection Act.

"We want to make sure boaters don't accidentally run them over and have enough time to get out of their way," Hernstadt said.

Hernstadt said that the safety of boaters and boating congestion will be the other major component of arguments made by the town for the ordinance being prepared.

Adam Brown, a spokesperson with the Florida Fish and Wildlife Conservation Commission, explained in an email how the town can reduce boating speeds in the area to protect public safety and what the state uses as criteria for accepting such changes.

Brown wrote that "Chapter 327 section 46 Florida Statutes, grants local governments the authority to establish boating-restricted areas on the waters of this state for any purpose necessary to protect the safety of the public if such restrictions are necessary based on boating accidents, visibility, hazardous currents or water levels, vessel traffic congestion, or other navigational hazards.

The boating-restricted area must adhere to the requirements laid out in Florida Statutes, Section 327.46. This statute establishes the authority for local governments to create boating restriction zones. There are two parts to this statute. The first 327.46 (1)(b), describes physical circumstances on the waterways that warrant boating restriction zones. These physical circumstances include boat landings and fuel facilities that are open to the public, bridge fender systems, bridges with certain clearance limits, and canals that are less than 75 feet wide. Local governments are able to regulate within prescribed buffers around these areas.

If a local government wants to create any other boating restricted area they would need to apply to FWC Boating and Waterways for a review of any local ordinance that attempts to establish one. This is the second part of statute and is found in Ch. 327.46(1)(c). This process requires that the local government demonstrate by substantial competent evidence that the ordinance is necessary to protect public safety. Florida Administrative Code 68D-21.004 establishes the criteria used in the review and approval process that FWC is charged with performing. Some of the creditable data listed in this section includes boating accident reports, uniform boating citations issued, medical records and vessel traffic studies in the area targeted for regulation. 68D-21.002(3)(e) states that no ordinances will be approved for the purpose of noise abatement or for the protection of shoreline, shore-based structures, or upland property from vessel wake or shoreline wash.

"As provided in Section 327.33(2), F.S.,'vessel wake and shoreline wash resulting from the reasonable and prudent operation of a vessel shall, absent negligence, not constitute damage or endangerment to property.' The wake resulting from the reasonable and prudent operation of a vessel is a force which should be anticipated by the owners of property adjacent to the navigable waters of this state.

If a boating-restricted area is established and an applicant (local government) desires to make changes to that restricted area, a permit amendment has to be executed before those changes can be in effect. FWC Boating and Waterways reviews all amendments as if they are applications for new permits so as to ensure that zones are accurately marked and remain in compliance with 327.46 Florida Statutes."



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