Mich. Admin. Code R. 259.401 - Seaplane Operations

Rule 401

(1) As used in this rule:

(a) "Waterway" means any waterway which is navigable and available for use under the public trust doctrine. This rule does not authorize the use of seaplanes in a manner or location which would violate the property rights of another person.

(b) "Seaplane" means an aircraft which is capable of landing and taking off on the water.

(2) A waterway may be used for the landing, docking, and takeoff of seaplanes in accordance with this rule. This rule does not authorize the use of seaplanes in a manner or location which would violate the property rights of another person. In the landing, docking, and takeoff of a seaplane the pilot of a seaplane shall comply with all applicable federal and state laws and rules, and shall comply with all of the following requirements:

(a) Except in an emergency, a seaplane shall not land, dock, or takeoff from a waterway in violation of a local ordinance, unless approval for that purpose has been granted under subrules (3) to (11) of this rule.

(b) In consideration of the many, varied, and changing uses made of waterways, the pilot of a seaplane shall take precautions to ensure that the landing, docking, and takeoff will be done safely and in a manner which does not endanger other persons, watercraft and property.

(c) A seaplane shall not land, dock or takeoff on a waterway in such a manner as would violate applicable laws, ordinances, and rules if done by a motorized watercraft, except that a seaplane is not required to comply with a statewide speed limit for watercraft while landing and taking off, if a higher speed is necessary for safe operation and is not in conflict with any other restrictions applicable to watercraft.

(d) A seaplane shall not land, dock, or takeoff on a waterway which has been disapproved for such seaplane use under subrule (11) or (12) of this rule.

(3) If a local ordinance is in existence on the effective date of this rule or is subsequently enacted and approved under this rule, which restricts the landing, docking, and takeoff of seaplanes on a waterway, then the ordinance is enforceable except to the extent that it is subsequently overridden under sections 51 and 86(2) of the Aeronautics Code in accordance with this rule. A person seeking to have an ordinance overridden shall file an application requesting the override on forms to be provided by the department. If, upon review of the application, the department determines that there is a reasonable basis to consider an override under the criteria of subrule (8) of this rule, then the department shall act on the application in accordance with subrules (6) to (11) of this rule.

(4) If a municipality approves a local ordinance, after the effective date of this rule, to restrict the landing, docking, and takeoff of seaplanes on a waterway, then the ordinance shall be approved under subrules (7) to (11) of this rule, before the ordinance becomes effective. The municipality shall file an application for approval of the ordinance on forms to be provided by the department.

(5) If there has been a substantial change in the circumstances under which the prior decision was made, then a person may file an application on forms to be provided by the department requesting that a decision to grant or deny an application be reconsidered and reversed or modified. If the department concurs that there has been a substantial change in circumstances, then the department shall act on the application in accordance with subrules (6) to (11) of this rule.

(6) If the department proceeds on an application under subrule (3) or (5) of this rule, then the department shall publish notice of the application in a newspaper of general circulation in the area in which the local ordinance would be overridden or approved and shall give notice to each county, city, township, or village whose boundaries include any portion of the land adjacent to the waterway. There shall be not less than 30 days for the submission of preliminary comments by any interested person regarding the suitability of the waterway for seaplane use. If the applicant proposes to allow seaplane use on a portion of a stream or river, then the department shall give notice to each county, city, township or village whose boundaries are adjacent to the stream or river and are within 3000 feet of the portion proposed for seaplane use.

(7) After reviewing the application submitted under subrule (3), (4) or (5) of this rule, and comments submitted under subrule (6) of this rule, the department shall inspect the waterway at such times and manner as may be appropriate to assess the suitability of the waterway for seaplane use.

(8) In determining if a waterway is suitable for seaplane use, the department and the Aeronautics Commission shall consider all of the following:

(a) The needs and purposes served by the local ordinance.

(b) The safety and general suitability of the waterway for seaplane use.

(c) The impact of seaplane use on the use and enjoyment of the waterway and adjacent properties by other persons.

(d) The availability of suitable alternative waterways for seaplane use.

(e) The public interest in fostering aviation and allowing the use of navigable waterways for aviation and other purposes.

(f) Whether competing interests may be balanced by imposing limitations or conditions on use of the waterway by seaplanes.

(g) Any other factor which reasonably would be affected by a decision to allow seaplane use notwithstanding the local ordinance. In no event shall the landing, docking, or takeoff of seaplanes be approved if the landing, docking, or takeoff would pose unreasonable risks to public health, safety, or property.

(9) After reviewing the comments, and conducting an inspection of the waterway and considering the criteria in subrule (8) of this rule, the department shall make a proposed recommendation to approve or disapprove an ordinance which restricts the use of the waterway by seaplanes with any limitations or conditions as may be considered appropriate. A copy of the proposed recommendation shall be provided to the applicant, each county, city, township, or village entitled to notice under subrule (6) of this rule, and to any person who submitted comments and provided his or her name and address. Within 21 days after the proposed recommendation is sent, a recipient of the proposed recommendation may request that a public hearing be conducted before the application is granted or denied.

(10) After receipt of a request for a public hearing under subrule (9) of this rule, the department shall schedule a hearing at a time and location reasonably convenient to local officials, property owners, users of the waterway and other interested persons. The department shall publish notice of the hearing in a newspaper of general circulation in the area in which the local ordinance would be overridden or approved. Interested persons shall be afforded an opportunity to present their views at the hearing, either orally or in writing. The hearing is not an evidentiary hearing or a contested case proceeding under the Administrative Procedures Act of 1969. The department shall make and transcribe a record of the hearing.

(11) The department shall review the application, the comments, the results of its inspection, and information obtained at the public hearing. The department shall apply the criteria of subrule (8) of this rule, and make a recommendation for consideration by the Aeronautics Commission and the director of the department to grant or deny the application, with such limitations or conditions as may be considered appropriate. The director of the department and at least 6 members of the Aeronautics Commission, 1 of whom may be the director of the department, shall concur in a decision to override a local ordinance under subrule (3) or (5) of this rule. The decision may include conditions and limitations on the use of the waterway by seaplanes. An application under subrule (4) of this rule may be approved by the director of the department or a majority of the Aeronautics Commission. An application under subrule (4) of this rule may be disapproved or approved with specified limitations or conditions only if the director of the department and at least 6 members of the Aeronautics Commission, 1 of whom may be the director of the department, concur in the decision. An application under subrule (4) of this rule shall be considered approved unless the director of the department and at least 6 members of the Aeronautics Commission, 1 of whom may be the director of the department, concur in a decision to disapprove the application or to approve it only with specified limitations or conditions, within 270 days after it was filed. The decision shall constitute the final administrative decision on the application.

(12) If at any time the department or the Aeronautics Commission determines that use of any waterway by seaplanes poses an unreasonable risk to public health, safety, or property, the department or commission may withdraw approval or limit use of the waterway or make the use of the waterway subject to conditions, after following the applicable procedures and criteria in subrules (6) to (11) of this rule. If considered necessary to protect public health, safety, or property, the department or the Aeronautics Commission may issue an interim order restricting the use of a waterway by seaplanes pending completion of the procedures in subrules (6) to (11) of this rule.

(13) The department shall maintain an open public record of all decisions or restrictions on the use of waterways by seaplanes under subrule (11) of this rule.

(14) A seaplane base shall also be approved under section 86a(1) of the Aeronautics Code.

Notes

Mich. Admin. Code R. 259.401

1998-2000 AACS