2019 -- S 0412

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LC001655

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2019

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A N   A C T

RELATING TO WATERS AND NAVIGATION - THE CLIMATE CHANGE COASTAL

ADAPTATION TRUST FUND

     Introduced By: Senator Erin Lynch Prata

     Date Introduced: February 27, 2019

     Referred To: Senate Environment & Agriculture

     It is enacted by the General Assembly as follows:

     SECTION 1. Section 46-23.1-3 of the General Laws in Chapter 46-23.1 entitled "The

Coastal and Estuary Habitat Restoration Program and Trust Fund" is hereby amended to read as

follows:

     46-23.1-3. The Rhode Island coastal and estuarine habitat restoration trust fund.

     (a) Establishment. There is established within the coastal resources management council

a Rhode Island coastal and estuarine habitat restoration trust fund (the "trust"). On July 1, 2002,

July 1, 2004 and each July 1st thereafter, two hundred and fifty thousand dollars ($250,000) of

the fees collected under the uniform oil spill response and prevention statute (§ 46-12.7-4.1) shall

be deposited into the trust. On July 1, 2019, and each July 1 thereafter, two hundred fifty

thousand dollars ($250,000) of the fees collected under the climate change coastal adaptation fee

(§46-23.3-9) shall be deposited into the trust. The trust shall be available for disbursement by the

council in accordance with the restrictions and purposes of this chapter and subject to an annual

appropriation by the legislature. The trust may also receive federal, state, municipal, and private

grants, gifts, or donations. Funds in the trust shall not be used for mitigating any current, planned

or future projects that degrade, fill, or otherwise destroy coastal or estuarine habitats. Funds in the

trust shall not be used to fulfill any liability for restoration required by any local, state or federal

agency pursuant to an environmental or public health enforcement action.

     (b) Funding of estuary and coastal habitat restoration activities. Factors to be taken into

account by the technical committee for the purposes of granting monies for estuary and coastal

habitat restoration activities, determining the eligibility of an estuary and coastal habitat

restoration projects for financial assistance, and in prioritizing the selection of estuary and coastal

habitat restoration projects by the technical committee shall include, but need not be limited to:

     (1) Consistency with the state estuary and coastal habitat restoration strategy, the

Narragansett Bay comprehensive conservation and management plan, the state coastal nonpoint

pollution control plan, the coastal resources management program, the department of

environmental management regulations, and pertinent elements of the state guide plan;

     (2) The ability of the applicant to provide adequate personnel funding, and authority to

carry out and properly maintain the estuary and coastal habitat restoration activity;

     (3) The proposed monitoring plan to ensure that short-term and long-term restoration

goals are achieved;

     (4) The effectiveness of any nonpoint source pollution management efforts upstream and

the likelihood of re-impairment;

     (5) Whether the estuary and coastal habitat restoration activity can be shown to replace

habitat losses that benefit fish and wildlife resources;

     (6) Potential water quality improvements;

     (7) Potential improvements to fish and wildlife habitats for species which are identified

as rare or endangered by the Rhode Island Natural History Survey or the federal Endangered

Species Act [16 U.S.C. § 1531 et seq.];

     (8) The level and extent of collaboration by partners (e.g., municipality, nongovernment

organization, watershed council, federal agency, etc.); and

     (9) Potential direct economic benefit to a community or the state.

     SECTION 2. Title 46 of the General Laws entitled "WATERS AND NAVIGATION" is

hereby amended by adding thereto the following chapter:

CHAPTER 23.3

THE OCEAN STATE CLIMATE ADAPTATION AND RESILIENCE FUND

     46-23.3-1. Purpose and findings.

     (a) Purpose. To enable cities and towns and the state to apply for grants awarded for

projects that invest in measures that adapt infrastructure on public lands to the impacts of climate

change to protect or enhance natural systems and habitats and to improve the quality of life and

economic prosperity of the citizens of the state.

     (b) Findings.

     (1) The findings and purpose set forth in § 46-23.1-1 are fully applicable and adopted

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herein.

     (2) The production, transport and use of fossil fuels have significant impacts on the

environment.

     (3) The impacts of climate change upon Rhode Island's built and natural environments

are wide-ranging, discernible and documented, and, in many cases growing in severity and

include sea level rise, coastal erosion, flooding and storm surge.

     (4) As of 2016, the range in sea level rise change is projected by the National Oceanic

and Atmospheric Administration to be a maximum of approximately one foot (1') in 2035, two

feet (2') in 2050 and up to nine feet (9') by 2100.

     (5) Annual precipitation has increased by two (2'') inches since 1950 and more intense

rainfall is flooding low-lying areas and threatening public infrastructure.

     (6) Climate change has and will continue to pose significant risks for state and municipal

infrastructure and our environment, public health, welfare, and economic well-being.

     (7) Providing areas for coastal and estuarine habitats to migrate is essential to preserving

coastal and marine wildlife resources.

     (8) Ecosystem services that natural environments provide (e.g. dampening of wave

energy, flood storage, etc.) are at risk due to climate change and protecting natural systems is

vital to protecting built infrastructure and is cost effective.

     (9) Rhode Island infrastructure is at risk and the state must begin to plan and implement

projects to protect it.

     (10) Reducing the vulnerability of our infrastructure is vital to the economic prosperity

and quality of life of the citizens of the state.

     (11) The state, and Rhode Island cities and towns, need assistance in addressing the

impacts of climate change including removing vulnerable infrastructure.

     46-23.3-2. Definitions.

     The definitions set forth in § 46-23.1-2, unless modified herein, shall also apply to the

interpretation of this chapter as if fully set forth herein. For the purposes of this chapter, the

following definitions shall apply:

     (1) "Adaptation and resilience projects" are those projects on public land, as defined in

subsection (7) of this section that protect or enhance natural systems and habitats and are

proposed in a response to climate change impacts as defined in subsection (2) of this section.

Adaption and resilience projects include those projects that reduce the vulnerability of low-lying

infrastructure on public land through measures that include removal, relocation, and redesign of

infrastructure, regrading of banks and revegetation, acquisition of that area of land necessary to

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maintain public access, and preserving or securing lateral access along the shoreline.

     (2) "Climate change impacts" in Rhode Island includes, but are not limited to, sea level

rise, coastal erosion, flooding and storm surge.

     (3) "Council" means the coastal resources management council.

     (4) "Department" means the department of environmental management.

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

     (6) "Infrastructure" means and includes roads, parking lots and other paved surfaces,

structural shoreline protection facilities, buildings, water control structures, other structures, and

remnants of coastal development.

     (7) "Public land(s)" means property owned by state or municipal governments, public and

private lands dedicated to public use, and lands that provide access to shorelines and riverbanks.

Public lands include properties where the state or municipality holds an easement for public

purposes.

     (8) "Shoreline protection structures" means and includes revetments, bulkheads, seawalls

and floodwalls, groins, breakwaters, jetties, and other structures, the purpose or effect of which is

to control the erosion of coastal or river features, and includes any sheet pile walls, concrete or

stone walls.

     46-23.3-3. Establishment - The Ocean State climate adaptation and resilience fund.

     (a) Establishment. There is established within the department of environmental

management and the coastal resources management council, the ocean state climate adaptation

and resilience fund (the "OSCAR fund").

     (b) OSCAR trust fund grants. Factors to be taken into account by the technical committee

for the purposes of granting monies to municipalities and the state for OSCAR grants,

determining the eligibility of projects for financial assistance, and in prioritizing the selection of

projects by the technical committee shall include, but need not be limited to:

     (1) Consistency with the following where applicable: the council's projections for sea

level rise, the coastal habitat restoration strategy, the state coastal nonpoint pollution control plan,

Federal Flood Risk Management Standards, pertinent elements of the state guide plan, the goals

of the executive climate change coordinating council (EC4), and strict compliance with the

coastal resources management program and the department of environmental management

regulations;

     (2) The ability and authority of the applicant to carry out and properly maintain the

adaptation project;

     (3) Whether the project will enhance public access;

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     (4) The severity to, or the risk or extent of, infrastructure degradation on public land;

     (5) The extent of the use by the public of the land;

     (6) The proposed milestones to ensure that the project is completed as designed and

approved;

     (7) Whether the adaptation project can also be shown to create or replace habitat losses

that benefit fish and wildlife resources;

     (8) Potential water quality improvements;

     (9) Potential improvements to fish and wildlife habitats for species which are identified

as rare or endangered by the Rhode Island natural history survey or the Federal Endangered

Species Act [16 U.S.C. §1531 et seq.];

     (10) The level and extent of collaboration by partners (e.g., municipality, nongovernment

organization, watershed council, federal agency, etc.); and

     (11) Overall potential benefits to the public and estimated length of time frame of benefit.

     46-23.3-4. Eligible and Ineligible projects.

     (a) Funds in the ocean state climate adaptation and resilience (OSCAR) fund shall be

used solely for adaptation projects as defined in § 46-23.3-2.

     (b) Funds in the OSCAR fund shall not be used for:

     (1) Mitigating any current, planned or future projects that degrade, fill, or otherwise

destroy coastal, estuarine or riverine habitats;

     (2) Fulfilling any liability for restoration required by any local, state or federal agency

pursuant to an environmental or public health enforcement action; or

     (3) Elevating or replacing infrastructure, or constructing new infrastructure, in an existing

coastal location that is experiencing climate change impact as defined in § 46-23.3-2.

     (4) Constructing new shoreline protection structures; or

     (5) Constructing roads or bridges.

     46-23.3-5. Allocation of the trust.

     Funds from the OSCAR trust shall be used to carry out the purposes of this chapter as

follows:

     (1) The administrative expenses required to carry out the activities of the program as

described in this chapter not to exceed fifty thousand dollars ($50,000) per agency. The

department and the council shall be responsible for submitting annual budget requests for its

administrative and implementation costs of the program;

     (2) The design, planning, engineering, construction, and monitoring of adaptation

projects as described in this chapter; and

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     (3) The climate change coastal adaptation projects that are approved by the department

and the council upon recommendation of the technical advisory committee. Only grants approved

through the process established by the agencies shall be eligible for funding under this program.

     46-23.3-6. Technical advisory committee.

     Members of the technical advisory committee shall include representatives from the

department, the council, statewide planning, and Rhode Island emergency management authority.

The technical advisory committee shall serve as an advisory board to the department, council and

the program staff throughout this process.

     46-23.3-7. Disbursement process.

     (a) The department and the council shall establish and execute an annual process for the

solicitation, evaluation and award of grants for projects that meet the requirements set forth in in

this chapter.

     (b) The department and the council shall submit to the governor and the general assembly

during annual budget preparations a list of adaptation project proposals that have received a

positive review by the technical advisory committee and require funds from the trust to proceed

with the design, planning, construction or monitoring during the ensuing year.

     (c) Nothing contained in this chapter is intended to abrogate or affect the existing powers

of the department of environmental management or the coastal resources management council.

     46-23.3-8. Financing of the OSCAR fund.

     (a) The fund shall consist of the following sources:

     (1) Sums the legislature may appropriate;

     (2) Monies received from federal, state, or other sources, including bond funds, for the

purpose of climate adaptation;

     (3) Monies received from any private donor for the OSCAR fund;

     (4) The fee required pursuant to § 46-23.3-9; and

     (5) Any interest earned on the monies in the fund.

     46-23.3-9. Uniform climate change adaptation fee.

     (a) A uniform climate change adaptation fee in an amount not exceeding five cents ($.05)

for each barrel of petroleum products, as set by the director pursuant to subsection (d) of this

section, shall be imposed upon every person owning petroleum products at the time the petroleum

products are received at a marine terminal within this state by means of a vessel from a point of

origin outside this state. The fee shall be remitted to the division of taxation on the thirtieth day of

each month based upon the number of barrels of petroleum products received during the

preceding month.

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     (b) Every owner of petroleum products shall be liable for the fee until it has been paid to

the state, except that payment to a marine terminal operator registered under this chapter is

sufficient to relieve the owner from further liability for the fee; provided, however, that the fee for

asphalt products and asphalt derivatives shall be one cent ($.01) per barrel of asphalt products or

derivatives.

     (c) Whenever the director, in consultation with the department and the division of

taxation, estimates that the amount in either fund will reach the amount specified in subsection (e)

of this section, and the money in the fund is not required for the purposes specified in § 46-23.3-

1, the director shall instruct the division of taxation to cease collecting the fee.

     (d) The division of taxation, except for the fee set out in subsection (b) of this section,

shall not set the amount of the fee at less than five cents ($0.05) for each barrel of petroleum

products or crude oil, unless the director finds that the assessment of a lesser fee will cause the

fund to reach the designated amount within six (6) months.

     (e) For the purposes of this chapter, "designated amount" means an amount equal to ten

million dollars ($10,000,000), adjusted for inflation after January 1, 2019, according to an index

which the director may reasonably choose.

     (f) All fees collected pursuant to this section shall be deposited in the rivers and coastal

adaptation fund, and shall be disbursed according to the purposes expressed in § 46-23.3-1.

     (g) Notwithstanding the provisions of subsection (f) of this section, on July 1, 2019 and

each July 1 thereafter, two hundred fifty thousand dollars ($250,000) of the fees collected under

this section shall be deposited into the coastal and estuarine habitat restoration trust fund (the

"trust").

     46-23.3-10. Regulations.

     The council and the director may adopt all rules and regulations necessary for the

administration and enforcement of this chapter.

     SECTION 3. This act shall take effect on July 1, 2019.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO WATERS AND NAVIGATION - THE CLIMATE CHANGE COASTAL

ADAPTATION TRUST FUND

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     This act would establish Ocean State Climate Adaptation and Resilience Fund (OSCAR)

which provides grants to fund projects that adapt infrastructure on public lands to address impacts

of climate change; identifies eligible/ineligible projects, allocation, disbursements, and financing

of the fund.

     This act would take effect on July 1, 2019.

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