Newport Beach to deliberate vessel boarding for dye testing

Harbor Commission and city staff to review legal authority and privacy concerns before moving forward.

NEWPORT BEACH — Can the city of Newport Beach randomly board a boat suspected of dumping sewage into the harbor? The answer depends upon whom you ask.

City officials say Newport Beach’s municipal code prohibits law enforcement personnel from boarding a boater’s vessel to inspect the marine sanitation devices on board without permission.

Orange County Sheriff’s Department Harbormaster Lt. Mark Alsobrook told Harbor Commissioners during their June 8 meeting that Harbor Patrol does not have the authority to board a vessel without consent or absent probable cause.

However, Newport Beach resident Mike Glenn disagreed, stating probable cause, not an explicit law on the books allowing random vessel inspections, is the only standard necessary to permit law enforcement personnel to legally monitor and regulate the dumping of sewage into Newport Harbor.

Glenn said the proposal, if passed, would violate the Third and Fourth Amendments of the U.S. Constitution. He told commissioners, Harbor Patrol personnel actually does have the authority to board a vessel if law enforcement officials suspect the boat owner of harming water quality or violating environmental laws. Enacting additional regulations would be unconstitutional.

The harbor is public property so law enforcement would have some leeway in enforcing laws. Shouldn’t probable cause be enough of a basis to board a vessel? Glenn asked.

The Sheriff’s Department’s contract with Newport Beach requires Harbor Patrol to board vessels for dye testing, according to city staff. City law would have to be amended in order to allow the Sheriff’s Department to meet its contractual obligations.

Harbor Commissioner William Kenney said he’d like to see the city’s municipal code amended to grant law enforcement personnel permission to board a vessel without consent for the purpose of inspecting marine sanitation devices.

The proposed law, if passed, would apply to all boats in Newport Harbor, not just visiting boats.

“[City] staff believes the city’s water quality efforts and public awareness can be improved if all boaters knew that marine sanitation device inspection was mandatory in Newport Harbor,” a Harbor Resources Department staff report to commissioners stated.

The $64,000 question, however, is whether Newport Beach and law enforcement personnel have the legal foundation to validate the boarding of someone’s vessel for the purpose of dye testing.

Commissioner Joe Stapleton said the city must be careful in amending the municipal code. Any changes in the law should balance the goal of preserving water quality with the individual privacy rights of boaters.

However Harbor Commission Chair David Girling said the concern of whether boarding a vessel for dye testing would open the door for searching a vessel is misplaced. Probable cause would still be required for a search to be legal, Girling said.

City staff and harbor commissioners did contemplate the urgency of moving forward with dye testing. A dye testing policy was enacted in Avalon due to periodic water quality issues in the city’s bay.

The city of Avalon has a law on the books permitting the random boarding of a vessel for dye testing purposes. However the inspections are not done by law enforcement but instead by city employees, according to commissioners.

Incorporating a dye testing policy similar to Avalon’s would deter boaters in Newport Harbor from illegally dumping sanitation into the water, Commissioner Doug West said.

“I think our intention here is to legally create the basis for discretion,” West said. “It keeps the honest people honest. Anything we can do to create a deterrent is good.”

Avalon’s dye testing policy, which was established in 1988, is explicitly explained on the city’s official website.

The statement reads: “When recreational boats enter Avalon Harbor to spend the night, a harbor patrolman enters the boat and places a dye tablet in the boat’s holding tank system. After that if the boat discharges its holding tank into the harbor, either on purpose or accidentally, the water around the boat will be colored by the dye. If this happens, the boater is ejected from the harbor and is banned from re-entry for a period of one year.”

Water quality testing results published by Heal The Bay and Los Angeles County’s Department of Public Health in June stated Avalon Harbor earned an A or A-plus grade at five tested locations near Green Pleasure Pier and Casino Arch. Most boats coming into Avalon and Catalina Island dock at or near the tested areas.

The same beach report found most locations in Newport Harbor to have clean water quality. Only two areas – Bay Isle Beach (Grade C) and an area near the southern edge of Little Balboa Island (Grade F) – were given poor grades.

Visit brc.healthebay.org for a clickable map and water quality grades for beaches up and down the California coast.

In general the water quality of California’s coast is regulated by Assembly Bill 411 (AB 411), which became law in 1997 and requires the state’s waters to be tested on a weekly basis between April 1 and Oct. 31 of each year.

Harbor Resources Manager Chris Miller would ultimately draft any amendments to the municipal code and present the amendment to City Council for approval.

In the meantime Miller and the Harbor Commission would revisit this topic at its next meeting, which is scheduled for July 13 at Newport Beach City Hall.

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