HomeMy WebLinkAboutTC Ord 2004-02-04
ORDINANCE NO. 480 N.S.
AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF
TIBURON ADDING CHAPTER 33 TO THE TIBURON MUNICIPAL
CODE PERTAINING TO THE REGULATION OF MOTORIZED
PERSONAL WATERCRAFT WITHIN ALL SHORELINE WATERS
AND ESTUARIES OF THE TOWN OF TIBURON
The Town Council of the Town of Tiburon does hereby ordain:
SECTION I: LEGISLATIVE FINDINGS
A. In 1999, the Board of Supervisors of Marin County adopted Ordinance No.
3303. This Ordinance, among other things, banned the use and operation of
motorized personal watercraft ("PWC") in waters under the County's
jurisdiction.
B. In adopting the ban on PWC, the County relied on numerous findings of fact.
including, without limitation, the following:
1. The following organizations have adopted total or partial bans of
motorized personal watercraft to protect wildlife resources: the National
Oceanic and Atmospheric Administration (Gulf of the Farallones
National Marine Sanctuary); the Monterey Bay National Marine
Sanctuary; the pt. Reyes National Seashore and the Golden Gate
National Recreation Area.
2. These regulations were all adopted following public comment processes
that resulted in extensive findings by the Agency with respect to the
numerous and significant adverse affects PWC have on people, wildlife
and the environment generally. For example, following the adoption of
Regulations by the Monterey Bay National Marine Sanctuary, the
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Personal Watercraft Industry Association sued the National Oceanic and
Atmospheric Administration ("NOAA"), which promulgated the
Regulation. In upholding the Regulation, the federal Court of Appeal for
the D.C. Circuit noted:
The record is full of evidence that machines of this sort threatened
the Monterey Bay National Marine Sanctuary. NOAA received
written comments and testimony from marine scientists,
researchers, federal agencies, state agencies, state and local
governments, business organizations, and more than a hundred
citizens on the issue of regulating these machines. Everyone
agreed-personal watercraft interfered with the public's recreational
safety and enjoyment of the Sanctuary and posed a serious threat
to the Sanctuary's flora and fauna. The concept of a "sanctuary"
entails elements of serenity, peace, and tranquility. Yet the
commenter described instances of personal watercraft operators
harassing sea otters and other marine mammals, disturbing harbor
seals, damaging the Sanctuary's kelp forests, menacing swimmers,
divers, kayakers, and other recreational users, and generally
disrupting the esthetic enjoyment of the Sanctuary. All concerned
recommended either prohibiting personal watercraft outright or
restricting them to specific areas in the Sanctuary. No one urged
NOAA to do nothing about the problem.
3. Similarly, the proposed Rule for the Gulf of the Farallones National
Marine Sanctuary is buttressed by numerous studies and comments. A
portion of the background for the proposed Rule is especially on point:
The nearshore waters of the Sanctuary are particularly vulnerable
areas where myriad marine invertebrates and algae reside, where
bird rookeries and pinniped haulout sites are present, where many
critical nursery and food source habitats for wildlife are located, and
where many nearshore users of the Sanctuary's water tend to
concentrate. The nearshore waters of the Sanctuary are also those
areas most impacted by the operation of MPWC. Lawson's Landing,
a current MPWC launch site, is situated at the largest pinniped
haulout in Tomales Bay, and is also within a quarter mile of Walker
Creek delta, where the highest concentration of wading and shore
birds occurs in the Sanctuary, and where sea otters have been
regularly observed.
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The nearshore waters of the Sanctuary are the areas most heavily
used for recreation, canoeing, rowing, kyaking and swimming.
These activities are often conducted very close to shore and may be
dependent on calm waters. The ability of MPWC to go very close to
shore (due to their shallow draft) and move in unpredictable ways
may be detrimental to the safety and aesthetic experience of those
conducting these more benign recreational activities. NOAA
believes that MPWC operation in nearshore areas creates a user
conflict that can be avoided by keeping MPWC offshore.
4. In adopting a complete ban on PWC, the GGNRA also made extensive
findings. However, these were summarized succinctly as follows:
This prohibition is necessary to prevent adverse impacts and
disturbance to wildlife such was waterfowl, sea birds and
marine mammals. The loud, high speed nature and
maneuverability of personal watercraft creates impacts to
wildlife including interruption of activity, alarm and flights;
avoidance and displacement; interference with movement;
alteration of behavior; and nest abandonment.
This prohibition is also necessary to avoid conflict with other
visitor uses such as fishing, boating, kayaking, and
boardsailing. The loud engine pitch and volume of noise are
also disturbing to park visitors and intrude upon the
opportunity for a quiet, peaceful park experience.
The degradation of water quality due to unburned fuel emissions
(sic) from the two-stroke engines is also a concern.
5. The situation is just as critical on Marin County's eastern shoreline. The
eastern shoreline of Marin County stretches from Sausalito's boundary
with the GOlden Gate National Recreation Area to the mouth of the
Petaluma River. This area combines a remarkable amount of nature
with cities and recreation. It is a favorite spot for hikers, kayakers,
sailors, birdwatchers, bicyclists, and others to enjoy the outdoors.
People from all over the world visit to view the unique and beautiful
shoreline. Along with being a mecca for tourists and outdoor
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enthusiasts, the Marin shore hosts numerous important habitats for
endangered, threatened, and sensitive species. The California
Department of Fish and Game has identified seven environmental sites
of concern along this section of the shoreline. These are 1) The
Richardson Bay Marshes; 2) Paradise Cove; 3) The Corte Madera
Marshes; 4) The Marin Islands; 5) The McNear's Beach Salt Marshes;
6) The China Camp Marsh; and 7) The Petaluma River Marshes.
Among the several species of concern in these areas, several are listed
as either endangered or threatened. These include the Brown Pelican;
the Salt Harvest Mouse; the California Clapper Rail; the Snowy Plover;
the Peregrine Falcon and the California Least Tern.
Wildlife biologists throughout North America have testified on the
existing and potential impacts of personal watercraft on birds, marine
mammals and fish. PWC pose a unique threat to wildlife and wilderness
areas because they are multiple impact machines.
Because PWC's discharge tremendous amounts of unbumed fuel and
oil containing carcinogens and reproductive toxins, the raw emissions
from this craft threaten to seriously damage aquatic ecosystems, and
the wildlife that live within them.
PWC's are also a physical threat to wildlife because they:
. typically travel at high speeds
. can travel at high speeds in shallow water near islands and sensitive
habitats
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. regularly change direction and speed without warning
. emit high-pitched whining sounds
. lack low-frequency, long-distance subsurface sound which would
allow wildlife enough time to avoid collisions
. change pitch and sound level with every maneuver
Numerous studies reveal that "behavior habituation" to inconsistent stimuli,
such as constantly changing noise or a highly maneuverable object, often
does not occur. Richard Osborne, the Curator of Science Services at The
Whale Museum on San Juan Island, believes that "it is doubtful that marine
birds and mammals would ever be able to habituate to, or adopt to this
characteristic of PWCs."
6, Personal watercraft (PWC) are responsible for dumping approximately
44 million pounds of hydrocarbon pollution into US waters every year -
the volume equivalent of over four Exxon Valdez spills.
. Two-stroke engines operate on a mixture of gasoline and oil,
discharging 25% - 30% of this mixture unburned into the water.
. An average two-hour ride on a PWC may dump three gallons of gas
and oil into the water.
. The California Air Resources Board reports that a seven hour ride on
a 100 horsepower PWC emits the same amount of pollution as
driving more than 100,000 miles in a 1998 passenger car.
Studies from the University of California at Davis and other large
universities demonstrate that the pollution from the marine two-
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stroke motors is a serious threat to the environment. This includes
threats to:
. Human health due to pollution of drinking water
. Fish populations (studies show enzymatic disturbances,
genotoxicological effects and reproductive disturbances to trout,
salmon and herring)
. Zooplankton populations at the base of the aquatic food chain
7. Motorized personal watercraft use two-stroke internal combustion
engines, which run on a mixture of oil and gasoline, to power a jet pump.
The significant adverse effects of two-stroke engines to water quality,
and the corresponding impact on aquatic organisms is well-documented.
C. The Town Council of the Town of Tiburon agrees with the County's findings, as
set forth above and in the record of Ordinance No. 3303. The Council further
adopts by reference those findings and record as if set forth in full herein.
D. The County has asked the Town to adopt a PWC prohibition similar to the
County's. This would facilitate the County's enforcement of its own ordinance
and promote consistent regulation of shoreline areas in the region.
E. As an independent basis for banning PWCs, the Council notes that the Town's
jurisdiction includes highly sensitive shoreline on Richardson Bay and San
Francisco Bay. The value of the wildlife resources is documented throughout
the record. The Council finds that the shoreline areas within the Town's
jurisdiction are home to resources and uses similar to those in the County, the
Gulf of the Farallones National Marine Sanctuary, the Monterey Bay National
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Marine Sanctuary, the Pt. Reyes National Seashore and the Golden Gate
National Recreation Area. It follows that the Town's resources and uses face
similar impacts from PWCs.
F. The Audubon Society's Richardson Bay Sanctuary lies within the Town's
jurisdiction. A recent report prepared for the County of Marin described the
Sanctuary as "unquestionably one of the most valuable wildlife resources on
the West Coast." (Richardson Bay Dock and Boat Survey, Zitney &
Associates, 2000) ("Richardson Bay 2000").
G. Many residences are located on and near the Town's shoreline on both the
San Francisco Bay and Richardson Bay. As documented in the County's
record, residential neighborhoods are adversely impacted by noise from
PWCs.
H. The Town's waters include both open water areas, home to waterfowl, diving
feeders and resting ducks, and shorelines with low cover, which support
herons, shorebirds and harbor seals. The record demonstrates that the use of
motorized personal watercraft is one of the most disturbing to wildlife in both
types of habitat. Richardson Bay 2000, p. 36-7.
I. The Town's shorelines are located within or near residential areas. Noise from
motorized personal watercraft is disturbing to the residents in the areas.
J. In addition, the Town's shorelines are enjoyed by numerous more passive
users, such as hikers, joggers, bicyclists and kayakers. The quiet enjoyment of
the areas is adversely affected by noise from motorized personal watercraft.
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K. PWC-generated noise is particularly disruptive and irritating to wildlife, marine
recreationalists, as well as shoreline residents and wildlife enthusiasts. The
intensity and frequency of PWC sound is one component of PWC noise which
tends to disrupt nearby wildlife and humans. Personal watercraft produce
noise levels in the range of 75-115 decibels per unit, comparable to that of a
city street. The American Hospital Association recommends hearing protection
for noise decibels exceeding 85 decibels.
L. The California Air Resources Board (CAR B) recently concluded that marine
two-stroke engines are one of the largest sour~s of air pollution in California.
According to Mark Carlock of the CAARB, on a typical summer weekend day,
such craft generate 777 tons a day of hydrocarbon emissions, an amount
exceeding that of all 16 million light-duty passenger cars in the State. The
majority of those emissions are by a relatively small number of PWC.
Of particular concern, two-stroke motors cause ground-level ozone, which is
created by the photochemical reaction of nitrogen and hydrocarbons. Ozone
causes smog, in addition to respiratory effects such as coughing, chest pain,
asthma, and shortness of breath. It affects people with compromised or
developing respiratory systems, such as the elderly and children.
Two-stroke engines also emit extremely high levels of carbon monoxide (CO),
a poisonous gas that reduces blood oxygen levels, causes headaches,
nausea, and dizziness. PWC riders sometimes complain that after following
directly behind another PWC, they feel faint and can lose control of their craft.
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Some marine engines have CO emissions of up to 1078 gramsIkW-hr, a level
over 300 times higher than maximum levels for a new automobile.
Beyond their human health effects, other negative environmental effects are
also associated with ozone and nitrogen. For example, ozone injures plants
and materials, and the EPA estimates that excess nitrogen from two-stroke
motors may be responsible for up to two billion dollars annually in crop damage
in the United States. (40 CFR Parts 89,09,91 October 4, 1996.) Nitrogen
also contributes to the secondary formation of particulate matter in the form of
nitrates, acid deposition, and excessive growth of algae in aquatic systems.
Particulate matter has recently been implicated as a human carcinogen, and is
created at extremely high levels in jet skis.
M. Finally, unlike other forms of recreation, PWC have a negative impact on
almost every other activity occurring in the same area. PWC destroy the
outdoor experience for other recreationalists such as swimmers, surfers,
windsurfers, kayakers, cancers, hikers, birdwatchers, fishers, and tourists by
creating noise, hazardous conditions, congestion, and causing wildlife to flee.
N. Although safety concerns are not one of the bases upon which this Council can
regulate PWC pursuant to the Harbors and Navigation Code, this Council must
share the concern expressed by other agencies:
The safety record of PWCs shows a disproportionate level of PWC
accidents and injuries relative to the numbers of this type of vessel.
In California in 1996, 16% of all registered vessels were PWCs, yet
PWCs were involved in 45% of all boating accidents and 55% of all
injuries. In a report released in May 1998, the National
Transportation Safety Board noted that while the overall number of
recreational boating fatalities has been declining in recent years,
the number of PWC-related fatalities has been increasing. The
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majority of these accidents are attributed to rider inexperience and
lack of skill, operation and use patterns, excessive speed, alcohol
use, and conflicts with other vessels in congested use areas.
SECTION II:
Chapter 33 of the Town of Tiburon Municipal Code is hereby added to read:
CHAPTER 33
WATERCRAFT REGULATION
Section 33-1 Findings and Purpose
Section 33-2 Definitions
Section 33-3 Prohibited use of personal watercraft
In Special Use Area
Section 33-4 State or Federally Funded Facilities
Section 33-5 Violation-Penalties
33-1 Findings And Purpose
Local use regulation of watercraft in the waters of this state are authorized by
Sections 268 and 660 of the California Harbors and Navigation Code in the areas
of time-of-day restrictions, speed zones, special-use areas, and sanitation and
pollution control.
The purpose of this ordinance is to reduce existing conflicts and limit potential
conflicts between uses of the shoreline waters, estuaries and coastline of the
Town of Tiburon, eliminate adverse impacts to the diverse and unusual species
found in these areas, promote overall public safety, and decrease hydrocarbon
pollution that is disproportionately caused by personal watercraft. A further
pUrpose of this ordinance is to assist the County of Marin in protecting and
preserving its shoreline areas by promoting consistent regulation of such areas in
the County.
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Conflicts between uses have the potential to increase in the future because of
increasing use of the Town's marine waters as well as use and development of
shoreline areas. Examples of conflicts that currently occur in addition to fish,
marine mammal and wildlife habitat disruption are those between personal
watercraft and individuals engaged in water sports such as kayaking, windsurfing,
swimming, and canoeing, due to the nature and design of personal watercraft
including high maneuverability, high speed, ability to travel in shallow areas, and
noise patterns that are unique and annoying.
These same unique characteristics of personal watercraft also cause conflicts
between shoreline uses in areas zoned for residential and open space activities.
33-2 Definitions.
As used herein, the following terms have the following meanings:
1. "Personal watercraft" means a vessel as defined in California
Harbors and Navigation Code s651(s) that is less than 12 feet in length, propelled
by machinery, that is designed to be operated by a person or persons sitting,
standing, or kneeling on the vessel, rather than in the conventional manner of
sitting or standing inside the vessel.
2. "Special-use area" means all or a portion of a waterway that is set
aside for specified uses or activities to the exclusion of other incompatible uses or
activities.
3 "Vessel" means every description of watercraft used or capable of
being used as a means of transportation on water, except either of the following:
(a) A seaplane on the water;
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(b) A watercraft specifically designed to operate on a permanently fixed
course, the movement of which is restricted to a fixed tract or arm to which the
watercraft is attached or by which the watercraft is controlled.
33-3 Prohibited Use Of Personal Watercraft In Special Use Area.
(a) Use and operation of personal watercraft in the area designated in
subsection (b) as a special use area is incompatible with competing uses and is
therefore prohibited.
(b) For the purposes of this Chapter, the Special Use Area shall consist
of all waters within the territory of the Town of Tiburon accessible from a shoreline.
This includes, without limitation, those portions of Richardson Bay and San
Francisco Bay within the Town's corporate limits, as more specifically shown on
Exhibit A, which is attached hereto and incorporated herein by reference
In the event that another regulatory authority has exclusive jurisdiction over
any of the shoreline of the Special Use Area, the Special Use Area shall begin at
the boundary of the shoreline under the jurisdiction of the Town of Tiburon.
(c) The regulations contained in this Chapter shall not apply to any
motorized vessel or personal watercraft owned, operated or controlled by the
United States, any California State agency or by any local government agency
within Marin County engaged in bona fide emergency or rescue operations or
other operations conducted solely to protect public health and safety.
33-4 State Or Federally Funded Facilities.
If any officer, department or agency of the Town constructs a recreational boat
launch facility with funds provided pursuant to 26 U.S.C. 9504(b)(2), or other state
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or federal funds which require that personal watercraft be permitted, the
responsible officer, department or agency shall designate, and the Town Council
shall confirm by resolution, an access corridor for personal watercraft from the
facility and through the special use area. The responsible officer, department or
agency shall notify the Town Manager prior to entering into any commitment to
construct any facility covered by this Section.
33-5 Violation-And Penalties.
Any violation of this chapter shall be deemed an infraction punishable upon a first
conviction by a fine of not more than One Hundred Dollars ($100.00), and for a
second conviction, within a period of one year, by a fine not exceeding Two
Hundred Dollars ($200.00), and for a third or any subsequent conviction within a
period of one year by a fine not exceeding Five Hundred Dollars ($500.00). The
Chief of Police is authorized to enter into a memorandum of understanding or
other agreement with the County of Marin allowing the Marin County Sheriff's
Office to enforce this chapter.
SECTION III. SEVERABILITY
If any provision of this ordinance or the application thereof to any person or
circumstance is held invalid 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 its purpose.
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SECTION IV. This ordinance is exempt from the provisions of the California
Environmental Quality Act pursuant to Classes 7 and 8, (14 Cal Code Regs SS
15307 and 15308).
SECTION V. This ordinance shall be in full force and effect as of thirty (30)
days from and after the date of its passage, and shall be published once before
the expiration of fifteen (15) days after its passage, with the names of the
Councilmembers voting for and against the same in the Ark, a newspaper of
general circulation published in the Town of Tiburon.
PASSED AND ADOPTED at a regular meeting of the Town Council of the
Town of Tiburon, State of California, on the 4th day of February, 2004, by the
following vote:
AYES: Berger, Fredericks, Gram, Slavitz, Smith
NOES: None
"
ABSENT: None /
/~
"4~ imc' ~L~,
ALICE FRED KS, MAYOR
/1((-" .
ATTEST: ) 7 '--'f~ fz.(.'q~
'DIANE CRANE IACOPI, TOWN CLERK
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