2020 -- H 7612 | |
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LC003149 | |
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STATE OF RHODE ISLAND | |
IN GENERAL ASSEMBLY | |
JANUARY SESSION, A.D. 2020 | |
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A N A C T | |
RELATING TO WATERS AND NAVIGATION -- COASTAL RESOURCES MANAGEMENT | |
COUNCIL | |
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Introduced By: Representatives Cortvriend, Handy, Fogarty, Shekarchi, and Carson | |
Date Introduced: February 14, 2020 | |
Referred To: House Environment and Natural Resources | |
It is enacted by the General Assembly as follows: | |
1 | SECTION 1. Section 46-23-6 of the General Laws in Chapter 46-23 entitled "Coastal |
2 | Resources Management Council" is hereby amended to read as follows: |
3 | 46-23-6. Powers and duties -- Rights-of-way. |
4 | In order to properly manage coastal resources the council has the following powers and |
5 | duties: |
6 | (1) Planning and management. |
7 | (i) The primary responsibility of the council shall be the continuing planning for and |
8 | management of the resources of the state's coastal region. The council shall be able to make any |
9 | studies of conditions, activities, or problems of the state's coastal region needed to carry out its |
10 | responsibilities. |
11 | (ii) The resources management process shall include the following basic phases: |
12 | (A) Identify all of the state's coastal resources, water, submerged land, air space, fin fish, |
13 | shellfish, minerals, physiographic features, and so forth. |
14 | (B) Evaluate these resources in terms of their quantity, quality, capability for use, and |
15 | other key characteristics. |
16 | (C) Determine the current and potential uses of each resource. |
17 | (D) Determine the current and potential problems of each resource. |
18 | (E) Formulate plans and programs for the management of each resource, identifying |
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1 | permitted uses, locations, protection measures, and so forth. |
2 | (F) Carry out these resources management programs through implementing authority and |
3 | coordination of state, federal, local, and private activities. |
4 | (G) Formulation of standards where these do not exist, and reevaluation of existing |
5 | standards. |
6 | (H) To develop comprehensive programs for dredging in tidal waters and related |
7 | beneficial use, disposal, monitoring dewatering and transportation of dredge materials. |
8 | (I) To accept and administer loans and grants from the federal government and from other |
9 | sources, public or private, for the carrying out of any of its functions, which loans or grants shall |
10 | not be expended for other than the purposes for which provided. |
11 | (J) To encourage, participate in, or conduct studies, investigations, research, and |
12 | demonstrations relating to dredging, disposal of dredge materials and transportation thereof in the |
13 | tidal waters of the state as the coastal resources management council may deem advisable and |
14 | necessary for the discharge of its duties under this chapter. |
15 | (K) To collect and disseminate information relating to dredging, disposal of dredge |
16 | materials and transportation thereof within the tidal waters of the state. |
17 | (L) To work with the appropriate federal and state agencies to develop as provided for in |
18 | this chapter and in chapter 6.1 of this title, a comprehensive plan for dredging in tidal waters and |
19 | related beneficial use, disposal, monitoring dewatering and transportation of dredge materials. |
20 | (M) To apply for, accept and expend grants and bequests of funds, for the purpose of |
21 | carrying out the lawful responsibilities of the coastal resources management council. |
22 | (iii) An initial series of resources management activities shall be initiated through this |
23 | basic process, then each phase shall continuously be recycled and used to modify the council's |
24 | resources management programs and keep them current. |
25 | (iv) Planning and management programs shall be formulated in terms of the |
26 | characteristics and needs of each resource or group of related resources. However, all plans and |
27 | programs shall be developed around basic standards and criteria, including: |
28 | (A) The need and demand for various activities and their impact upon ecological systems. |
29 | (B) The degree of compatibility of various activities. |
30 | (C) The capability of coastal resources to support various activities. |
31 | (D) Water quality standards set by the director of the department of environmental |
32 | management. |
33 | (E) Consideration of plans, studies, surveys, inventories, and so forth prepared by other |
34 | public and private sources. |
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1 | (F) Consideration of contiguous land uses and transportation facilities. |
2 | (G) Whenever possible consistency with the state guide plan. |
3 | (v) The council shall prepare, adopt, administer, and cause to be implemented, including |
4 | specifically through its powers of coordination as set forth in subdivision (3) of this section, a |
5 | marine resources development plan and such special area management plans as the council may |
6 | determine to be appropriate or desirable as follows: |
7 | (A) Marine resources development plan. |
8 | (I) The purpose of the marine resources development plan shall be to provide an |
9 | integrated strategy for: (a) improving the health and functionality of Rhode Island's marine |
10 | ecosystem; (b) providing for appropriate marine-related economic development; and (c) |
11 | promoting the use and enjoyment of Rhode Island's marine resources by the people of the state. |
12 | (II) The marine resources development plan shall include specific goals and objectives |
13 | necessary to accomplish its purposes, performance measures to determine progress toward |
14 | achieving such goals and objectives, and an implementation program. |
15 | (III) The marine resources development plan shall be prepared in cooperation with the |
16 | department of environmental management, the statewide planning program, and the commerce |
17 | corporation, with the involvement of such other state agencies as may be appropriate, and with |
18 | such technical support as may be necessary and appropriate from the Narragansett Bay Estuary |
19 | Program, the Coastal Institute at the University of Rhode Island, and Rhode Island Sea Grant. |
20 | (IV) The plan shall be responsive to the requirements and principles of the federal coastal |
21 | zone management act as amended, including, but not limited to, the expectations of the act for |
22 | incorporating the federal Clean Water Act into coastal zone management programs. |
23 | (V) The marine resources development plan shall take into account local land use |
24 | management responsibilities as provided for under title 45 and harbor management |
25 | responsibilities, and the preparation of the plan shall include opportunities for involvement and/or |
26 | comment by cities and towns. |
27 | (VI) The marine resources development plan shall be adopted by the council in |
28 | accordance with the provisions of this subsection by July 1, 2005, shall as appropriate incorporate |
29 | the recommendations of the Governor's Narragansett Bay and Watershed Planning Commission, |
30 | and shall be made consistent with systems level plans as appropriate, in order to effectuate the |
31 | purposes of systems level planning. The council shall update the marine resources development |
32 | plan at least once every five (5) years. |
33 | (VII) The council shall administer its programs, regulations, and implementation |
34 | activities in a manner consistent with the marine resources development plan. |
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1 | (VIII) The marine resources development plan and any updates thereto shall be adopted |
2 | as appropriate as elements of the state guide plan pursuant to § 42-11-10. |
3 | (B) Special area management plans. |
4 | (I) The council shall adopt such special area management plans as deemed necessary and |
5 | desirable to provide for the integration and coordination of the protection of natural resources, the |
6 | promotion of reasonable coastal-dependent economic growth, and the improved protection of life |
7 | and property in the specific areas designated by the council as requiring such integrated planning |
8 | and coordination. |
9 | (II) The integrated planning and coordination herein specified shall include, but not be |
10 | limited to, federal agencies, state agencies, boards, commissions, and corporations, including |
11 | specifically the commerce corporation, and cities and towns, shall utilize to the extent appropriate |
12 | and feasible the capacities of entities of higher education, including Rhode Island Sea Grant, and |
13 | shall provide for the participation of advocacy groups, community-based organizations, and |
14 | private persons. |
15 | (III) The council shall administer its programs, regulations, and implementation activities |
16 | in a manner consistent with special area management plans. |
17 | (IV) Special area management plans and any updates thereto shall be adopted as |
18 | appropriate as elements of the state guide plan pursuant to § 42-11-10. |
19 | (2) Implementation. |
20 | (i) The council is authorized to formulate policies and plans and to adopt regulations |
21 | necessary to implement its various management programs. With respect to such policies and |
22 | plans which relate to matters where the coastal resources management council and the department |
23 | of environmental management have concurrent jurisdiction and upon formulation of the plans and |
24 | regulations, the council shall, prior to adoption, submit the proposed plans or regulations to the |
25 | director of the department of environmental management for the director's review. The director |
26 | shall review and submit comments to the council within thirty (30) days of submission to the |
27 | director by the council. The comments of the director shall include findings with regard to the |
28 | consistency of the policies, plans and/or regulations with the requirements of laws administered |
29 | by the department. The council shall consider the director's comments prior to adoption of any |
30 | such policies, plans or regulations and shall respond in writing to findings of the director with |
31 | regard to the consistency of said policies, plans and/or regulations with the requirements of laws |
32 | administered by the department. |
33 | (ii)(A) The council shall have exclusive jurisdiction below mean high water for all |
34 | development, operations, and dredging, consistent with the requirements of chapter 6.1 of this |
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1 | title and except as necessary for the department of environmental management to exercise its |
2 | powers and duties and to fulfill its responsibilities pursuant to §§ 42-17.1-2 and 42-17.1-24, and |
3 | any person, firm, or governmental agency proposing any development or operation within, above, |
4 | or beneath the tidal water below the mean high water mark, extending out to the extent of the |
5 | state's jurisdiction in the territorial sea, shall be required to demonstrate that its proposal would |
6 | not: |
7 | (I) Conflict with any resources management plan or program; |
8 | (II) Make any area unsuitable for any uses or activities to which it is allocated by a |
9 | resources management plan or program adopted by the council; or |
10 | (III) Significantly damage the environment of the coastal region. |
11 | (B) The council shall be authorized to approve, modify, set conditions for, or reject any |
12 | such proposal. |
13 | (iii) The authority of the council over land areas (those areas above the mean high water |
14 | mark) shall be limited to two hundred feet (200') from the coastal physiographic feature or to that |
15 | necessary to carry out effective resources management programs. This shall be limited to the |
16 | authority to approve, modify, set conditions for, or reject the design, location, construction, |
17 | alteration, and operation of specified activities or land uses when these are related to a water area |
18 | under the agency's jurisdiction, regardless of their actual location. The council's authority over |
19 | these land uses and activities shall be limited to situations in which there is a reasonable |
20 | probability of conflict with a plan or program for resources management or damage to the coastal |
21 | environment. These uses and activities are: |
22 | (A) Power generating over forty (40) megawatts and desalination plants. |
23 | (B) Chemical or petroleum processing, transfer, or storage. |
24 | (C) Minerals extraction. |
25 | (D) Shoreline protection facilities and physiographical features, and all directly |
26 | associated contiguous areas which are necessary to preserve the integrity of the facility and/or |
27 | features. For the purposes of coastal hazards including sea level rise and coastal flooding the |
28 | council's jurisdiction shall be the inland boundary of the seven foot (7') sea level rise, plus one |
29 | hundred (100) year recurrence coastal storm. This jurisdiction for coastal hazard shall be limited |
30 | to approve, modify, set conditions for, or reject the design, location, construction, alteration, of |
31 | structures in this area for flood construction. |
32 | (E) Coastal wetlands and all directly associated contiguous areas which are necessary to |
33 | preserve the integrity of the wetlands including any freshwater wetlands located in the vicinity of |
34 | the coast. The actual determination of freshwater wetlands located in coastal vicinities and under |
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1 | the jurisdiction of the coastal resources management council shall be designated on such maps |
2 | that are agreed to in writing and made available for public use by the coastal resources |
3 | management council and the director, department of environmental management, within three (3) |
4 | months of [August 6, 1996]. The CRMC shall have exclusive jurisdiction over the wetlands areas |
5 | described in this section notwithstanding any provision of chapter 1, title 2 or any other provision, |
6 | except as provided in subsection (iv) of this section. Within six (6) months of [August 6, 1996] |
7 | the council in cooperation with the director shall develop rules and regulations for the |
8 | management and protection of freshwater wetlands, affected by an aquaculture project, outside of |
9 | those freshwater wetlands located in the vicinity of the coast and under the exclusive jurisdiction |
10 | of the director of the department of environmental management. For the purpose of this chapter, a |
11 | "coastal wetland" means any salt marsh bordering on the tidal waters of this state, whether or not |
12 | the tidal waters reach the littoral areas through natural or artificial watercourses, and those |
13 | uplands directly associated and contiguous thereto which are necessary to preserve the integrity |
14 | of that marsh. Marshes shall include those areas upon which grow one or more of the following: |
15 | smooth cordgrass (spartina alterniflora), salt meadow grass (spartina patens), spike grass |
16 | (distichlis spicata), black rush (juncus gerardi), saltworts (salicornia spp.), sea lavender |
17 | (limonium carolinianum), saltmarsh bulrushes (scirpus spp.), hightide bush (iva frutescens), tall |
18 | reed (phragmites communis), tall cordgrass (spartina pectinata), broadleaf cattail (typha latifolia), |
19 | narrowleaf cattail (typha angustifolia), spike rush (eleocharis rostellata), chairmaker's rush |
20 | (scirpus amercana), creeping bentgrass (agrostis palustris), sweet grass (hierochloe odorata), and |
21 | wild rye (etlymus virginicus). |
22 | (F) Sewage treatment and disposal and solid waste disposal facilities. |
23 | (G) Beneficial use, dewatering, and disposal of dredged material of marine origins, where |
24 | such activities take place within two hundred feet (200') of mean high water or a coastal |
25 | physiographic feature, or where there is a reasonable probability of conflict with a plan or |
26 | program for resources management or damage to the coastal environment. |
27 | (iv) Notwithstanding the provisions of subsections (ii) and (iii) above, the department of |
28 | environmental management shall maintain jurisdiction over the administration of chapter 1, title |
29 | 2, including permitting of freshwater wetlands alterations and enforcement, with respect to all |
30 | agricultural activities undertaken by a farmer, as that term is defined in subsection 2-1-22(j), |
31 | wherever located; provided, however, that with respect to activities located partially or |
32 | completely within two hundred feet (200') of the coastal physiographic feature, the department |
33 | shall exercise jurisdiction in consultation with the council. |
34 | (3) Coordination. The council has the following coordinating powers and duties: |
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1 | (i) Functioning as a binding arbitrator in any matter of dispute involving both the |
2 | resources of the state's coastal region and the interests of two (2) or more municipalities or state |
3 | agencies. |
4 | (ii) Consulting and coordinating actions with local, state, regional, and federal agencies |
5 | and private interests. |
6 | (iii) Conducting or sponsoring coastal research. |
7 | (iv) Advising the governor, the general assembly, and the public on coastal matters. |
8 | (v) Serving as the lead state agency and initial and primary point of contact for dredging |
9 | activities in tidal waters and in that capacity, integrating and coordinating the plans and policies |
10 | of other state agencies as they pertain to dredging in order to develop comprehensive programs |
11 | for dredging as required by subparagraph (1)(ii)(H) of this section and chapter 6.1 of this title. |
12 | The Rhode Island resource recovery corporation prior to purchasing cover material for the state |
13 | landfill shall first contact the CRMC to see if there is a source of suitable dredged material |
14 | available which shall be used in place of the purchase cover material. Other state agencies |
15 | engaged in the process of dump closures shall also contact the CRMC to see if there is a source of |
16 | suitable dredged material available, which shall be used in place of the purchase cover material. |
17 | In addition, cities and towns may contact the CRMC prior to closing city or town controlled |
18 | dump sites to see if there is a source of suitable dredge material available, which may be used in |
19 | place of the purchase cover material. |
20 | (vi) Acting as the state's representative to all bodies public and private on all coastal and |
21 | aquaculture related matters. |
22 | (4) Operations. The council is authorized to exercise the following operating functions, |
23 | which are essential to management of coastal resources: |
24 | (i) Issue, modify, or deny permits for any work in, above, or beneath the areas under its |
25 | jurisdiction, including conduct of any form of aquaculture. |
26 | (ii) Issue, modify, or deny permits for dredging, filling, or any other physical alteration of |
27 | coastal wetlands and all directly related contiguous areas which are necessary to preserve the |
28 | integrity of the wetlands, including, but not limited to, the transportation and disposal of dredge |
29 | materials in the tidal waters. |
30 | (iii) Grant licenses, permits, and easements for the use of coastal resources which are held |
31 | in trust by the state for all its citizens, and impose fees for private use of these resources. |
32 | (iv) Determining the need for and establishing pierhead, bulkhead, and harbor lines. |
33 | (v) Enforcing and implementing riparian rights in the tidal waters after judicial decisions. |
34 | (vi) The council may require an owner or operator of a commercial wharf or pier of a |
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1 | marine commercial facility, as defined in 300.3 of the Rhode Island coastal resources |
2 | management program, but not including those facilities defined in 300.4 of the Rhode Island |
3 | coastal resources management program, and which is capable of offloading cargo, and is or will |
4 | be subject to a new use or a significant intensification of an existing use, to demonstrate that the |
5 | commercial wharf or pier is fit for that purpose. For the purposes of this subsection, a |
6 | "commercial wharf or pier" means a pier, bulkhead, wharf, docking facility, or underwater |
7 | utilities. The council may order said owner or operator to provide an engineering certification to |
8 | the council's satisfaction that the commercial wharf or pier is fit for the new use or intensification |
9 | of an existing use. If the council determines that the commercial wharf or pier is not fit, it may |
10 | order the owner or operator to undertake the necessary work to make the commercial wharf or |
11 | pier safe, within a reasonable time frame. If the council determines that the commercial wharf or |
12 | pier, because of is condition, is an immediate threat to public health and safety it may order the |
13 | commercial wharf or pier closed until the necessary work to make the commercial wharf or pier |
14 | safe has been performed and approved by the council. All work performed must conform to the |
15 | council's management program. The council is also given the authority to develop regulations to |
16 | carry out this provision and to impose administrative penalties of five thousand dollars ($5,000) |
17 | per day up to a maximum of twenty thousand dollars ($20,000) consistent with § 46-23-7.1 where |
18 | there has been a violation of the orders under this provision. |
19 | (5) Rights-of-way. |
20 | (i) The council is responsible for the designation of all public rights-of-way to the tidal |
21 | water areas of the state, and shall carry on a continuing discovery of appropriate public rights-of- |
22 | way to the tidal water areas of the state. |
23 | (ii) The council shall maintain a complete file of all official documents relating to the |
24 | legal status of all public rights-of-way to the tidal water areas of the state. |
25 | (iii)(A) The council has the power to designate for acquisition and development, and |
26 | posting, and all other functions of any other department for tidal rights-of-way and land for tidal |
27 | rights-of-way, parking facilities, and other council related purposes. |
28 | (B) Further, the council has the power to develop and prescribe a standard sign to be used |
29 | by the cities and towns to mark designated rights-of-way. |
30 | (iv) In conjunction with this subdivision, every state department controlling state-owned |
31 | land close to or adjacent to discovered rights-of-way is authorized to set out the land, or so much |
32 | of the land that may be deemed necessary for public parking. |
33 | (v) No use of land for public parking shall conflict with existing or intended use of the |
34 | land, and no improvement shall be undertaken by any state agency until detailed plans have been |
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1 | submitted to and approved by the governing body of the local municipality. |
2 | (vi) In designating rights-of-way, the council shall consider the following matters in |
3 | making its designation: |
4 | (A) Land evidence records; |
5 | (B) The exercise of domain over the parcel such as maintenance, construction, or upkeep; |
6 | (C) The payment of taxes; |
7 | (D) The creation of a dedication; |
8 | (E) Public use; |
9 | (F) Any other public record or historical evidence such as maps and street indexes; |
10 | (G) Other evidence as set out in § 42-35-10. |
11 | (vii) A determination by the council that a parcel is a right-of-way shall be decided by |
12 | substantial evidence. |
13 | (viii) The council shall be notified whenever by the judgment of the governing body of a |
14 | coastal municipality, a public right-of-way to tidal water areas located in such municipality has |
15 | ceased to be useful to the public, and such governing body proposes an order of abandonment of |
16 | such public right-of-way. Said notice shall be given not less than sixty (60) days prior to the date |
17 | of such abandonment. |
18 | (6) Pre-existing residential boating facilities. |
19 | (i) The council is hereby authorized and empowered to issue assent for pre-existing |
20 | residential boating facilities constructed prior to January 1, 1985. These assents may be issued for |
21 | pre-existing residential boating facilities, even though such facilities do not meet current |
22 | standards and policies of the council; provided, however, that the council finds that such facilities |
23 | do not pose any significant risk to the coastal resources of the state of Rhode Island and do not |
24 | endanger human safety. |
25 | (ii) In addition to the above criteria, the applicant shall provide clear and convincing |
26 | evidence that: |
27 | (A) The facility existed in substantially the same configuration as it now exists prior to |
28 | January 1, 1985; |
29 | (B) The facility is presently intact and functional; and |
30 | (C) The facility presents no significant threat to the coastal resources of the state of |
31 | Rhode Island or human safety. |
32 | (iii) The applicant, to be eligible for this provision, shall apply no later than January 31, |
33 | 1999. |
34 | (iv) The council is directed to develop rules and regulations necessary to implement this |
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1 | subdivision. |
2 | (v) It is the specific intent of this subsection to require that all pre-existing residential |
3 | boating facilities constructed on January 1, 1985, or thereafter conform to this chapter and the |
4 | plans, rules and regulations of the council. |
5 | (7) Lease of filled lands which were formerly tidal lands to riparian or littoral owners. |
6 | (i) Any littoral or riparian owner in this state who desires to obtain a lease from the state |
7 | of Rhode Island of any filled lands adjacent to his or her upland shall apply to the council, which |
8 | may make the lease. Any littoral or riparian owner who wishes to obtain a lease of filled lands |
9 | must obtain pre-approval, in the form of an assent, from the council. Any lease granted by the |
10 | council shall continue the public's interest in the filled lands including, but not limited to, the |
11 | rights of navigation, fishery, and commerce. The public trust in the lands shall continue and run |
12 | concurrently with the leasing of the lands by the state to private individuals, corporations, or |
13 | municipalities. Upon the granting of a lease by the council, those rights consistent with the public |
14 | trust and secured by the lease shall vest in the lessee. The council may approve a lease of filled |
15 | lands for an initial term of up to fifty (50) years, with, or without, a single option to renew for an |
16 | additional term of up to fifty (50) years. |
17 | (ii) The lessor of the lease, at any time, for cause, may by express act cancel and annul |
18 | any lease previously made to the riparian owner when it determines that the use of the lands is |
19 | violating the terms of the lease or is inconsistent with the public trust, and upon cancellation the |
20 | lands, and rights in the land so leased, shall revert to the state. |
21 | (8) "Marinas" as defined in the coastal resources management program in effect as of |
22 | June 1, 1997, are deemed to be one of the uses consistent with the public trust. Subdivision (7) is |
23 | not applicable to: |
24 | (i) Any riparian owner on tidal waters in this state (and any successor in interest to the |
25 | owner) which has an assent issued by the council to use any land under water in front of his or her |
26 | lands as a marina, which assent was in effect on June 1, 1997; |
27 | (ii) Any alteration, expansion, or other activity at a marina (and any successor in interest) |
28 | which has an assent issued by the council, which assent was in effect on June 1, 1997; and |
29 | (iii) Any renewal of assent to a marina (or successor in interest), which assent was issued |
30 | by the council and in effect on June 1, 1997. |
31 | (9) "Recreational boating facilities" including marinas, launching ramps, and recreational |
32 | mooring areas, as defined by and properly permitted by the council, are deemed to be one of the |
33 | uses consistent with the public trust. Subdivision (7) is not applicable to: |
34 | (i) Any riparian owner on tidal waters in this state (and any successor in interest to the |
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1 | owner) which has an assent issued by the council to use any land under water in front of his or her |
2 | lands as a recreational boating facility; any alteration, expansion or other activity at a recreational |
3 | boating facility (and any successor in interest) which has an assent issued by the council, which |
4 | assent was in effect as of June 1, 1997; and |
5 | (ii) Any renewal of assent to a recreational boating facility (or successor in interest), |
6 | which assent was issued by the council and in effect on June 1, 1997. |
7 | SECTION 2. This act shall take effect upon passage. |
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LC003149 | |
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EXPLANATION | |
BY THE LEGISLATIVE COUNCIL | |
OF | |
A N A C T | |
RELATING TO WATERS AND NAVIGATION -- COASTAL RESOURCES MANAGEMENT | |
COUNCIL | |
*** | |
1 | This act would provide that the authority of the coastal resources management council |
2 | (CRMC) shall include specific areas designated in "special area management plans" (SAMP). |
3 | This act would take effect upon passage. |
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LC003149 | |
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