2012 -- S 2610

=======

LC01686

=======

STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

____________

A N A C T

RELATING TO WATERS AND NAVIGATION - OBSTRUCTIONS TO NAVIGATION

     Introduced By: Senators Felag, DiPalma, Bates, Sosnowski, and McCaffrey

     Date Introduced: March 01, 2012

     Referred To: Senate Environment & Agriculture

It is enacted by the General Assembly as follows:

1-1

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

1-2

hereby amended by adding thereto the following sections:

1-3

     46-6-8.1. Legislative findings. -- The general assembly finds that there has been an

1-4

increase in the number of derelict and abandoned vessels that are either grounded or anchored

1-5

upon publicly or privately owned submerged lands. These vessels are public nuisances and safety

1-6

hazards as they often pose hazards to navigation, detract from the aesthetics of Rhode Island’s

1-7

waterways, and threaten the environment with the potential release of hazardous materials. The

1-8

legislature further finds that the costs associated with the disposal of derelict and abandoned

1-9

vessels are substantial, and that in many cases there is no way to track down the current vessel

1-10

owners in order to seek compensation. As a result, the costs associated with the removal of

1-11

derelict vessels become a burden on public entities and the taxpaying public.

1-12

     46-6-8.2. Definitions. – As used in this chapter: (1) “Abandoned vessel” means a vessel

1-13

that has been left, moored, or anchored in the same area without the express consent, or contrary

1-14

to the rules of, the owner, manager, or lessee of the tidal lands below or on which the vessel is

1-15

located for either a period of more than thirty (30) consecutive days or for more than a total of

1-16

ninety (90) days in any three hundred sixty-five (365) day period, and the vessel’s owner is: (i)

1-17

Not known or cannot be located; or (ii) known and located but is unwilling to take control of the

1-18

vessel. For the purposes of this subsection (1) only, “in the same area” means within a radius of

1-19

five (5) miles of any location where the vessel was previously moored or anchored on tidal lands.

1-20

An example of an abandoned vessel shall be, but is not limited to, the following:

2-1

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

2-2

including public marinas, docks, boat launching ramps, boat yard, or mooring for more than thirty

2-3

(30) days.

2-4

     (B) Any vessel that has remained on private property; including private marinas, docks or

2-5

boat yards for more than ninety (90) days without consent of the owner or person in control of the

2-6

property.

2-7

     (C) Any vessel that has been found adrift or unattended in or upon the waters of the state

2-8

of Rhode Island, and is found in a condition of disrepair as to constitute a hazard or obstruction to

2-9

the use of the waters of the state of Rhode Island or presents a potential health or environmental

2-10

hazard.

2-11

     (2) “Authorized public entity” means any of the following: The department of

2-12

environmental management; the department of fish and wildlife; a port district; environmental

2-13

police and any city, town, or county with ownership, management, or jurisdiction over the tidal

2-14

lands where an abandoned or derelict vessel is located.

2-15

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

2-16

     (4) “Derelict vessel” means the vessel’s owner is known and can be located, and exerts

2-17

control of a vessel that:

2-18

     (i) Has been moored, anchored, or otherwise left in the waters of the state or on public

2-19

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

2-20

     (ii) Has been left on private property without authorization of the owner; or

2-21

     (iii) Has been left for a period of seven (7) consecutive days;

2-22

     (iv) Is sunk or in danger of sinking;

2-23

     (v) Is obstructing a waterway; and

2-24

     (vi) Is endangering life or property.

2-25

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

2-26

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

2-27

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

2-28

National Oceanic and Atmospheric Administration.

2-29

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

2-30

to a vessel. The term includes a person entitled to use or have possession of a vessel subject to an

2-31

interest in another person, reserved, or created by agreement and securing payment or

2-32

performance of an obligation, but it does not include a lessee under a lease not intended as

2-33

security.

3-34

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

3-35

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

3-36

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

3-37

     (9) “Waters of this state” means any waters within the territorial limits of this state, and

3-38

the marginal sea adjacent to this state and the high seas when navigated as a part of a journey or

3-39

ride to or from the shore of this state.

3-40

     46-6-8.3. Use or disposal of vessel. – (a) After taking custody of a vessel, the authorized

3-41

public entity may use or dispose of the vessel in any appropriate and environmentally sound

3-42

manner without further notice to any owners, but must give preference to uses that derive some

3-43

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

3-44

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

3-45

sound, reasonable disposal option.

3-46

     (b) If the authorized public entity chooses to offer the vessel at public auction, either a

3-47

minimum bid may be set or a letter of credit may be required, or both, to discourage future

3-48

reabandonment of the vessel.

3-49

     (c) Proceeds derived from the sale of the vessel must first be applied to any

3-50

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

3-51

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

3-52

environmental damages directly or indirectly caused by the vessel. If the proceeds derived from

3-53

the vessel exceed all administrative costs, removal and disposal costs, and costs associated with

3-54

environmental damages directly or indirectly caused by the vessel, the remaining moneys must be

3-55

applied to satisfying any liens registered against the vessel.

3-56

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

3-57

derelict vessel removal account established in section 46-6-8.4.

3-58

     46-6-8.4. Derelict vessel removal account. -- (a) The derelict vessel removal account is

3-59

created in the state treasury. All receipts from section 46-6-l2 and those moneys specified in

3-60

sections 46-8-5 and 46-22.1 must be deposited into the account. The account is authorized to

3-61

receive fund transfers and appropriations from the general fund, deposits from the derelict vessel

3-62

removal surcharge, and moneys from boat registration per sections 46-8-5 and 46-22.1.

3-63

Expenditures from the account shall be used by the department to reimburse authorized public

3-64

entities for up to ninety percent (90%) of the total reasonable and auditable administrative,

3-65

removal, disposal, and environmental damage costs of abandoned or derelict vessels when the

3-66

previous owner is either unknown after a reasonable search effort or insolvent. Reimbursement

3-67

shall not be made unless the department determines that the public entity has made reasonable

3-68

efforts to identify and locate the party responsible for the vessel, regardless of the title of owner

4-1

of the vessel. Funds in the account resulting from transfers from the general fund or from the

4-2

deposit of funds from the boat registration fees as provided for under sections 46-8-5 and 46-22.1,

4-3

shall be used to reimburse one hundred percent (100%) of these costs and should be prioritized

4-4

for the removal of large vessels.

4-5

     (b) Priority for use of this account is for the removal of derelict and abandoned vessels

4-6

that are in danger of sinking, breaking up, or blocking navigation channels, or that present

4-7

environmental risks such as leaking fuel or other hazardous substances. The department must

4-8

develop criteria, in the form of guidelines, to prioritize removal projects associated with this

4-9

chapter, but may not consider whether the applicant is a state or local entity when prioritizing.

4-10

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

4-11

activities and associated costs are reasonable and eligible for reimbursement.

4-12

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

4-13

derelict vessel removal account and the funds available for reimbursement. The guidelines

4-14

developed by the department must also be made available to the other authorized public entities.

4-15

This subsection (c) must be satisfied by utilizing the least costly method, including maintaining

4-16

the information on the department’s Internet website, or any other cost-effective method.

4-17

     (d) An authorized public entity may contribute ten percent (10%) of costs that are not

4-18

eligible for reimbursement by using in-kind services, including the use of existing staff,

4-19

equipment, and volunteers.

4-20

     (e) This chapter does not guarantee reimbursement for an authorized public entity.

4-21

Authorized public entities seeking certainly in reimbursement prior to taking action under this

4-22

chapter may first notify the department of their proposed action and the estimated total costs.

4-23

Upon notification by an authorized public entity, the department must make the authorized public

4-24

assistance and assure reimbursement for up to two (2) years following the removal action if an

4-25

assurance is appropriate given the balance of the fund and the details of the proposed action.

4-26

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

4-27

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

4-28

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

4-29

that invalid provision.

4-30

     SECTION 2. Section 46-6-9 of the General Laws in Chapter 46-6 entitled "Obstructions

4-31

to Navigation" is hereby amended to read as follows:

4-32

     46-6-9. Notice to owner to remove obstruction -- Penalty. -- (a) If any person resident

4-33

or being in the United States is known to the director as the owner of a vessel, or any interest

4-34

therein, or as having or exercising any control over the vessel as master, agent, insurer, or

5-1

otherwise, or, in case of any other unlawful or unauthorized obstruction, as having alone or with

5-2

others built, deposited, or caused the obstruction, or as owning, maintaining, or using the

5-3

obstruction in whole or in part, the director shall give notice in writing to the owner or other

5-4

person to remove the vessel or other obstruction within thirty (30) days of the date of the notice,

5-5

or such extension of time as may be granted by the director.

5-6

      (b) It shall be deemed a sufficient notice to all owners and other persons, if served upon

5-7

any one or more of them by the director, or by the director's order, by delivering the notice in

5-8

hand, or by leaving it at the usual place of business, residence, or abode, or by duly mailing it to

5-9

the post office address of the owner or other person on whom the notice is to be served.

5-10

      (c) Failure to comply with the notice shall result in a fine of one hundred dollars ($100)

5-11

per day until the obstruction is removed.

5-12

     (d)(1) If a vessel is: (i) In immediate danger of sinking, breaking up, or blocking

5-13

navigational channels; or (ii) Poses a reasonably imminent threat to human health or safety,

5-14

including a threat to environmental contamination; and (iii) The owner of the vessel cannot be

5-15

located or is unwilling or unable to assume immediate responsibility for the vessel, any

5-16

authorized public entity may tow, beach, or otherwise take temporary possession of the vessel.

5-17

     (e) Before taking temporary possession of the vessel, the authorized public entity must

5-18

make reasonable attempts to consult with the department of the United States Coast Guard to

5-19

ensure that other remedies are not available. The basis for taking temporary possession of the

5-20

vessel must be set out in writing by the authorized public entity within seven (7) days of taking

5-21

action and be submitted to the owner, if known, as soon thereafter as reasonable. If the authorized

5-22

public entity has not already provided the required notice, immediately after taking possession of

5-23

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

5-24

of this section. The authorized public entity must complete the notice requirements of subsection

5-25

(a) of this section before using or disposing of the vessel as authorized in section 46-6-8.3.

5-26

     SECTION 3. This act shall take effect upon passage.

=======

LC01686

========

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO WATERS AND NAVIGATION - OBSTRUCTIONS TO NAVIGATION

***

6-1

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

6-2

abandoned vessels without further notice to any owners. Preference is to a use which would

6-3

derive some monetary benefit from the vessel.

6-4

     This act would take effect upon passage.

=======

LC01686

=======