On October 27, the Oregon State Marine Board (OSMB) discussed the impact of mini jet boats on Oregon waterways during one of their regular meetings. Mini jet boats are small boats that are usually custom fabricated or assembled from a kit that are powered by a water jet pump motor. Their use is rising in popularity in Oregon and elsewhere. The OSMB has proposed a rule that will essentially ban mini jet boats from most Oregon waterways. The proceedings of the meeting where this ban is first discussed can be viewed here at the 3:08:00 mark:
Several mini jet boat users have reached out to us because BlueRibbon Coalition has successfully advocated for motorized watercraft access in places like Lake Powell and Idaho in the past.
We are encouraged to see a strong community of jet boat users organizing to propose better alternatives than a categorical ban on the watercraft, and we think there is an opportunity to work with the OSMB to identify and implement better ways than closure to mitigate impacts caused by jet boats. We have spent numerous hours reviewing the Oregon Administrative Procedures Act, model rule-making guidelines from the Oregon Secretary of State, feedback from the community, feedback from OSMB staff, and our own archives on motorized watercraft issues. We want to share our findings with the community to help inform comments that must be submitted in writing to the OSMB by January 3. We will then have an action alert for everyone to submit comments that include our analysis to the Board.
The Oregon State Marine Board
The Oregon State Marine Board is the agency tasked with regulating use of Oregon waterways by following this mission statement, ““OSMB is dedicated to making the state’s waterways safe and enjoyable for all boaters and it’s our mission to: Serve Oregon’s recreational boating public through education, enforcement, access and environmental stewardship for a safe and enjoyable experience.” This means they create regulations through authority that has been delegated to them by the Oregon Legislature. The Board consists of 4 members who are appointed directly by the Governor. This means they will likely be sympathetic to the political leanings of the current Governor of Oregon. Their rule-making authority is relatively broad, and if they want to push through a rule change, they can do so.
The agency has already created rules that have restricted the use of personal watercraft from most of Oregon’s waterways. They are proposing to update these rules to include mini jet boats. Here is the proposed change in language from the current rules:
This small change in the regulatory language will make it so jet boats under 16 feet will be restricted from the same waterways where jet skis and wave runners have been prohibited.
Mini Jet Boat Impacts
The OSMB describes impacts they are concerned about in the hearing video above. These boats have some capabilities that make them unique. They are pretty fast, but speed in a boat is always going to be limited as much by water conditions as it is by technology. They are small and maneuverable, so they can access smaller rivers. They can travel in relatively shallow water compared to other motorized watercraft. While the presentation prepared for the OSMB meeting does paint users of mini jet boats to be causing adverse impacts, one of the users that was made into a bad example in the presentation has posted a video that shows his side fo the story:
It is clear from the video above that jet boat users bring many positive impacts as well. As a presence on the waterways with capable watercraft, they’ve helped rescue other users of the waterway in several instances. The man in the video was also responsible for saving a pair of American bald eagles that was suffering from an apparent malady. It is hard to top saving bald eagles when it comes to positive impacts.
In Oregon, state law recognizes that waterways managed by the OSMB are owned by the people of Oregon and managed by the State. As such, they function in ways similar to a public right-of-way, and according to the Oregon Department of State Lands, “The public has rights to use the beds and banks of navigable waterways for any legal activity, such as boating, fishing and swimming, including pulling your canoe or kayak onto the bank.” In other words the use of these waterways is a public benefit, and we believe a government’s primary role in managing access to a public benefit is to ensure equality of access to the benefit. Once governments start to regulate who gets access to public benefits, they essentially venture into troubled waters. It is especially egregious when political power is used to deny access to a public benefit to a group that has previously enjoyed the benefit with little documented harm to other users or the environment.
With that said, all uses of public rights-of-way do cause impacts, and in some cases impacts can threaten the safety of other users and the environment. It is commonly accepted that governments can use regulatory authority to manage and mitigate these impacts. Because exercising this regulatory authority could result in a theft of commonly available public resources from members of the public, rule-making processes should err on the side of extensive deliberation and coordination with those most likely to be impacted by the change in rules. In all cases, the agency should start from the position of asking how access to the public benefit be preserved while mitigating impacts. Unfortunately, it is our experience that political bodies, like the OSMB, often act because of political pressure from special interests, which usually results in a blunt application of political power as the starting point for a regulatory change. This usually looks like a proposed ban of a use or closure of a public benefit to targeted user groups.
Issues to consider
While it’s clear we think there is an opportunity for a better process to be pursued, we need to be identifying and addressing the substantive issues that could lead the OSMB to issue a decision and amend the rule without broader consideration to the public interest. We certainly don’t want them forcing this rule change through without considering several key issues:
Size Limit Standards – The rule is a blunt attempt to restrict a small subset of jet boat users based on the length of the vessel. The 16 foot length standard is arbitrary and doesn’t directly address the impacts potentially caused by jet boat users. It’s not clear how a 17 foot jet boat creates less impact than a 16 foot boat. Smaller boats can arguably access more places, but access to specific places should be governed by site-specific regulations instead of a blanket ban that would deny access to the public waters of Oregon to members of the public.Motor Type – Striking the outboard motor language from the regulation to focus on jet motors raises many questions. It shows the proposed rule making is designed to target a specific group of users and deny them access instead of focusing regulatory power to solve immediately present impacts. It isn’t clear why vessels powered by outboard motors cause less impact, and feedback from stakeholders show that many new technologies are emerging to power watercraft. OSMB should focus less on motor types and more on actual impact mitigation. Tipping the scales through regulatory power to give policy preference to certain technologies is discriminatory and stifles innovation.How Users are Positioned in the Vessel – The definition of how a personal water craft is described based on how the user is positioned on the vehicle is so specific, it must have been included for a reason. An advisory committee could explore why this language was included and either propose a better alternative definition for personal water craft or make the same recommendation proposed here to strike that language. Nevertheless, we think trying to redefine jet boats as personal water craft is not the best approach anyway. We would prefer to see jet boat users have the same access to public waters as other boat uses enjoy.Public Safety – One of the stated purposes of the rule change is to improve public safety. The public safety implications of allowing motorized users and non-motorized users to share waterways are not new, and the presence of jet boats doesn’t present a new threat to public safety that doesn’t apply to other forms of motorized use on waterways. All users of motorized water craft learn to steer clear of other users. We are not aware of any documented incidents of a mini jet boat user injuring another user. In many cases, like in the case of water skiing, the burden of alerting other watercraft about the presence of swimmers in the water falls on the party with swimmers, which is usually required to display a flag. It is also common to designate areas like wakeless zones in areas where there is concentrated use of non-motorized activity. Safety risks should also be reconciled against the safety benefits that come from having motorized users on the waterways. An advisory committee could likely come up with several ways to enhance public safety in waterways shared with mini jet boat users. Environmental Risks – Oregon Department of Land recognizes that the public has the right to use public waters, riverbeds, and riverbanks for legal activities like boating. This right of access needs to be balanced with the public interest in protecting the environment, but the right of access recognized by Oregon Department of State Lands isn’t subordinate to environmental protection requirements. Environmental protection needs can often be met through site specific management, and/or seasonal restrictions, and/or enforcement of existing laws that should always be explored before criminalizing behavior that has been normalized by the public to be legal activity. An advisory committee could identify ways to minimize environmental impacts while still keeping the waterways open to the public.Enforcement of Existing Laws – Oregon law already prohibits reckless use of motorized watercraft on Oregon waterways. Speed limits, wakeless zones, flag display rules, and seasonal closures are all rules that are enforceable by law enforcement. The best way to mitigate negative impacts from individuals who don’t follow rules is to enforce the rules instead of creating new rules to criminalize otherwise responsible uses of public waterways.Economic Impact – Analysis of fiscal and economic impact needs to recognize that many small businesses have been created to meet the needs to mini jet boat users. Restricting access to waterways to these craft will impact these businesses directly – and in many cases could put them out of business. A complete loss of business and goodwill should be calculated into the cost of compliance. Impacts to Private Property Owners – Trespass laws are adequate to prevent trespass on private property by those who cross private property to access public rivers. All private property adjacent to rivers in Oregon see their private property lines end where the State property begins – the high water mark. We couldn’t find anything in Oregon law that gives private property owners the right of the public to access public rights-of-way and waterways. No one forces a private property owner to acquire property adjacent to public infrastructure, and public infrastructure inevitably creates impacts such as noise, emissions, and the presence of people. Recognizing these impacts should be part of the due diligence of acquiring any property. Users of public benefits shouldn’t have these benefits denied because private property owners failed to perform adequate due diligence.
Notice of Proposed Rulemaking and an Opportunity to Steer the Process
OMSB staff are currently in the process of collecting feedback for this Notice of Proposed Rulemaking that was filed with the Oregon Secretary of State on 11/22/2021:
Oregon State Code 183.333 makes it clear that the Legislative Assembly encourages agencies to seek public input to the maximum extent possible before giving notice of an intent to adopt a rule. The agency may also appoint an advisory committee that will represent the interests of the persons to be affected by the rule, or use any other means of obtaining public view that will assist the agency in drafting the rule.
Our due diligence in the case suggests that public input wasn’t aggressively sought prior to giving notice of intent to adopt this rule. We believe the agency could have done a better job of soliciting this input prior to filing a notice of intent, and because they didn’t do this, an adversarial situation has been created that could have been collaborative. However, because the agency has the authority to convene an advisory committee, we think that is the next and most important step in steering what could be a potentially toxic situation to a more productive outcome that protects the interests of all users of Oregon’s public waterways – including those who own and use mini jet boats. We will be including in our formal comment on this proposed rule that the OSMB should reject the proposed language and convene an advisory committee that can draft a rule that better protects the interests of the mini jet boat community.
The Notice of Proposed Rulemaking states that the economic impact of the rule is negligible. Some of the earliest feedback we saw from the community suggested that those impacted by the rule will in fact be affected economically. Oregon State Code 183.333 (5) makes it clear that if 10 or more persons affected by the rule or an association with at least 10 members likely to be affected by the rule objects to the statement of fiscal and economic impact, that the agency shall appoint a fiscal impact advisory committee to more thoroughly analyze the effects of the rule. This would have needed to have been done within 14 days of the Notice of Intent. Because a Notice of Intent triggers processes such as this, which are governed by rigid deadlines, it emphasizes the importance of the agency soliciting public feedback prior to issuing the Notice of Intent. It is also troubling that the public hearing for the proposed rule occurred after the 14 day window to object to the fiscal impact statement. Nevertheless, we are aware that OSMB was hearing from members of the mini jet boat community shortly after the Notice of Intent was filed. Based on the nature of what was being shared we believe the agency has heard of objections to the fiscal impact statement. This is one more reason they should create and advisory committee and include analysis of fiscal and economic impact as part of the committee’s responsibilities.
It is also important to note that the State Code spells out the importance of an association with at least 10 or more members can play a meaningful role in these issues. This is one of the many reasons BlueRibbon Coalition has always operated as a membership organization, so that we can have the strongest presence possible in these fights. Because in this case it is clear it would be helpful for us to have 10 or more members affected by the rule we have created a special $5/month subscribing membership specifically for those who are directly affected by this rule or are concerned about the bigger picture of how waterways in Oregon will be managed. We hope everyone who is tracking this issue will join, because we want to be able to authoritatively engage on this issue on behalf of as many as you as possible.
Because we will also be fighting for the interests of jet boat manufacturers, part suppliers, and anyone else who benefits from increased recreation use of Oregon waterways, we invite businesses who will be affected by this rule to become business member supporters of BlueRibbon Coalition.
The Bigger Picture and the Longer Fight
The number of mini jet boat users on Oregon’s waterways is calculated to be small. This is why we are concerned about the proposed language for the rule change. There is a strong potential for this issue to grow from scope creep. If categorically banning a small group of users succeeds at this level, the same rulemaking tactic can – and most likely will – be used to target and eliminate other users of the waterways. Based on the original presentation to the OSMB, there is evidence of impacts that need to be addressed. But these impacts can be addressed in more direct ways. Other motorized users should be careful to assume that mini jet boat users deserve what they get. One day your preferred form of recreation will be scrutinized by regulatory authorities, and you will wish you had the mini jet boat users on your side. We always have concerns about precedents being set by rules like this that often spread to impact different users at the same time they spread beyond the borders of a state like Oregon to influence other areas.
So even if you are not a mini jet boat user in Oregon, you are needed in this fight. The well-funded and well-organized anti-access movement knows that it must keep motorized users divided – otherwise our combined political and economic strength would be a force to be reckoned with. This is why in many cases our work requires us to stand up for the little guy, try to be a unifying force, and be a reasonable voice that keeps our interests at the forefront of these fights. With all this effort, we hope we create something that you want to be part of.