Lake Pleasant Dive Flag Issue

[deepdivered]

well we talked about this issue in my dm training. well did u know our waters are regulated by the cost gard as it flows into the ocean! there for they can issue tickets for disobeying the dive flag laws!

 

[ScubaSteve2000]

Again, if you read the Az dive flag law there's no there there. No penalty. Nothing to write a ticket against. If there were, they would also be able to write a ticket to any divers caught more than 100 feet away from their dive flag. A lot of divers get further than that on dives. As long as I'm underwater and deeper than the draft of a boat I should be able to go anyplace I want and am able to go. Limited only by the air in my tank and my personal ability.
Diving at Lake Pleasant is CHEAP. It only costs $5.00 to get in on the county side and $6.00 to get in on the Pleasant Harbor side. No "dive park" fees or annual registration fee to use the lake for diving. Do you think, especially in these times, that the county or state will hesitate to turn an additional buck at our expence?
I say NO to a "special" area for divers. You can bet they'll stick us in Two Cow Cove or a specific area of Desert Tortoise and when the lake is down and the site is high and dry it will be "Well tough luck."

The last think I want is a bunch of know-nothing politicians getting involved.

Man I'm grumpy. Should have gone diving this weekend. I hate being dry.

Steve.

 

[deepdivered]

well was just saying i learned in my dive master class that the law stated here that it is recommended 100 feet is not valid. its not Arizona law you look to for lake pleasant because lake pleasant is from the Colorado river the laws go to cost guard because it flows into the ocean. so my dive master trainer Jerry informed me that because of that yes they can write a ticket for that. they just don't. in the oceans that is a law not a recommendation. i learned this from making my emergency plan. i have to include cost guard contact info cause they regulate these waters.

 

[RAWalker]

If ED's info is correct and I believe he is even without the flow to the ocean, Then as I stated in earlier posts international maritime law prevails for lack of other local laws. Even with a inland waterway unless the entire waterway is privately owned I believe this would still be true. Local gov't does have the ability to further restrict activities but has to show cause for it's actions and can be held accountable in court.
Here is something we need to research... What are swimmers rights in the Lakes and how do those rights relate to boats and boaters?
A case can easily be made that all divers are simply swimmers when on the surface and should at a minimum have the same rights. When submerged the story changes since as we all know there are no scuba police but there is still a burden of proof if law enforcement wants to make a case.

 

[AzAtty]

its not Arizona law you look to for lake pleasant because lake pleasant is from the Colorado river the laws go to cost guard because it flows into the ocean.

Unfortunately the definition of "navigable waters" upon which USCG authority depends isn't quite as simple as the definition your instructor gave you. The USCG and the Army Corps of Engineers ("ACE") interpret "navigable waters" differently, and it is often the ACE's interpretation that gets repeated as authoritative. The definition you cite sounds a lot like the ACE interpretation. Most likely it's because construction businesses in Arizona are constantly running up against the ACE interpretation for 404 permits anytime a wash or dry riverbed needs to be modified for development. The ACE takes an extremely broad position, often expressed as "if there's a chance that I can drop a toothpick in 'X' ditch, and it might get to the ocean someday, the ditch is a navigable waterway."

33 C.F.R. Ž§2.36 defines "navigable waters" over which the USCG can exercise control. That definition is actually limited in scope and depends upon satisfaction of several conditions before a waterway located entirely within a state can be "navigable waters." To my knowledge, the USCG has only exercised jurisdiction over the Colorado River, and even then, its proscriptions have been relatively minor. I am not aware of any determination that other waterways within the state are considered "navigable waters" by the USCG. The District 11 command is supposed to be sending me a list of navigable waters within its boundaries, but I haven't seen it yet.

EDIT: Concerning who can make laws governing waterways, in 1912 when Arizona became a state, it received all navigable waters within its boundaries to hold in trust for the public. States can certainly make laws governing their trust waterways, although conflicts do arise when a state seeks to govern a "navigable water" subject to exclusive federal jurisdiction. Case in point is the Santa Cruz river, which in the last few years has been determined to be a "navigable water" for the purpose of the Clean Water Act. A dispute arose over whether Arizona could enact laws more restrictive than the federal Clean Water Act, and the key issue was whether the Santa Cruz river is a "navigable water".

Also, several appellate courts have determined that an artificial or natural obstruction that would prevent a waterway from being used as an interstate highway for commerce effectively precludes admiralty jurisdiction. The trend in admiralty is for a more restrictive interpretation of "navigable waters" except in cases involving environmental issues.

But I'm not a Proctor in Admiralty, so I could be wrong.

 

[scubajcf]

Not sure if this helps, but ...
The following is Policy 1.04 of the Peoria Police Dept. Policy and Procedure Manual.


"In reference to the Lake Pleasant Annex, MCSO will retain primary jurisdiction over the Waterways, including the floating Marina. The Peoria Police Department has secondary jurisdiction and will provide support and backup, as needed, to these areas."

According to the AZG&FD:
... These requirements are state specific. Other states may have similar laws. It is your responsibility to know the laws that govern the bodies of water upon which you boat. For example, boaters on the Colorado River are subject to the laws of California, Nevada and Utah depending on their location. The United States Coast Guard has enforcement authority of federal boating laws and regulations on all federal and navigable waters in the United States that are not privately held. However, individual states can impose requirements beyond federal rules to meet uniquely hazardous local conditions or enforce local laws and regulations directed at safe boat operation and are enforced by locally designated peace officers.

I would imagine the MCSO would be enforcing laws of Maricopa County and the State of AZ. Don't know if they are enforcing USCG laws, regulations or guidelines.

///

 

[shark.byte.usa]

just feels like pissin' into the wind at Pleasant, until boater, jet-skiers, et al have to take some kind of safety class to operate their craft, nothing will or can be done. Even a dedicated area, which I am against because I don't want to be stuck in that area which I assume would be the ramifications of getting a dedicated area. (i.e. You have your own area now, stay in it!), wouldn't solve any problems as they ignore or can't comprende the post signs that are already there.

 

[AzAtty]

The 11th District Command Center got back to me. Lake Pleasant IS NOT considered by the USCG to be "navigable waters" subject to its regulation. So the state laws govern.

 

[RAWalker]

The 11th District Command Center got back to me. Lake Pleasant IS NOT considered by the USCG to be "navigable waters" subject to its regulation. So the state laws govern.

Ok time to think outside the box.
How do we go about having Lake Pleasant declared a navigable waterway under the Clean Water Act?
This seems to be viable since Lake Pleasant is a reservoir that we get drinking water from. We don't even have to state our position any more than to insure water quality. This would get media attention and others outside the scuba community to get on board our wagon.
Since upon having this done we get the protections that we are looking for. At that point we are free to make a big stink about the lack of enforcement of boating regulations. (unless that changes) We'd have federal regulations to back us up.

 

[AzAtty]

Arizona law already provides a potential enforcement mechanism. A.R.S. Ž§5-362 identifies the "diver down" flag as a marker that indicates people equipped with scuba equipment are engaged in diving activies below. Under A.R.S. Ž§5-341(G), the careless, reckless, or negligent operation of a watercraft is a Class 2 misdemeanor (a crime). The argument can be made that boating over or near a diver flag is negligent or reckless, so MCSO or AZGFD could issue tickets for that kind of observed conduct. Now we have to convice MCSO or Game & Fish to ticket bad conduct.