Any Boater who moors their boat in the State of Washington

The DNR wants to control "live-aboards" and restrict how people use their boats. The changes will restrict the non-live-aboard boater to using his/her boat to 90 days per year.

Throughout the State of Washington.

The DNR has been working to control boaters over the past several years. Past Land Commissioner Jennifer Belcher tried and was voted out of office. Now current Commissioner Sutherland is doing the same thing. His office is pushing hard to have the legislature pass the law ASAP.

"Revised Proposed Rules on Residential Uses of State-Owned Aquatic Lands".

WAC 332-30-171 Residential Uses on State-Owned Aquatic Lands.

1. Application. This section applies only to residential uses, as defined in WAC 332-30-106(61), and floating houses, moorage facilities, and vessels, as defined in WAC 332-30-106(27),(38) and (74), as they relate to residential uses on state-owned aquatic lands. This section does not apply to: activities or structures on aquatic lands not owned by the state; vessels used solely for recreational or transient purposes; floating houses or vessels used as hotels, motels or botels; or, to vessels owned and operated by the United States military.

The "Washington State Board of Tax Appeals" has ruled that a private marina, which is constructed on private and public lands, is operated as an economic unit. This means that the income and corresponding tax basis of the facility is established by using all of the slips and not just those on the private or DNR lands separately. Some moorage's have designated specific slips throughout the marina as live-aboard slips. Those slip locations are strategically located within the marina to accommodate: electrical consumption and balancing current flow within the marina, human and vehicular traffic flow on the site, boat sizes, waste material control, dumpster locations, water pipe capacities, insurance issues and security concerns within the marina, and maintenance programs.

a. Moving the live-aboard locations within a marina will adversely affect the aforementioned issues including the electrical distribution, traffic flow, waste disposal, water capacity, insurance and security issues within the marina.

b. Designated slips for both Live-aboard and non-live-aboards are currently let to the tenant and not the boat. As a result when one live-aboard leaves another can take their place. The tenant may wish to upgrade their vessel and place a different vessel into their assigned slip.

The DNR anticipates controlling the boat and therefore a boater who wishes to change boats would not be able to do so.

The DNR is suggesting the proposed revisions will affect only the DNR land. This is not the case because of the adverse affects being generated on adjacent private lands.

The reduction of or relocation of live-aboard slips in a marina will be considered "taking" part of a marina operation. In a hearing August 12, in Olympia, the DNR indicated the new rules would only apply to new leases or permits. The existing permits and leases would not be required to follow the statute until they expire.

a. Revenue will be lost from marinas due to reduction of live-aboard slips available

b. Costs will be incurred by marinas to rewrite contracts and implement them for non-live-aboard and live-aboard tenants.

c. Costs will be incurred to rewire and re-plumb marinas to accommodate new slip location requirements.

c. Reduced security to the marina and a resulting increased cost for providing additional security to the marina will result.

d. Insurance issues and increased costs for insurance by not having some live-aboard tenants will result.

Each marina will be required to submit a list of its tenants to the DNR. The DNR will, in effect, eliminate the privacy of each marina tenant and place additional burdens onto the marina operator to perform state agency registrations.

The DNR definition of a resident boat includes "occupying the boat". Websters Dictionary's definition of "occupy" is "to be a resident or tenant of". All marinas in the State of Washington are made up of "tenants" and therefore all boats must be considered live-aboards.

(6) Open water moorage.

(a) Vessels used for residential use and floating houses shall be moored, anchored or otherwise secured only at a marina, pier, or similar fixed moorage facility that is connected to the shoreline, or in open water moorage and anchorage areas described under WAC332-30-139(4) and subject to the restrictions therein. Vessels used for residential use and floating houses shall not be moored, anchored or otherwise secured in open waters above state-owned aquatic lands away from fixed moorage facility that is connected the shoreline, nor be moored, anchored, or otherwise secured to any natural feature in the water or on the shoreline, except within an open water moorage and anchorage area. A vessel used for residential use or floating house may moor in areas prohibited by this subsection (6)(a) when necessary because of an emergency that immediately threatens human life or property, for the duration of the emergency only.

(b) Any vessel used for residential use or floating house that moored on state-owned aquatic lands on the effective date of this rule, and complies with all other applicable laws and all lease requirements, but does not comply with subsection (6)(a), may remain until one year after the effective date of this rule or until the termination date of the existing department lease, whichever is later. Thereafter, unless at that time it meets the conditions in subsection (6)(a), the vessel used for residential use or floating house must vacate the site. The department shall not authorize or re-authorize any moorage for vessels used for residential use or floating houses that do not comply with subsection (6)(a).

This article is inconsistent with many of the live-aboard boats. Live-aboard boats leave marinas to cruse the Pacific Northwest Waters. DNR restrictions do not allow those boats to moor at any other location other than their normal slip weather in Seattle or else where. The DNR should not restrict Live-aboard sailors from enjoying their investment and traveling on the water. How and when does a live-aboard boat become a recreational boat? If a live-aboard boat leaves the marina for 10 days every two months is it a live-aboard boat? What about moving to another marina every other month in the same vacinity?

Further, under the DNR definition of "residential use", if a boat is occupied more than 90 days per year, then all of the boats in the marinas will be considered "Residential" and then all boats will be in violation of the law.

The DNR definition of a resident boat includes "occupying the boat". Websters Dictionary's definition of "occupy" is "to be a resident or tenant of". All marinas in the State of Washington are made up of "tenants" and therefore all boats will be considered live-aboards.

The Lake Washington Ship Canal was constructed by an act of Congress in 1894 for three purposes. Navigation, Commerce and flood control. Navigation is that being on the water, Commerce is that being on the land and "Flood Control" is controlling regional water dispersal. The DNR is trying to define the difference between a floating house and a boat. Many barges do not have power but are part of the navigation definition established by Congress within the Lake Washington Ship Canal. A floating house is just that. It is not constructed like a barge or boat. It does not have the architectural requirements of a boat and should not be considered a boat, however a barge is designed as a boat or vessel and should be considered a boat or vessel as indicated by the Congressional Act in 1894 {at least for the Federal Ship Canal which extends from Admiralty Inlet (near the Government Locks) to Point Webster (in Lake Washington)}

Weather a barge or boat is "Normally" used for a specific use is inconsequential.

The fact of the matter is that the structure was designed as a vessel and not a house. Its use should be based on the structure and not the use.

This is the case for people who "live in their cars". The vehicle is a car and not a house.

The "Residential Use" definition as it is being defined August 12, will result in marinas closing or new private marinas not being built. Marinas will not be able to economically follow the guidelines being proposed and therefore a government "taking" will result. Compensation from the government for that taking will be due. For the marinas that do not close, significant costs for revising tenant lease documents and implementing them will arise. Court costs and legal fees will accumulate as a result of the "new" law implementation. Per the August 12 hearing,the DNR has indicated changes will not affect the current permit or lease holder until their lease expires. At that time for lease holder plans will have to be made weather to continue their relationship with the DNR or to terminate their relationship.

Many tenants visit their boats daily although they do not reside on their boats. The DNR definition limits the number of visits to a tenants boat by the tenant to 90 days per year.

"Any person or succession of different persons occupies a specific location, and/or structure located in the same area, on more than a total of thirty days in any forty-day period or on more than a total of ninety days in any three hundred and sixty five-day period"

Websters Dictionary's definition of "occupy" is "to be a resident or tenant of". As a result the proposed DNR provisions will force tenants to leave marinas in the State of Washington.

Some moorage facilities currently allow tenants to stay aboard their boat up to 16 nights per month without being considered a "live-aboard". This procedure provides tenants an opportunity to enjoy their investments each weekend without restricting the number of times they can visit their boat. Those moorage facilities do require tenants to have another place of residency. Restricting the number of "Overnight stays onboard eliminates the DNR's definition of "occupy". The Insurance and Banking industry also realize the financial impact to a geographical area by allowing a boat to be considered as a second house but not their primary residence.

Land Commissioner Sutherland has stated that a 16 day policy would be in violation of the proposed "new" law.

Tenants spend thousands of dollars and sometimes hundreds of thousands of dollars on a boat or yacht, and should be allowed the opportunity to enjoy their investment. The money spent on those investments also generates industry dollars for the boating industry in Washington State and hundreds of millions of tax dollars within the State.

(2) Anchorages suitable for use by both transient boaters and upland residents with boats will be identified and established by the department in appropriate location so as to provide additional moorage space.

(3) Upland sewage disposal approved by local government and appropriate state agencies is required for all vessels used as a residence at a marina or other location. The department shall work with federal, state, local government agencies and other groups to determine acceptable locations for marina development, properly distributed to meet projected public need for the period 1980 to 2010.a.

(4) the department may lease open water moorage and anchorage areas to local government agencies. With the department's approval, the local government lessee may install mooring buoys or other floating moorage devices, designate anchorage locations, sublease moorage and anchorage in the area, collect rent and fees for such moorage and anchorage, and otherwise manage the area as a moorage facility.

a. Open water moorage and anchorage areas must meet all relevant requirements normally applicable to a marina lease, which may include the placement, design and operation of the area and any improvements within the area, payment of rent to the department, consideration of navigational and environmental impacts, and all other applicable permits and other requirements of law.

b. Open water moorage and anchorage areas may not be in a harbor area nor in any location or configuration that would interfere with water-borne commerce and navigation.

c. The leasing of state -owned aquatic lands for open water moorage and anchorage areas is subject to all preferences accorded upland, tideland, or shoreland owners in RCW 79.94.070, RCW79.94.260, RCW 79.94.280, RCW 79.95.010, and WAC 322-30-122.

d. Any vessel used for residential use or floating house in an open water moorage and anchorage area must comply with WAC 332-30-171.

e. Except for nongranfathered floating house moorage as defined in WAC 332-30-171(4)(a)(ii), nonwater-dependent uses and commercial uses are prohibited in open water. The department will not lease an open water moorage and anchorage area to an entity other than a local government agency. This restriction shall not affect use authorizations to public or private entities for mooring buoys, aquaculture net pens, or other floating structures otherwise allowed by law.

Equal leasing/permitting fee arrangements for DNR land used by Private sector or the Public sector (Ports) should be made. It should be stated that the DNR will lease at the same rate to either private or public sectors for lands owned by the State of Washington Department of Natural Resources. Many public agencies such as Ports, are in competition with the private sector. Those agencies are able to receive preferential treatment from counties and state agencies for reduced or eliminated taxes and fees. This preferential treatment is to the detriment of the Washington State citizen who have charged the DNR with stewardship of public Washington State Owned Lands. The DNR currently leases or permits land to the private sector but allows the public agency Ports to pay nothing for the same type land being used for the same purpose (moorage). This results in unfair competition against the private sector, reduces the operating capital of the State DNR, and significantly increases overhead to the private sector. Ports receive free money to make improvements as well as free land to place their slips on. In the court case of DNR vs Draper, the Washington State Supreme Court held that Draper must pay something for the use of lands that the State of Washington claims as theirs even though the lands were beyond the harbor line. If this is true for Draper then the Ports should also be held to the same standard. Ports pay no real estate taxes. Ports can charge less than the private sector for equal or superior type moorage. The private sector must pay taxes or loose their investments.

The State DNR would realize millions of dollars of additional revenue if the Port districts were required to pay the same leasehold or permit fees as the private sector. Case in point: an existing marina leases approximately two acres from DNR at basically $12,000/acre. The Port of Seattle Fisherman's Terminal uses over 21 acres of DNR land they pay $0. A loss to DNR of $252,000. The issue is further exacerbated by the Port of Seattle allowing pleasure craft to moor at Fisherman's Terminal. This is only one instance. When the other Port facilities throughout the state are explored, millions of dollars of revenue is not being collected by the State DNR.

WAC 332-30-144: Private recreational docks.

(3) Uses not qualifying. Examples of situations not qualifying for the permission include:a. Yacht and boat club facilities; floating houses, as defined in WAC 332-30-106(27), and vessels used for residential uses (as defined in WAC 332-30-106(62);a. Resorts;b. Multifamily dwellings, including condominium ownerships, with more than four units;c. Uses other than docks such as launches and railways not part of the dock, bulkheads, landfills, dredging, breakwaters, mooring buoys, swim floats and swimming areas.

(4)Limitations

a. The permission does not apply to areas where the state has issued a reversionary use deed such as for shellfish culture, hunting and fishing, or park purposes; published an allocation of a special use and the dock is inconsistent with the allocation; or granted an authorization for use such as a leas, easement, or material purchase.

b. Each dock owner using the permission is responsible for determining the availability of the public aquatic lands. Records of the department are open for public review. The department will research the availability of the public aquatic lands upon written request. A fee sufficient to cover costs shall be charged for this research.

c. The permission is limited to docks that conform to adopted shoreline master programs and other local ordinances.

d. The permission is not a grant of exclusive use of public aquatic lands to the dock owner. It does not prohibit public use of any aquatic lands around or under the dock. Owners of docks located on state-owned tidelands or shorelands must provide a safe, convenient, and clearly available means of pedestrian access over, around, or under the dock at all tide levels, however, dock owners are not required to allow public use of their docks or access across private lands to state-owned aquatic lands.

e. The permission is not transferable or assignable to anyone other than a subsequent owner of the abutting upland property and is continuously dependent on the nature of ownership and use of the properties involved.

WAC 332-30-148: Swim rafts and mooring buoys. (6) Vessels used for residential uses (as defined in WAC 332-30-160(62), and floating houses, as defined in WAC332-30-106(27), shall not moor at swim rafts, mooring buoys, or other moorage facilities not connected to the shoreline, except within an open water moorage and anchorage area leased to a local government agency as provided in WAC 332-30-139

(4). Such moorage may occur when necessary because of an emergency that immediately threatens human life or property, for the duration of the emergency only.