2012 -- H 7801 SUBSTITUTE A

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LC01749/SUB A

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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 - OBSTRUCTIONS TO NAVIGATION

     Introduced By: Representatives Malik, Gallison, and Morrison

     Date Introduced: February 28, 2012

     Referred To: House Environment and Natural Resources

It is enacted by the General Assembly as follows:

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     SECTION 1. Chapter 46-6 of the General Laws entitled "Obstructions to Navigation" is

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hereby amended by adding thereto the following sections:

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     46-6-8.1. Definitions. – As used in this chapter:

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     (1) “Abandoned vessel” means a vessel that has been left, moored, or anchored in the

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same area without the express consent, or contrary to the rules of, the owner, manager, or lessee

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of the submerged lands or waters below or on which the vessel is located for more than forty-five

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(45) consecutive days or for more than a total of ninety (90) days in any three hundred sixty-five

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(365) day period, and the vessel’s owner is: (i) Not known or cannot be located; or (ii) Known

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and located but is unwilling to take control of the vessel. Examples of abandoned vessels shall,

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include, but not be limited to, the following:

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     (A) Any vessel that is left unattended or has remained illegally on public property,

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including docks, boat launching ramps, or moorings for more than forty-five (45) days.

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     (B) Any vessel that has been found adrift or unattended in or upon the waters or

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submerged lands of the state of Rhode Island, and is found in a condition of disrepair as to

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constitute a hazard or obstruction to the use of the waters and submerged lands of the state or

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presents a potential health or environmental hazard.

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     (2) “Authorized public entity” means the department of environmental management or

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any municipality with jurisdiction or management authority over the harbor areas where an

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abandoned or derelict vessel or other obstruction is located.

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     (3) “Department” means the department of environmental management.

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     (4) “Derelict vessel” means a vessel whose owner is known and can be located, and who

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is able to exert control of a vessel that:

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     (i) Has been moored, anchored, or otherwise left in the waters or submerged lands of the

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state or on public property contrary to the rules adopted by an authorized public entity;

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     (ii) Is sunk or in danger of sinking;

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     (iii) Is obstructing a waterway; and/or

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     (iv) Is endangering life or property.

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     (5) “Director” means the director of the department of environmental management.

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     (6) “Mean high water” means a line of contour representing the eighteen and six-tenths

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(18.6) year average as determined by the metonic cycle and/or its equivalent as evidenced by the

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records, tidal datum, and methodology of the United States Coastal Geodetic Survey within the

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National Oceanic and Atmospheric Administration.

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     (7) “Obstruction” means any unlawful or unauthorized structure or thing that is deposited

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or suffered to be or remain in the tidal waters or upon the tidal lands of the state, and in the

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judgment of the director, is, or is liable to cause or become an obstruction to the safe and

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convenient use of the waters and submerged lands of the state for navigation and other lawful

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purposes.

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     (8) “Owner” means a person, other than a lienholder, having a property interest in or title

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to a vessel or other obstruction. The term includes a person entitled to use or have possession of a

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vessel or other obstruction subject to an interest in another person, reserved, or created by

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agreement and securing payment or performance of an obligation, but it does not include a lessee

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under a lease not intended as security.

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     (9) “Tidal lands” means those lands that are below the mean high water.

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     (10) “Tidal waters” means all waters seaward of mean high water.

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     (11) “Vessel” means every description of watercraft, other than a seaplane on the water,

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used or capable of being used as a means of transportation on water.

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     (12) “Waters and submerged lands of the state” means all tidal waters and tidal lands

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within the territorial limits of the state, all inland waters of the state, and all publicly owned

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submerged lands lying beneath the inland waters of the state.

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     46-6-10.1. Use or disposal of vessel or other obstruction. – (a) After taking possession

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of a vessel or other obstruction, pursuant to the terms and conditions of sections 46-6-9 and 46-9-

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10, the authorized public entity may use or dispose of the vessel or other obstruction in any

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appropriate and environmentally sound manner without further notice to any owners, but must

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give preference to uses that derive some monetary benefit from the vessel or other obstruction,

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either in whole or in scrap. If no value can be derived from the vessel or other obstruction, the

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authorized public entity must give preference to the least costly, environmentally sound,

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reasonable disposal option.

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     (b) If the authorized public entity chooses to offer the vessel or other obstruction for sale

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at public auction, either a minimum bid may be set or a letter of credit may be required, or both,

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to discourage future re-abandonment of the vessel or other obstruction.

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     (c) Proceeds derived from the sale of the vessel or other obstruction must first be applied

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to any administrative costs that are incurred by the authorized public entity during the notification

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procedures set forth in section 46-6-9, removal and disposal costs, and costs associated with

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environmental damages directly or indirectly caused by the vessel or other obstruction. If the

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proceeds derived from the sale of the vessel or other obstruction exceed all such costs, the

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remaining moneys must be applied to satisfying any liens registered against the vessel or other

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obstruction.

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     (d) Any value derived from the sale of a vessel greater than all liens and costs incurred

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shall revert to the derelict and abandoned vessel and obstruction removal account established in

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section 46-6-10.3.

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     46-6-10.2. Derelict and abandoned vessel and obstruction removal commission. – (a)

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There is hereby created a commission known as the derelict and abandoned vessel and

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obstruction removal commission which shall consist of five (5) members as follows:

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     (1) One member who shall be engaged in the marine trades industry, to be appointed by

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the governor with advice and consent of the senate;

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      (2) One member who shall represent a private, nonprofit environmental advocacy

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organization whose purposes include protecting and preserving Narragansett Bay, to be appointed

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by the governor with advice and consent of the senate;

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     (3) One member who shall be a municipal harbormaster, to be appointed by the governor

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with advice and consent of the senate;

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     (4) The director of the department of environmental management or his or her designee;

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and

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     (5) The executive director of the coastal resources management council or his or her

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designee.

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     (b) The chairperson shall be elected by the members of the commission.

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     (c) The members appointed by the governor shall serve three (3) year terms, and be

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eligible for re-appointment.

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     (d) The purpose of the commission shall be to prioritize the disbursement of funds from

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the derelict and abandoned vessel and obstruction removal account established in section 46-6-

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10.3.

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     (e) The commission shall be advisory to the director and shall provide recommendations

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to the director for fund disbursement.

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     (f) The commission shall develop criteria, in the form of guidelines, to prioritize removal

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projects undertaken pursuant to this chapter, and in accordance with the use of the derelict and

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abandoned vessel and obstruction removal account established in section 46-6-10.3. The

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guidelines shall also include guidance to the authorized public entities as to what removal

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activities and associated costs are reasonable and eligible for coverage by the fund. The director

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shall review and approve, approve with conditions, or reject these guidelines within thirty (30)

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days of receipt. The commission may seek to revise the guidelines at any time, by submitting

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such revisions to the director for review and approval. The guidelines shall be made publicly

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available.

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     46-6-10.3. Derelict and abandoned vessel and obstruction removal account. -- (a) All

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fees assessed pursuant to section 46-6-10.4 shall be deposited into a restricted receipt account,

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hereby created and known as the derelict and abandoned vessel and obstruction removal account.

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The account is also authorized to receive fund transfers and appropriations from the general fund,

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and from any moneys collected pursuant to section 46-6-12. Funds from the account may only be

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used to cover the costs of removing, disposing, and/or selling derelict and abandoned vessels and

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other obstructions, including any associated administrative or environmental remediation costs, in

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accordance with the provisions of this chapter.

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     (b) Priority for use of funds from the account is for (1) The removal of derelict and

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abandoned vessels that are in danger of sinking or have sunk, are breaking up or have broken up,

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pose a hazard to navigation, and/or pose threats to the environment; and (2) The removal of

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obstructions that pose a hazard to navigation, and/or pose threats to the environment.

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     (c) The department shall keep all authorized public entities apprised of the balance of the

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derelict and abandoned vessel and obstruction removal account and the funds available for

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disbursement.

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     46-6-10.4. Derelict and abandoned vessel and obstruction removal fee. – There is

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hereby established a derelict and abandoned vessel and obstruction removal fee which shall be in

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addition to the vessel registration fee assessed pursuant to subdivision 46-22-4(a)(1). The fee

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shall be assessed biennially at the time vessel registration fees are assessed by the department

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pursuant to subdivision 46-22-4(a)(1). All derelict and abandoned vessel and obstruction removal

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fees shall be deposited in the derelict and abandoned vessel and obstruction removal account

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established pursuant to section 46-6-10.3. The fees shall be assessed as follows:

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      Overall Vessel Length (Ft) User Fee

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      1-15 feet $2.00

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      16-20 feet $2.00

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      21-25 feet $6.00

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      26-30 feet $8.00

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      31-35 feet $12.00

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      36-40 feet $14.00

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      41-45 feet $16.00

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      46-50 feet $18.00

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      51 feet and above $20.00

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     Pursuant to paragraph 46-22-4(a)(1)(iii), vessels over thirty feet (30’) may, upon request,

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pay the derelict and abandoned vessel and obstruction removal fee, along with the registration fee

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annually at the rate of one-half (1/2) the biennial fee for a vessel of the same length.

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     46-6-17. Severability. – The provisions of this chapter shall be severable and, if any of

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the provisions shall be held invalid, the decision of the court respecting that provision or

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provisions shall not affect the validity of any other provision which can be given effect without

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that invalid provision.

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     SECTION 2. Sections 46-6-10, 46-6-11 and 46-6-12 of the General Laws in Chapter 46-6

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entitled "Obstructions to Navigation" are hereby amended to read as follows:

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     46-6-10. Removal of obstruction by director -- Payment of cost. – (a) If the vessel or

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other obstruction is: (1) not Not removed at or within the time specified in the notice, and in a

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manner and to a place satisfactory to the director, or (2) If the vessel or other obstruction is in

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immediate danger of sinking or has sunk, is breaking up or has broken up, or is posing a hazard to

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navigation; or (3) If the vessel or other obstruction poses an imminent threat to human health or

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safety, including a threat of environmental contamination; and (4) if If no owner or other person

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is known to the director upon whom the notice can be served, the director or other authorized

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public entity may proceed to remove the vessel or other obstruction, or to complete the removal

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thereof, or to cause the removal to be done, in such manner and to such place as the director or

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other authorized public entity shall deem best; and the necessary cost and expense of the

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removal, if not paid by some owner or other person liable therefor, shall, when certified by the

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director, be paid out of the derelict and abandoned vessel and obstruction removal account or out

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of the treasury of the state out of any money appropriated therefor.

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     (b) Before taking temporary possession of any vessel or other obstruction, the authorized

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public entity must make reasonable attempts to consult with the department of the United States

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Coast Guard to ensure that other remedies are not available. The basis for taking temporary

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possession of the vessel or other obstruction must be set out in writing by the authorized public

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entity within seven (7) days of taking action and be submitted to the owner, if known, as soon

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thereafter as reasonable. If the authorized public entity has not already provided the required

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notice, immediately after taking possession of the vessel or other obstruction, the authorized

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public entity must initiate the notice provisions in subsection 46-6-9(a). The authorized public

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entity must complete the notice requirements of subsection 46-6-9(a) before using or disposing of

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the vessel or other obstruction as authorized in section 46-6-10.1.

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     46-6-11. Liability for cost of removing obstruction -- Action for recovery. -- The

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owner of any vessel or of an interest in any vessel willfully or maliciously wrecked, sunken, or

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abandoned and removed as provided in section 46-6-10, whether owning, at the time the vessel

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first became an obstruction, or at any subsequent time before the removal is completed, and all

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persons having or exercising any control over the vessel or any part thereof, and, in the case of

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any other obstruction so removed, the person or persons originally building, depositing, or

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causing the obstruction, or at the time of the removal, or at any time prior thereto, owning,

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maintaining, or using the obstruction in whole or in part, shall be liable to pay the cost and

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expenses of the removal, or to repay the cost when paid out of the derelict and abandoned vessel

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and obstruction removal account or treasury as aforesaid; and the cost may be recovered in a civil

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action brought by the director in the name of the state against the owners or other persons, or

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against any one or more of them. The attorney general shall conduct and commence the suits. All

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moneys so repaid or recovered shall be paid into the derelict and abandoned vessel and

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obstruction removal account or treasury of the state. Any person who pays on a judgment or

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otherwise more than his or her proportional part of the costs and expenses aforesaid, shall have a

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claim for contribution against all other parties liable therefor according to their respective

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interests.

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     46-6-12. Sale of object removed to pay cost of removal. -- If the cost and expenses of

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removing a vessel or other obstruction as aforesaid are not paid or repaid by some owner or other

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person liable therefor within ten (10) days after the removal is completed, the director of the

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department of environmental management may sell the vessel or other obstruction, or the

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materials and appurtenances thereof, at public or private sale, and the net proceeds of the sale

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shall be paid into the derelict and abandoned vessel and obstruction removal account or treasury

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of the state and deducted from the amount to be repaid or recovered as provided in section 46-6-

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11.

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     SECTION 3. This act shall take effect upon passage; provided, however, that section 46-

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6-10.4 of this act shall apply to all boat registrations, including renewals, effective March 1, 2013.

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LC01749/SUB A

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO WATERS AND NAVIGATION - OBSTRUCTIONS TO NAVIGATION

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     This act would allow the authorized public entity to use or dispose of derelict or

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abandoned vessels or other obstructions without further notice to any owners. Preference is to a

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use which would derive some monetary benefit from the vessel.

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     This act would take effect upon passage; provided, however, that section 46-6-10.4

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would apply to all boat registrations, including renewals, effective March 1, 2013.

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LC01749/SUB A

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