2023 -- H 5174

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LC000193

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

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A N   A C T

RELATING TO WATERS AND NAVIGATION -- COASTAL RESOURCES MANAGEMENT

COUNCIL

     

     Introduced By: Representatives Cortvriend, Carson, McNamara, Craven, Spears,
Fogarty, Knight, Edwards, Kennedy, and Kazarian

     Date Introduced: January 19, 2023

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. Legislative findings.

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     (1) The general assembly finds that the lack of a workable, readily identifiable right of

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access to the shore by the public has led to confusion, conflict and disputes between those

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attempting to exercise their rights and privileges to the shoreline and the rights of property owners

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along the shore.

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     (2) The general assembly recognizes and declares the public's rights and privileges of the

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shore of this the ocean state are not only guaranteed in the constitution but have enjoyed a long use

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going back to our founding documents, including the 1663 Rhode Island Charter from King Charles

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II. The general assembly further acknowledges the use and enjoyment of the shore by Native

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Americans for thousands of years prior to that.

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     From the Rhode Island Charter (1663-1843)

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     "Our express will and pleasure is, and we do, by these presents, for us, our heirs and

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successors, ordain and appoint that these presents, shall not in any manner, hinder any of our loving

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subjects, whatsoever, from using and exercising the trade of fishing upon the coast of New England,

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in America, but that they, and every or any of them, shall have full and free power and liberty to

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continue and use the trade of fishing upon the said coast, in any of the seas thereunto adjoining, or

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any arms of the seas, or salt water, rivers and creeks, where they have been accustomed to fish, and

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to build and set upon the waste land belonging to the said Colony and Plantations, such wharves,

 

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stages and workhouses as shall be necessary for the salting, drying and keeping of their fish, to be

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taken or gotten upon that coast."

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     (3) Rhode Island's historical commitment to the public rights and privileges of the shore is

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so strong that is was written into our Constitution in 1843 making us unique to other states:

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     From the Rhode Island Constitution (1843)

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     "The people shall continue to enjoy and freely exercise all the rights of fishery, and the

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privileges of the shore, to which they have been heretofore entitled under the charter and usages of

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this state. But no new right is intended to be granted, nor any existing right impaired, by this

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declaration".

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     (4) The general assembly also recognizes that its public trust duty to preserve the public's

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rights and privileges of the shore is a progressive and evolving doctrine that is expected to adjust

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to changing circumstances. In this spirit, voters of Rhode Island overwhelmingly supported the

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reinforcement of these rights and privileges in 1986 following the constitutional convention of that

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same year.

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     Added to the constitution in 1986

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     "Section 16. Compensation for taking of private property for public use -- Regulation of

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fishery rights and shore privileges not public taking.

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     Private property shall not be taken for public uses, without just compensation. The powers

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of the state and of its municipalities to regulate and control the use of land and waters in the

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furtherance of the preservation, regeneration, and restoration of the natural environment, and in

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furtherance of the protection of the rights of the people to enjoy and freely exercise the rights of

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fishery and the privileges of the shore, as those rights and duties are set forth in Section 17, shall

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be an exercise of the police powers of the state, shall be liberally construed, and shall not be deemed

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to be a public use of private property.

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     Section 17. The people shall continue to enjoy and freely exercise all the rights of fishery,

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and the privileges of the shore, to which they have been heretofore entitled under the charter and

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usages of this state, including, but not limited, to fishing from the shore, the gathering of seaweed,

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leaving the shore to swim in the sea and passage along the shore; and they shall be secure in their

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rights to use and enjoyment of the natural resources of the state with due regard for the preservation

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of their values; and it is the duty of the general assembly to provide for the conservation of the air,

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land, water, plant, animal, mineral and other natural resources of the state, and to adopt all means

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necessary and proper by law to protect the natural environment of the people of the state by

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providing adequate resource planning for the control and regulation of the use of the natural

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resources of the state and for the preservation, regeneration, and restoration of the natural

 

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environment of the state."

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     (5) In 1982, our state supreme court, acknowledging that it was acting in the absence of

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guidance from the general assembly, defined the public’s rights to the shore by the mean high water

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(MHW) line, derived from an arithmetic average of high-water heights measured over an 18.6-year

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metonic cycle. The 1986 Constitutional Convention considered and rejected defining the mean high

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tide line for purposes of public access by this means and, accordingly, amended the constitution.

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Moreover, since 1982, there has also been a greater awareness by the public, judges and lawmakers

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of the scientific findings establishing the difficulties in using the MHW line as the indicator of

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public rights to the shore.

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     The general assembly accepts the conclusions of the coastal scientists from the University

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of Rhode Island who have documented that:

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     (i) The MHW line is not a visible feature that can be seen on the beach like a watermark or

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debris line. MHW is an elevation, calculated from the average of all the high tides, two (2) per day

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in Rhode Island, over a nineteen (19) year period and the MHW line is where this elevation

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intersects the beach profile. It cannot be determined by the naked eye and requires special surveying

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expertise and equipment, thereby making it impossible for the general public to know where the

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line is.

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     (ii) The MHW line may change on a daily basis. Because the profile or shape of the beach

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changes constantly, as waves move sand onshore, offshore and alongshore, the location where

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MHW intersects the beach likewise changes. Even when the MHW line is found through precise

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surveying, it does not remain in the same location for very long on a wave-dominated shoreline.

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For instance, two (2) years of near weekly surveyed beach transects in the town of Charlestown

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revealed that the position of the MHW line migrated back and forth across a one hundred twenty-

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five foot (125') swath of the beach profile.

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     (iii) The MHW line is based on measurements collected inside a tide gauge, an instrument

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that filters out dynamic factors like breaking waves, which causes water to run up the beach. In

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other words, the measure of MHW is insulated from the dynamic action of the surf, which projects

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the water to a higher elevation. This results in a pervasive and predominant situation in which the

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actual water line is significantly landward of the MHW line. Data has shown that, on most days,

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due to the dynamic action of the surf and other factors, dry sand is exposed below MHW for, at

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most, only a few hours over a tidal cycle. This occurs only at or near the time of low tide.

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     In sum, retaining the MHW rule employed by the court in 1982 results in the public only

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having meaningful shoreline access at or near the time of low tide, if at all, at some locations. Thus,

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the constitutional right and privileges of the shore delineated in the 1986 Constitutional Convention

 

LC000193 - Page 3 of 5

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amendments have become illusory under such a rule.

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     SECTION 2. Chapter 46-23 of the General Laws entitled "Coastal Resources Management

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Council" is hereby amended by adding thereto the following section:

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     46-23-26. Recognizable high tide line for the public's rights and privileges of the shore.

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     (a) For purposes of this chapter, the "recognizable high tide line" means a line or mark left

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upon tidal flats, beaches, or along shore objects that indicates the intersection of the land with the

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water's surface level at the maximum height reached by a rising tide. The recognizable high tide

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line may be determined by a line of seaweed, oil or scum along shore objects, a more or less

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continuous deposit of, fine shell or debris on the foreshore or berm, other physical markings or

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characteristics, or other suitable means that delineate the general height reached by the water's

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surface level at a rising tide. In the absence of residue seaweed or other evidence, the recognizable

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high tide line means the wet line on a sandy or rocky beach. The line encompasses the water's

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surface level at spring high tides and other high tides that occur with periodic frequency, but does

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not include the water's surface level at storm surges in which there is a departure from the normal

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or predicted reach of the water’s surface level due to the piling up of water against a coast by strong

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winds, such as those accompanying a hurricane or other intense storms.

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     (b) The public's rights and privileges of the shore are established by Article 1, Sections 16

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and 17 of the Rhode Island Constitution.

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     (c) The public's rights and privileges of the shore may be exercised, where shore exists, on

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wet sand or dry sand or rocky beach, up to six feet (6') landward of the recognizable high tide line;

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provided, however, that the public's rights and privileges of the shore shall not be afforded where

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no passable shore exists, nor on land above the vegetation line, rocky cliffs, sea walls, or other

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legally constructed shoreline infrastructure.

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     (d) Any landowner whose property is subject to the exercise of the public's rights and

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privileges of the shore as defined in this chapter shall be afforded the liability limitations pursuant

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to § 32-6-3.

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     SECTION 3. This act shall take effect upon passage.

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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 a definition of the recognizable high tide line for the public's rights

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and privileges of the shore.

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     This act would take effect upon passage.

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