Wake boats - proposed ruling still allows them on Lake Fairlee

It’s been six months since the Agency of Natural Resources (ANR) published the first version of its proposed rule on managing wake boats on Vermont lakes.  The proposed rule was drafted in response to a petition spearheaded by the group Responsible Wakes for Vermont Lakes requesting that ANR modify the Use of Public Waters Rule to manage the use of wake boats on lakes and ponds in Vermont. Wake boats are powerful motor boats that carry thousands of pounds of water in ballast tanks. Their overall design enables them to plow deeply into the water, throwing up a wake large enough to support a surfing adult without a tow rope.  

The ANR rule required wake boats to operate at a 500-ft distance from a lake’s shore in a minimum zone of 50 contiguous acres that is at least 200 ft wide. Addressing the spread of aquatic invasive species via the filling and emptying of the ballast tanks, it also required decontamination of ballast tanks and a “home lake” rule that limits a wake boat to one lake per summer, unless it undergoes decontamination before transport to another lake. 

In response, they received 759 comments from the public in two public hearings and on-line depositions. A large majority — 82% of the comments — asked for more stringent regulation. In fact, about 40% of comments asked for wake boats to be banned entirely in Vermont.

However, in a blow to the majority of the public and Responsible Wakes for Vermont Lakes, ANR retained their original limit of 500 feet from shore for wake boat operation, rather than the 1000 feet that had wide public support and was recommended in the petition. 

The agency did make four revisions to the proposed rule, summarized as follows:

1. Clarified that wakesports zones are not exclusive to wakeboats.

2. Revised the “wakesports” definition to clarify conditions on using wakeboats without wake-increasing devices enabled and on lakes without wakesports zones.

3. Struck use of the word “similar” in list of wake enhancing/increasing devices within the “wakeboat” definition.

4. Eliminated areas of “wakesports zones” that are less than 200 feet wide, which would not be able to accommodate a wakeboat while maintaining the required 200 feet from other users.

Under Vermont statute any new proposed rule requires an economic impact analysis . Regarding the wake boat, rule ANR wrote, “It shows that the economic benefits of regulation outweigh the costs by ten to one. The annual benefits — estimated at $93 million — include the preservation of water quality, the continuation of affordable small-scale recreational activities that form the core of Vermont’s water-based recreation, and the protection of the tourist economy that depends on clean and safe lakes. The potential annual costs — about $8 million — are based on limitations that this rule would place on the growth of the wakeboat industry. Wakesurfing close to shore discourages the thousands of swimmers, paddlers, sailors, anglers, non-wakeboat water skiers and boarders, and other small-craft users who form the foundation of Vermont’s lake-based economic activity. Moreover, even a few wakesurfers close to shore cause costly environmental damage, while contributing little to the state’s economy.”

This corresponded very closely to the economic impact analysis performed by Responsible Wakes.

In public comment many reasons were given for banning wake boats or applying the more stringent 1000-ft distance from shore to wake sport zones. These included protecting non-motorized recreation (e.g. canoes, kayaks, paddle boarders, swimmers, and lakeside docks) from being capsized or swamped and preventing powerful wakes from causing shore erosion, damaging vegetated fish habitat, and disrupting nesting loons and other wildlife.

Some challenged the enforceability of the proposed rule: “…. How can anyone — the operator of the wake boat or someone in a canoe or standing on the shore — determine with any degree of certainty that a wake boat is or is not operating within that zone, even with a Wakesports Zone Areas map in hand? If violations of a proposed rule … cannot be readily and easily determined, then such a rule cannot be adequately enforced. And this means that the rule is, unfortunately, mostly toothless and useless.”

The ANR wrote responses to all the comments, defending the rule. In particular, enforcement approaches were outlined. ''The Agency acknowledges that implementation and enforcement of a new rule can have challenges. The Agency has been in communication with the Vermont State Police Marine Division and the Vermont Fish and Wildlife Game Wardens regarding enforcement of the proposed wakeboat rule. In addition, if the proposed rule is adopted, a public outreach campaign will be incorporated into the implementation of the rule. The outreach campaign will include the identification of decontamination service providers and decal-issuance procedures to support the “home lake” section of the proposed rule, development of wakesport zone maps that are accessible through a GPS-enabled mapping application on mobile devices, and the installation of maps and informational signage at access areas. Individuals or other entities may install buoys to better delineate a wake sports zone provided they are installed in accordance with 29 V.S.A. § 403, 10 V.S.A. § 1424.”

This response does not describe how decontamination or compliance with the “home lake rule” will be verified or enforced.

The process is not yet finished. There is another step before it is approved and becomes an official rule. The next hurdle is the Legislative Committee on Administrative Rules (LCAR) that reviews proposed rules after they have been through the public hearing process. It is still possible for the public to give input by submitting comments to LCAR at least 48 hours before the LCAR hearing.

ANR filed its proposed rule with LCAR on January 4th, and the committee will meet on February 1st to discuss the filing. If there is no objection from the LCAR in 45 days after filing of the proposed rule, then ANR is free to adopt the rule on wake boats. LCAR may also decide to object to the proposed rule by a majority vote of the whole committee, in which case ANR has 14 days to respond to the objection. They may amend the proposed rule or withdraw it.

If this rule is approved by LCAR, wake boats will continue to use Lake Fairlee. The lake is large enough that a wakesports zone 500 feet offshore and 200 feet wide can be delineated, as shown in the diagram at the head of the article. But that is not necessarily the end of the story. Individual lake associations may file their own petition asking for more stringent rules. That is, if they are not burned-out by now from the last two years of participation, crafting the 54-page petition to ANR with 40 additional pages of letters of support from VT organizations, and all the follow-up of public hearings, letters and comments, not to mention working to get municipal government on board.