Canaveral Superintendent's proposal

United States Department of the Interior
National Park Service
Canaveral National Seashore
308 Julia Street
Titusville, Florida 32796

January 19, 2000

TO: Apollo District Visitors

From:  Superintendent, Canaveral National Seashore

Subject: Nude Bathing

As most of you are aware, there are no designated clothing optional or nude bathing areas in Canaveral National Seashore. For many years, Apollo area nude bathers have gone to the furthest south areas of the park - the most isolated portions - to avoid conflicts with clothed visitors. Since the road into the park was paved, this area has historically been located south of parking lot #5. Over the past 3 years, for a number of reasons, a few nude bathers have abandoned this historical use pattern and begun frequenting historically clothed portions of the park (the beaches in front of parking areas #1-4 and north of parking lot #5). The increase of nude bathers in these historically clothed areas has reached the point that some measures must be taken to avoid continued visitor use conflicts between clothed bathers in their historical areas and increasing numbers of nude bathers coming into non-historical areas.

The Park is looking at a variety of options to deal with this situation. The most obvious solution, would of course be, that nude bathers limit themselves to the historical area south of parking lot #5. Should this solution not be viable, we are also looking at some regulatory option, such as the one attached. Other possible solutions include such items as re-evaluating the use of Florida State Law 877.03, and/or deputizing our law enforcement personnel as County Peace Officers so that they can enforce other regulations.

Your comments are requested on the following: the attached document; the other solutions presented; and other suggestions that you may have. The comment period will end February 20, 2000. Please send your comments to: Superintendent Newkirk, Canaveral National Seashore, 308 Julia Street, Titusville, FL 32796.

Note: Some of the suggestions already received on the attached document include:

1. Moving the non-closed are to in front of parking lots 3 or 4.
2. Using existing state regulations rather than implementing the attached new ones.
3. Banning public nudity altogether.
4. Insuring that areas are properly signed as a part of implementing the plan.
5. Doing nothing and allowing the county to pass an anti-nudity regulation similar to Brevard County.
6. Doing nothing and allowing the current situation to continue as is.

Thank you for your help in this matter.

DRAFT

January 19, 2000 Revision (17)

ADDITION TO SUPERINTENDENT'S COMPENDIUM FOR
CANAVERAL NATIONAL SEASHORE

AGENCY: National Park Service, Interior, Canaveral National Seashore (CANA)

ACTION: Closure of certain areas of CANA to public nudity (nude bathing)

SUMMARY: Canaveral National Seashore is proposed to close portions of the park to public nudity within the Volusia County boundaries of the Seashore. All of the Volusia County portion of CANA would be closed to public nudity except an area of approximately ½ mile by 2 miles of beach/ocean south of parking lot #5. Visitor conflicts due to friction between clothed and nude bathers currently exists and is increasing in the Volusia County section of the Seashore.

DATES: Written comments will be accepted through February 20, 2000.

ADDRESSES: Comments should be addressed to: Robert F. Newkirk, Superintendent, Canaveral National Seashore, 308 Julia St., Titusville, FL 32796.

FOR FURTHER INFORMATION CONTACT: Robert F. Newkirk, Superintendent, Canaveral National Seashore, 308 Julia St., Titusville, FL 32796, Telephone (321) 267-1110.

SUPPLEMENTARY INFORMATION:
Background
Canaveral National Seashore was established by Public Law 93-626 in 1975. The Congressionally stated purpose of the Seashore is "to preserve and protect the outstanding natural, scenic, scientific, ecologic, and historic values of certain lands, shoreline, and waters of the State of Florida, and to provide for public outdoor recreation use and enjoyment of same...." The 1974 House of Representatives Report No. 93-1497 states, "A National Seashore in the Canaveral area will not be intended to provide high density recreation uses. Instead, ... to afford opportunity for leisure activities in an undeveloped, uncrowded setting."

Canaveral National Seashore is an outstanding example of a relatively stable barrier beach backed by a sheltered productive lagoon. Located in Volusia and Brevard Counties near the midpoint of Florida's east coast, the Seashore consists of nearly 60,000 acres of beach strand, wetlands, and submerged lagoon. The 24 miles of sandy beach represent an important conservation and public recreation commitment in a region of the United States that has seen radical changes in land use and population density over the past 50 years. The primary visitor destination points within the Seashore for the more than one million visitors are the beach areas at the north (Volusia County) and south (Brevard County) ends of the park.

The General Management Plan for the park, completed in September of 1981, calls for the development of six miles of roadway, parking areas and restrooms on each end of the park with 12 miles of natural area in the center. Construction of these facilities was completed in 1985. Prior to 1985 persons wishing to participate in nude bathing would travel the rough sand trail to remote areas of the park. In the late 80's and early 90's after a macadam road was completed, nude bathers would drive to the last available parking area, lot #5 in the north and #13 in the south, and would hike into the more remote central beach areas. As the number of nude bathers grew, and the popularity of the seashore grew for all visitors, and with limited parking areas available, the ability of nude bathers to locate to the more remote areas became increasingly more difficult, resulting in confrontations between the nude bathers and clothed visitors. For over 10 years various informal and formal arrangements have been attempted to resolve the issue. All have eventually resulted in conflict and confusion.

In the Brevard County section of CANA, a county anti-nudity statute has recently been put in place, however, in Volusia County there currently appears to be no available legal mechanism to cause separation of clothed and nude bathers in order to help avoid visitor conflict.

Existing Conditions
In the Volusia County portion of the park, nude bathing occurs historically in the area south of parking lot #5. As available spaces in parking lot #5 fill up, increasing numbers of nude bathers are utilizing the beaches associated with parking lots #4, 3, 2 and in some cases parking lot #1.Nude bathing in these non-traditional beach areas (4, 3, 2 and 1) is causing extreme conflicts with clothed bathers, especially associated with children and older visitors. Park Rangers have no apparent Federal regulations available to separate nude bathers from clothed visitors. In 1997 there were 22 written complaints regarding conflicts between clothed and nude bathers in the Volusia County portion of the park. In 1998 written complaints continued and park rangers reported that oral complaints rose in direct proportion to the number of nude bathers frequenting the non-traditional areas. On August 9, 1998, a review of the Volusia County beach area indicated 34 nude bathers in the historically clothed areas. As park users visit the historically clothed portion of (from the north end of the park to approximately 200 yards south of the beach boardwalk crossover at parking area #5) they now risk encountering nude bathers. Visitors not expecting to encounter nude bathers in these historically clothed areas indicate that they cannot "enjoy" the beach with nude bathers present and their families will not "use" the beach with nude bathers present.

As the presence of nude bathers in the historically clothed area results in the loss of "enjoyment" and "use" of the area, as mandated in the legislation, for a significant portion of the visiting public, this compendium finding is made to reduce ongoing visitor conflict.

As an area of "concurrent" jurisdiction, all applicable State and County ordinances will remain in effect for the entire Volusia County section of the Seashore.

Authority
Section 1.5 of 36 CFR, Closures and Public Use Limits, indicates that "consistent with applicable legislation and Federal administrative policies and based upon a determination that such action is necessary for the...avoidance of conflict among visitor activities, the Superintendent may...close all or a portion of a park area to all public use or to a specific use or activity."

Proposed Action
The historically clothed areas of Volusia County section of CANA would be closed to public nudity. This area would include all of the park in Volusia County except for the section of beach ½ mile wide and 2 miles long south of parking area #5. The exact location of this area would be bounded on the north by a line beginning from a point on the beach at the eastern edge of the dune 200 yards south of the boardwalk at parking lot #5 and running generally easterly into the ocean to the Park's eastern boundary (approximately ½ mile in the ocean) thence southerly along the eastern boundary of the park for 2 miles, thence westerly to the eastern edge of the dune line 2 miles and 200 yards south of the boardwalk at parking area #5, thence northerly 2 miles along the dune line to the point of origin.

Persons engaged in nude bathing in the closed area in the Volusia County section of the park could be cited under 36 Code of Federal Regulations (CFR) Section 1.5 for violating a closure.

Public Participation

It is the policy of the Department of the Interior, whenever practicable, to afford the public an opportunity to participate in this process. Accordingly, interested persons may submit written comments regarding this proposed finding to the address noted at the beginning of this document. The NPS will review these comments and consider making changes to the finding based upon an analysis of the comments.

Drafting Information

The principal author of this proposed finding is Robert F. Newkirk, Superintendent, Canaveral National Seashore.

Paperwork Reduction Act

The finding does not contain collections of information requiring approval by the Office of Management and Budget under the Paperwork Reduction Act of 1995.

Compliance With Other Laws

This finding was not subject to Office of Management and Budget review under Executive Order 12866. The Department of the Interior determined that this document will not have a significant economic effect on a substantial number of small entities under Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The economic effects of this finding are local in nature and negligible in scope.

The Seashore has determined and certifies pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this finding will not impose a cost of $100 million or more in any given year on local, State, tribal governments or private entities.

The Seashore has determined that this finding meets the applicable standards provided in Section 3(s) and 3(b)(2) of Executive Order 12988.

This finding is not major under the Congressional review provisions of the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)). The park has determined that this finding will not have a significant effect on the quality of the human environment, health and safety because it is not expected to:

(a) increase public use to the extent of compromising the nature and character of the area or causing physical damage to it;
(b) introduce incompatible uses which compromise the nature and characteristics of the area or cause physical damage to it.
(c) conflict with adjacent ownership or land uses; or
(d) cause a nuisance to adjacent owners or occupants.

Based on this determination, this finding is categorically excluded from the procedural requirements of the National Environmental Policy Act (NEPA) by Departmental guidelines in 516 DM 6 (40 FR 21438). As such, neither an Environmental Assessment nor an Environmental Impact Statement has been prepared specifically for this finding.

ADDITION TO 36 CFR 1.5 SECTION OF SUPERINTENDENT'S COMPENDIUM FOR CANAVERAL NATIONAL SEASHORE

Canaveral National Seashore.
Effective March 1, 2000, all of the Volusia County section of Canaveral National Seashore is closed to public nudity, including public nude bathing, except in a generally rectangular area of beach/ocean approximately ½ mile by 2 miles located south of parking lot #5. The location of the area not closed would be bounded on the north by a line beginning from a point on the beach at the eastern edge of the dune 200 yards south of the boardwalk at parking lot #5 and running generally easterly into the ocean to the Park's eastern boundary (approximately ½ mile in the ocean) thence southerly along the eastern boundary of the park for 2 miles, thence westerly to the eastern edge of the dune line 2 miles and 200 yards south of the boardwalk at parking area #5, thence northerly 2 miles along the dune line to the point of origin. Public nudity is a person's intentional failure to cover with a fully opaque covering that person's own genitals, pubic areas, rectal area, or female breast below a point immediately above the top of the areola when in a public place. Public place is any area of Federal land or water within the Volusia County section of the Seashore, except the enclosed portions of the restrooms or other public structures designed for similar purposes or private structures permitted within the Seashore, such as trailers, tents or houses. This regulation shall not apply to a person under 10 years of age.

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