2012 -- H 7961 SUBSTITUTE A

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LC02240/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 - COASTAL RESOURCES MANAGEMENT

COUNCIL

     Introduced By: Representatives Tanzi, and Walsh

     Date Introduced: March 15, 2012

     Referred To: House Municipal Government

It is enacted by the General Assembly as follows:

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     SECTION 1. Section 46-23-6 of the General Laws in Chapter 46-23 entitled "Coastal

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Resources Management Council" is hereby amended to read as follows:

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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

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

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

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

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

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Rhode Island Sea Grant.

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

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

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

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

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management responsibilities as provided for under title 45 and harbor management

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

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comment by cities and towns.

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

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

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

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

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

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plan at least once every five (5) years.

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

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

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

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

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      (B) Special area management plans.

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

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

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

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

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coordination.

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

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

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

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

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

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organizations, and private persons.

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

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activities in a manner consistent with special area management plans.

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

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

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      (2) Implementation.

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

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

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

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

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

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

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

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

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

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

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

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

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administered by the department.

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

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

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

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

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

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

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

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would not:

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

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

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resources management plan or program adopted by the council; or

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

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

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such proposal.

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

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

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

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

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

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

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

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

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environment. These uses and activities are:

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

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

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      (C) Minerals extraction.

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

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

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features.

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

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

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

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

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

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

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

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

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

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section 2-1-22(i) and (j), except as provided in subsection (iv) of this section. Within six (6)

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months of [August 6, 1996] the council in cooperation with the director shall develop rules and

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regulations for the management and protection of freshwater wetlands, affected by an aquaculture

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project, outside of those freshwater wetlands located in the vicinity of the coast and under the

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exclusive jurisdiction of the director of the department of environmental management. For the

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purpose of this chapter, a "coastal wetland" means any salt marsh bordering on the tidal waters of

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this state, whether or not the tidal waters reach the littoral areas through natural or artificial

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watercourses, and those uplands directly associated and contiguous thereto which are necessary to

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preserve the integrity of that marsh. Marshes shall include those areas upon which grow one or

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more of the following: smooth cordgrass (spartina alterniflora), salt meadow grass (spartina

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patens), spike grass (distichlis spicata), black rush (juncus gerardi), saltworts (salicornia spp.), sea

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lavender (limonium carolinianum), saltmarsh bulrushes (scirpus spp.), hightide bush (iva

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frutescens), tall reed (phragmites communis), tall cordgrass (spartina pectinata), broadleaf cattail

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(typha latifolia), narrowleaf cattail (typha angustifolia), spike rush (eleocharis rostellata),

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chairmaker's rush (scirpus amercana), creeping bentgrass (agrostis palustris), sweet grass

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(hierochloe odorata), and wild rye (etlymus virginicus).

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

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

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

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

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program for resources management or damage to the coastal environment.

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     (iv) Notwithstanding the provisions of subsections (ii) and (iii) above, the department of

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environmental management shall maintain jurisdiction over the administration of chapter 1, title

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2, including permitting of freshwater wetlands alterations and enforcement, with respect to all

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agricultural activities undertaken by a farmer, as that term is defined in subsection 2-1-22(j),

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wherever located; provided, however, that with respect to activities located partially or

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completely within two hundred feet (200’) of the coastal physiographic feature, the department

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shall exercise jurisdiction in consultation with the council.

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

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

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

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agencies.

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

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and private interests.

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      (iii) Conducting or sponsoring coastal research.

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

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

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

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

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

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

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

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

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

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

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

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

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place of the purchase cover material.

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

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aquaculture related matters.

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

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which are essential to management of coastal resources:

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

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jurisdiction, including conduct of any form of aquaculture.

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

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

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

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materials in the tidal waters.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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      (5) Rights-of-way.

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

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

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way to the tidal water areas of the state.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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making its designation:

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      (A) Land evidence records;

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

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upkeep;

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      (C) The payment of taxes;

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      (D) The creation of a dedication;

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      (E) Public use;

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

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

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

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substantial evidence.

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

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

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

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

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of such abandonment.

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      (6) Pre-existing residential boating facilities.

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

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

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

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

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

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endanger human safety.

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

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evidence that:

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

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January 1, 1985;

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

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

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Rhode Island or human safety.

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

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1999.

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

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subdivision.

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

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

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plans, rules and regulations of the council.

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

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

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

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

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

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

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

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

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

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

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

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additional term of up to fifty (50) years.

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

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

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

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

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

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

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not applicable to:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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     SECTION 2. This act shall take effect upon passage.

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LC02240/SUB A

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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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     This act would provide that agricultural wetlands in the state’s coastal regions that are

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used by a farmer for normal farming activities would be subject to the exclusive jurisdiction and

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enforcement of the department of environmental management, except, with respect to activities

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located partially or completely within two hundred feet (200’) of the coastal physiographic

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feature, the department of environmental management would exercise jurisdiction in consultation

12-6

with the council.

12-7

     This act would take effect upon passage.

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LC02240/SUB A

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