Who's in Charge?
When on the water, is a seaplane an aircraft or a vessel? The answer may seem obvious to those of us in aviation. Once certificated as an aircraft, a flying entity is always an aircraft. But when that aircraft is equipped to touch down and operate on water, it has some characteristics of a water-going vessel.
So, do the FAR or nautical rules apply? What about local regulations? The answer may be either or all three, depending upon the jurisdiction. Jurisdiction has proved to be one of the most vexing situations for seaplane operators in recent years, and, as with the noise issue, it may not truly be an aviation safety concern though it represents a public safety concern to local officials.
There are a number of reasons why this jurisdictional confusion occurs, and a recent report, compiled by the Seaplane Pilots Association (SPA) and based in part on FAA data, identifies the causes of the confusion well. Why, you may ask, is the FAA concerned with jurisdiction, since its mandate is quite clear? Because the various jurisdictions occasionally conflict and overlap, FAA is concerned that local governments may try to restrict access to seaplane bases established or maintained with federal funds.
Safety is our overall concern, but the connection between safety and jurisdiction may seem tenuous. For us, safety pervades all aspects of any operation of an aircraft, and a seaplane, for example, ?carries? our safety concern with it, no matter what jurisdiction it enters. And, if seaplane pilots have a better understanding of jurisdiction and how to work with the various jurisdictional entities, they may not be tempted to operate beyond their experience; i.e., into far-flung areas where, if a problem arises, help is a long way away. What we will try to do with this article is explain how and where the various entities get their authority over seaplane operations.
With understanding comes acceptance or a determination to challenge an unjust restriction. Understanding runs both ways, however, but if you understand from where the local ?water cops? believe that they derive their police power, you'll be able to deal with that authority. We in the FAA support the premise that if you're properly certificated, current, and proficient, why shouldn't you have access to water landing areas?
Causes of Jurisdictional Confusion
The seaplane's versatility - its ability to operate in a regime where other aircraft can't - is what attracts many pilots to its operation. Yet, this versatility also contributes to the confusion of jurisdiction. By virtue of the fact that the aircraft floats on water, it is quite literally capable of operating on any water landing area. When on the water, its ?life? as an aircraft may take second place to its ?life? as a vessel. And depending upon the water landing area, the seaplane/vessel may be subject to state, local, regional, and federal regulation. Bolt on amphibious floats, and you've now got a craft that can operate on any land airport as well as any water landing area, even in the IFR system. Great, right? Not everyone sees it that way. The point is that this versatility is the seaplane's greatest boon and maybe biggest curse, depending upon your point of view.
Second, the issues of community growth, ecology, and safety involve
overlapping jurisdictions as well. We have pretty much shown from Parts
1 and 2 that often when a jurisdiction raises the issue of safety it is
as a catch-all for other concerns. Perhaps a community is experiencing
growth and sees the lucrative tax situation in waterfront homes where a
seaplane base is currently
located. ?Safety? may be used as an excuse to limit or close off a
seaplane pilot's access to potentially valuable areas. Truthfully, you
don't have to be a so-called ?tree-hugger? to want to have clean waterways,
and there are certainly far more smoke-belching boats on the water than
seaplanes. Again, local authorities may cite a convenient concern with
the local ecology to limit seaplane access to waterways.
Third - and this ties in with the second instance aboveÑwater and the land adjacent to it are resources under constantly increasing pressure from two different sides: those who oppose development and want to keep the area as pristine as the Pliocene and those who advocate development to the maximum. Again, there is probably a happy medium in there, but both sides can equally pressure local jurisdictions to restrict seaplane access. The cornerstone of development is putting a resource to its ?highest and best use,? and many may not see seaplane operations as achieving that ideal. As SPA says, ...seaplane activity may find itself displaced simply on the basis of not being valuable in comparison to some other uses.?
Fourth, many jurisdictional authorities overlap and even conflict. In a country of one federal government, 50 state governments, and thousands of county and city governments, it is easy to see how authorities can overlap and conflict. Seaplane activity is often caught in this jurisdictional web. The FAR apply anytime the seaplane (aircraft) is operating. Typically with a land plane, the time spent taxiing or positioning at a land airport is considered operating. The same can be said of a seaplane on water, but while on the water another set of federal regulations apply. If the local natural resources authority has set certain requirements, the seaplane is subject to them as well. The matter comes down to the question that is the title of this article: Who is in charge ? The PIC? The FAA? The county of whomever? Finally, we come full circle to the definition of a seaplane when it's on the water. Aircraft
or vessel? It can be both or either depending upon what it is doing at the time. If aircraft operated only on land airports, the jurisdictional lines are quite easy to draw - it's the FAA without question. When you increase the capability of anything, it becomes subject to additional authorities that can overlap. Perhaps as seaplane pilots we can put this into a better perspective if we develop a better understanding of just which authorities apply to seaplanes and why.
Federal Authority It might seem to us pilots that the only federal authority we deal with concerning aircraft is the FAA, but when a seaplane is the aircraft, that is not always the case. Without going into a long and involved U.S. government/ civics lesson, we'll try to summarize where the basis for these authorities comes from. First, there is the Commerce Clause of the U.S. Constitution, which gives the U.S. Government the power to regulate interstate commerce (Article 1, Section 8). Legal interpretations of this power have included the navigable waters of the U.S. Navigable waters can mean rivers flowing between states and lakes that straddle state borders, as well as bodies of water entirely within one state. As per SPA, The U.S. Army Corps of Engineers interprets this phrase [navigable waters] to include almost any water body with 'present, past, or a potential presence of interstate or foreign commerce.
The Commerce Clause is also the basis for federal regulation of air traffic. So, we can see already that a seaplane on the water is now subject to two separate federal authorities, not to mention the U.S. Coast Guard. These three entitiesÑthe FAA, the Corps of Engineers, and the Coast GuardÑhave varying levels of control over seaplane operations, so let's discuss each of them.
FAA
The FAA regulates (as if you didn't know) the following:
Aircraft noise levels
Airport security
Air travel competitive practices
Air traffic
Aircraft certification
Pilot and mechanic certification
Operations of seaplanes at some point fall under all or most of these areas, but FAA becomes involved locally only when municipalities seek to restrict seaplane landing areas that have been developed with federal funds. There have been cases, however, where the FAA has appeared as an expert witness to explain seaplane safety issues to local governments even when federal funds were not involved.
USCG
Navigation on the water, enforcement of federal laws on the high seas, and enforcement of federal laws in waters over which the U.S. has jurisdiction is the mission of the U.S. Coast Guard, and this jurisdiction is based on the definition of ?navigable waters? of the U.S. Coast Guard regulations cover:
Water navigation
Vessel safety
Required vessel equipment
Vessel inspections
There have, of course, been notable conflicts when Coast Guard vessels legitimately stopped and inspected seaplanes and cited operators for improper personal flotation devices. This situation was worked out between the FAA and the USCG and is no longer a problem.
U.S. Army Corps of Engineers
The history of this authority is long and involved where it concerns the navigable waters of the U.S. The Corps of Engineers has built dikes and dams, levees and reservoirs, and many other civil works projects in addition to its combat engineering duties. The basis for their authority in local areas is the same as the FAA: If federal funds are provided by the Corps of Engineers, it has authority or control.
The responsibilities of the Corps of Engineers is included in Section 10 of the Rivers and Harbors Act of 1894 and are too numerous to list here. Suffice it to say that when a seaplane is in the navigable waters of the U.S., the U.S. Army Corps of Engineers can have authority over it.
State Control
As if three federal entities weren't enough, states often exercise control over waters that don't fall under federal jurisdiction but do fall within state, county, or local lines. Most of the current access problems have arisen with local governments. In a microcosm of the U.S. Constitution, state and local governments derive their authority from state constitutions or local charters, which usually have a basis in state laws; i.e., state law allows local governments to issue charters from which the local government derives its authority. Just as state laws must be consistent with federal laws, local laws cannot conflict with state or federal law.
For many local governments the removal from federal law may be great,
and although they may enact local regulations concerning public health,
safety, and welfare, sometimes those rules pertaining to waterways in their
jurisdictions may conflict with federal authority. Usually, we don't know
about it until a seaplane tries to land on some county's reservoir and
upsets the local bass
fishermen, one of whom may happen to be the sheriff.
Local governments enforce these laws through police powers granted them by the states. Police power usually covers:
Development of comprehensive plans
Drafting of zoning ordinances
Lake and river vessel speed limits
Building permits
Enforcement of ordinances
Much to the dismay of many seaplane operators, these three levels of jurisdictionÑfederal, state, and localÑare not necessarily progressive. That is, the relationships overlap or conflict rather than having a large federal ?umbrella? that encompasses the state umbrella which encompasses the local. A seaplane pilot may operate according to the FAR and the nautical rules of the road but find him- or herself up against the county's natural resource police. The other point of contention is that local governments tend to exercise a broad interpretation of what their police powers encompass.
Sometimes they construe police power as their having complete jurisdiction
over anything that affects the public health, safety, and welfare of its
citizensÑas interpreted by the local sheriff. This broad interpretation
of police power is where opposition to seaplane operations is most evident.
Just as all politics are local, most limitations to seaplane operations
are local. The most common incidence is the enforcement of water speed
limits or establishment of zoning laws and ordinances that restrict seaplane
operations. Because of the wear and tear on docks and pilings and bulkheads
of marinas and waterfront homes, many local areas set ?no wake? zones or
establish speed limits that a boat or personal watercraft can easily achieve.
Trying to water taxi a seaplane at six knots a pilot knows is not always
possible; however, the local natural resource policeman does not understand
the sometime restraints on seaplane maneuverability. The local community's
lack of familiarity with seaplane operations means
that the laws they enact for what they legitimately feel is public
safety may not be enforceable on other aspects of the public. Politics
as well plays a large part. If one city council member has been disturbed
by the noise of a seaplane operating near his or her waterfront retreat,
that person may not be favorable toward any seaplane operation. Again,
as we've seen, because of the local government's public safety mandate,
they may fall back on safety as justification for restricting access.
Seaplane pilots may have to become lobbyists in order to rectify a great deal of misinformation and downright ignorance about seaplane operations.
How Do I Find Out More About Who's in Charge?
I wish I could tell seaplane pilots there is one resource they can go to and obtain jurisdictional information about every single water landing area in the U.S. This is impossible for a number of reasons, principal of which is that the information is constantly changing. There is no one place where every single local government rule and regulation is archived along with every single state or federal law. Also, information is generally provided on a voluntary basis. A rule of thumb advanced by the SPA and accepted by most federal and state jurisdictions is that if motorboating is permitted on a body of water, it is reasonable to assume that you can land a seaplane there.
SPA publishes an excellent resource that goes a long way toward providing
that needed jurisdictional information. Every three years SPA publishes
its Water Landing Directory, which contains descriptions and sometimes
illustrations of water landing areas that have been submitted to SPA for
publication. Most importantly, these descriptions include many local restrictions
to seaplane
operations, e.g., prescribed times of operations, areas where operations
are prohibited, noise abatement procedures, etc. This is analogous the
FAA publication, the Airport/Facility Directory (AFD), which also may contain
information on water landing areas, mostly seaplane bases.
There are other, commercial publications that describe airports and seaplane bases, and a seaplane pilot may have to consult a number of these sources before he or she finds the information needed. Even then, if none of the published sources contains information about an area you have been interested in flying into, you may have to call the local jurisdiction and discover what you can about local rules. Of course, that phone call may open a can of worms with the local government.
Consider the following suggestions about how to deal with that. Suggestions
and Recommendations Because many of the disputes between local governments
and seaplane operators are just that, local, and because no federal funds
are involved, the FAA cannot step in and require a local government to
change a law it has enacted within its authority. Our role is to continue
to certificate
the airmen and the aircraft to the appropriate standards and to ensure
that aircraft operations, including those involving seaplanes, are conducted
safely and within the regulations.
What the FAA can do through its Aviation Safety Program is ensure that
seaplane pilots maintain a commitment to obtaining experience and proficiency,
which makes them safer operators. When seaplane pilots can point to a stellar
safety record and assure local governments of their commitment to regular,
recurrent training through the SEAWINGS portion of the Pilot Proficiency
Award Program and demonstrate that their seaplanes have been maintained
by professional mechanics who
have enhanced their knowledge through the Aviation Maintenance Technician
Award Program, the local government's restrictive rules may be rescinded
or at least mitigated.
It might be as simple as saying, Be a good citizen, especially if you want to land your seaplane at a location other than where you live. So, there's our requisite push for FAA's Aviation Safety Program. SPA has outlined some recommendations for seaplane operators to help improve relations with the various governmental jurisdictions.
1. Influence local jurisdictions at the regional, state, and federal levels.
SPA suggests that the seaplane community...adopt the concepts of federal preemption and state authority over navigable waterways.? Seaplane operations and federal/state authority are not necessarily contrary to each other. The federal authority comes from the U.S. Constitution, and we all know what changing that involves. SPA suggests instead that seaplane operators concentrate on state governments because of their closer relationship with local entities. In cultivating these relationships, seaplane pilots need to bear in mind that although the characteristics of flying a seaplane from region to region may differ little, there is a wide disparity in regional concerns and issues. There may not be one single approach that will satisfy all local governments.
2. Solicit Support
SPA suggests that providing a ?statement of support? to state, federal, and local authorities will assure those authorities that seaplane operators recognize and respect the authority they exercise over seaplane operations.
3. Obtain Legitimacy Through Planning
Local governments usually have planning commissions whose responsibility it is to develop comprehensive usage plans for land, transportation, and water in their respective jurisdictions. SPA suggests that seaplane operators assure input into these comprehensive plans so that aviation, and specifically seaplane aviation, is included and addressed in a fair and equitable manner.
4. Use State Law as a Tool
SPA's report states a basic premise that some of us tend to forget: Laws are there for our use as well, and ?using them to meet goals is not considered un-American.? Many states have enacted laws that affect and support a unique segment of their constituencies, and aviation is a significant enough portion of a state's economy to warrant laws that benefit it. Seaplane operators can work through state aeronautical or transportation departments to assure that seaplane needs are met through state transportation laws.
5. Find a Friend
We have, of course, had a great deal of attention paid to so-called
influence-pedaling in political campaigns, but seaplane operators can ?find
a friend? in state legislatures and perhaps cultivate a relationship based
on the camaraderie of aviation. With two-thirds of a million pilots in
the U.S., there is bound to be at least one pilot in a state legislature.
Seek that person out and advise him or
her of the issues, again emphasizing the seaplane community's dedication
to safety. Not every state in the country appreciates seaplane operations
as, say, Washington state, Alaska, Minnesota, or Florida, among others.
Where seaplane operations are not prevalent, education of public officials
plus a commitment to safety are the only ways to assure continuation of
access.
6. Be Active.
This ties into the last sentence above, but a strong, united challenge to restrictive local regulations is essential to assuring access by seaplane operators and is actually part of the governmental process. SPA suggests that all will not be well if the seaplane community adopts an attitude of do nothing sort of, If I say or do nothing, nothing will happen.? What may happen is that local governments may interpret the silence as lack of interest. As SPA's report says, ...if your seaplane activities...are safe and appropriate in your best judgement, fighting actively for them is also appropriate. If you wait for the ax to fall, it probably will.
Conclusion
Because general aviation is one of the country's ?hidden? assets, a larger burden of responsibility falls on general aviation pilots to operate responsibly and safely. Within general aviation, a similar burden of responsibility falls on seaplane pilots. There may be a perceived element of unfairness. After all, there are far more boats than seaplanes, causing far more noise, creating far more pollution, and having far more accidents, and nobody seems to restrict their access. Some states are starting to require training and certification for boaters, though not on the same scale as pilots. This makes for an interesting and educative contrast when dealing with local authorities, who may equate out of ignorance the hot dogging operator of a personal watercraft with the pilot of a seaplane.
Municipalities may seem more accepting of boats than seaplanes, possibly because of a lack of knowledge about the seaplane's versatility, utility, and safety. We seaplane pilots have to get past the feeling of unfairness and educate people about our operations. Education is an incredibly powerful tool, and seaplane pilots may have to live up to not only their safety responsibilities but to the need to educate the uninitiated about the challenge, the excitement, the sheer beauty of this unique and wonderful aspect of aviation.
Rest assured that we in the FAA will do our part to help you stay safe and to step in where local governments interfere with federal authority. The rest, as always, is up to you. To obtain copies of the SPA Report, ?Seaplane Compatibility Issues,? contact SPA at 421 Aviation Way, Frederick, MD 21701-9920; (301) 695-2083. There is a charge for the report and for copies of SPA's ?Water Landing Directory.? Parts 1, 2, and 3 of this series are based on the report, ?Seaplane Compatibility Issues,? prepared for SPA by David Ketchum, President of Airside in Bellevue, WA. The noise portion of this report (covered in Part 2) was prepared by Bob Hamilton of Vashon, WA, and Aron Faegre of Portland, OR.
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