2023 -- H 5174 SUBSTITUTE A

========

LC000193/SUB A

========

     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

____________

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:

     SECTION 1. Legislative findings.

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

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

attempting to exercise their rights and privileges to the shoreline and the rights of landowners whose

property abuts the shore.

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

shore of this, the ocean state, are not only guaranteed in the State Constitution but have enjoyed a

long use throughout history to our founding documents, including the 1663 Rhode Island Charter

from King Charles II. The general assembly further acknowledges the use and enjoyment of the

shore by Native Americans for thousands of years prior to that.

     From the Rhode Island Charter (1663-1843)

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

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

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

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

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

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

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

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

taken or gotten upon that coast."

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

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

     From the Rhode Island Constitution (1843)

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

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

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

declaration".

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

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

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

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

same year.

     Added to the constitution in 1986

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

fishery rights and shore privileges not public taking.

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

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

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

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

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

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

be deemed to be a public use of private property.

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

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

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

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

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

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

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

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

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

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

LC000193/SUB A - Page 2 of 6

environment of the state."

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

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

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

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

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

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

lawmakers of the scientific findings that establish the difficulties in using the MHW line as the

indicator of public rights to the shore.

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

of Rhode Island who have documented that:

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

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

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

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

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

line is.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

low tide.

     In sum, while the MHW may be helpful for other purposes, such as findings or definitions

pertaining to waters and navigation, use of the MHW for determining shoreline access has restricted

LC000193/SUB A - Page 3 of 6

the public’s rights. Retaining the MHW line rule employed by the court in 1982 results in the public

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

Thus, the constitutional right and privileges of the shore delineated in the 1986 Constitutional

Convention amendments have become illusory under such a rule.

     (6) Insofar as the existing standard for determining the extent of the public’s access to the

shore is unclear and not easily discernable, due to the lack of a boundary that can be readily seen

by the casual observer on the beach, resulting in confusion, uncertainty and even confrontation, the

General Assembly is obligated to provide clarity. This enactment constitutes the necessary

clarification in accordance with Article I Section 17 of the R.I. Constitution.

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

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

     46-23-26. The public's rights and privileges of the shore.

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

and 17 of the Rhode Island Constitution.

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

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

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

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

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

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

surface level at a rising tide. If there is more than one line of seaweed, oil, scum, fine shell, or

debris, then the recognizable high tide line means the most seaward line. In the absence of residue

seaweed or other evidence, the recognizable high tide line means the wet line on a sandy or rocky

beach. The line encompasses the water's surface level at spring high tides and other high tides that

occur with periodic frequency, but does not include the water's surface level at storm surges in

which there is a departure from the normal or predicted reach of the water’s surface level due to

the piling up of water against a coast by strong winds, such as those accompanying a hurricane or

other intense storms.

     (c) Notwithstanding any provision of the general laws to the contrary, the public's rights

and privileges of the shore may be exercised, where shore exists, on wet sand or dry sand or rocky

beach, up to ten feet (10') landward of the recognizable high tide line; provided, however, that the

public's rights and privileges of the shore shall not be afforded where no passable shore exists, nor

on land above the vegetation line, or on lawns, rocky cliffs, sea walls, or other legally constructed

shoreline infrastructure. Further, no entitlement is hereby created for the public to use amenities

LC000193/SUB A - Page 4 of 6

privately owned by other persons or entities, including, but not limited to: cabanas, decks, and

beach chairs.

     (d) Any landowner whose property abuts the shore shall, with respect to the public’s

exercise of rights and privileges of the shore as defined in this chapter, be afforded the liability

limitations pursuant to chapter 6 of title 32.

     (e) The coastal resources management council (CRMC) in collaboration with the

department of environmental management (DEM), shall develop and disseminate information to

educate the public and property owners about the rights set out in this section.

     (f) The CRMC in collaboration with the DEM, and the attorney general, shall determine

appropriate language and signage details for use at shoreline locations.

     SECTION 3. This act shall take effect upon passage.

========

LC000193/SUB A

========

LC000193/SUB A - Page 5 of 6

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO WATERS AND NAVIGATION -- COASTAL RESOURCES MANAGEMENT

COUNCIL

***

     This act would provide that the public's rights and privileges of the shore established by

Article I, Sections 16 and 17 of the State Constitution may be exercised where shore exists, on wet

or dry sand or rocky beach up to ten feet (10') landward of the high tide line but not where no

passable shore exists with abutting landowners afforded limited liability.

     This act would take effect upon passage.

========

LC000193/SUB A

========

LC000193/SUB A - Page 6 of 6