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San Juan County Ordinance No. 3-1996

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San Juan County
Ordinance No. 3-1996

AN ORDINANCE RESTRICTING USE OF PERSONAL WATER CRAFT WITHIN THE EXTERIOR BOUNDARIES OF SAN JUAN COUNTY AND ESTABLISHING FINES AND PENALTIES FOR THE VIOLATION THEREOF.

BACKGROUND

WHEREAS, the San Juan County Board of County Commissioners (hereafter "BOCC") received a petition signed by 1,479 people with a request to restrict or ban the use of Personal Water Craft; and

WHEREAS, on August 9, 1995, the BOCC published a display advertisement in The Island's Sounder, the official newspaper of the County, to notify the public of its intent to restrict use of Personal Water Craft on the fresh and salt waters of San Juan County; and

WHEREAS, on September 13, 1995, a notice was published in the Islands' Sounder newspaper for a public meeting to be held on September 18, 1995 to consider testimony and evidence in connection with the review and consideration of a restriction on the use of Personal Water Craft within San Juan County; and

WHEREAS, the BOCC sent letter invitations of the September I 8, 1995 Public Meeting to representatives of the following agencies and groups, among others: National Oceanic and Atmospheric Administration; National Park Service, United States Coast Guard, Washington State Parks and Recreation Commission, Washington State Ferries, University of Washington Laboratories, Washington State Department of Ecology, Washington State Department of Fish and Wildlife. San Juan County Sheriff's Office, Town of Friday Harbor, Port of Friday Harbor, Personal

Water Craft Industries Association, Chamber of Commerce for San Juan Island, Lopez Island and Orcas Island, The Whale Museum, Friends of the San Juans, various yacht clubs, resorts and businesses involved in the sale and rental of personal water craft; and

WHEREAS on September 18, 1995, the BOCC conducted a one-day public meeting for the purpose of receiving verbal statements and written material regarding restrictions of the use of Personal Water Craft in San Juan County; which meeting was continued to September 19, 1995; and

WHEREAS on September 19, 1995 the BOCC received additional public statements with regard to a restrictions on the use of Personal Water Craft; and

WHEREAS on October 11, 1995 the BOCC conducted a workshop with the Prosecuting Attorney regarding drafting of proposed regulations regarding the use of Personal Watercraft in San Juan County; and

WHEREAS on January 10 and 17, 1996, an advertisement was published for a public hearing to consider the adoption of regulations regarding the use of Personal Water Craft including text of the proposed ordinance; and

WHEREAS on January 23, 1996 the BOCC conducted a public hearing on the proposed ordinance.

NOW, THEREFORE IT IS HEREBY ORDAINED:

Section 1. LEGISLATIVE FINDINGS.

Physical Characteristics of San Juan County:

  1. The exterior boundaries of San Juan County are described in RCW 36.04.280 as follows:

      Commencing in the Gulf of Georgia at the place where the boundary line between the United States and the British possessions deflects from the forty-ninth parallel of north latitude; thence following said boundary line through the Gulf of Georgia and Haro Strait to the middle of the Strait of Fuca; thence easterly through Fuca Straits along the center of the main channel between Blunt's Island and San Juan and Lopez Islands to a point easterly from the west entrance of Deception Pass, until opposite the middle of the entrance to the Rosario Straits; thence northerly through the middle nf Rosario Straits and through the Gulf of Georgia to the place of beginning.

  2. San Juan County is an archipelago in the northwest corner of Washington state. The County contains approximately 179.3 square miles of land mass. The county consists of 172 named islands with over 750 visible land masses at extreme low tide. The 150 largest islands present approximately 375 miles of shoreline at high tide.

  3. Tidal height in and around the islands varies fourteen (14) feet. Tidal current varies by location and time of day from one to six knots. Water temperatures range from 45 degrees in winter to 52 degrees in summer.

  4. Boating dangers include powerful currents, choppy or heavy seas. floating logs and debris, partially submerged and surface rocks, fog banks and unpredictable weather.

    Transportation to and from the Islands:

  5. Transportation to, from and between the islands comprising the county is provided by public and privately owned and operated ferries, and aircraft, including float planes, and commercial and recreational vessels. Public ferry lanes exist throughout the County, and public ferry service from the Washington State Ferry System is provided to San Juan, Orcas, Lopez and Shaw islands. Float planes customarily land in Friday Harbor and Roche Harbor on San Juan Island and West Sound and Rosario Resort on Orcas Island and Fisherman Bay, Lopez. Ferry lanes include Spieden Channel between Spieden and San Juan islands, San Juan Channel north between Roche Harbor and Friday Harbor, San Juan Channel south between Friday Harbor and Cattle Point, Strait of Juan De Fuca, Wasp Passage between Crane and Shaw Islands, Harney Channel between Shaw and Orcas islands, passage between Lopez and Blakely islands, and Thatcher Pass between Blakely and Decatur islands.

    Marine Life in San Juan County:

  6. San Juan County marine waters contain large and predictable populations of whales, porpoises and pinnepeds (e.g. seals) which frequent certain areas where food is plentiful. Orcas Whales in particular are found to follow salmon migrations along Haro Strait and the Strait of Juan De Fuca, south and west of San Juan Island.

  7. The marine waters of San Juan County has many species of threatened and endangered species of marine mammals and birds as visitors, migrants or residents that are sensitive to vessel traffic in and among the San Juan Islands. Sensitive Species that have been designated as "threatened" or "endangered" under the Endangered Species Act, 16 USCA §§ 1531 - 1543 include Stellar's (Northern) Sea Lion, Harbor Porpoise, and Humpback Whale, Marbled Murrelet, Common Loon, Bald Eagle and Peregrine Falcon. There are at least eight (8) other species of marine mammals sensitive to vessel traffic in the San Juan Islands, that are protected by the Marine Mammal Protection Act, 16 USCS §§ 1361 - 1384, including the Orca (Killer Whale). In addition at least thirty three (33) other species of marine birds that may be sensitive to vessel traffic are known to visit or reside in the County. Finally there are many species of crustaceans, invertebrates and fish in the marine waters.

  8. San Juan County contains many State and Federal and local wildlife protected areas, many of which are accessible only by water. The Wildlife Refuges consist of 84 small islands, rocks and reefs each with a 200 yard buffer zone. The U.S. National Parks controls approximately 6.1 miles of shoreline. Other protected shorelines protected by public or private ownership, and the approximate amount shoreline for each agency is as follows:

      Name of Agency or Organization - Miles of Shoreline
      Wash. St. Dept. of Natural Resources - 7.0
      Wash. St. Dept. of Fish and Wildlife - unknown
      Wash. St Parks - unknown
      San Juan County Parks - unknown
      San Juan County Land Bank - 0.82
      San Juan Preservation Trust - 12.00
      Nature Conservancy - 2.5

    Even shorelines in private ownership, which comprises most of the 375 miles, mav be used by marine mammals and people and deserve protection from unwanted noise and activity.

  9. The refuges and other protected areas offer habitat for birds nest and rest and seals rest and nurture their young. Birds disturbed or panicked by vessels trample eggs and chicks, knock chicks from nests onto waves and rocks, and expose vulnerable offspring to sun, rain, and predators. Newborn seal pups may become separated from their mothers, crushed by a herd of panicked adults or be forced into cold or swift water prematurely. If the disturbances are continued entire refuge areas may be abandoned by wildlife.

    Use of Marine Waters:

  10. The exterior boundaries of the County are established shipping lanes. There is a high volume of commercial and recreational vessels that use the marine waters of the County ranging in size from multi-ton seagoing vessels to one-person kayaks.

  11. The marine waters are used for a variety of recreational activities including fishing, scuba diving, sailing, windsurfing, swimming and recreational boating. Recreational boating in San Juan County has traditionally been outboard and inboard drive power boats, fishing boats, sail boats, and kayaks.

    Other Factors of San Juan County:

  12. Shoreline and waterfront property has historically been used and is currently used for residential homes, camping, fishing, sightseeing and tideland seafood gathering.

  13. Tourism is a major economic factor in the County. San Juan County is heavily dependent on visitors who seek the peaceful quiet and tranquility of the islands and opportunities to view marine life and habitat. This is confirmed by the Labor and Market Economic Analysis Branch of the Washington Employment Security Report (1995) which states:

      San Juan County has gained a statewide--even national--reputation for its pristine beauty, which has drawn tourists for the past one hundred years.

      The driving force behind growth [in San Juan County] is something economists rarely take into account as an explicator; its natural beauty. The islands are spectacularly scenic and attract great numbers of people. Consequently, tourists come in droves, and many people choose to retire there. These are the well springs of the economy.

      There has been significant growth, an average level of unemployment, and overall, a high level of income, all occurring while the quality of the islands ambience has been maintained. The San Juans remain a tranquil oasis in the midst of Puget Sound's hurly burly. And most residents lead lives of quiet prosperity far from the maddening crowd.

  14. In 1995, the National Park Service conducted a survey of visitors. That report concluded that eighty seven percent (87 %) of the respondents stated that visitors come to the San Juans to "view the scenery."

  15. At the direction of the United States Congress, in November 1992, the National Oceanic and Atmospheric Administration published a Discussion Paper entitled National Marine Sanctuary, A PartnersJzip for Protection, which nominated all of the marine waters of San Juan County as a part of the Northwest Straits Marine Sanctuary with the desire to protect its unique value to citizens nationwide. The study by NOAA emphasized the need to protect the marine resource before the damage occurs. The discussion paper says:

      For the many diverse groups involved in the study process there is one clear source of agreement -- the scenic beauty and wealth of marine resources found in the Northwest Straits deserve continued protection.

      What is more difficult to determine are the threats to the nationally significant marine resources of the area. Population growth, increased vessel traffic, and loss of habitat are just some of chronic, slowly developing, long term cumulative impacts threatening the nature of the Northwest Straits area. By their nature, these impacts become most apparent after ecological damage has occurred.... The Northwest Straits Study represents an opportunity to address problems before they become crises.

    Characteristics of Personal Water Craft:

  16. Personal Water Craft (hereafter "PWC") are vessels less than sixteen feet long propelled by machinery and which is designed to be operated by a person sitting, standing or kneeling on the vessel, rather that being operated by a person sitting or standing inside the vessel. They are commonly referred to as jet skis, waterbikes, waterscooters, and fun craft or "thrill craft."

  17. PWCs are capable of high speeds, up to 60 MPH, have a high degree of maneuverability. Operation typically includes rapid changes of direction, rare travel in straight lines, and frequent operation in multiple numbers in a confined area Operators are expected be in contact with the water either by spray or falling overboard. PWCs are small and have a shallow draft which allow them to be operated at high speeds close to shore.

  18. The high speed of a PWC, the rapidity with which it can change direction and the waves and noise it produces cause disruption to other vessels, swimmers and divers and the natural environment. If the operators violate the law, they are almost impossible to apprehend because of the high speed and high maneuverability. Because they rarely travel in straight lines, the vessel speed cannot be easily determined.

    Effects and Concerns on the Use of Personal Water Craft:

  19. The noise from PWCs interferes with the historical and current uses and enjoyment of the shoreline property. Although unmodified PWC are no louder than other types of boats, modifications to PWCs are more common than other vessels. PWCs commonly operate with other PWCs close together for reasons of safety, fun and convenience. As a general rule, additional

    PWCs operated in the same area will cause the overall noise level to increase. PWC, frequently operate in a small area causing conflict with shoreline users. Finally, part of the fun of PWC use is rapid acceleration, deceleration and the jumping of wakes. These operations create an uneven noise, that is louder when the PWC is out of the water, that is objectionable and has been compared in pitch to the sound of a mosquito. These characteristics are not shared by other vessels operated to reach a destination.

  20. The operational characteristics of PWCs make them hazardous and incompatible with destination commercial and recreational vessel traffic in and through San Juan County. The maneuverability and ability to travel close to shore of PWCs make them able to harass wildlife and bird life unlike destination power vessels. These attributes are also inconsistent with the protection and preservation of the wildlife which inhabit the waters and refuges of the County These attributes are also inconsistent with the tranquil lifestyle quality desired by the tourists and residents of the County.

  21. The operation of PWCs is less safe and more damaging in San Juan County marine waterways than in other waters because of cold water temperatures, changeable and unpredictable currents, variable tidal heights exposing rocks at different times, floating dea&eads, rocks and reefs, and populations of marine life.

  22. Accident statistics for PWCs is not yet available for San Juan County, largely because PWC use is only emerging. The evidence from other larger communities where PWC is more established is helpful, however. A report entitled "California Boating Accident Report for 1994" showed that Personal Water Craft made up 13.1 percent of the boating industry, but were involved in 36 percent of all reported boating accidents, 46 percent of the injuries and 17.5 percent of the fatalities and 17 percent of the property damage.

  23. One study has demonstrated that humpback whales are displaced by the operation of parasail boat near jet ski platforms in Hawaii. See, M. Green, The Impact of Parasail Boats on the Hawaiian Humpback Whale (Megaptera novaeangliae) (1991) and M. Green and R. Green, Short Term Impact of Vessel Traffic on the Hawaiian Humpback Whale (MegaDtera novaeangliae) (1990). Given this effect, Marsha Green has recommended that "the prudent course of action would be to stop harassing the whales." This information was sent to the Hawaii State Legislature in March of 1990, and in 1991 they passed a bill banning the operation of parasail boat and jet skis in West Maui and two (2) other coastal areas from December 15 to May 15 each year during whale season.

  24. The high-speed, high-pitched sound, and ability to operate close to shore are characteristics that are unique to PWCs. While the effect of such operation on marine life in San Juan County is unknown, it cannot be beneficial and appear most likely to be deleterious. Although most wildlife is believed to be quick enough to avoid collisions with powerboats, it is unknown whether all marine life of San Juan County can react quickly enough to avoid PWCs. Without additional evidence to support the safety of PWCs, and given the harmful impact that could result to the County from destruction of its marine life it is found that the best policy is one of "prudent avoidance" and prohibition of PWCs within San Juan County.

    Existing Laws and Regulations regarding Personal Water Craft:

  25. The Washington State Legislature has enacted regulations regarding the operation of PWCs, which are inadequate for the unique conditions in San Juan County. Under RCW 88.12.145, among other restrictions, operators of PWCs must: wear personal floatation devices, be at least 14 years old, attach a lanyard cut-off switch, and avoid reckless operation including weaving in traffic and jumping wake of another vessel too close. RCW 88.12.025 makes it unlawful to any person to operate a vessel in a reckless manner.

  26. Existing regulations do not address the location of operation of PWCs, nor do they deal with distances from machine to shoreline, speed zones, time of operation and operator safety training. The regulations also do not provide sufficient funding for enforcement, education and training. Existing laws present problems for enforcement, and create uncertainties with respect to the impact of the PWCs on marine sealife.

  27. Although noise is regulated by RCW 88.12.085, that regulation does not address the cumulative noise of vessels operating in the same area, the annoying impact of vessels that are not destination-bound, and other noise characteristics unique to PWCs.

Section 2. AUTHORITIES.

This ordinance is enacted pursuant to the police power found Section 11, Article XI of the Washington State Constitution, The Shoreline Management Act, Chapter 90.58 RCW, Regulation of Recreational Vessels, Chapter 88.12 RCW, WAC 352-65-040(4), and State v. Everett District Court, 92 Wn.2d 106, 594 P.2d 448 (1979) and Personal Watercraft Industry Association v. Department of Commerce et. al.. 48 F.3d 540 (9th Cir. 1995). Secondary Authorities are: McOuillin on Municipal Corporations (3rd Ed.) Sections 24.50, 11.08, and 11.10.

Section 3.

There is hereby added a new section to San Juan County Code Chapter 10.28 as follows:

Definitions.

"Personal Water Craft" means a vessel of less than sixteen feet ( 16') in length that is propelled by machinery, commonly a jet pump, and which is designed to be operated by a person sitting, standing or kneeling on the vessel, rather that being operated by a person sitting or standing inside the vessel.

Section 4.

There is hereby added a new section to San Juan County Code Chapter 10.28 as follows:

Restrictions on the Use of Personal Water Craft on Sportsman Lake.

Personal Water Craft shall not be operated on Sportsman Lake.

Section 5.

There is hereby added a new section to San Juan County Code Chapter 10.28 as follows:

Restrictions on the Use of Personal Water Craft on the Marine Waters of San Juan County.

Personal Water Craft shall not be operated on the marine waters of San Juan County, except that Personal Water Craft may be operated as follows:

    a. Dunng such time that the Personal Water Craft is being used for or engaged in interstate or foreign commerce; and that during such use the Personal Water Craft is following the most direct route practicable;

    b. During such time that Personal Water Craft are operating under a permit issued by San Juan County or a United States Coast Guard Permit;

    c. For emergency purposes when there is a reasonable belier that such use is necessary to protect persons, animals or property.

Section 6.

There is hereby added a new section to San Juan County Code Chapter 10.28 as follows:

Penalties.

Any violation of Sections 4 and 5 of this Ordinance (San Juan County Code §§ 10.98.XXX and .YYY) shall be a civil infraction with the following penalties:

    For the first violation a fine of $50.00;
    The second violation a fine of $100.00;
    Each subsequent violation a fine of $250.00.

Section 7. SEVERABILITY.

If any provision of this ordinance or the application thereof to any person or circumstance is held in valid or held unenforceable in any application, including in case of state or federal preemption, this ordinance shall be given effect without the invalid provision or application, and to this end the provisions of this ordinance are declared to be severable and if rendered invalid or unenforceable due to preemption, such invalidity or unenforceability shall apply only during the period of preemption. This ordinance shall be liberally construed to effectuate it purpose.

Section 8. SUNSET CLAUSE.

There is hereby added a new section to the Chapter 10.28 of the San Juan County Code which provides as follows:

The provisions of this ordinance shall expire two (2) years after the date of enactment unless sooner extended by ordinance.

Section 9. EFFECTIVE DATE.

This ordinance shall take effect on the date of publication of this ordinance after its adoption by the San Juan County Board of County Commissioners.

ADOPTED THIS 30TH DAY OF JANUARY, 1996.

BOARD OF COUNTY COMMISSIONERS SAN JUAN COUNTY, WASHINGTON

_____________________
Rhea Y. Miller, Chair

_____________________
Thomas C. Starr, Member

_____________________
John B. Evans, Member

ATTEST: Si A. Stephens, Auditor and Ex-Officio Clerk of the Board

BY: Jamie J. Marsden, Deputy

RANDALL K. GAYLORD
San Juan County Prosecuting Attorney
by: Randall K. Gaylord