House Bill hb1473c1
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Florida House of Representatives - 2002 CS/HB 1473
By the Council for Ready Infrastructure and
Representatives Harrington, Allen, Mayfield, Green, Needelman,
Machek, Kottkamp, Clarke, Haridopolos, Harrell, Maygarden,
Brummer, Baxley, Arza, Trovillion, Kallinger, Kendrick,
Dockery, Littlefield, Kilmer and Paul
1 A bill to be entitled
2 An act relating to the protection of manatees;
3 amending s. 370.12, F.S.; requiring notice to
4 counties where manatee protection zones or
5 manatee speed zones may be imposed by the Fish
6 and Wildlife Conservation Commission; providing
7 for establishment of local rule review
8 committees; providing duties and
9 responsibilities of the counties, committees,
10 and commission; providing for committee reports
11 and recommendations; providing that written
12 reports submitted to the commission by the
13 committees, and commission staff responses,
14 shall be part of the rulemaking record;
15 clarifying the commission's authority to
16 provide permitting agencies with comments
17 relating to the protection of manatees;
18 requiring commission staff to begin reviewing
19 all existing manatee protection rules at a
20 future specified date; providing for review by
21 local rule review committees; providing a rule
22 review schedule; revising the circumstances
23 under which the commission may post and
24 regulate motorboat speeds to protect manatees;
25 revising the circumstances under which a local
26 government may regulate motorboat speed and
27 operation on waters within its jurisdiction by
28 ordinance; eliminating provisions requiring
29 creation of local manatee protection committees
30 for resolving certain disputes involving such
31 ordinances; requiring the commission to develop
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1 a measurable biological goal that defines
2 manatee recovery, by a specified date; amending
3 s. 327.41, F.S.; correcting a cross reference;
4 providing legislative intent that the
5 provisions of the act not be retroactively
6 applied except as otherwise provided; providing
7 an exemption; providing effective dates.
8
9 Be It Enacted by the Legislature of the State of Florida:
10
11 Section 1. Subsection (2) of section 370.12, Florida
12 Statutes, is amended to read:
13 370.12 Marine animals; regulation.--
14 (2) PROTECTION OF MANATEES OR SEA COWS.--
15 (a) This subsection shall be known and may be cited as
16 the "Florida Manatee Sanctuary Act."
17 (b) The State of Florida is hereby declared to be a
18 refuge and sanctuary for the manatee, the "Florida state
19 marine mammal."
20 (c) Whenever the Fish and Wildlife Conservation
21 commission is satisfied that the interest of science will be
22 subserved, and that the application for a permit to possess a
23 manatee or sea cow (Trichechus manatus) is for a scientific or
24 propagational purpose and should be granted, and after
25 concurrence by the United States Department of the Interior,
26 the commission may grant to any person making such application
27 a special permit to possess a manatee or sea cow, which permit
28 shall specify the exact number which shall be maintained in
29 captivity.
30 (d) Except as may be authorized by the terms of a
31 valid state permit issued pursuant to paragraph (c) or by the
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1 terms of a valid federal permit, it is unlawful for any person
2 at any time, by any means, or in any manner intentionally or
3 negligently to annoy, molest, harass, or disturb or attempt to
4 molest, harass, or disturb any manatee; injure or harm or
5 attempt to injure or harm any manatee; capture or collect or
6 attempt to capture or collect any manatee; pursue, hunt,
7 wound, or kill or attempt to pursue, hunt, wound, or kill any
8 manatee; or possess, literally or constructively, any manatee
9 or any part of any manatee.
10 (e) Any gun, net, trap, spear, harpoon, boat of any
11 kind, aircraft, automobile of any kind, other motorized
12 vehicle, chemical, explosive, electrical equipment, scuba or
13 other subaquatic gear, or other instrument, device, or
14 apparatus of any kind or description used in violation of any
15 provision of paragraph (d) may be forfeited upon conviction.
16 The foregoing provisions relating to seizure and forfeiture of
17 vehicles, vessels, equipment, or supplies do not apply when
18 such vehicles, vessels, equipment, or supplies are owned by,
19 or titled in the name of, innocent parties; and such
20 provisions shall not vitiate any valid lien, retain title
21 contract, or chattel mortgage on such vehicles, vessels,
22 equipment, or supplies if such lien, retain title contract, or
23 chattel mortgage is property of public record at the time of
24 the seizure.
25 (f) Effective June 15, 2002:
26 1. Except for emergency rules adopted under s. 120.54,
27 all proposed rules of the commission for which a notice of
28 intended agency action is filed proposing to govern the speed
29 and operation of motorboats for purposes of manatee protection
30 shall be submitted to the counties in which the proposed rules
31 will take effect for review by local rule review committees.
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1 2. No less than 60 days prior to filing a notice of
2 rule development in the Florida Administrative Weekly as
3 provided in s. 120.54(3)(a), the commission shall notify the
4 counties for which a rule to regulate the speed and operation
5 of motorboats for the protection of manatees is proposed. A
6 county so notified shall establish a local rule review
7 committee, or several counties may combine local rule review
8 committees.
9 3. The county commission of each county in which a
10 rule to regulate the speed and operation of motorboats for the
11 protection of manatees is proposed shall designate a local
12 rule review committee that represents a balance of fishers,
13 boaters, water skiers, other traditional waterway users, and
14 environmental interests. A county commission may designate an
15 existing advisory group as the local rule review committee so
16 long as the membership of the advisory group maintains a
17 balance of fishers, boaters, water skiers, other traditional
18 waterway users, and environmental interests.
19 4. The county shall invite other state, federal,
20 county, municipal, or local agency representatives to
21 participate as nonvoting members of the local rule review
22 committee.
23 5. The county shall provide logistical and
24 administrative staff support to the local rule review
25 committee and may request technical assistance from the
26 commission staff.
27 6. Each local rule review committee shall elect a
28 chair and recording secretary from among its voting members.
29 7. Commission staff shall submit the draft rule and
30 supporting data used to develop the draft rule to the local
31 rule review committees.
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1 8. The local rule review committees shall have 60 days
2 from the date of receipt of the draft rule to submit a written
3 report to commission members and staff. The local rule review
4 committees may use supporting data supplied by the commission,
5 as well as public testimony which may be collected by the
6 committee, to develop the written report. The report may
7 contain recommended changes to proposed manatee protection
8 zones or speed zones, including a recommendation that no rule
9 be adopted, if that is the finding of the committee.
10 9. Prior to filing a notice of proposed rulemaking in
11 the Florida Administrative Weekly as provided in s.
12 120.54(3)(a), the commission staff shall provide a written
13 response to the local rule review committee reports to the
14 appropriate counties and to the commission members.
15 10. In conducting a review of the proposed manatee
16 protection rule, the local rule review committees may address
17 such factors as whether the best available science justifies
18 the proposed rule, whether seasonal zones are warranted, and
19 such other factors as may be necessary to balance manatee
20 protection and public access to and use of the waters being
21 regulated under the proposed rule.
22 11. The written reports submitted by the local rule
23 review committees shall contain a majority opinion. If the
24 majority opinion is not unanimous, a minority opinion shall
25 also be included.
26 12. The members of the commission shall fully consider
27 any timely submitted written report submitted by a local rule
28 review committee prior to authorizing commission staff to move
29 forward with proposed rulemaking and shall fully consider any
30 subsequent reports of the committee prior to adoption of a
31 final rule. The written reports of the local rule review
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1 committee and the written responses of the commission staff
2 shall be part of the rulemaking record and may be submitted as
3 evidence in any proceeding relating to a rule proposed or
4 adopted pursuant to this subsection.
5 (g)(f) In order to protect manatees or sea cows from
6 harmful collisions with motorboats or from harassment, the
7 Fish and Wildlife Conservation commission is authorized to
8 provide a permitting agency with comments shall adopt rules
9 under chapter 120 regarding the expansion of existing, or
10 construction of new, marine facilities and mooring or docking
11 slips, by the addition or construction of five or more
12 powerboat slips. The commission shall adopt rules under
13 chapter 120 to regulate, and regulating the operation and
14 speed of motorboat traffic, only where manatee sightings are
15 frequent and the best available science, which may include,
16 but is not limited to, manatee surveys and available studies
17 of food sources and water depths, justifies the conclusion
18 that manatees it can be generally assumed, based on available
19 scientific information, that they inhabit these areas on a
20 regular or continuous basis:
21 1. In Lee County: the entire Orange River, including
22 the Tice Florida Power and Light Corporation discharge canal
23 and adjoining waters of the Caloosahatchee River within 1 mile
24 of the confluence of the Orange and Caloosahatchee Rivers.
25 2. In Brevard County: those portions of the Indian
26 River within three-fourths of a mile of the Orlando Utilities
27 Commission Delespine power plant effluent and the Florida
28 Power and Light Frontenac power plant effluents.
29 3. In Indian River County: the discharge canals of the
30 Vero Beach Municipal Power Plant and connecting waters within
31 1 1/4 miles thereof.
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1 4. In St. Lucie County: the discharge of the Henry D.
2 King Municipal Electric Station and connecting waters within 1
3 mile thereof.
4 5. In Palm Beach County: the discharges of the Florida
5 Power and Light Riviera Beach power plant and connecting
6 waters within 1 1/2 miles thereof.
7 6. In Broward County: the discharge canal of the
8 Florida Power and Light Port Everglades power plant and
9 connecting waters within 1 1/2 miles thereof and the
10 discharge canal of the Florida Power and Light Fort Lauderdale
11 power plant and connecting waters within 2 miles thereof. For
12 purposes of ensuring the physical safety of boaters in a
13 sometimes turbulent area, the area from the easternmost edge
14 of the authorized navigation project of the intracoastal
15 waterway east through the Port Everglades Inlet is excluded
16 from this regulatory zone.
17 7. In Citrus County: headwaters of the Crystal River,
18 commonly referred to as King's Bay, and the Homosassa River.
19 8. In Volusia County: Blue Springs Run and connecting
20 waters of the St. Johns River within 1 mile of the confluence
21 of Blue Springs and the St. Johns River; and Thompson Creek,
22 Strickland Creek, Dodson Creek, and the Tomoka River.
23 9. In Hillsborough County: that portion of the Alafia
24 River from the main shipping channel in Tampa Bay to U.S.
25 Highway 41.
26 10. In Sarasota County: the Venice Inlet and
27 connecting waters within 1 mile thereof, including Lyons Bay,
28 Donna Bay, Roberts Bay, and Hatchett Creek, excluding the
29 waters of the intracoastal waterway and the right-of-way
30 bordering the centerline of the intracoastal waterway.
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1 11. In Collier County: within the Port of Islands,
2 within section 9, township 52 south, range 28 east, and
3 certain unsurveyed lands, all east-west canals and the
4 north-south canals to the southerly extent of the intersecting
5 east-west canals which lie southerly of the centerline of U.S.
6 Highway 41.
7 12. In Manatee County: that portion of the Manatee
8 River east of the west line of section 17, range 19 east,
9 township 34 south; the Braden River south of the north line
10 and east of the west line of section 29, range 18 east,
11 township 34 south; Terra Ceia Bay and River, east of the west
12 line of sections 26 and 35 of range 17 east, township 33
13 south, and east of the west line of section 2, range 17 east,
14 township 34 south; and Bishop Harbor east of the west line of
15 section 13, range 17 east, township 33 south.
16 13. In Miami-Dade Dade County: those portions of Black
17 Creek lying south and east of the water control dam, including
18 all boat basins and connecting canals within 1 mile of the
19 dam.
20 (h)(g) The Fish and Wildlife Conservation commission
21 shall adopt rules pursuant to chapter 120 regulating the
22 operation and speed of motorboat traffic only where manatee
23 sightings are frequent and the best available science, which
24 may include, but is not limited to, manatee surveys and
25 available studies of food sources and water depths, justifies
26 the conclusion that manatees it can be generally assumed that
27 they inhabit these areas on a regular or continuous basis
28 within that portion of the Indian River between the St. Lucie
29 Inlet in Martin County and the Jupiter Inlet in Palm Beach
30 County and. In addition, the commission shall adopt rules
31 pursuant to chapter 120 regulating the operation and speed of
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1 motorboat traffic only where manatee sightings are frequent
2 and it can be generally assumed that they inhabit these areas
3 on a regular or continuous basis within the Loxahatchee River
4 in Palm Beach and Martin Counties, including the north and
5 southwest forks thereof. A limited lane or corridor providing
6 for reasonable motorboat speeds may be identified and
7 designated within this area.
8 (i)(h) The commission shall adopt rules pursuant to
9 chapter 120 regulating the operation and speed of motorboat
10 traffic only where manatee sightings are frequent and the best
11 available science, which may include, but is not limited to,
12 manatee surveys and available studies of food sources and
13 water depths, justifies the conclusion that manatees it can be
14 generally assumed that they inhabit these areas on a regular
15 or continuous basis within the Withlacoochee River and its
16 tributaries in Citrus and Levy Counties. The specific areas
17 to be regulated include the Withlacoochee River and the U.S.
18 19 bridge westward to a line between U.S. Coast Guard markers
19 number 33 and number 34 at the mouth of the river, including
20 all side channels and coves along that portion of the river;
21 Bennets' Creek from its beginning to its confluence with the
22 Withlacoochee River; Bird's Creek from its beginning to its
23 confluence with the Withlacoochee River; and the two dredged
24 canal systems on the north side of the Withlacoochee River
25 southwest of Yankeetown. A limited lane or corridor providing
26 for reasonable motorboat speeds may be identified and
27 designated within this area.
28 (j)1. Beginning February 1, 2004, commission staff
29 shall initiate a review of all currently existing rules that
30 establish manatee protection zones, manatee speed zones, or
31 "no access" or "limited entry" zones to determine their
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1 continued effectiveness. All rules eligible for review under
2 this paragraph shall also be reviewed by the local rule review
3 committees established in paragraph (f). Local rule review
4 committee written reports on the rules under review shall be
5 reviewed by commission staff and commission members and shall
6 be considered part of the rulemaking record.
7 2. To accommodate commission staff workload
8 limitations, the rule review schedule shall be as follows:
9 a. Brevard County and one other county in year one.
10 b. At least two counties in each succeeding year until
11 manatee protection rules for all remaining counties, including
12 Palm Beach, Broward, Miami-Dade, Citrus, Hillsborough,
13 Pinellas, Manatee, Sarasota, Charlotte, Lee, Collier, Duval,
14 St. Johns, Flagler, Volusia, Martin, Indian River, and St.
15 Lucie Counties, have been reviewed.
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17 The rule review schedule may be accelerated at the discretion
18 of commission staff. If a county rule review results in a rule
19 challenge, the initiation of subsequent county rule reviews
20 may be delayed for no more than 18 months or until resolution
21 of the rule challenge, whichever occurs first.
22 (k)(i) If any new power plant is constructed or other
23 source of warm water discharge is discovered within the state
24 which attracts a concentration of manatees or sea cows, the
25 Fish and Wildlife Conservation commission is directed to adopt
26 rules pursuant to chapter 120 regulating the operation and
27 speed of motorboat traffic within the area of such discharge.
28 Such rules shall designate a zone which is sufficient in size,
29 and which shall remain in effect for a sufficient period of
30 time, to protect the manatees or sea cows.
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1 (l)(j) For any manatee protection or speed zone rule
2 adopted pursuant to this subsection, it is the intent of the
3 Legislature through adoption of this paragraph to allow the
4 Fish and Wildlife Conservation commission to post and regulate
5 boat speeds only where the best available science, which may
6 include, but is not limited to, manatee surveys and available
7 studies of food sources and water depths, justifies the
8 conclusion that manatees manatee sightings are frequent and it
9 can be generally assumed that they inhabit waters of the state
10 these areas on a regular or continuous basis. The commission
11 may post and regulate boat speeds on a seasonal basis in areas
12 where the best available science, which may include, but is
13 not limited to, manatee surveys and available studies of food
14 sources and water depths, justifies the conclusion that
15 manatees inhabit such areas on a seasonal basis. It is not the
16 intent of the Legislature to permit the commission to post and
17 regulate boat speeds generally in the waters of the state
18 above-described inlets, bays, rivers, creeks, thereby unduly
19 interfering with the rights of fishers, boaters, and water
20 skiers, and other traditional waterway users who are using the
21 areas for recreational and commercial purposes. The
22 Legislature further intends that the commission may identify
23 and designate limited lanes or corridors providing for
24 reasonable motorboat speeds within waters of the state
25 whenever such lanes and corridors are consistent with manatee
26 protection and recovery goals may be identified and designated
27 within these areas.
28 (m)(k) The commission shall adopt rules pursuant to
29 chapter 120 regulating the operation and speed of motorboat
30 traffic all year around within Turkey Creek and its
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1 tributaries and within Manatee Cove in Brevard County. The
2 specific areas to be regulated consist of:
3 1. A body of water which starts at Melbourne-Tillman
4 Drainage District structure MS-1, section 35, township 28
5 south, range 37 east, running east to include all natural
6 waters and tributaries of Turkey Creek, section 26, township
7 28 south, range 37 east, to the confluence of Turkey Creek and
8 the Indian River, section 24, township 28 south, range 37
9 east, including all lagoon waters of the Indian River bordered
10 on the west by Palm Bay Point, the north by Castaway Point,
11 the east by the four immediate spoil islands, and the south by
12 Cape Malabar, thence northward along the shoreline of the
13 Indian River to Palm Bay Point.
14 2. A triangle-shaped body of water forming a cove
15 (commonly referred to as Manatee Cove) on the east side of the
16 Banana River, with northern boundaries beginning and running
17 parallel to the east-west cement bulkhead located 870 feet
18 south of SR 520 Relief Bridge in Cocoa Beach and with western
19 boundaries running in line with the City of Cocoa Beach
20 channel markers 121 and 127 and all waters east of these
21 boundaries in section 34, township 24 south, range 37 east;
22 the center coordinates of this cove are 28°20'14" north,
23 80°35'17" west.
24 (n)(l) The commission shall promulgate regulations
25 pursuant to chapter 120 relating to the operation and speed of
26 motor boat traffic in port waters with due regard to the
27 safety requirements of such traffic and the navigational
28 hazards related to the movement of commercial vessels.
29 (o)(m) The commission may designate by rule adopted
30 pursuant to chapter 120 other portions of state waters where
31 manatees are frequently sighted and the best available
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1 science, which may include, but is not limited to, manatee
2 surveys and available studies of food sources and water
3 depths, justifies the conclusion it can be assumed that
4 manatees inhabit such waters periodically or continuously.
5 Upon designation of such waters, the commission shall adopt
6 rules pursuant to chapter 120 to regulate motorboat speed and
7 operation which are necessary to protect manatees from harmful
8 collisions with motorboats and from harassment. The commission
9 may adopt rules pursuant to chapter 120 to protect manatee
10 habitat, such as seagrass beds, within such waters from
11 destruction by boats or other human activity. Such rules
12 shall not protect noxious aquatic plants subject to control
13 under s. 369.20.
14 (p)(n) The commission may designate, by rule adopted
15 pursuant to chapter 120, limited areas as a safe haven for
16 manatees to rest, feed, reproduce, give birth, or nurse
17 undisturbed by human activity. Access by motor boat to private
18 residences, boat houses, and boat docks through these areas by
19 residents, and their authorized guests, who must cross one of
20 these areas to have water access to their property is
21 permitted when the motorboat is operated at idle speed, no
22 wake.
23 (q)(o) Except in the marked navigation channel of the
24 Florida Intracoastal Waterway as defined in s. 327.02 and the
25 area within 100 feet of such channel, a local government may
26 regulate, by ordinance, motorboat speed and operation on
27 waters within its jurisdiction only where the best available
28 science, which may include, but is not limited to, manatee
29 surveys and available studies of food sources and water
30 depths, justifies the conclusion that manatees inhabit these
31 areas on a regular or continuous basis where manatees are
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1 frequently sighted and can be generally assumed to inhabit
2 periodically or continuously. However, such an ordinance may
3 not take effect until it has been reviewed and approved by the
4 commission according to the criteria in this paragraph. If
5 the commission and a local government disagree on the
6 provisions of an ordinance, a local manatee protection
7 committee must be formed to review the technical data of the
8 commission and the United States Fish and Wildlife Service,
9 and to resolve conflicts regarding the ordinance. The manatee
10 protection committee must be comprised of:
11 1. A representative of the commission;
12 2. A representative of the county;
13 3. A representative of the United States Fish and
14 Wildlife Service;
15 4. A representative of a local marine-related
16 business;
17 5. A representative of the Save the Manatee Club;
18 6. A local fisher;
19 7. An affected property owner; and
20 8. A representative of the Florida Marine Patrol.
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22 If local and state regulations are established for the same
23 area, the more restrictive regulation shall prevail.
24 (r)(p) The commission shall evaluate the need for use
25 of fenders to prevent crushing of manatees between vessels
26 (100' or larger) and bulkheads or wharves in counties where
27 manatees have been crushed by such vessels. For areas in
28 counties where evidence indicates that manatees have been
29 crushed between vessels and bulkheads or wharves, the
30 commission shall:
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1 1. Adopt rules pursuant to chapter 120 requiring use
2 of fenders for construction of future bulkheads or wharves;
3 and
4 2. Implement a plan and time schedule to require
5 retrofitting of existing bulkheads or wharves consistent with
6 port bulkhead or wharf repair or replacement schedules.
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8 The fenders shall provide sufficient standoff from the
9 bulkhead or wharf under maximum operational compression to
10 ensure that manatees cannot be crushed between the vessel and
11 the bulkhead or wharf.
12 (s)(q) Any violation of a restricted area established
13 by this subsection, or established by rule pursuant to chapter
14 120 or ordinance pursuant to this subsection, shall be
15 considered a violation of the boating laws of this state and
16 shall be charged on a uniform boating citation as provided in
17 s. 327.74, except as otherwise provided in paragraph (u) (s).
18 Any person who refuses to post a bond or accept and sign a
19 uniform boating citation shall, as provided in s. 327.73(3),
20 be guilty of a misdemeanor of the second degree, punishable as
21 provided in s. 775.082 or s. 775.083.
22 (t) No later than February 15, 2003, the commission,
23 working in conjunction with the United States Fish and
24 Wildlife Service, shall develop a measurable biological goal
25 that defines manatee recovery. This measurable biological
26 goal shall be used by the commission in its development of
27 management plans or work plans and shall be used by the
28 commission and the local rule review committees to evaluate
29 the effectiveness of existing and proposed manatee protection
30 rules and to determine the progress in achieving manatee
31 recovery.
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1 (u)(r) Except as otherwise provided in this paragraph,
2 any person violating the provisions of this subsection or any
3 rule or ordinance adopted pursuant to this subsection shall be
4 guilty of a misdemeanor, punishable as provided in s.
5 370.021(1)(a) or (b).
6 1. Any person operating a vessel in excess of a posted
7 speed limit shall be guilty of a civil infraction, punishable
8 as provided in s. 327.73, except as provided in subparagraph
9 2.
10 2. This paragraph does not apply to persons violating
11 restrictions governing "No Entry" zones or "Motorboat
12 Prohibited" zones, who, if convicted, shall be guilty of a
13 misdemeanor, punishable as provided in s. 370.021(1)(a) or
14 (b), or, if such violation demonstrates blatant or willful
15 action, may be found guilty of harassment as described in
16 paragraph (d).
17 Section 2. Subsection (2) of section 327.41, Florida
18 Statutes, is amended to read:
19 327.41 Uniform waterway regulatory markers.--
20 (2) Any county or municipality which has been granted
21 a restricted area designation, pursuant to s. 327.46, for a
22 portion of the Florida Intracoastal Waterway within its
23 jurisdiction or which has adopted a restricted area by
24 ordinance pursuant to s. 327.22, s. 327.60, or s.
25 370.12(2)(q)(o), or any other governmental entity which has
26 legally established a restricted area, may apply to the
27 commission for permission to place regulatory markers within
28 the restricted area.
29 Section 3. The Legislature intends that the provisions
30 of this act may not be retroactively applied to manatee
31 protection rules existing on the effective date of this act
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1 unless the commission proposes to amend or revise such rules
2 after this act takes effect. Proposed rules that are
3 currently subject to an administrative challenge that is
4 pending as of February 12, 2002, are not subject to the
5 provisions of this act until reviewed pursuant to the rule
6 review schedule established in s. 370.12(2)(j), Florida
7 Statutes, as created by this act, unless a court or
8 administrative hearing officer should find such proposed rule
9 to be invalid.
10 Section 4. This act shall take effect upon becoming a
11 law.
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