2012 -- H 7535

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LC01294

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO WATERS AND NAVIGATION -- COASTAL RESOURCES MANAGEMENT

COUNCIL

     Introduced By: Representatives Naughton, and E Coderre

     Date Introduced: February 15, 2012

     Referred To: House Environment and Natural Resources

It is enacted by the General Assembly as follows:

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     SECTION 1. The title of Chapter 46-23 of the General Laws entitled "COASTAL

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RESOURCES MANAGEMENT COUNCIL" is hereby amended to read as follows:

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     CHAPTER 46-23

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Coastal Resources Management Council

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     CHAPTER 46-23

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DEPARTMENT OF COASTAL RESOURCES MANAGEMENT

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     SECTION 2. Sections 46-23-1, 46-23-6.1, 46-23-6.2 and 46-23-7 of the General Laws in

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Chapter 46-23 entitled "Coastal Resources Management Council" are hereby amended to read as

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follows:

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     46-23-1. Legislative findings. -- (a) (1) Under article 1, section 17 of the Rhode Island

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Constitution, the people shall continue to enjoy and freely exercise all the rights of fishery, and

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the privileges of the shore, to which they have been heretofore entitled under the charter and

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usages of this state, including, but not limited to, fishing from the shore, the gathering of

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seaweed, leaving the shore to swim in the sea and passage along the shore; and they shall be

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secure in their rights to use and enjoyment of the natural resources of the state with due regard for

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the preservation of their values; and it is the duty of the general assembly to provide for the

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conservation of the air, land, water, plant, animal, mineral and other natural resources of the state,

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and to adopt all means necessary and proper by law to protect the natural environment of the

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people of the state by providing adequate resource planning for the control and regulation of the

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use of the natural resources of the state and for the preservation, regeneration, and restoration of

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the natural environment of the state.

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      (2) The general assembly recognizes and declares that the coastal resources of Rhode

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Island, a rich variety of natural, commercial, industrial, recreational, and aesthetic assets, are of

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immediate and potential value to the present and future development of this state; that unplanned

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or poorly planned development of this basic natural environment has already damaged or

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destroyed, or has the potential of damaging or destroying, the state's coastal resources, and has

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restricted the most efficient and beneficial utilization of these resources; that it shall be the policy

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of this state to preserve, protect, develop, and, where possible, restore the coastal resources of the

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state for this and succeeding generations through comprehensive and coordinated long range

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planning and management designed to produce the maximum benefit for society from these

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coastal resources; and that preservation and restoration of ecological systems shall be the primary

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guiding principle upon which environmental alteration of coastal resources will be measured,

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judged, and regulated. The general assembly states and declares that it is the responsibility of the

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general assembly to articulate and set forth the policies needed to effectuate these findings and to

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fulfill its obligations pursuant to Article 1 of the Constitution of the State of Rhode Island.

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      (b) (1) That effective implementation of these policies is essential to the social and

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economic well-being of the people of Rhode Island because the sea and its adjacent lands are

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major sources of food and public recreation, because these resources are used by and for industry,

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transportation, waste disposal, and other purposes, and because the demands made on these

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resources are increasing in number, magnitude, and complexity; and that these policies are

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necessary to protect the public health, safety, and general welfare. Pursuant to 16 U.S.C. section

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1452 ("The Coastal Zone Management Act"), the general assembly hereby directs the council

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(referred to as "CRMC") department of coastal resources management (sometimes referred to in

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this chapter as "the department" to exercise effectively its responsibilities implement the policies

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established by the general assembly in the coastal zone. through the development and

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implementation of management programs to achieve wise use of the land and water resources of

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the coastal zone.

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      (2) Furthermore, that implementation of these policies is necessary in order to secure the

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rights of the people of Rhode Island to the use and enjoyment of the natural resources of the state

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with due regard for the preservation of their values., and in order to allow the general assembly to

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The general assembly shall fulfill its duty to provide for the conservation of the air, land, water,

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plant, animal, mineral, and other natural resources of the state, and to adopt all means necessary

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and proper by law to protect the natural environment of the people of the state by providing

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adequate resource planning for the control and regulation of the use of the natural resources of the

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state and for the preservation, regeneration, and restoration of the natural environment of the

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state.

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      (c) That these policies can best be achieved implemented through the creation of a

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department of coastal resources management council as the principal mechanism for management

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of the state's coastal resources.

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      (d) The general assembly recognizes and declares that maintenance dredging is required

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to remove natural silt accumulations; Rhode Island has not had a general maintenance dredging

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policy and programs for ports, port facilities, channels, harbors, public and private marinas and

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boating facilities, recreational facilities and habitat areas; other major coastal states have

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maintenance dredging policies and in-water maintenance dredge disposal sites; as a result of the

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lack of a general maintenance dredging policy and program and as a result there has been:

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      (1) A decrease in the depth of the Providence Channel from forty-four (44) feet in 1971

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to twenty-four (24) feet in 1996;

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      (2) Navigational restrictions on ocean going vessels through the state's waterways and

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channels; and

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      (3) A decrease in the number of available slips and moorings at marinas throughout the

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state; and the lack of a maintenance dredging policy and programs have significant adverse

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environmental and economic effects on the state and therefore it is in the best interest of the state,

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the cities and towns of the state, and the citizens thereof for the state to have a general

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maintenance dredging policy and programs to resolve issues related to dredge maintenance and

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disposal and avoid future significant direct and indirect adverse impact on the environment and

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economy of the state.

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      (e) The department of coastal resources management council is hereby designated as the

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lead state agency for purposes of dredging in tidal waters and as such shall have the following

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duties and responsibilities:

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      (1) To coordinate the interest of the state with regard to dredging;

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      (2) To formulate and adopt implement a state policy with regard to dredging which

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integrates those interests;

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      (3) To cooperate with, negotiate, and to enter into agreements on behalf of the state,

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subject to approval by the general assembly, with the federal government and with other public

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bodies and private parties with regard to dredging;

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      (4) To act as the initial and primary point of contact for all applications to the state for

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dredging projects in tidal waters;

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      (5) To develop, prepare, adopt pursuant to section 46-23-11, with and subject to approval

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by the general assembly, implement, and maintain a comprehensive plan for dredge material

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management; and

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      (6) To cooperate and coordinate with the departments of environmental management,

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transportation, administration, and health, and the economic development corporation in the

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conduct of these duties and responsibilities.

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      (f) (1) The legislature recognizes that under Article I, section 17, the submerged lands of

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the state are impressed with a public trust and that the state is responsible for the protection of the

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public's interest in these lands. The state maintains title in fee to all soil within its boundaries that

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lies below the high water mark, and it holds that land in trust for the use of the public. In

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benefiting the public, the state preserves certain public rights which include, but are not limited

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to, fishery, commerce, and navigation in these waters and the submerged lands that they cover.

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      (2) Since its establishment in 1971, the CRMC department has had the authority to

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manage and plan for the preservation of the coastal resources of the state including, but not

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limited to, submerged lands. The legislature hereby declares that, in light of the unique size,

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scope, and overall potential impact upon the environment of large scale filling projects involving

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twenty-five (25) acres or more, any lease of tidal lands, or any license to use those lands, is

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subject to approval, disapproval, or conditional approval by the direct enactment of the general

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assembly by legislative action. The CRMC Upon the effective date of this act forthwith, the

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department of coastal resources management shall review all requests for leases, licenses to use

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the land, and other authority to use the land made by any applicant prior to presentation of the

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request to the general assembly., and the CRMC The department of coastal resources

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management shall make recommendations on the request to the general assembly. With the

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exception of any and all projects to fill land of twenty-five (25) acres or more, the general

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assembly hereby recognizes and declares that the CRMC department is delegated the sole and

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exclusive authority for the leasing of submerged and filled lands and giving licenses for the use of

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that land. Accordingly, the CRMC department will develop, coordinate, and adopt a system for

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the leasing of submerged and filled lands, and licenses for the use of that land, and will ensure

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that all leases and licenses are consistent with the public trust. Pursuant thereto, the CRMC

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department shall impose a maximum minimum fee of eighty thousand dollars ($80,000) one

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hundred thousand dollars ($100,000) per annum for any transatlantic cable that makes landfall in

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Rhode Island. All such fees collected shall be deposited into the Bays, Rivers and Watersheds

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Fund, established pursuant to section 46-31-12.1, and shall be disbursed according to the

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purposes of that fund. Nothing contained in this subsection negates, repeals, or alters the

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provisions, processes, and requirements for the leasing of submerged land for the conduct of

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aquaculture as set out under chapter 10 of title 20. Therefore, nothing in this chapter shall be

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construed to limit or impair the authority of the state, or any duly established agency of the state,

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to regulate filling or dredging affecting tidal lands owned by the state or any other entity, and

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nothing in this chapter shall be construed to limit or impair the obligation of the applicant to

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obtain all applicable regulatory approvals. Specifically, and without limiting the foregoing,

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nothing in this subsection negates, repeals, or alters the provisions, processes, and requirements

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for water quality certification contained in chapter 12 of this title.

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      (3) Definitions.

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      (i) "Filled land" means portions of tidal lands which have been rendered by the acts of

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man to be no longer subject to tidal action or beneath tidal waters.

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      (ii) "Tidal Lands" means those lands that are below the mean high water.

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      (iii) "Mean high water" means a line of contour representing the 18.6 year average as

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determined by the metonic cycle and/or its equivalent as evidenced by the records, tidal datum,

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and methodology of the United States Coastal Geodetic Survey within the National Oceanic and

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Atmospheric Administration.

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     46-23-6.1. Newport "cliff walk" -- Public right-of-way -- Legal studies. -- The council

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department of coastal resources management is hereby directed to carry out any and all legal

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studies which it shall deem necessary in order to designate the Newport "cliff walk", so called, as

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a public right-of-way pursuant to section 46-23-6(5).

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     46-23-6.2. Abandonment of rights-of-way. -- No city or town shall abandon a right-of-

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way designated as such by the former council and/or the department of coastal resources

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management unless the council approved the abandonment without the prior approval of the

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department.

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     46-23-7. Violations. -- (a) (1) In any instances wherein there is a violation of the coastal

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resources management program, or a violation of regulations or decisions of the council

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department, the commissioner of coastal resources management director of the department of

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coastal resources management shall have the power to order any person to cease and desist or to

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remedy any violation of any provisions of this chapter, or any rule, regulation, assent, order, or

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decision of the council department whenever the commissioner of coastal resources management

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director shall have reasonable grounds to believe that such violation has occurred.

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      (2) Council Department staff, conservation officers within the department of

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environmental management, and state and municipal police shall be empowered to issue written

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cease and desist orders in any instance where activity is being conducted which constitutes a

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violation of any provisions of this chapter, or any rule, regulation, assent, order, or decision of the

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council.

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      (3) Conservation officers within the department of environmental management, council

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department staff, and state and municipal police shall have authority to apply to a court of

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competent jurisdiction for a warrant to enter on private land to investigate possible violations of

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this chapter; provided, that they have reasonable grounds to believe that a violation has been

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committed, is being committed, or is about to be committed.

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      (b) Any order or notice issued pursuant to subsection (a) shall be eligible for recordation

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under chapter 13 of title 34, and shall be recorded in the land evidence records in the city/town

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wherein the property subject to the order is located, and any subsequent transferee of the property

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shall be responsible for complying with the requirements of the order and notice.

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      (c) The coastal resources management council department of coastal resources

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management shall discharge of record any notice filed pursuant to subsection (b) within thirty

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(30) days after the violation has been remedied.

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     SECTION 3. Sections 46-23-2, 46-23-2.1, 46-23-3, 46-23-4, 46-23-4.1, 46-23-5, 46-23-6

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and 46-23-12 of the General Laws in Chapter 46-23 entitled "Coastal Resources Management

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Council" are hereby repealed.

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     46-23-2. Coastal resources management council created -- Appointment of

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members. -- (a) There is hereby created the coastal resources management council.

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      (1) The coastal resources management council shall consist of sixteen (16) members, two

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(2) of whom shall be members of the house of representatives, at least one of the members shall

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represent a coastal municipality, appointed by the speaker, two (2) of whom shall be members of

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the senate, each of whom shall represent a coastal municipality, appointed by the president of the

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senate, two (2) of whom shall be from the general public appointed by the speaker of the house

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for a term of two (2) years, two (2) of whom shall be from a coastal municipality appointed by the

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speaker of the house for a term of three (3) years.

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      (2) In addition, four (4) of the members shall be appointed or elected officials of local

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government appointed by the governor, one of whom shall be from a municipality of less than

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twenty-five thousand (25,000) population, appointed to serve until January 31, 1972, one of

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whom shall be from a coastal municipality of more than twenty-five thousand (25,000)

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population appointed to serve until January 31, 1973, and one of whom shall be from a coastal

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municipality of less than twenty-five thousand (25,000) population appointed to serve until

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January 31, 1974, and one of whom shall be from a coastal community of more than twenty-five

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thousand (25,000) population appointed to serve until January 31, 1975, the populations are to be

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determined by the latest federal census; all members shall serve until their successors are

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appointed and qualified; during the month of January, the governor shall appoint a member to

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succeed the member whose term will then next expire for a term of four (4) years commencing on

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the first day of February then next following and until his or her successor is named and

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qualified; each municipal appointment shall cease if the appointed or elected official shall no

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longer hold or change the office which he or she held upon appointment, and further, each

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appointee shall be eligible to succeed himself or herself.

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      (3) Three (3) members shall be appointed by the governor from the public, with the

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advice and consent of the senate, one of whom shall serve until January 1, 1972, one of whom

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shall serve until January 1, 1973 and one of whom shall serve until January 1, 1974; the members

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and their successors shall represent a coastal community.

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      (4) All members shall serve until their successors are appointed and qualified; during the

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month of January, the governor shall appoint, with the advice and consent of the senate, a

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member to succeed the members whose term will then next expire for a term of three (3) years

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commencing on the first day of February next following and until his or her successor is named

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and qualified. A member shall be eligible to succeed himself or herself. No more than two (2)

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persons on the council shall be from the same community.

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      (5) Appointments shall first be made by the governor, then by the president of the senate,

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and then by the speaker. The commissioner of the environmental protection branch or his or her

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designee within the department of environmental management shall serve ex officio. The ex-

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officio member shall not be counted as serving from any particular community.

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      (b) In addition to the foregoing voting members, the council shall include a varying

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number of other members who shall serve in an advisory capacity without the right to vote and

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who shall be invited to serve by either the governor or the voting members. These advisory

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members shall represent the federal agencies such as the navy, coast guard, corps of engineers,

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public health service, and the federal water pollution control administration, and such regional

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agencies as the New England river basins commission and the New England regional commission

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and any other group or interest not otherwise represented.

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      (c) There shall be established a coastal resources advisory committee which committee,

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appointed by the executive director of the coastal resources management council, shall include,

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but not be limited to, representation from the following groups: one of whom shall be a

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representative of the University of Rhode Island Graduate School of Oceanography and the

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College of Resources Development, one of whom shall be a representative of the Sea Grant

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National College Program, one of whom shall be a representative of the army corps of engineers,

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one of whom shall be a representative of the federal environmental protection agency's

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Narragansett Bay laboratory, one of whom shall be a representative of the coastal resources

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management council, one of whom shall be the director of the department of environmental

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management; one of whom shall be a member of the Rhode Island Marine Trade Association and

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one of whom shall be a representative of a regional environmental group. The council shall have

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the authority to appoint such additional members to said advisory committee as is deemed

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necessary or advisable by the advisory committee or the council. It shall be the responsibility of

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the committee to advise the coastal resources management council on environmental issues

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relating to dredging and permitting related thereto, including, but not limited to, those issues

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defined in sections 46-23-18.1 -- 46-23-18.3, inclusive.

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      (d) The council shall have the authority to form committees of other advisory groups as

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needed from both its own members and others.

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     46-23-2.1. Members -- Term of office -- Vacancies. -- (a) The term of office of the

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appointed members shall be three (3) years, only so long as the members shall remain eligible to

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serve on the council under the appointment authority.

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      (b) The members are eligible to succeed themselves.

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      (c) Elected or appointed municipal officials shall hold seats on the council, only so long

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as they remain in their elected or appointed office. Members of the senate and house shall serve at

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the pleasure of the appointing authority and shall not be subject to the provisions of subsection

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(b).

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      (d) A vacancy other than by expiration shall be filled in the manner of the original

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appointment but only for the unexpired portion of the term. The appointing authority shall have

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the power to remove its appointee for just cause.

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     46-23-3. Oath of members. -- Each appointed member of the council, before entering

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upon his or her duties, shall take an oath to administer the duties of his or her office faithfully and

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impartially, and the oath shall be filed in the office of the secretary of state.

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     46-23-4. Officers of the council -- Quorum and vote required for action. -- The

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governor, upon the appointment of the appointed members of the council, shall select from the

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appointed members a chairperson and vice chairperson. The council shall thereupon select a

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secretary from among its membership or staff. The council may engage such staff, including legal

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counsel, as it deems necessary. A quorum shall consist of seven (7) members of the council. A

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majority vote of those present shall be required for action.

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     46-23-4.1. The commissioner of coastal resources management. -- The council shall

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engage a commissioner of coastal resources management who shall be an employee of the council

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and who shall not be a member of the council. The commissioner shall coordinate and liaison

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with the director of the department of environmental management, and his or her staff shall be at

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the same staff level as the other commissioners and shall work directly with the other

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commissioners. The commissioner of coastal resources management shall be in the unclassified

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service. The duties and powers of the commissioner of coastal resources management shall be

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determined by the council. The council shall not engage a commissioner of coastal resources

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management for more than five (5) years; provided, however, that the council may renew its

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contract with the commissioner of coastal resources management.

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     46-23-5. Expenses of members. -- (a) The members of the council and the chairperson

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shall not be compensated for their service on the board, but the members and chairperson shall be

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reimbursed for their actual expenses necessarily incurred in the performance of their duties.

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      (b) [Deleted by P.L. 2005, ch. 117, art. 21, section 34.]

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     46-23-6. Powers and duties -- Rights-of-way. -- In order to properly manage coastal

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resources the council has the following powers and duties:

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      (1) Planning and management.

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      (i) The primary responsibility of the council shall be the continuing planning for and

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management of the resources of the state's coastal region. The council shall be able to make any

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studies of conditions, activities, or problems of the state's coastal region needed to carry out its

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responsibilities.

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      (ii) The resources management process shall include the following basic phases:

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      (A) Identify all of the state's coastal resources, water, submerged land, air space, fin fish,

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shellfish, minerals, physiographic features, and so forth.

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      (B) Evaluate these resources in terms of their quantity, quality, capability for use, and

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other key characteristics.

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      (C) Determine the current and potential uses of each resource.

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      (D) Determine the current and potential problems of each resource.

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      (E) Formulate plans and programs for the management of each resource, identifying

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permitted uses, locations, protection measures, and so forth.

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      (F) Carry out these resources management programs through implementing authority and

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coordination of state, federal, local, and private activities.

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      (G) Formulation of standards where these do not exist, and reevaluation of existing

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standards.

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      (H) To develop comprehensive programs for dredging in tidal waters and related

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beneficial use, disposal, monitoring dewatering and transportation of dredge materials.

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      (I) To accept and administer loans and grants from the federal government and from

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other sources, public or private, for the carrying out of any of its functions, which loans or grants

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shall not be expended for other than the purposes for which provided.

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      (J) To encourage, participate in, or conduct studies, investigations, research, and

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demonstrations relating to dredging, disposal of dredge materials and transportation thereof in the

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tidal waters of the state as the coastal resources management council may deem advisable and

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necessary for the discharge of its duties under this chapter.

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      (K) To collect and disseminate information relating to dredging, disposal of dredge

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materials and transportation thereof within the tidal waters of the state.

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      (L) To work with the appropriate federal and state agencies to develop as provided for in

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this chapter and in chapter 6.1 of this title, a comprehensive plan for dredging in tidal waters and

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related beneficial use, disposal, monitoring dewatering and transportation of dredge materials.

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      (M) To apply for, accept and expend grants and bequests of funds, for the purpose of

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carrying out the lawful responsibilities of the coastal resources management council.

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      (iii) An initial series of resources management activities shall be initiated through this

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basic process, then each phase shall continuously be recycled and used to modify the council's

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resources management programs and keep them current.

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      (iv) Planning and management programs shall be formulated in terms of the

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characteristics and needs of each resource or group of related resources. However, all plans and

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programs shall be developed around basic standards and criteria, including:

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      (A) The need and demand for various activities and their impact upon ecological

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systems.

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      (B) The degree of compatibility of various activities.

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      (C) The capability of coastal resources to support various activities.

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      (D) Water quality standards set by the director of the department of environmental

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management.

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      (E) Consideration of plans, studies, surveys, inventories, and so forth prepared by other

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public and private sources.

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      (F) Consideration of contiguous land uses and transportation facilities.

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      (G) Whenever possible consistency with the state guide plan.

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      (v) The council shall prepare, adopt, administer, and cause to be implemented, including

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specifically through its powers of coordination as set forth in subdivision (3) of this section, a

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marine resources development plan and such special area management plans as the council may

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determine to be appropriate or desirable as follows:

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      (A) Marine resources development plan.

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      (I) The purpose of the marine resources development plan shall be to provide an

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integrated strategy for: (a) improving the health and functionality of Rhode Island's marine

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ecosystem; (b) providing for appropriate marine-related economic development; and (c)

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promoting the use and enjoyment of Rhode Island's marine resources by the people of the state.

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      (II) The marine resources development plan shall include specific goals and objectives

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necessary to accomplish its purposes, performance measures to determine progress toward

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achieving such goals and objectives, and an implementation program.

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      (III) The marine resources development plan shall be prepared in cooperation with the

11-10

department of environmental management, the statewide planning program, and the economic

11-11

development corporation, with the involvement of such other state agencies as may be

11-12

appropriate, and with such technical support as may be necessary and appropriate from the

11-13

Narragansett Bay Estuary Program, the Coastal Institute at the University of Rhode Island, and

11-14

Rhode Island Sea Grant.

11-15

      (IV) The plan shall be responsive to the requirements and principles of the federal

11-16

coastal zone management act as amended, including, but not limited to, the expectations of the act

11-17

for incorporating the federal Clean Water Act into coastal zone management programs.

11-18

      (V) The marine resources development plan shall take into account local land use

11-19

management responsibilities as provided for under title 45 and harbor management

11-20

responsibilities, and the preparation of the plan shall include opportunities for involvement and/or

11-21

comment by cities and towns.

11-22

      (VI) The marine resources development plan shall be adopted by the council in

11-23

accordance with the provisions of this subsection by July 1, 2005, shall as appropriate incorporate

11-24

the recommendations of the Governor's Narragansett Bay and Watershed Planning Commission,

11-25

and shall be made consistent with systems level plans as appropriate, in order to effectuate the

11-26

purposes of systems level planning. The council shall update the marine resources development

11-27

plan at least once every five (5) years.

11-28

      (VII) The council shall administer its programs, regulations, and implementation

11-29

activities in a manner consistent with the marine resources development plan.

11-30

      (VIII) The marine resources development plan and any updates thereto shall be adopted

11-31

as appropriate as elements of the state guide plan pursuant to section 42-11-10.

11-32

      (B) Special area management plans.

11-33

      (I) The council shall adopt such special area management plans as deemed necessary and

11-34

desirable to provide for the integration and coordination of the protection of natural resources, the

12-1

promotion of reasonable coastal-dependent economic growth, and the improved protection of life

12-2

and property in the specific areas designated council as requiring such integrated planning and

12-3

coordination.

12-4

      (II) The integrated planning and coordination herein specified shall include, but not be

12-5

limited to, federal agencies, state agencies, boards, commissions, and corporations, including

12-6

specifically the economic development corporation, and cities and towns, shall utilize to the

12-7

extent appropriate and feasible the capacities of entities of higher education, including Rhode

12-8

Island Sea Grant, and shall provide for the participation of advocacy groups, community-based

12-9

organizations, and private persons.

12-10

      (III) The council shall administer its programs, regulations, and implementation

12-11

activities in a manner consistent with special area management plans.

12-12

      (IV) Special area management plans and any updates thereto shall be adopted as

12-13

appropriate as elements of the state guide plan pursuant to section 42-11-10.

12-14

      (2) Implementation.

12-15

      (i) The council is authorized to formulate policies and plans and to adopt regulations

12-16

necessary to implement its various management programs. With respect to such policies and

12-17

plans which relate to matters where the coastal resources management council and the department

12-18

of environmental management have concurrent jurisdiction and upon formulation of the plans and

12-19

regulations, the council shall, prior to adoption, submit the proposed plans or regulations to the

12-20

director of the department of environmental management for the director's review. The director

12-21

shall review and submit comments to the council within thirty (30) days of submission to the

12-22

director by the council. The comments of the director shall include findings with regard to the

12-23

consistency of the policies, plans and/or regulations with the requirements of laws administered

12-24

by the department. The council shall consider the director's comments prior to adoption of any

12-25

such policies, plans or regulations and shall respond in writing to findings of the director with

12-26

regard to the consistency of said policies, plans and/or regulations with the requirements of laws

12-27

administered by the department.

12-28

      (ii) (A) The council shall have exclusive jurisdiction below mean high water for all

12-29

development, operations, and dredging, consistent with the requirements of chapter 6.1 of this

12-30

title and except as necessary for the department of environmental management to exercise its

12-31

powers and duties and to fulfill its responsibilities pursuant to sections 42-17.1-2 and 42-17.1-24,

12-32

and any person, firm, or governmental agency proposing any development or operation within,

12-33

above, or beneath the tidal water below the mean high water mark, extending out to the extent of

12-34

the state's jurisdiction in the territorial sea, shall be required to demonstrate that its proposal

13-1

would not:

13-2

      (I) Conflict with any resources management plan or program;

13-3

      (II) Make any area unsuitable for any uses or activities to which it is allocated by a

13-4

resources management plan or program adopted by the council; or

13-5

      (III) Significantly damage the environment of the coastal region.

13-6

      (B) The council shall be authorized to approve, modify, set conditions for, or reject any

13-7

such proposal.

13-8

      (iii) The authority of the council over land areas (those areas above the mean high water

13-9

mark) shall be limited to two hundred feet (200') from the coastal physiographic feature or to that

13-10

necessary to carry out effective resources management programs. This shall be limited to the

13-11

authority to approve, modify, set conditions for, or reject the design, location, construction,

13-12

alteration, and operation of specified activities or land uses when these are related to a water area

13-13

under the agency's jurisdiction, regardless of their actual location. The council's authority over

13-14

these land uses and activities shall be limited to situations in which there is a reasonable

13-15

probability of conflict with a plan or program for resources management or damage to the coastal

13-16

environment. These uses and activities are:

13-17

      (A) Power generating over forty (40) megawatts and desalination plants.

13-18

      (B) Chemical or petroleum processing, transfer, or storage.

13-19

      (C) Minerals extraction.

13-20

      (D) Shoreline protection facilities and physiographical features, and all directly

13-21

associated contiguous areas which are necessary to preserve the integrity of the facility and/or

13-22

features.

13-23

      (E) Coastal wetlands and all directly associated contiguous areas which are necessary to

13-24

preserve the integrity of the wetlands including any freshwater wetlands located in the vicinity of

13-25

the coast. The actual determination of freshwater wetlands located in coastal vicinities and under

13-26

the jurisdiction of the coastal resources management council shall be designated on such maps

13-27

that are agreed to in writing and made available for public use by the coastal resources

13-28

management council and the director, department of environmental management, within three (3)

13-29

months of [August 6, 1996]The CRMC shall have exclusive jurisdiction over the wetlands areas

13-30

described in this section notwithstanding any provision of chapter 1, title 2 or any other provision

13-31

except that the division of agriculture maintains jurisdiction over all farming consistent with

13-32

section 2-1-22(i) and (j). Within six (6) months of [August 6, 1996]the council in cooperation

13-33

with the director shall develop rules and regulations for the management and protection of

13-34

freshwater wetlands, affected by an aquaculture project, outside of those freshwater wetlands

14-1

located in the vicinity of the coast and under the exclusive jurisdiction of the director of the

14-2

department of environmental management. For the purpose of this chapter, a "coastal wetland"

14-3

means any salt marsh bordering on the tidal waters of this state, whether or not the tidal waters

14-4

reach the littoral areas through natural or artificial watercourses, and those uplands directly

14-5

associated and contiguous thereto which are necessary to preserve the integrity of that marsh.

14-6

Marshes shall include those areas upon which grow one or more of the following: smooth

14-7

cordgrass (spartina alterniflora), salt meadow grass (spartina patens), spike grass (distichlis

14-8

spicata), black rush (juncus gerardi), saltworts (salicornia spp.), sea lavender (limonium

14-9

carolinianum), saltmarsh bulrushes (scirpus spp.), hightide bush (iva frutescens), tall reed

14-10

(phragmites communis), tall cordgrass (spartina pectinata), broadleaf cattail (typha latifolia),

14-11

narrowleaf cattail (typha angustifolia), spike rush (eleocharis rostellata), chairmaker's rush

14-12

(scirpus amercana), creeping bentgrass (agrostis palustris), sweet grass (hierochloe odorata), and

14-13

wild rye (etlymus virginicus).

14-14

      (F) Sewage treatment and disposal and solid waste disposal facilities.

14-15

      (G) Beneficial use, dewatering, and disposal of dredged material of marine origins,

14-16

where such activities take place within two hundred (200) feet of mean high water or a coastal

14-17

physiographic feature, or where there is a reasonable probability of conflict with a plan or

14-18

program for resources management or damage to the coastal environment.

14-19

      (3) Coordination. - The council has the following coordinating powers and duties:

14-20

      (i) Functioning as a binding arbitrator in any matter of dispute involving both the

14-21

resources of the state's coastal region and the interests of two (2) or more municipalities or state

14-22

agencies.

14-23

      (ii) Consulting and coordinating actions with local, state, regional, and federal agencies

14-24

and private interests.

14-25

      (iii) Conducting or sponsoring coastal research.

14-26

      (iv) Advising the governor, the general assembly, and the public on coastal matters.

14-27

      (v) Serving as the lead state agency and initial and primary point of contact for dredging

14-28

activities in tidal waters and in that capacity, integrating and coordinating the plans and policies

14-29

of other state agencies as they pertain to dredging in order to develop comprehensive programs

14-30

for dredging as required by subparagraph (1)(ii)(H) of this section and chapter 6.1 of this title.

14-31

The Rhode Island resource recovery corporation prior to purchasing cover material for the state

14-32

landfill shall first contact the CRMC to see if there is a source of suitable dredged material

14-33

available which shall be used in place of the purchase cover material. Other state agencies

14-34

engaged in the process of dump closures shall also contact the CRMC to see if there is a source of

15-1

suitable dredged material available, which shall be used in place of the purchase cover material.

15-2

In addition, cities and towns may contact the CRMC prior to closing city or town controlled

15-3

dump sites to see if there is a source of suitable dredge material available, which may be used in

15-4

place of the purchase cover material.

15-5

      (vi) Acting as the state's representative to all bodies public and private on all coastal and

15-6

aquaculture related matters.

15-7

      (4) Operations. - The council is authorized to exercise the following operating functions,

15-8

which are essential to management of coastal resources:

15-9

      (i) Issue, modify, or deny permits for any work in, above, or beneath the areas under its

15-10

jurisdiction, including conduct of any form of aquaculture.

15-11

      (ii) Issue, modify, or deny permits for dredging, filling, or any other physical alteration

15-12

of coastal wetlands and all directly related contiguous areas which are necessary to preserve the

15-13

integrity of the wetlands, including, but not limited to, the transportation and disposal of dredge

15-14

materials in the tidal waters.

15-15

      (iii) Grant licenses, permits, and easements for the use of coastal resources which are

15-16

held in trust by the state for all its citizens, and impose fees for private use of these resources.

15-17

      (iv) Determining the need for and establishing pierhead, bulkhead, and harbor lines.

15-18

      (v) Enforcing and implementing riparian rights in the tidal waters after judicial decisions.

15-19

      (vi) The council may require an owner or operator of a commercial wharf or pier of a

15-20

marine commercial facility, as defined in 300.3 of the Rhode Island coastal resources

15-21

management program, but not including those facilities defined in 300.4 of the Rhode Island

15-22

coastal resources management program, and which is capable of offloading cargo, and is or will

15-23

be subject to a new use or a significant intensification of an existing use, to demonstrate that the

15-24

commercial wharf or pier is fit for that purpose. For the purposes of this subsection, a

15-25

"commercial wharf or pier" means a pier, bulkhead, wharf, docking facility, or underwater

15-26

utilities. The council may order said owner or operator to provide an engineering certification to

15-27

the council's satisfaction that the commercial wharf or pier is fit for the new use or intensification

15-28

of an existing use. If the council determines that the commercial wharf or pier is not fit, it may

15-29

order the owner or operator to undertake the necessary work to make the commercial wharf or

15-30

pier safe, within a reasonable time frame. If the council determines that the commercial wharf or

15-31

pier, because of is condition, is an immediate threat to public health and safety it may order the

15-32

commercial wharf or pier closed until the necessary work to make the commercial wharf or pier

15-33

safe has been performed and approved by the council. All work performed must conform to the

15-34

council's management program. The council is also given the authority to develop regulations to

16-1

carry out this provision and to impose administrative penalties of five thousand dollars ($5,000)

16-2

per day up to a maximum of twenty thousand dollars ($20,000) consistent with section 46-23-7.1

16-3

where there has been a violation of the orders under this provision.

16-4

      (5) Rights-of-way.

16-5

      (i) The council is responsible for the designation of all public rights-of-way to the tidal

16-6

water areas of the state, and shall carry on a continuing discovery of appropriate public rights-of-

16-7

way to the tidal water areas of the state.

16-8

      (ii) The council shall maintain a complete file of all official documents relating to the

16-9

legal status of all public rights-of-way to the tidal water areas of the state.

16-10

      (iii) (A) The council has the power to designate for acquisition and development, and

16-11

posting, and all other functions of any other department for tidal rights-of-way and land for tidal

16-12

rights-of-way, parking facilities, and other council related purposes.

16-13

      (B) Further, the council has the power to develop and prescribe a standard sign to be

16-14

used by the cities and towns to mark designated rights-of-way.

16-15

      (iv) In conjunction with this subdivision, every state department controlling state-owned

16-16

land close to or adjacent to discovered rights-of-way is authorized to set out the land, or so much

16-17

of the land that may be deemed necessary for public parking.

16-18

      (v) No use of land for public parking shall conflict with existing or intended use of the

16-19

land, and no improvement shall be undertaken by any state agency until detailed plans have been

16-20

submitted to and approved by the governing body of the local municipality.

16-21

      (vi) In designating rights-of-way, the council shall consider the following matters in

16-22

making its designation:

16-23

      (A) Land evidence records;

16-24

      (B) The exercise of domain over the parcel such as maintenance, construction, or

16-25

upkeep;

16-26

      (C) The payment of taxes;

16-27

      (D) The creation of a dedication;

16-28

      (E) Public use;

16-29

      (F) Any other public record or historical evidence such as maps and street indexes;

16-30

      (G) Other evidence as set out in section 42-35-10.

16-31

      (vii) A determination by the council that a parcel is a right-of-way shall be decided by

16-32

substantial evidence.

16-33

      (viii) The council shall be notified whenever by the judgment of the governing body of a

16-34

coastal municipality, a public right-of-way to tidal water areas located in such municipality has

17-1

ceased to be useful to the public, and such governing body proposes an order of abandonment of

17-2

such public right-of-way. Said notice shall be given not less than sixty (60) days prior to the date

17-3

of such abandonment.

17-4

      (6) Pre-existing residential boating facilities.

17-5

      (i) The council is hereby authorized and empowered to issue assent for pre-existing

17-6

residential boating facilities constructed prior to January 1, 1985. These assents may be issued for

17-7

pre-existing residential boating facilities, even though such facilities do not meet current

17-8

standards and policies of the council; provided, however, that the council finds that such facilities

17-9

do not pose any significant risk to the coastal resources of the state of Rhode Island and do not

17-10

endanger human safety.

17-11

      (ii) In addition to the above criteria, the applicant shall provide clear and convincing

17-12

evidence that:

17-13

      (A) The facility existed in substantially the same configuration as it now exists prior to

17-14

January 1, 1985;

17-15

      (B) The facility is presently intact and functional; and

17-16

      (C) The facility presents no significant threat to the coastal resources of the state of

17-17

Rhode Island or human safety.

17-18

      (iii) The applicant, to be eligible for this provision, shall apply no later than January 31,

17-19

1999.

17-20

      (iv) The council is directed to develop rules and regulations necessary to implement this

17-21

subdivision.

17-22

      (v) It is the specific intent of this subsection to require that all pre-existing residential

17-23

boating facilities constructed on January 1, 1985 or thereafter conform to this chapter and the

17-24

plans, rules and regulations of the council.

17-25

      (7) Lease of filled lands which were formerly tidal lands to riparian or littoral owners.

17-26

      (i) Any littoral or riparian owner in this state who desires to obtain a lease from the state

17-27

of Rhode Island of any filled lands adjacent to his or her upland shall apply to the council, which

17-28

may make the lease. Any littoral or riparian owner who wishes to obtain a lease of filled lands

17-29

must obtain pre-approval, in the form of an assent, from the council. Any lease granted by the

17-30

council shall continue the public's interest in the filled lands including, but not limited to, the

17-31

rights of navigation, fishery, and commerce. The public trust in the lands shall continue and run

17-32

concurrently with the leasing of the lands by the state to private individuals, corporations, or

17-33

municipalities. Upon the granting of a lease by the council, those rights consistent with the public

17-34

trust and secured by the lease shall vest in the lessee. The council may approve a lease of filled

18-1

lands for an initial term of up to fifty (50) years, with, or without, a single option to renew for an

18-2

additional term of up to fifty (50) years.

18-3

      (ii) The lessor of the lease, at any time, for cause, may by express act cancel and annul

18-4

any lease previously made to the riparian owner when it determines that the use of the lands is

18-5

violating the terms of the lease or is inconsistent with the public trust, and upon cancellation the

18-6

lands, and rights in the land so leased, shall revert to the state.

18-7

      (8) "Marinas" as defined in the coastal resources management program in effect as of

18-8

June 1, 1997, are deemed to be one of the uses consistent with the public trust. Subdivision (7) is

18-9

not applicable to:

18-10

      (i) Any riparian owner on tidal waters in this state (and any successor in interest to the

18-11

owner) which has an assent issued by the council to use any land under water in front of his or her

18-12

lands as a marina, which assent was in effect on June 1, 1997;

18-13

      (ii) Any alteration, expansion, or other activity at a marina (and any successor in interest)

18-14

which has an assent issued by the council, which assent was in effect on June 1, 1997; and

18-15

      (iii) Any renewal of assent to a marina (or successor in interest), which assent was issued

18-16

by the council and in effect on June 1, 1997.

18-17

      (9) "Recreational boating facilities" including marinas, launching ramps, and recreational

18-18

mooring areas, as defined by and properly permitted by the council, are deemed to be one of the

18-19

uses consistent with the public trust. Subdivision (7) is not applicable to:

18-20

      (i) Any riparian owner on tidal waters in this state (and any successor in interest to the

18-21

owner) which has an assent issued by the council to use any land under water in front of his or her

18-22

lands as a recreational boating facility; any alteration, expansion or other activity at a recreational

18-23

boating facility (and any successor in interest) which has an assent issued by the council, which

18-24

assent was in effect as of June 1, 1997; and

18-25

      (ii) Any renewal of assent to a recreational boating facility (or successor in interest),

18-26

which assent was issued by the council and in effect on June 1, 1997.

18-27

     46-23-12. Representation from coastal communities. -- Upon the expiration of a term

18-28

of a member appointed by the governor, as an appointed or elected official of local government

18-29

from a coastal municipality as set out in section 46-23-2, the governor shall appoint an appointed

18-30

or elected official of a coastal municipality which, at the time of the governor's appointment, has

18-31

no appointed or ex officio representation on the council.

18-32

     SECTION 4. Chapter 46-23 of the General Laws entitled "Coastal Resources

18-33

Management Council" is hereby amended by adding thereto the following sections:

19-34

     46-23-2.3. Department of coastal resources management established -- Transfer of

19-35

functions. – (a) There is hereby established within the executive branch of the state government a

19-36

department of coastal resources management. The head of the department shall be the director of

19-37

coastal resources management, who shall be in the unclassified service and who shall be

19-38

appointed by the governor, with the advice and consent of the senate, and shall serve at the

19-39

pleasure of the governor. Provided, this section shall not be construed to abrogate any contract in

19-40

effect on the effective date of this act.

19-41

     (b) Upon the effective date of this act, the coastal resources management council shall be

19-42

abolished, and all functions, powers, duties, liabilities and obligations of the council conferred

19-43

thereon pursuant to the provisions of this chapter shall be transferred to and administered by the

19-44

department of coastal resources management.

19-45

     (c) Without in any manner limiting the assumption of the former CRMC’s liabilities and

19-46

obligations by the department, the department shall recognize and assume any and all leases,

19-47

easements, and/or rights-of-way of which the council is a party as of the effective date of this act;

19-48

provided, this shall not prohibit the department from making any modifications to such leases,

19-49

easements, and/or rights-of-way allowed or provided for in the appropriate documents and/or

19-50

otherwise permitted by law; nor shall the department be required to extend or renew any of said

19-51

leases, easements, and/or rights-of-way. The provisions of this section shall be construed so as

19-52

not to abrogate any contract in effect on the effective date of this act.

19-53

     (d) Any reference to the coastal resources management council within the general laws

19-54

shall now be construed to refer to the department of coastal resources management except where

19-55

the context clearly provides otherwise.

19-56

     (e) Recognizing that the former coastal resources management council has performed

19-57

unique functions requiring a specialization and expertise, all employees of the former coastal

19-58

resources management council shall be transferred to the department. Provided, this provision

19-59

shall not apply to any present, current, and/or former members of the council. Employees of the

19-60

department including, but not limited to, the director shall be in the unclassified service of the

19-61

state; provided, this section shall not be construed to abrogate any contracts in effect on the

19-62

effective date of this act.

19-63

     (f) The director of the department of coastal resources management is authorized to

19-64

review all decisions from within his or her staff, including, but not limited to, hearings for

19-65

violations, administrative penalties, enforcement proceedings, and criminal penalties pursuant to

19-66

the provisions of sections 46-23-7, 46-23-7.1, 46-23-7.2, 46-23-7.3, 46-23-7.4, and 46-23-7.5.

19-67

All final decisions of the department shall be deemed a final order or decision for purposes of the

19-68

administrative procedures act, chapter 42-35, and shall be subject to judicial review as provided

20-1

for in said chapter.

20-2

     (g) The director of the department of coastal resources management shall promulgate

20-3

rules and regulations to effectuate the provisions of this chapter and to carry forward the duties

20-4

and responsibilities of this department. Such rules and regulations shall include, but not be

20-5

limited to, the procedures for administrative hearings.

20-6

     (h) Upon the creation of the department, all working year funds of the coastal resources

20-7

management council shall be transferred to and utilized by the department of coastal resources

20-8

management. From that time forward, the department shall be subject to funding through the

20-9

regular budgetary process applied to other executive departments and agencies.

20-10

     46-23-2.4. Authorization to create advisory committees -- Hearing officers. -- (a)

20-11

 There shall be established a coastal resources advisory committee which committee, appointed

20-12

by the director of the department of coastal resources management, shall include, but not be

20-13

limited to, representation from the following groups: one of whom shall be a representative of the

20-14

University of Rhode Island Graduate School of Oceanography and the College of Resources

20-15

Development; one of whom shall be a representative of the Sea Grant National College Program;

20-16

one of whom shall be a representative of the army corps of engineers; one of whom shall be a

20-17

representative of the federal environmental protection agency's Narragansett Bay laboratory; one

20-18

of whom shall be a representative of the department of coastal resources management; one of

20-19

whom shall be the director of the department of environmental management; one of whom shall

20-20

be a member of the Rhode Island Marine Trade Association and one of whom shall be a

20-21

representative of a regional environmental group. The department of coastal resources

20-22

management shall have the authority to appoint such additional members to said advisory

20-23

committee as is deemed necessary or advisable by the advisory committee or the department of

20-24

coastal resources management. It shall be the responsibility of the committee to advise the

20-25

department of coastal resources management on environmental issues relating to dredging and

20-26

permitting related thereto, including, but not limited to, those issues defined in sections 46-23-

20-27

18.1 - 46-23-18.3, inclusive.

20-28

     (b) The department shall have the authority to form committees of other advisory groups

20-29

as needed from both its own members and others.

20-30

     (c) The director shall have authority to appoint hearing officers for purposes of

20-31

administrative hearings within the department as provided for in this chapter, including, but not

20-32

limited to, any proceedings for administrative penalties, enforcement, and/or criminal penalties

20-33

pursuant to sections 46-23-7.1, 46-23-7.2, and/or 46-23-7.3.

21-34

     46-23-5.1. Powers and duties -- Rights-of-way. -- In order to properly manage coastal

21-35

resources the department has the following powers and duties:

21-36

     (1) Planning and management.

21-37

     (i) The primary responsibility of the department shall be the continuing planning for and

21-38

management of the resources of the state's coastal region. The department shall be able to make

21-39

any studies of conditions, activities, or problems of the state's coastal region needed to carry out

21-40

its responsibilities.

21-41

     (ii) The resources management process shall include the following basic phases:

21-42

     (A) Identify all of the state's coastal resources, water, submerged land, air space, fin fish,

21-43

shellfish, minerals, physiographic features, and so forth.

21-44

     (B) Evaluate these resources in terms of their quantity, quality, capability for use, and

21-45

other key characteristics.

21-46

     (C) Determine the current and potential uses of each resource.

21-47

     (D) Determine the current and potential problems of each resource.

21-48

     (E) Formulate plans and programs for the management of each resource, identifying

21-49

permitted uses, locations, protection measures, and so forth.

21-50

     (F) Carry out these resources management programs through implementing authority and

21-51

coordination of state, federal, local, and private activities.

21-52

     (G) Formulation of standards where these do not exist, and reevaluation of existing

21-53

standards.

21-54

     (H) To develop comprehensive programs for dredging in tidal waters and related

21-55

beneficial use, disposal, monitoring dewatering and transportation of dredge materials.

21-56

     (I) To accept and administer loans and grants from the federal government and from other

21-57

sources, public or private, for the carrying out of any of its functions, which loans or grants shall

21-58

not be expended for other than the purposes for which provided.

21-59

     (J) To encourage, participate in, or conduct studies, investigations, research, and

21-60

demonstrations relating to dredging, disposal of dredge materials and transportation thereof in the

21-61

tidal waters of the state as the department may deem advisable and necessary for the discharge of

21-62

its duties under this chapter.

21-63

     (K) To collect and disseminate information relating to dredging, disposal of dredge

21-64

materials and transportation thereof within the tidal waters of the state.

21-65

     (L) To work with the appropriate federal and state agencies to develop as provided for in

21-66

this chapter and in chapter 6.1 of this title, a comprehensive plan for dredging in tidal waters and

21-67

related beneficial use, disposal, monitoring dewatering and transportation of dredge materials.

22-68

     (M) To apply for, accept and expend grants and bequests of funds, for the purpose of

22-69

carrying out the lawful responsibilities of the department.

22-70

     (iii) An initial series of resources management activities shall be initiated through this

22-71

basic process, then each phase shall continuously be recycled and used to modify the department's

22-72

resources management programs and keep them current.

22-73

     (iv) Planning and management programs shall be formulated in terms of the

22-74

characteristics and needs of each resource or group of related resources. However, all plans and

22-75

programs shall be developed around basic standards and criteria, including:

22-76

     (A) The need and demand for various activities and their impact upon ecological systems.

22-77

     (B) The degree of compatibility of various activities.

22-78

     (C) The capability of coastal resources to support various activities.

22-79

     (D) Water quality standards set by the director of the department of environmental

22-80

management.

22-81

     (E) Consideration of plans, studies, surveys, inventories, and so forth prepared by other

22-82

public and private sources.

22-83

     (F) Consideration of contiguous land uses and transportation facilities.

22-84

     (G) Whenever possible consistency with the state guide plan.

22-85

     (v) The department shall prepare, adopt, administer, and cause to be implemented,

22-86

including specifically through its powers of coordination as set forth in subdivision (3) of this

22-87

section, a marine resources development plan and such special area management plans as the

22-88

department may determine to be appropriate or desirable as follows:

22-89

     (A) Marine resources development plan.

22-90

     (I) The purpose of the marine resources development plan shall be to provide an

22-91

integrated strategy for: (a) Improving the health and functionality of Rhode Island's marine

22-92

ecosystem; (b) Providing for appropriate marine-related economic development; and (c)

22-93

Promoting the use and enjoyment of Rhode Island's marine resources by the people of the state.  

22-94

     (II) The marine resources development plan shall include specific goals and objectives

22-95

necessary to accomplish its purposes, performance measures to determine progress toward

22-96

achieving such goals and objectives, and an implementation program.

22-97

     (III) The marine resources development plan shall be prepared in cooperation with the

22-98

department of environmental management, the statewide planning program, and the economic

22-99

development corporation, with the involvement of such other state agencies as may be

22-100

appropriate, and with such technical support as may be necessary and appropriate from the

22-101

Narragansett Bay Estuary Program, the Coastal Institute at the University of Rhode Island, and

22-102

Rhode Island Sea Grant.

23-1

     (IV) The plan shall be responsive to the requirements and principles of the federal coastal

23-2

zone management act as amended, including, but not limited to, the expectations of the act for

23-3

incorporating the federal Clean Water Act into coastal zone management programs.

23-4

     (V) The marine resources development plan shall take into account local land use

23-5

management responsibilities as provided for under title 45 and harbor management

23-6

responsibilities, and the preparation of the plan shall include opportunities for involvement and/or

23-7

comment by cities and towns.

23-8

     (VI) The marine resources development plan previously adopted by the council in

23-9

accordance with the provisions of this subsection by July 1, 2005, shall as appropriate incorporate

23-10

the recommendations of the Governor's Narragansett Bay and Watershed Planning Commission,

23-11

and shall be made consistent with systems level plans as appropriate, in order to effectuate the

23-12

purposes of systems level planning. The department shall update the marine resources

23-13

development plan at least once every five (5) years.

23-14

     (VII) The department shall administer its programs, regulations, and implementation

23-15

activities in a manner consistent with the marine resources development plan.

23-16

     (VIII) The marine resources development plan and any updates thereto shall be adopted

23-17

as appropriate as elements of the state guide plan pursuant to section  42-11-10.

23-18

     (B) Special area management plans.

23-19

     (I) The department shall adopt such special area management plans as deemed necessary

23-20

and desirable to provide for the integration and coordination of the protection of natural

23-21

resources, the promotion of reasonable coastal-dependent economic growth, and the improved

23-22

protection of life and property in the specific areas designated department as requiring such

23-23

integrated planning and coordination.

23-24

     (II) The integrated planning and coordination herein specified shall include, but not be

23-25

limited to, federal agencies, state agencies, boards, commissions, and corporations, including

23-26

specifically the economic development corporation, and cities and towns, shall utilize to the

23-27

extent appropriate and feasible the capacities of entities of higher education, including Rhode

23-28

Island Sea Grant, and shall provide for the participation of advocacy groups, community-based

23-29

organizations, and private persons.

23-30

     (III) The department shall administer its programs, regulations, and implementation

23-31

activities in a manner consistent with special area management plans.

23-32

     (IV) Special area management plans and any updates thereto shall be adopted as

23-33

appropriate as elements of the state guide plan pursuant to section  42-11-10.

24-34

     (2) Implementation.

24-35

     (i) The department is authorized to formulate policies and plans and to adopt regulations

24-36

necessary to implement its various management programs. With respect to such policies and

24-37

plans which relate to matters where the department of coastal resources management and the

24-38

department of environmental management have concurrent jurisdiction and upon formulation of

24-39

the plans and regulations, the department shall, prior to adoption, submit the proposed plans or

24-40

regulations to the director of the department of environmental management for the director's

24-41

review. The director shall review and submit comments to the department within thirty (30) days

24-42

of submission to the director by the department. The comments of the director shall include

24-43

findings with regard to the consistency of the policies, plans and/or regulations with the

24-44

requirements of laws administered by the department. The department shall consider the director's

24-45

comments prior to adoption of any such policies, plans or regulations and shall respond in writing

24-46

to findings of the director with regard to the consistency of said policies, plans and/or regulations

24-47

with the requirements of laws administered by the department.

24-48

     (ii)(A) The department shall have exclusive jurisdiction below mean high water for all

24-49

development, operations, and dredging, consistent with the requirements of chapter 6.1 of this

24-50

title and except as necessary for the department of environmental management to exercise its

24-51

powers and duties and to fulfill its responsibilities pursuant to sections  42-17.1-2 and 42-17.1-

24-52

24, and any person, firm, or governmental agency proposing any development or operation

24-53

within, above, or beneath the tidal water below the mean high water mark, extending out to the

24-54

extent of the state's jurisdiction in the territorial sea, shall be required to demonstrate that its

24-55

proposal would not:

24-56

     (I) Conflict with any resources management plan or program;

24-57

     (II) Make any area unsuitable for any uses or activities to which it is allocated by a

24-58

resources management plan or program adopted by the department; or

24-59

     (III) Significantly damage the environment of the coastal region.

24-60

     (B) The department shall be authorized to approve, modify, set conditions for, or reject

24-61

any such proposal.

24-62

     (iii) The authority of the department over land areas (those areas above the mean high

24-63

water mark) shall be limited to two hundred feet (200') from the coastal physiographic feature or

24-64

to that necessary to carry out effective resources management programs. This shall be limited to

24-65

the authority to approve, modify, set conditions for, or reject the design, location, construction,

24-66

alteration, and operation of specified activities or land uses when these are related to a water area

24-67

under the agency's jurisdiction, regardless of their actual location. The department's authority

24-68

over these land uses and activities shall be limited to situations in which there is a reasonable

25-1

probability of conflict with a plan or program for resources management or damage to the coastal

25-2

environment. These uses and activities are:

25-3

     (A) Power generating over forty (40) megawatts and desalination plants.

25-4

     (B) Chemical or petroleum processing, transfer, or storage.

25-5

     (C) Minerals extraction.

25-6

     (D) Shoreline protection facilities and physiographical features, and all directly

25-7

associated contiguous areas which are necessary to preserve the integrity of the facility and/or

25-8

features.

25-9

     (E) Coastal wetlands and all directly associated contiguous areas which are necessary to

25-10

preserve the integrity of the wetlands including any freshwater wetlands located in the vicinity of

25-11

the coast. The actual determination of freshwater wetlands located in coastal vicinities and under

25-12

the jurisdiction of the department shall be designated on such maps that are agreed to in writing

25-13

and made available for public use by the director of the department of coastal resources

25-14

management and the director of the department of environmental management. Those

25-15

designations in effect upon the effective date of this act shall remain in effect until changed as

25-16

provided for in this chapter. The department of coastal resources management shall have

25-17

exclusive jurisdiction over the wetlands areas described in this section notwithstanding any

25-18

provision of chapter 1, title 2 or any other provision except that the division of agriculture

25-19

maintains jurisdiction over all farming consistent with subsections  2-1-22(i) and (j). The

25-20

department of coastal resources management in cooperation with the department of

25-21

environmental management shall develop rules and regulations for the management and

25-22

protection of freshwater wetlands, affected by an aquaculture project, outside of those freshwater

25-23

wetlands located in the vicinity of the coast and under the exclusive jurisdiction of the director of

25-24

the department of environmental management. For the purpose of this chapter, a "coastal

25-25

wetland" means any salt marsh bordering on the tidal waters of this state, whether or not the tidal

25-26

waters reach the littoral areas through natural or artificial watercourses, and those uplands directly

25-27

associated and contiguous thereto which are necessary to preserve the integrity of that marsh.

25-28

Marshes shall include those areas upon which grow one or more of the following: smooth

25-29

cordgrass (spartina alterniflora), salt meadow grass (spartina patens), spike grass (distichlis

25-30

spicata), black rush (juncus gerardi), saltworts (salicornia spp.), sea lavender (limonium

25-31

carolinianum), saltmarsh bulrushes (scirpus spp.), hightide bush (iva frutescens), tall reed

25-32

(phragmites communis), tall cordgrass (spartina pectinata), broadleaf cattail (typha latifolia),

25-33

narrowleaf cattail (typha angustifolia), spike rush (eleocharis rostellata), chairmaker's rush

25-34

(scirpus amercana), creeping bentgrass (agrostis palustris), sweet grass (hierochloe odorata), and

26-1

wild rye (etlymus virginicus).

26-2

     (F) Sewage treatment and disposal and solid waste disposal facilities.

26-3

     (G) Beneficial use, dewatering, and disposal of dredged material of marine origins, where

26-4

such activities take place within two hundred feet (200') of mean high water or a coastal

26-5

physiographic feature, or where there is a reasonable probability of conflict with a plan or

26-6

program for resources management or damage to the coastal environment.

26-7

     (3) Coordination. The department has the following coordinating powers and duties:

26-8

     (i) Functioning as a binding arbitrator in any matter of dispute involving both the

26-9

resources of the state's coastal region and the interests of two (2) or more municipalities or state

26-10

agencies.  The director and/or his designee shall serve as such arbitrator in such instances.

26-11

     (ii) Consulting and coordinating actions with local, state, regional, and federal agencies

26-12

and private interests.

26-13

     (iii) Conducting or sponsoring coastal research.

26-14

     (iv) Advising the governor, the general assembly, and the public on coastal matters.

26-15

     (v) Serving as the lead state department and initial and primary point of contact for

26-16

dredging activities in tidal waters and in that capacity, integrating and coordinating the plans and

26-17

policies of other state agencies as they pertain to dredging in order to develop comprehensive

26-18

programs for dredging as required by subparagraph (1)(ii)(H) of this section and chapter 6.1 of

26-19

this title. The Rhode Island resource recovery corporation prior to purchasing cover material for

26-20

the state landfill shall first contact the department of coastal resources management to see if there

26-21

is a source of suitable dredged material available which shall be used in place of the purchase

26-22

cover material. Other state agencies engaged in the process of dump closures shall also contact

26-23

the department of coastal resources management to see if there is a source of suitable dredged

26-24

material available, which shall be used in place of the purchase cover material. In addition, cities

26-25

and towns may contact the department of coastal resources management prior to closing city or

26-26

town controlled dump sites to see if there is a source of suitable dredge material available, which

26-27

may be used in place of the purchase cover material.

26-28

     (vi) Acting as the state's representative to all bodies public and private on all coastal and

26-29

aquaculture related matters.

26-30

     (4) Operations. The department is authorized to exercise the following operating

26-31

functions, which are essential to management of coastal resources:

26-32

     (i) Issue, modify, or deny permits for any work in, above, or beneath the areas under its

26-33

jurisdiction, including conduct of any form of aquaculture.

27-34

     (ii) Issue, modify, or deny permits for dredging, filling, or any other physical alteration of

27-35

coastal wetlands and all directly related contiguous areas which are necessary to preserve the

27-36

integrity of the wetlands, including, but not limited to, the transportation and disposal of dredge

27-37

materials in the tidal waters.

27-38

     (iii) Grant licenses, permits, and easements for the use of coastal resources which are held

27-39

in trust by the state for all its citizens, and impose fees for private use of these resources.

27-40

     (iv) Determining the need for and establishing pierhead, bulkhead, and harbor lines.

27-41

     (v) Enforcing and implementing riparian rights in the tidal waters after judicial decisions.

27-42

     (vi) The department may require an owner or operator of a commercial wharf or pier of a

27-43

marine commercial facility, as defined in 300.3 of the Rhode Island coastal resources

27-44

management program, but not including those facilities defined in 300.4 of the Rhode Island

27-45

coastal resources management program, and which is capable of offloading cargo, and is or will

27-46

be subject to a new use or a significant intensification of an existing use, to demonstrate that the

27-47

commercial wharf or pier is fit for that purpose. For the purposes of this subsection, a

27-48

"commercial wharf or pier" means a pier, bulkhead, wharf, docking facility, or underwater

27-49

utilities. The department may order said owner or operator to provide an engineering certification

27-50

to the department's satisfaction that the commercial wharf or pier is fit for the new use or

27-51

intensification of an existing use. If the department determines that the commercial wharf or pier

27-52

is not fit, it may order the owner or operator to undertake the necessary work to make the

27-53

commercial wharf or pier safe, within a reasonable time frame. If the department determines that

27-54

the commercial wharf or pier, because of its condition, is an immediate threat to public health and

27-55

safety it may order the commercial wharf or pier closed until the necessary work to make the

27-56

commercial wharf or pier safe has been performed and approved by the department. All work

27-57

performed must conform to the department's management program. The department is also given

27-58

the authority to develop regulations to carry out this provision and to impose administrative

27-59

penalties of five thousand dollars ($5,000) per day up to a maximum of twenty thousand dollars

27-60

($20,000) consistent with section 46-23-7.1 where there has been a violation of the orders under

27-61

this provision.

27-62

     (5) Rights-of-way.

27-63

     (i) The department is responsible for the designation of all public rights-of-way to the

27-64

tidal water areas of the state, and shall carry on a continuing discovery of appropriate public

27-65

rights-of-way to the tidal water areas of the state.

27-66

     (ii) The department shall maintain a complete file of all official documents relating to the

27-67

legal status of all public rights-of-way to the tidal water areas of the state.

28-68

     (iii)(A) The department has the power to designate for acquisition and development, and

28-69

posting, and all other functions of any other department for tidal rights-of-way and land for tidal

28-70

rights-of-way, parking facilities, and other department related purposes.

28-71

     (B) Further, the department has the power to develop and prescribe a standard sign to be

28-72

used by the cities and towns to mark designated rights-of-way.

28-73

     (iv) In conjunction with this subdivision, every state department controlling state-owned

28-74

land close to or adjacent to discovered rights-of-way is authorized to set out the land, or so much

28-75

of the land that may be deemed necessary for public parking.

28-76

     (v) No use of land for public parking shall conflict with existing or intended use of the

28-77

land, and no improvement shall be undertaken by any state agency until detailed plans have been

28-78

submitted to and approved by the governing body of the local municipality.

28-79

     (vi) In designating rights-of-way, the department shall consider the following matters in

28-80

making its designation:

28-81

     (A) Land evidence records;

28-82

     (B) The exercise of domain over the parcel such as maintenance, construction, or upkeep;

28-83

     (C) The payment of taxes;

28-84

     (D) The creation of a dedication;

28-85

     (E) Public use;

28-86

     (F) Any other public record or historical evidence such as maps and street indexes;

28-87

     (G) Other evidence as set out in section 42-35-10.

28-88

     (vii) A determination by the department that a parcel is a right-of-way shall be decided by

28-89

substantial evidence.

28-90

     (viii) The department shall be notified whenever by the judgment of the governing body

28-91

of a coastal municipality, a public right-of-way to tidal water areas located in such municipality

28-92

has ceased to be useful to the public, and such governing body proposes an order of abandonment

28-93

of such public right-of-way. Said notice shall be given not less than sixty (60) days prior to the

28-94

date of such abandonment.

28-95

     (6) Pre-existing residential boating facilities.

28-96

     (i) The department is hereby authorized and empowered to recognize assent for pre-

28-97

existing residential boating facilities constructed prior to January 1, 1985 and which were given

28-98

assent by the former CRMC.

28-99

     (ii) The department is directed to develop rules and regulations necessary to implement

28-100

this subdivision.

28-101

     (iii) It is the specific intent of this subsection to require that all pre-existing residential

28-102

boating facilities constructed on January 1, 1985 or thereafter conform to this chapter and the

29-1

plans, rules and regulations of the department.

29-2

     (7) Lease of filled lands which were formerly tidal lands to riparian or littoral owners.

29-3

     (i) Any littoral or riparian owner in this state who desires to obtain a lease from the state

29-4

of Rhode Island of any filled lands adjacent to his or her upland shall apply to the department,

29-5

which may make the lease. Any littoral or riparian owner who wishes to obtain a lease of filled

29-6

lands must obtain pre-approval, in the form of an assent, from the department. Any lease granted

29-7

by the department shall continue the public's interest in the filled lands including, but not limited

29-8

to, the rights of navigation, fishery, and commerce. The public trust in the lands shall continue

29-9

and run concurrently with the leasing of the lands by the state to private individuals, corporations,

29-10

or municipalities. Upon the granting of a lease by the department, those rights consistent with the

29-11

public trust and secured by the lease shall vest in the lessee. The department may approve a lease

29-12

of filled lands for an initial term of up to fifty (50) years, with, or without, a single option to

29-13

renew for an additional term of up to fifty (50) years.

29-14

     (ii) The lessor of the lease, at any time, for cause, may by express act cancel and annul

29-15

any lease previously made to the riparian owner when it determines that the use of the lands is

29-16

violating the terms of the lease or is inconsistent with the public trust, and upon cancellation the

29-17

lands, and rights in the land so leased, shall revert to the state.

29-18

     (8) "Marinas" as defined in the coastal resources management program in effect as of

29-19

June 1, 1997, are deemed to be one of the uses consistent with the public trust. Subdivision (7) is

29-20

not applicable to:

29-21

     (i) Any riparian owner on tidal waters in this state (and any successor in interest to the

29-22

owner) which has an assent issued by the department to use any land under water in front of his

29-23

or her lands as a marina, which assent was in effect on June 1, 1997;

29-24

     (ii) Any alteration, expansion, or other activity at a marina (and any successor in interest)

29-25

which has an assent issued by the department, which assent was in effect on June 1, 1997; and

29-26

     (iii) Any renewal of assent to a marina (or successor in interest), which assent was issued

29-27

by the department and in effect on June 1, 1997.

29-28

     (9) "Recreational boating facilities" including marinas, launching ramps, and recreational

29-29

mooring areas, as defined by and properly permitted by the department, are deemed to be one of

29-30

the uses consistent with the public trust. Subdivision (7) is not applicable to:

29-31

     (i) Any riparian owner on tidal waters in this state (and any successor in interest to the

29-32

owner) which has an assent issued by the department to use any land under water in front of his

29-33

or her lands as a recreational boating facility; any alteration, expansion or other activity at a

29-34

recreational boating facility (and any successor in interest) which has an assent issued by the

30-1

former CRMC, which assent was in effect as of June 1, 1997; and

30-2

      (ii) Any renewal of assent to a recreational boating facility (or successor in interest),

30-3

which assent was issued by the former CRMC and in effect on June 1, 1997.

30-4

     46-23-26. Reporting requirements. -- Within ninety (90) days after the end of each

30-5

fiscal year, the department of coastal resources management shall approve and submit an annual

30-6

report to the governor, the speaker of the house of representatives, the president of the senate, and

30-7

the secretary of state, of its activities during that fiscal year. The report shall provide an operating

30-8

statement, summarizing meetings or hearings held, including meeting minutes, subjects

30-9

addressed, decisions rendered, applications considered and their disposition, rules or regulations

30-10

promulgated, studies conducted, policies and plans developed, approved, or modified, and

30-11

programs administered or initiated; a consolidated financial statement of all funds received and

30-12

expended including the source of the funds, a listing of any staff supported by these funds, and a

30-13

summary of any clerical, administrative or technical support received; a summary of performance

30-14

during the previous fiscal year including accomplishments, shortcomings and remedies; a

30-15

synopsis of hearings, complaints, suspensions, or other legal matters related to the authority of the

30-16

department of coastal resources management; a summary of any training courses held pursuant to

30-17

the provisions of this chapter; a briefing on anticipated activities in the upcoming fiscal year, and

30-18

findings and recommendations for improvements. The report shall be posted electronically on the

30-19

website of the secretary of state pursuant to the provisions of section 42-20-8.2. The director of

30-20

the department of administration shall be responsible for the enforcement of this provision.

30-21

     SECTION 5. Title 22 of the General Laws entitled "GENERAL ASSEMBLY" is hereby

30-22

amended by adding thereto the following chapter:

30-23

     CHAPTER 14.3

30-24

PERMANENT JOINT COMMITTEE ON COASTAL RESOURCES

30-25

     22-14.3-1. Permanent joint committee on coastal resources -- Composition. – (a)

30-26

There is hereby created a permanent joint committee on coastal resources. The permanent joint

30-27

committee on coastal resources shall consist of nine (9) members: four (4) of whom shall be

30-28

members of the senate, not more than three (3) from the same political party, to be appointed by

30-29

the senate president; and five (5) of whom shall be members of the house of representatives, not

30-30

more than four (4) from the same political party, to be appointed by the speaker of the house.

30-31

     (b) The senate president and the speaker of the house shall consult with the house and

30-32

senate minority leaders on the appointment of the minority members.

30-33

     22-14.3-2. Powers and duties of permanent joint committee on coastal resources. --

30-34

The permanent joint committee on coastal resources shall have the authority to:

31-1

     (1) Provide oversight of the department of coastal resources management and of the

31-2

department of environmental management in all matters relating to the use, conservation,

31-3

regulation and management of the coastal resources of this state;

31-4

     (2) Confer, as the committee deems desirable, with the director and staff of the

31-5

department of coastal resources management and with the director and staff of the department of

31-6

environmental management;

31-7

     (3) Issue subpoenas, subpoenas duces tecum and orders for the production of books,

31-8

accounts, papers, records and documents, with the prior approval of both the speaker of the house

31-9

of representatives and the president of the senate;

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     (4) Make recommendations to the general assembly and propose legislation regarding: (i)

31-11

The use, conservation, regulation and management of the coastal resources of this state; and (ii)

31-12

The operation of the department of coastal resources management and/or the department of

31-13

environmental management; and

31-14

     (5) To insure compliance with legislative benchmarks and standards.

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     SECTION 6. This act shall take effect upon passage.

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LC01294

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO WATERS AND NAVIGATION -- COASTAL RESOURCES MANAGEMENT

COUNCIL

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32-1

     This act would dissolve the current coastal resources management council and replace it

32-2

with a new executive department to be known as the department of coastal resources

32-3

management.

32-4

     This act would take effect upon passage.

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LC01294

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