A N A C T
RELATING TO WATERS AND NAVIGATION -- MARINE WATERWAYS AND BOATING FACILITIES ACT OF 2001
It is enacted by the General Assembly as follows:
SECTION 1. Title 46 of the General Laws entitled "Waters and Navigation" is hereby amended by adding thereto the following chapter:
MAINTENANCE OF MARINE WATERWAYS AND BOATING FACILITIES
46-6.1-1. Title. - This chapter shall be known and may be cited as the "Marine Waterways and Boating Facilities Act of 2001."
46-6.1-2. Legislative findings. -- The general assembly finds and declares:
(1) Marine transportation in the state depends on adequate depth in waterways and harbors to permit the safe passage and operation of vessels.
(2) Recreational and commercial boating depends on the availability of channels, harbors, marinas, and mooring areas with adequate depth to permit the safe passage, movement, mooring, docking, servicing and operating vessels.
(3) Coastal features, such as salt ponds, can be impaired as habitat if channels and breachways do not allow adequate water circulation.
(4) Dredging and appropriate dredged material management and disposal are in the interest of the state in order to protect public health and safety, to enhance environmental quality, and to preserve the recreational opportunities and promote the economic well-being of the people of the state.
(5) general assembly recognizes and declares that the coastal resources of Rhode Island, a rich variety of natural, commercial, industrial, recreational, and aesthetic assets, are of immediate and potential value to the present and future development of this state; that unplanned or poorly planned development of this basic natural environment has already damaged or destroyed, or has the potential of damaging or destroying, the state's coastal resources, and has restricted the most efficient and beneficial utilization of these resources; that it shall be the policy of this state to preserve, protect, develop, and, where possible, restore the coastal resources of the state for this and succeeding generations through comprehensive and coordinated long range planning and management designed to produce the maximum benefit for society from these coastal resources; and that preservation and restoration of ecological systems shall be the primary guiding principle upon which environmental alteration of coastal resources will be measured, judged, and regulated.
46-6.1-3. Purpose. -- The purposes of this chapter are:
(1) To establish an integrated, coherent plan for dredging and dredge material management, which includes beneficial use, dewatering, in-water disposal, and upland disposal as appropriate, that sets forth the state's program for these activities and provides guidance to persons planning to engage in these activities and to designate the council as the lead agency for implementing the purposes of this act.
(2) To provide for coordinated, timely decision-making by state agencies on applications for dredging, dewatering, and for the beneficial use and in-water and upland disposal of dredged materials, with the goals of providing action, following a determination that the application is complete, on applications for these activities within one hundred eighty (180) days for applications pertaining to maintenance dredging projects and within five hundred forty (540) days for expansion projects.
(3) To establish, for the purposes of this chapter and consistent with the requirements of the Marine Infrastructure Maintenance Act of 1996, the following in order of priority in planning for and management of dredged material, depending on the nature and characteristics of the dredged material and on reasonable cost.
(i) Beneficial use, including specifically beach nourishment and habitat restoration and creation, in the coastal zone;
(ii) Beneficial use in upland areas;
(4) To encourage the development of the infrastructure needed to dewater dredged materials, and to facilitate beneficial use of dredged materials in upland areas.
(5) To encourage and facilitate the beneficial use of dredged materials by private parties.
(6) To authorize the establishment of a means of supporting projects for dewatering dredged material and for beneficial use and disposal of dredged material at sites above mean high water by the RI clean water finance agency.
46-6.1-4. Definitions. -- For the purposes of this chapter, the following terms shall mean:
(1) "Beneficial use" shall mean the placement or use of dredged material for some productive purpose, and shall include, but not be limited to, uses such as beach nourishment, habitat creation and enhancement, brownfields redevelopment, landscaping, construction projects, and landfill cover.
(2) "Coastal zone" shall mean the coastal waters of the state and adjacent lands and other areas that are under the regulatory jurisdiction of the coastal resources management council pursuant to chapter 46-23 or the federal coastal zone management act.
(3) "Council" shall mean the coastal resources management council.
(4) "Dewatering" shall mean actively or passively removing water from dredged material to facilitate its beneficial use or disposal.
(5) "Department" shall mean the department of environmental management.
(6) "Director" shall mean the director of the department of environmental management.
(7) "Disposal" shall mean nontemporary relocation and placement of dredged material other than a beneficial use.
(8) "Disposal site" shall mean a precise geographic area within which dredged material is disposed.
(9) "Dredged material" shall mean material excavated from the waters of the state, including rock, gravel, sand, clay, silt, mud, organic material, and material discarded by humans.
(10) "Executive director" shall mean the executive director of the coastal resources management council.
(11) "Habitat" shall mean the specific area or environment in which a particular plant or animal lives.
(12) "Person" shall mean any individual, group of individuals, firm, corporation, association, partnership or private or public entity, including a district, county, city, town, or other governmental unit or agent thereof, and in the case of a corporation, any individual having active and general supervision of the properties of such corporation.
(13) "Site" shall mean all contiguous land, structures, and appurtenances and improvements.
(14) "Site operator" shall mean the person who is responsible for the operation of activities at a beneficial use, dewatering, or disposal site for dredged materials.
(15) "Site owner" shall mean the person who owns all or a part of a beneficial use, dewatering, or disposal site for dredged materials.
(16) "Upland areas" shall mean areas that are not in the coastal zone.
46-6.1-5. Comprehensive plan for dredged material management. -- The council shall prepare, adopt and maintain, pursuant to section 46-23-1(e), a comprehensive plan for dredged material management for dredging that takes place in the coastal zone, such plan shall include, among other matters: (1) coastal zone and upland areas that are deemed suitable, depending on the nature and characteristics of the dredged material, for the beneficial use and disposal of dredged material; (2) approved sites and/or types of areas suitable for dewatering; and (3) protocols for monitoring dredged material disposal sites in the coastal zone. The director shall by January 31, 2002, adopt by rule a list of upland sites and types of areas suitable for beneficial use and disposal of dredged materials, and shall adopt such revisions as may be necessary to said list no less frequently than biennially thereafter, which list shall be incorporated in the comprehensive plan for dredged material management.
46-6.1-6. Interagency coordination. -- (a) The council and the department shall jointly prepare and adopt, no later than January 1, 2002, protocols and guidelines for coordinated review and action on applications made pursuant to section 46-6.1-6, which shall among other things provide for: (1) the elimination of redundant and duplicative processes and reviews; (2) a joint pre-application meeting with the applicant; (3) a timely, joint determination of the completeness of applications, following a suitability determination made by the U.S. Army Corps of Engineers; and (4) the designation of a project manager for each dredging application who shall coordinate review of the application and serve as the single point of contact for the applicant.
(b) The council, with advice from the department, shall adopt protocols and a plan for monitoring dredged material disposal sites in the coastal zone, which protocols and plan shall be an element of the comprehensive plan for dredged material management and which provide for oversight by the department of matters that are in its jurisdiction pursuant to authority delegated by federal law.
46-6.1-7. Applications for approval of dredging, beneficial use, and disposal. - Any person proposing to dredge in the coastal zone, or to dewater or to engage in the beneficial use or disposal of dredged material from the coastal zone, shall be required to obtain approval from the council, and from the department pursuant to section 42-17.1-24 as appropriate, before undertaking such activity. An application for such approval or approvals shall be made to the council and shall include, among such other matters as may be required, a statement of how it addresses the priorities for dredged material management set forth in section 46-6.1-2 and of how it is consistent with a plan adopted by the council pursuant to section 46-6.1-5. Any application for maintenance dredging of dredged material that is suitable for in-water disposal or appropriate for a beneficial use provided for in the comprehensive plan for dredged material management shall be considered as having the priority assigned to a project of critical economic concern pursuant to chapter 42-117 and shall be provided, in order to accomplish the purpose set forth in section 46-6.1-2(2), expeditious agency review according to procedures established under section 42-117-8, as appropriate. Notwithstanding the provisions of any rule, resolution, or ordinance, adopted under section 31-25-26, to the contrary, approval by the council shall constitute approval to operate appropriate motor vehicles in a manner necessary to implement the provisions of an approved application.
46-6.1-8. Exemption from liability. -- Notwithstanding any other provision of the Rhode Island general laws to the contrary, whenever the council and the director have approved the beneficial use, dewatering or disposal of dredged material, the applicant, the site owner and/or the site operator, and any successors or assigns, shall not be responsible for any current and future liability that arises out of the approved beneficial use, dewatering or disposal and that is associated with the release or threatened release from the dredged material, provided there is compliance with the conditions imposed by the approval, and further provided that with regard to the beneficial use, dewatering or disposal, the site owner and/or the site operator, and any successors or assigns have acted in a responsible and prudent manner.
46-6.1-9. Cooperation of other agencies. -- In order to accomplish the purposes of this chapter to provide for beneficial use, dewatering, and disposal of dredged material: (1) State agencies, departments, corporations, authorities, boards, commissions, including, but not limited to, the department of administration, the department of transportation, the clean water finance agency, the economic development corporation, the Narragansett Bay commission, and the Rhode Island resource recovery corporation, and political subdivisions, shall cooperate with the council in developing and implementing the comprehensive plan for dredged material management; (2) the council shall seek federal acceptance of the comprehensive plan for dredged material management as an element of the state's coastal zone management program and shall pursue such federal approvals and general permits as may facilitate expeditious action on dredging applications that are consistent with the plan; (3) the economic development corporation shall: (i) make available by October 1, 2001, a site to use as a dewatering site for dredged material, which site shall be available for dewatering dredged material until at least September 30, 2004, and may continue to be available thereafter for periods of not less than six (6) months, upon the request of the council and the approval of the corporation; and (ii) with advice from the council and the department, develop and implement a program to market dredged material for beneficial use by private persons, including but limited to brownfield reclamation projects; and (4) the council, with the cooperation of the department and the Rhode Island clean water finance agency, shall develop a proposal for a fund, which may be used as provided for in section 46-12.2-4.1, to support projects for dewatering dredged material for beneficial use and disposal of dredged material at sites above mean high water and for confined aquatic disposal of dredged materials, which proposal shall be submitted to the general assembly not later than February 15, 2002. The fund shall not be established or go into effect unless it has been approved by the general assembly.
46-6.1-10. Transitional provisions. -- In order to provide time sufficient for adoption of rules, protocols, guidelines, and plans required by this chapter and to review and act on current dredging projects and applications, the council and the department shall continue in full force and effect such rules, regulations, plans, and programs for dredging, which are not contrary to the purposes of this act, until the rules, protocols, guidelines, and plans required by this chapter are adopted; and any rule, regulation, protocol, guideline, or plan, including appendix "B" to the solid waste regulations of the department, that is consistent with the purposes and/or requirements of this act, which was prepared or adopted under authority that existed prior to the effective date of this chapter shall remain in effect.
SECTION 2. Sections 42-17.1-2 and 42-17.1-24 of the General Laws in Chapter 42-17.1 entitled "Department of Environmental Management [Effective until July 1, 2001.]" are hereby amended to read as follows:
42-17.1-2. Powers and duties. [Effective until July 1, 2001.] -- The director of environmental management shall have the following powers and duties:
(a) To supervise and control the protection, development, planning, and utilization of the natural resources of the state, such resources including (but not limited to) water, plants, trees, soil, clay, sand, gravel, rocks and other minerals, air, mammals, birds, reptiles, amphibians, fish, shellfish, and other forms of aquatic, insect, and animal life;
(b) To exercise all functions, powers, and duties heretofore vested in the department of agriculture and conservation, and in each of the divisions of the department, such as the promotion of agriculture and animal husbandry in their several branches, including the inspection and suppression of contagious diseases among animals, the regulation of the marketing of farm products, the inspection of orchards and nurseries, the protection of trees and shrubs from injurious insects and diseases, protection from forest fires, the inspection of apiaries and the suppression of contagious diseases among bees, prevention of the sale of adulterated or misbranded agricultural seeds, promotion and encouragement of the work of farm bureaus in cooperation with the university of Rhode Island, farmers' institutes and the various organizations established for the purpose of developing an interest in agriculture, together with such other agencies and activities as the governor and the general assembly may from time to time place under the control of the department, and as heretofore vested by such of the following chapters and sections of the general laws as are presently applicable to the department of environmental management and which were previously applicable to the department of natural resources and the department of agriculture and conservation or to any of its divisions: chapters 1 through 22, inclusive, as amended, in title 2 entitled "Agriculture and Forestry;" chapters 1 through 17, inclusive, as amended, in title 4 entitled "Animals and Animal Husbandry;" chapters 1 through 19, inclusive, as amended, in title 20 entitled "Fish and Wildlife;" chapters 1 through 32, inclusive, as amended, in title 21 entitled "Food and Drugs;" chapter 7 of title 23 as amended, entitled "Mosquito Abatement;" and by any other general or public law relating to the department of agriculture and conservation or to any of its divisions or bureaus;
(c) To exercise all the functions, powers, and duties heretofore vested in the division of parks and recreation of the department of public works by chapters 1, 2, and 5 in title 32 entitled "Parks and Recreational Areas;" by chapter 22.5 of title 23, as amended, entitled "Drowning Prevention and Lifesaving;" and by any other general or public law relating to the division of parks and recreation;
(d) To exercise all the functions, powers, and duties heretofore vested in the division of harbors and rivers of the department of public works, or in the department itself by such as were previously applicable to the division or the department, of chapters 1 through 22 and sections thereof, as amended, in title 46 entitled "Waters and Navigation"; and by any other general or public law relating to the division of harbors and rivers;
(e) To exercise all the functions, powers and duties heretofore vested in the department of health by chapters 25, 18.9, and 19.5 of title 23, as amended, entitled "Health and Safety;" and by chapters 12 and 16 of title 46, as amended, entitled "Waters and Navigation"; by chapters 3, 4, 5, 6, 7, 9, 11, 13, 18, and 19 of title 4, as amended, entitled "Animals and Animal Husbandry;" and those functions, powers, and duties specifically vested in the director of environmental management by the provisions of section 21-2-22, as amended, entitled "Inspection of Animals and Milk;" together with other powers and duties of the director of the department of health as are incidental to or necessary for the performance of the functions transferred by this section;
(f) To cooperate with the Rhode Island Economic Development Corporation in its planning and promotional functions, particularly in regard to those resources relating to agriculture, fisheries, and recreation;
(g) To cooperate with, advise, and guide conservation commissions of cities and towns created under chapter 35 of title 45 entitled "Conservation Commissions", as enacted by chapter 203 of the Public Laws, 1960;
(h) To assign or reassign, with the approval of the governor, any functions, duties, or powers established by this chapter to any agency within the department, except as hereinafter limited;
(i) To cooperate with the water resources board and to provide to the board facilities, administrative support, staff services, and such other services as the board shall reasonably require for its operation and, in cooperation with the board and the statewide planning program to formulate and maintain a long range guide plan and implementing program for development of major water sources transmissions systems needed to furnish water to regional and local distribution systems;
(j) To cooperate with the solid waste management corporation and to provide to the corporation such facilities, administrative support, staff services and such other services within the department as the corporation shall reasonably require for its operation;
(k) To provide for the maintenance of waterways and boating facilities, consistent with chapter 46-6.1, by: (1) establishing minimum standards for upland beneficial use and disposal of dredged material; (2) promulgating and enforcing rules for water quality, ground water protection, and fish and wildlife protection pursuant to section 42-17.1-24; (3) planning for the upland beneficial use and/or disposal of dredged material in areas not under the jurisdiction of the council pursuant to section 46-23-6(2); and (4)
To cooperate cooperating with the coastal resources management council in the development and implementation of comprehensive programs for dredging as provided for in sections 46-23-6(A)(2)(h) and 46-23-18.3 and in (5) monitoring dredge material management and disposal sites in accordance with the protocols established pursuant to section 46-6.1-5(2) and the comprehensive program provided for in section 46-23-6(A)(2)(h) and to provide to the council facilities, administrative support, staff services and such other services as the council shall reasonably require for its operation ; no powers or duties granted herein shall be construed to abrogate the powers or duties granted to the coastal resources management council under chapter 23 of title 46, as amended;
(l) To establish minimum standards, subject to the approval of the environmental standards board, relating to the location, design, construction and maintenance of all sewage disposal systems;
(m) To enforce, by such means as provided by law, the standards for the quality of air, and water, and the design, construction and operation of all sewage disposal systems; any order or notice issued by the director relating to the location, design, construction or maintenance of a sewage disposal system shall be eligible for recordation under chapter 13 of title 34. The director shall forward the order or notice to the city or town wherein the subject property is located and the order or notice shall be recorded in the general index by the appropriate municipal official in the land evidence records in the city or town wherein the subject property is located. Any subsequent transferee of that property shall be responsible for complying with the requirements of the order or notice. Upon satisfactory completion of the requirements of the order or notice, the director shall provide written notice of the same, which notice shall be similarly eligible for recordation. The original written notice shall be forwarded to the city or town wherein the subject property is located and the notice of satisfactory completion shall be recorded in the general index by the appropriate municipal official in the land evidence records in the city or town wherein the subject property is located. A copy of the written notice shall be forwarded to the owner of the subject property within five (5) days of a request for it, and, in any event, shall be forwarded to the owner of the subject property within thirty (30) days after correction;
(n) To establish minimum standards for the establishment and maintenance of salutary environmental conditions;
(o) To establish and enforce minimum standards for permissible types of septage, industrial waste disposal sites and waste oil disposal sites;
(p) To establish minimum standards subject to the approval of the environmental standards board for permissible types of refuse disposal facilities, the design, construction, operation, and maintenance of disposal facilities; and the location of various types of facilities;
(q) To exercise all functions, powers, and duties necessary for the administration of chapter 19.1 of title 23 entitled "Rhode Island Hazardous Waste Management Act."
(r) To designate in writing any person in any department of the state government or any official of a district, county, city, town, or other governmental unit, with that official's consent, to enforce any rule, regulation, or order promulgated and adopted by the director under any provision of law, provided, however, that enforcement of powers of the coastal resources management council shall be assigned only to employees of the department of environmental management, except by mutual agreement or as otherwise provided in chapter 23 of title 46.
(s) To issue and enforce such rules, regulations, and orders as may be necessary to carry out the duties assigned to the director and the department by any provision of law; and to conduct such investigations and hearings and to issue, suspend, and revoke such licenses as may be necessary to enforce those rules, regulations, and orders;
(1) Notwithstanding the provisions of section 42-35-9 to the contrary, no informal disposition of a contested licensing matter shall occur where resolution substantially deviates from the original application unless all interested parties shall be notified of said proposed resolution and provided with opportunity to comment upon said resolution pursuant to applicable law and any rules and regulations established by the director.
(t) To enter, examine or survey at any reasonable time such places as the director deems necessary to carry out his or her responsibilities under any provision of law;
(u) To give notice of an alleged violation of law to the person responsible therefor whenever the director determines that there are reasonable grounds to believe that there is a violation of any provision of law within his or her jurisdiction or of any rule or regulation adopted pursuant to authority granted to him or her, unless other notice and hearing procedure is specifically provided by that law. Nothing in this chapter shall limit the authority of the attorney general to prosecute offenders as required by law.
(1) The notice shall provide for a time within which the alleged violation shall be remedied, and shall inform the person to whom it is directed that a written request for a hearing on the alleged violation may be filed with the director within ten (10) days after service of the notice. The notice will be deemed properly served upon a person if a copy thereof is served him or her personally, or sent by registered or certified mail to his or her last known address, or if he or she is served with notice by any other method of service now or hereafter authorized in a civil action under the laws of this state. If no written request for a hearing is made to the director within ten (10) days of the service of notice, the notice shall automatically become a compliance order.
(2) (A) Whenever the director determines that there exists a violation of any law, rule, or regulation within his or her jurisdiction which requires immediate action to protect the environment, he or she may, without prior notice of violation or hearing, issue an immediate compliance order stating the existence of the violation and the action he or she deems necessary. The compliance order shall become effective immediately upon service or within such time as is specified by the director in such order. No request for a hearing on an immediate compliance order may be made.
(B) Any immediate compliance order issued under this section without notice and prior hearing shall be effective for no longer than forty-five (45) days, provided, however, that for good cause shown the order may be extended one additional period not exceeding forty-five (45) days.
(3) If a person upon whom a notice of violation has been served under the provisions of this section or if a person aggrieved by any such notice of violation requests a hearing before the director within ten (10) days of the service of notice of violation, the director shall set a time and place for the hearing, and shall give the person requesting that hearing at least five (5) days' written notice thereof. After the hearing, the director may make findings of fact and shall sustain, modify, or withdraw the notice of violation. If the director sustains or modifies the notice, that decision shall be deemed a compliance order and shall be served upon the person responsible in any manner provided for the service of the notice in this section.
(4) The compliance order shall state a time within which the violation shall be remedied, and the original time specified in the notice of violation shall be extended to the time set in the order.
(5) Whenever a compliance order has become effective, whether automatically where no hearing has been requested, where an immediate compliance order has been issued, or upon decision following hearing, the director may institute injunction proceedings in the superior court of the state for enforcement of the compliance order and for appropriate temporary relief, and in that proceeding the correctness of a compliance order shall be presumed and the person attacking the order shall bear the burden of proving error in the compliance order, except that the director shall bear the burden of proving in the proceeding the correctness of an immediate compliance order. The remedy provided for in this section shall be cumulative and not exclusive and shall be in addition to remedies relating to the removal or abatement of nuisances or any other remedies provided by law.
(6) Any party aggrieved by a final judgment of the superior court may, within thirty (30) days from the date of entry of such judgment, petition the supreme court for a writ of certiorari to review any questions of law. The petition shall set forth the errors claimed. Upon the filing of the petition with the clerk of the supreme court, the supreme court may, if it sees fit, issue its writ of certiorari;
(v) To impose administrative penalties in accordance with the provisions of chapter 17.6 of this title and to direct that such penalties be paid into the account established by subsection (z) of this section; and
(w) The following definitions shall apply in the interpretation of the provisions of this chapter:
(1) Director: The term director shall mean the director of environmental management of the state of Rhode Island or his or her duly authorized agent.
(2) Person: The term person shall include any individual, group of individuals, firm, corporation, association, partnership or private or public entity, including a district, county, city, town, or other governmental unit or agent thereof, and in the case of a corporation, any individual having active and general supervision of the properties of such corporation.
(3) Service: (a) Service upon a corporation under this section shall be deemed to include service upon both the corporation and upon the person having active and general supervision of the properties of such corporation.
(b) For purposes of calculating the time within which a claim for a hearing is made pursuant to section 42-17.1-2(u)(1) heretofore, service shall be deemed to be the date of receipt of such notice or three (3) days from the date of mailing of said notice, whichever shall first occur.
(x) (1) To conduct surveys of the present private and public camping and other recreational areas available and to determine the need for and location of such other camping and recreational areas as may be deemed necessary and in the public interest of the state of Rhode Island and to report back its findings on an annual basis to the general assembly on or before March 1 of every year;
(2) Additionally, the director of the department of environmental management shall take such additional steps including but not limited to matters related to funding as may be necessary to establish such other additional recreational facilities and areas as are deemed to be in the public interest.
(y) To apply for and accept grants and bequests of funds with the approval of the director of administration from other states, interstate agencies and independent authorities, and private firms, individuals and foundations, for the purpose of carrying out his or her lawful responsibilities. The funds shall be deposited as general revenues and appropriations made shall be expended in accordance with the provisions of the grant or bequest.
(z) To establish fee schedules by regulation with the approval of the governor for the processing of applications and the performing of related activities in connection with the department's responsibilities pursuant to subdivision (1) of this section, chapter 19.1 of title 23 as it relates to inspections performed by the department to determine compliance with chapter 19.1 and rules and regulations promulgated in accordance therewith, chapter 18.9 of title 23 as it relates to inspections performed by the department to determine compliance with chapter 18.9 and the rules and regulations promulgated in accordance therewith, chapters 19.5 and 23 of title 23; chapter 12 of title 46 insofar as it relates to water quality certifications and related reviews performed pursuant to provisions of the federal Clean Water Act, the regulation and administration of underground storage tanks and all other programs administered under chapter 12 of title 46 and section 2-1-18 et seq., and chapter 13.1 of title 46 insofar as it relates to any reviews and related activities performed under the provisions of the Groundwater Protection Act, and chapter 17.7 of this title insofar as it relates to administrative appeals of all enforcement, permitting and licensing matters to the administrative adjudication division for environmental matters. Two fee ranges shall be required: for "Appeal of enforcement actions", a range of fifty dollars ($50) to one hundred dollars ($100), and for "Appeal of application decisions", a range of five hundred dollars ($500) to ten thousand dollars ($10,000). The monies from the administrative adjudication fees will be deposited as general revenues and the amounts appropriated shall be used for the costs associated with operating the administrative adjudication division.
There is hereby established an account within the general fund to be called the water and air protection program. The account shall consist of sums appropriated for water and air pollution control and waste monitoring programs and the state controller is hereby authorized and directed to draw his or her orders upon the general treasurer for the payment of such sums or such portions thereof as may be required from time to time upon receipt by him or her of properly authenticated vouchers. All amounts collected under the authority of this subdivision for the sewage disposal system program and fresh waters wetlands program will be deposited as general revenues and the amounts appropriated shall be used for the purposes of administering and operating the programs. The director shall submit to the house fiscal advisor and the senate fiscal advisor by January 15 of each year a detailed report on the amount of funds obtained from fines and fees and the uses made of such funds.
(aa) To establish and maintain a list or inventory of areas within the state worthy of special designation as "scenic" to include but not be limited to certain state roads or highways, scenic vistas and scenic areas, and to make the list available to the public.
(bb) To establish and maintain an inventory of all interests in land held by public and private land trust and to exercise all powers vested herein to insure the preservation of all identified lands.
(1) The director may promulgate and enforce rules and regulations to provide for the orderly and consistent protection, management, continuity of ownership and purpose, and centralized records-keeping for lands, water, and open spaces owned in fee or controlled in full or in part through other interests, rights, or devices such as conservation easements or restrictions, by private and public land trusts in Rhode Island. The director may charge a reasonable fee for filing of each document submitted by a land trust.
(2) The term "public land trust" means any public instrumentality created by a Rhode Island municipality for the purposes stated herein and financed by means of public funds collected and appropriated by the municipality. The term "private land trust" means any group of five (5) or more private citizens of Rhode Island who shall incorporate under the laws of Rhode Island as a nonbusiness corporation for the purposes stated herein, or a national organization such as the nature conservancy. The main purpose of either a public or a private land trust shall be the protection, acquisition, or control of land, water, wildlife, wildlife habitat, plants, and/or other natural features, areas, or open space for the purpose of managing or maintaining, or causing to be managed or maintained by others, the land, water, and other natural amenities in any undeveloped and relatively natural state in perpetuity. A private land trust must be granted exemption from federal income tax under Internal Revenue Code 501c(3) [26 U.S.C. section 501(c)(3)] within two (2) years of its incorporation in Rhode Island or it may not continue to function as a land trust in Rhode Island. A private land trust may not be incorporated for the exclusive purpose of acquiring or accepting property or rights in property from a single individual, family, corporation, business, partnership, or other entity. Membership in any private land trust must be open to any individual subscribing to the purposes of the land trust and agreeing to abide by its rules and regulations including payment of reasonable dues.
(3) (A) Private land trusts will, in their articles of association or their by-laws, as appropriate, provide for the transfer to an organization created for the same or similar purposes the assets, lands and land rights and interests held by the land trust in the event of termination or dissolution of the land trust.
(B) All land trusts, public and private, will record in the public records of the appropriate towns and cities in Rhode Island all deeds, conservation easements or restrictions or other interests and rights acquired in land and will also file copies of all such documents and current copies of their articles of association, their by-laws, and annual reports with the secretary of state, and with the director of the Rhode Island department of environmental management. The director is hereby directed to establish and maintain permanently a system for keeping records of all private and public land trust land holdings in Rhode Island.
(cc) The director will contact in writing, not less often than once every two (2) years, each public or private land trust to ascertain: that all lands held by the land trust are recorded with the director; the current status and condition of each land holding; that any funds or other assets of the land trust held as endowment for specific lands have been properly audited at least once within the two (2) year period; the name of the successor organization named in the public or private land trust's by-laws or articles of association; and any other information the director deems essential to the proper and continuous protection and management of land and interests or rights in land held by the land trust.
In the event that the director determines that a public or private land trust holding land or interest in land appears to have become inactive, he or she shall initiate proceedings to effect the termination of the land trust and the transfer of its lands, assets, land rights, and land interests to the successor organization named in the defaulting trust's by-laws or articles of association or to another organization created for the same or similar purposes. Should such a transfer not be possible, then the land trust, assets, and interest and rights in land will be held in trust by the state of Rhode Island and managed by the director for the purposes stated at the time of original acquisition by the trust. Any trust assets or interests other than land or rights in land accruing to the state under such circumstances will be held and managed as a separate fund for the benefit of the designated trust lands.
(dd) Consistent with federal standards, issue and enforce such rules, regulations and orders as may be necessary to establish requirements for maintaining evidence of financial responsibility for taking corrective action and compensating third parties for bodily injury and property damage caused by sudden and non-sudden accidental releases arising from operating underground storage tanks.
(ee) To enforce, by such means as provided by law, the standards for the quality of air, and water, and the location, design, construction and operation of all underground storage facilities used for storing petroleum products or hazardous materials; any order or notice issued by the director relating to the location, design construction, operation or maintenance of an underground storage facility used for storing petroleum products or hazardous materials shall be eligible for recordation under chapter 13 of title 34. The director shall forward the order or notice to the city or town wherein the subject facility is located, and the order or notice shall be recorded in the general index by the appropriate municipal officer in the land evidence records in the city or town wherein the subject facility is located. Any subsequent transferee of that facility shall be responsible for complying with the requirements of the order or notice. Upon satisfactory completion of the requirements of the order or notice, the director shall provide written notice of the same, which notice shall be eligible for recordation. The original written notice shall be forwarded to the city or town wherein the subject facility is located, and the notice of satisfactory completion shall be recorded in the general index by the appropriate municipal official in the land evidence records in the city or town wherein the subject facility is located. A copy of the written notice shall be forwarded to the owner of the subject facility within five (5) days of a request for it, and, in any event, shall be forwarded to the owner of the subject facility within thirty (30) days after correction.
42-17.1-2. Branches established. [Effective July 1, 2001.] --
Within the department of the environment there are established the following offices and branches:
(a) An administrative adjudication branch which shall carry out those functions of the department pursuant to the provisions of chapter 17.7 of this title;
(b) An environmental management branch which shall carry out those functions of the divisions of agriculture, ports and harbors, enforcement, fish and wildlife, forest environment, parks and recreation, and boating safety and including but not limited to those functions enumerated in section 42-17.1-3;
(c) An environmental protection branch which shall carry out those permitting, enforcement, and regulatory functions of the divisions of air, solid and hazardous waste, groundwater and individual sewage disposal systems, freshwater wetlands and water pollution control and including but not limited to those functions enumerated in section 42-17.1-4;
(d) A policy and planning branch which shall carry out the functions of program initiatives, crossmedia and intergovernmental planning, disbursement of grants and loans, review and approval of legislatively mandated watershed protection plans, and land acquisition, and which shall assist with coastal resources planning;
(e) An administration branch consisting of the offices of business affairs and employee relations and which branch shall carry out the functions of said offices;
(f) An information, education, and special projects branch which shall carry out those functions of information, assistance, publications, media releases, workshops, and programs for environmental education, waste reduction, recycling, and pollution source reduction, including but not limited to those functions enumerated in chapters 18.8, 19.6, 19.9, 19.10 and 19.11 of title 23.
(g) A water resources management branch which will carry out those functions of water supply management under the provisions of chapter 15 of title 46 and which shall administer agreements for bond programs for water supply.
SECTION 3. Chapter 42-17.1 of the General Laws entitled "Department of Environmental Management [Effective until July 1, 2001.] is hereby amended by adding thereto the following section:
42-17.1-24. Dredging and dredged material management. - The department shall adopt, not later than January 1, 2002, integrated rules for its powers and duties, including, but not limited to, those for water quality, ground water protection, and fish and wildlife, as they pertain to dredging and dredged material management. Such rules shall, as minimum: (1) treat dredging and dredged material management and monitoring as a distinct class of activities, to be regulated on the basis of the nature and characteristics of the dredged material; (2) be consistent with the purposes and requirements of the Marine Waterways and Boating Facilities Act of 2001, chapter 46-6.1; (3) provide for a single decision for the department, made by the director, on applications made pursuant to section 46-6.1-6; and (4) establish procedures for identification of appropriate sites and areas upland beneficial use and disposal of dredged material.
SECTION 4. Sections 46-12.2-1 and 46-12.2-2 of the General Laws in Chapter 46-12.2 entitled "Rhode Island Clean Water Finance Agency" are hereby amended to read as follows:
46-12.2-1. Legislative findings -- (a) It is hereby found that there exists and will in the future exist within the state of Rhode Island the need to construct facilities and projects for the abatement of pollution caused by wastewater and for the enhancement of the waters of the state, and that the traditional source for funding construction of such facilities and projects under the grant program of title II of the Clean Water Act, 33 U.S.C. sections 1281 -- 1299, will terminate at the end of fiscal year 1990.
(b) It is hereby further found that to meet water quality goals under federal and state law, and to secure maximum benefit of funding programs available under federal and state law pertaining to wastewater pollution abatement projects, it is necessary to establish a revolving loan fund program in accordance with federal and state law to provide a perpetual source of low cost financing for water pollution abatement projects.
(c) It is hereby further found that to secure maximum benefit to the state from funding programs available under federal and state law for water pollution abatement projects, it is necessary to establish a finance agency to administer the revolving loan funds, and for the finance agency to work with the department of environmental management for proper administration of the revolving loan funds.
46-12.2-2. Definitions -- As used in this chapter, unless the context clearly indicates otherwise, the following words and phrases shall have the following meanings:
(1) "Agency" means the Rhode Island clean water finance agency;
(2) "Approved project" means any project or portion thereof that has been issued a certificate of approval by the department for financial assistance from the agency;
(3) "Board" means board of directors of the agency;
(4) "Bond act" means any general or special law authorizing a local governmental unit to incur indebtedness for all or any part of the cost of projects coming within the scope of a water pollution abatement project, including but not limited to section 45-12-2;
(5) "Bonds" means bonds, notes, or other evidence of indebtedness of the agency;
(6) "Certificate of approval" means the certificate of approval contemplated by section 46-12.2-8;
(7) "Chief executive officer" means the mayor in any city, the president of the town council in any town, and the executive director of any authority or commission, unless some other officer or body is designated to perform the functions of a chief executive officer under any bond act or under the provisions of a local charter or other law;
(8) "Clean Water Act" or "act" means the Federal Water Pollution Control Act, act of June 30, 1948, ch. 758, as added Oct. 18, 1972, Pub. L. No. 92-500, 86 Stat. 896, as added Dec. 27, 1977, Pub. L. No. 95-217, 91 Stat. 1566 (codified at 33 U.S.C. section 1251 et seq., as amended and as hereafter amended from time to time);
(9) "Cost" as applied to any approved project, means any or all costs, whenever incurred, approved by the agency in accordance with section eight of this chapter, of planning, designing, acquiring, constructing, and carrying out and placing the project in operation, including, without limiting the generality of the foregoing, amounts for the following: planning, design, acquisition, construction, expansion, improvement and rehabilitation of facilities; acquisition of real or personal property; demolitions and relocations; labor, materials, machinery and equipment; services of architects, engineers, and environmental and financial experts and other consultants; feasibility studies, plans, specifications, and surveys; interest prior to and during the carrying out of any project and for a reasonable period thereafter; reserves for debt service or other capital or current expenses; costs of issuance of local governmental obligations issued to finance the obligations including, without limitation, fees, charges, and expenses and costs of the agency relating to the loan evidenced thereby, fees of trustees and other depositories, legal and auditing fees, premiums and fees for insurance, letters or lines of credit or other credit facilities securing local governmental obligations and other costs, fees, and charges in connection with the foregoing; and working capital, administrative expenses, legal expenses, and other expenses necessary or incidental to the aforesaid, to the financing of a project and to the issuance therefor of local government obligations under the provisions of this chapter;
(10) "Department" means the department of environmental management;
(11) "Financial assistance" means any form of financial assistance other than grants provided by the agency to a local governmental unit in accordance with this chapter for all or any part of the cost of an approved project, including, without limitation, temporary and permanent loans, with or without interest, guarantees, insurance, subsidies for the payment of debt service on loans, lines of credit, and similar forms of financial assistance;
(12) "Fully marketable form" means a local governmental obligation in form satisfactory to the agency duly executed and accompanied by an opinion of counsel of recognized standing in the field of municipal law whose opinions have been and are accepted by purchasers of like obligations to the effect that the obligation is a valid and binding obligation of the local governmental unit issuing the obligation, enforceable in accordance with its terms;
(13) "General revenues", when used with reference to a local governmental unit, means revenues, receipts, assessments, and other moneys of the local governmental unit received from or on account of the exercise of its powers and all rights to receive the same, including without limitation:
(ii) Wastewater system revenues,
(iii) Assessments upon or payments received from any other local governmental unit which is a member or service recipient of the local governmental unit, whether by law, contract, or otherwise,
(iv) Proceeds of local governmental obligations and loans and grants received by the local governmental unit in accordance with this chapter,
(v) Investment earnings,
(vi) Reserves for debt service or other capital or current expenses,
(vii) Receipts from any tax, excise, or fee heretofore or hereafter imposed by any general or special law all or a part of the receipts of which are payable or distributable to or for the account of the local governmental unit,
(viii) Local aid distributions, and
(ix) Receipts, distributions, reimbursements, and other assistance received by or for the account of the local governmental unit from the United States or any agency, department, or instrumentality thereof;
(14) "Loan" means a loan by the agency to a local governmental unit for costs of an approved project, including, without limitation, temporary and permanent loans, and lines of credit;
(15) "Loan agreement" means any agreement entered into by the agency with a local governmental unit pertaining to a loan, other financial assistance, or local governmental obligations including, without limitation, a loan agreement, trust agreement, security agreement, reimbursement agreement, guarantee agreement, or similar instrument;
(16) "Local aid distributions" means receipts, distributions, reimbursements, and other assistance payable by the state to or for the account of a local governmental unit, except such receipts, distributions, reimbursements, and other assistance restricted by law to specific statutorily defined purposes;
(17) "Local governmental obligations" means bonds, notes, and other evidences of indebtedness in fully marketable form issued by a local governmental unit to evidence a loan from the agency in accordance with this chapter or otherwise as provided herein;
(18) "Local governmental unit" means any town, city, district, commission, agency, authority, board, or other political subdivision or instrumentality of the state or of any political subdivision thereof responsible for the ownership or operation of a water pollution abatement project, including the Narragansett Bay water quality management district commission; and, for purposes of dam safety or dam maintenance projects, any person seeking financial assistance as a joint applicant with any of the above entities;
(19) "Local interest subsidy trust fund" means the local interest subsidy trust fund established under section 46-12.2-6;
(20) "Person" means any natural or corporate person, including bodies politic and corporate, public departments, offices, agencies, authorities, and political subdivisions of the state, corporations, societies, associations, and partnerships, and subordinate instrumentalities of any one or more political subdivisions of the state;
(21) "Priority determination system" means the system by which water pollution abatement projects are rated on the basis of environmental benefit and other criteria for funding assistance pursuant to rules and regulations promulgated by the department as they may be amended from time to time;
(22) "Revenues", when used with reference to the agency, means any receipts, fees, payments, moneys, revenues, or other payments received or to be received by the agency in the exercise of its corporate powers under this chapter, including, without limitation, loan repayments, payments on local governmental obligations, grants, aid, appropriations, and other assistance from the state, the United States, or any agency, department, or instrumentality of either or of a political subdivision thereof, bond proceeds, investment earnings, insurance proceeds, amounts in reserves, and other funds and accounts established by or pursuant to this chapter or in connection with the issuance of bonds, including, without limitation, the water pollution control revolving fund, the Rhode Island water pollution control revolving fund, and the local interest subsidy fund, and any other fees, charges or other income received or receivable by the agency;
(23) "Rhode Island water pollution control revolving fund" means the Rhode Island water pollution control revolving fund established pursuant to section 46-12.2-6;
(24) "Trust agreement" means a trust agreement, loan agreement, security agreement, reimbursement agreement, currency or interest rate exchange agreement, or other security instrument, and a resolution, loan order, or other vote authorizing, securing, or otherwise providing for the issue of bonds, loans, or local governmental obligations;
(25) "Wastewater system revenues" means all rates, rents, fee assessments, charges, and other receipts derived or to be derived by a local governmental unit from wastewater collection and treatment facilities and water pollution abatement projects under its ownership or control, or from the services provided thereby, including, without limitation, proceeds of grants, gifts, appropriations, and loans, including the proceeds of loans or grants awarded by the agency or the department in accordance with this chapter, investment earnings, reserves for capital and current expenses, proceeds of insurance or condemnation, and the sale or other disposition of property; wastewater system revenues may also include rates, rents, fees, charges, and other receipts derived by the local governmental unit from any water supply of distribution facilities or other revenue producing facilities under its ownership or control; wastewater system revenues shall not include any ad valorem taxes levied directly by the local governmental unit on any real and personal property;
(26) "Water pollution abatement project" or "project" means any wastewater treatment or conveyance project that contributes to removal, curtailment, or mitigation of pollution of the surface water of the state, and conforms with any applicable comprehensive land use plan which has been adopted or any dam safety or dam maintenance project; it also means a project to enhance the waters of the state, which the agency has been authorized by statute to participate in;
(27) "Water pollution control revolving fund" means the water pollution control revolving fund contemplated by title VI of the Water Quality Act and established under section 46-12.2-6;
(28) "Water Quality Act" means the Water Quality Act of 1987, Pub. L. No. 100-4, 101 Stat. 7, 33 U.S.C. section 1251 et seq., as amended from time to time.
SECTION 5. Chapter 46-12.2 of the General Laws entitled "Rhode Island Clean Water Finance Agency" is hereby amended by adding thereto the following section:
46-12.2-4.1. Power to participate in projects to enhance the waters of the state. -- The agency shall have the power to exercise the powers set forth in section 46-12.2-4 to participate in the following projects and classes of projects that enhance the waters of the state. Projects for dewatering dredged material, for beneficial use and disposal of dredged material at sites above mean high water and for confined aquatic disposal of dredged materials, provided that the project has been approved by the coastal resources management council and the department as provided for in chapter 46-6.1, and further provided that the project is supported either by a fund established for the purposes of supporting such projects or is supported from project revenues. The agency shall cooperate with the coastal resources management council and the department in preparing a proposal for establishing a fund to support projects for dewatering dredged material, for beneficial use and disposal of dredged material at sites above mean high water and for confined aquatic disposal of dredged materials.
SECTION 6. Section 46-23-6 of the General Laws in Chapter 46-23 entitled "Coastal Resources Management Council" is hereby amended to read as follows:
46-23-6. Powers and duties -- Rights-of-way -- In order to properly manage coastal resources the council has the following powers and duties:
(1) Planning and management.
(i) The primary responsibility of the council shall be the continuing planning for and management of the resources of the state's coastal region. The council shall be able to make any studies of conditions, activities, or problems of the state's coastal region needed to carry out its responsibilities.
(ii) The resources management process shall include the following basic phases:
(A) Identify all of the state's coastal resources, water, submerged land, air space, fin fish, shellfish, minerals, physiographic features, and so forth.
(B) Evaluate these resources in terms of their quantity, quality, capability for use, and other key characteristics.
(C) Determine the current and potential uses of each resource.
(D) Determine the current and potential problems of each resource.
(E) Formulate plans and programs for the management of each resource, identifying permitted uses, locations, protection measures, and so forth.
(F) Carry out these resources management programs through implementing authority and coordination of state, federal, local, and private activities.
(G) Formulation of standards where these do not exist, and reevaluation of existing standards.
(H) To develop comprehensive programs for dredging in tidal waters and related beneficial use, disposal, monitoring dewatering and transportation of dredge materials.
(I) To accept and administer loans and grants from the federal government and from other sources, public or private, for the carrying out of any of its functions, which loans or grants shall not be expended for other than the purposes for which provided.
(J) To encourage, participate in, or conduct studies, investigations, research, and demonstrations relating to dredging, disposal of dredge materials and transportation thereof in the tidal waters of the state as the coastal resources management council may deem advisable and necessary for the discharge of its duties under this chapter.
(K) To collect and disseminate information relating to dredging, disposal of dredge materials and transportation thereof within the tidal waters of the state.
(L) To work with the appropriate federal and state agencies to develop as provided for in this chapter and in chapter 46-6.1, a comprehensive plan for dredging in tidal waters and related beneficial use, disposal, monitoring dewatering and transportation of dredge materials.
(M) To apply for, accept and expend grants and bequests of funds, for the purpose of carrying out the lawful responsibilities of the coastal resources management council.
(iii) An initial series of resources management activities shall be initiated through this basic process, then each phase shall continuously be recycled and used to modify the council's resources management programs and keep them current.
(iv) Planning and management programs shall be formulated in terms of the characteristics and needs of each resource or group of related resources. However, all plans and programs shall be developed around basic standards and criteria, including:
(A) The need and demand for various activities and their impact upon ecological systems.
(B) The degree of compatibility of various activities.
(C) The capability of coastal resources to support various activities.
(D) Water quality standards set by the director of environmental management.
(E) Consideration of plans, studies, surveys, inventories, and so forth prepared by other public and private sources.
(F) Consideration of contiguous land uses and transportation facilities.
(G) Whenever possible consistency with the state guide plan.
(i) The council is authorized to formulate policies and plans and to adopt regulations necessary to implement its various management programs. With respect to such policies and plans which relate to matters where the coastal resources management council and the department of environmental management have concurrent jurisdiction and upon formulation of the plans and regulations, the council shall, prior to adoption, submit the proposed plans or regulations to the director of the environmental management for the director's review. The director shall review and submit comments to the council within thirty (30) days of submission to the director by the council. Consistent with section 46-23-1(e)(6), the council shall consider the director's comments prior to adoption of any plans or regulations.
Any The council shall have exclusive jurisdiction below mean high water for all development, operations, and dredging, consistent with the requirements of chapter 46-6.1 and except as necessary for the department of environmental management to exercise its powers and duties and to fulfill its responsibilities pursuant to sections 42-17.1-2 and 42-17.1-24, and person, firm, or governmental agency proposing any development or operation within, above, or beneath the tidal water below the mean high water mark, extending out to the extent of the state's jurisdiction in the territorial sea, shall be required to demonstrate that its proposal would not:
(I) Conflict with any resources management plan or program;
(II) Make any area unsuitable for any uses or activities to which it is allocated by a resources management plan or program adopted by the council; or
(III) Significantly damage the environment of the coastal region.
(B) The council shall be authorized to approve, modify, set conditions for, or reject any such proposal.
(iii) The authority of the council over land areas (those areas above the mean high water mark) shall be limited to two hundred feet (200') from the coastal physiographic feature or to that necessary to carry out effective resources management programs. This shall be limited to the authority to approve, modify, set conditions for, or reject the design, location, construction, alteration, and operation of specified activities or land uses when these are related to a water area under the agency's jurisdiction, regardless of their actual location. The council's authority over these land uses and activities shall be limited to situations in which there is a reasonable probability of conflict with a plan or program for resources management or damage to the coastal environment. These uses and activities are:
(A) Power generating over forty (40) megawatts and desalination plants.
(B) Chemical or petroleum processing, transfer, or storage.
(C) Minerals extraction.
(D) Shoreline protection facilities and physiographical features, and all directly associated contiguous areas which are necessary to preserve the integrity of the facility and/or features.
(E) Coastal wetlands and all directly associated contiguous areas which are necessary to preserve the integrity of the wetlands including any freshwater wetlands located in the vicinity of the coast. The actual determination of freshwater wetlands located in coastal vicinities and under the jurisdiction of the coastal resources management council shall be designated on such maps that are agreed to in writing and made available for public use by the coastal resources management council and the director, department of environmental management, within three (3) months of [August 6, 1996]. The CRMC shall have exclusive jurisdiction over the wetlands areas described in this section notwithstanding any provision of chapter 1, title 2 or any other provision except that the division of agriculture maintains jurisdiction over all farming consistent with section 2-1-22(i) and (j). Within six (6) months of [August 6, 1996], the council in cooperation with the director shall develop rules and regulations for the management and protection of freshwater wetlands, affected by an aquaculture project, outside of those freshwater wetlands located in the vicinity of the coast and under the exclusive jurisdiction of the director of the department of environmental management. For the purpose of this chapter, a "coastal wetland" shall mean any salt marsh bordering on the tidal waters of this state, whether or not the tidal waters reach the littoral areas through natural or artificial watercourses, and those uplands directly associated and contiguous thereto which are necessary to preserve the integrity of that marsh. Marshes shall include those areas upon which grow one or more of the following: smooth cordgrass (spartina alterniflora), salt meadow grass (spartina patens), spike grass (distichlis spicata), black rush (juncus gerardi), saltworts (salicornia spp.), sea lavender (limonium carolinianum), saltmarsh bulrushes (scirpus spp.), hightide bush (iva frutescens), tall reed (phragmites communis), tall cordgrass (spartina pectinata), broadleaf cattail (typha latifolia), narrowleaf cattail (typha angustifolia), spike rush (eleocharis rostellata), chairmaker's rush (scirpus amercana), creeping bentgrass (agrostis palustris), sweet grass (hierochloe odorata), and wild rye (etlymus virginicus).
(F) Sewage treatment and disposal and solid waste disposal facilities.
(G) Beneficial use, dewatering, and disposal of dredged material of marine origins, where such activities take place within two hundred (200) feet of mean high water or a coastal physiographic feature, or where there is a reasonable probability of conflict with a plan or program for resources management or damage to the coastal environment.
(3) Coordination.. - The council has the following coordinating powers and duties:
(i) Functioning as a binding arbitrator in any matter of dispute involving both the resources of the state's coastal region and the interests of two (2) or more municipalities or state agencies.
(ii) Consulting and coordinating actions with local, state, regional, and federal agencies and private interests.
(iii) Conducting or sponsoring coastal research.
(iv) Advising the governor, the general assembly, and the public on coastal matters.
(v) Serving as the lead state agency and initial and primary point of contact for dredging activities in tidal waters and in that capacity, integrating and coordinating the plans and policies of other state agencies as they pertain to dredging in order to develop comprehensive programs for dredging as required by section 46-23-6(1)(2)(h) and chapter 46-6.1.
(vi) Acting as the state's representative to all bodies public and private on all coastal and aquaculture related matters.
(4) Operations.. - The council is authorized to exercise the following operating functions, which are essential to management of coastal resources:
(i) Issue, modify, or deny permits for any work in, above, or beneath the areas under its jurisdiction, including conduct of any form of aquaculture.
(ii) Issue, modify, or deny permits for dredging, filling, or any other physical alteration of coastal wetlands and all directly related contiguous areas which are necessary to preserve the integrity of the wetlands, including, but not limited to the transportation and disposal of dredge materials in the tidal waters.
(iii) Grant licenses, permits, and easements for the use of coastal resources which are held in trust by the state for all its citizens, and impose fees for private use of these resources.
(iv) Determining the need for and establishing pierhead, bulkhead, and harbor lines.
(v) Enforcing and implementing riparian rights in the tidal waters after judicial decisions.
(i) The council is responsible for the designation of all public rights-of-way to the tidal water areas of the state, and shall carry on a continuing discovery of appropriate public rights-of-way to the tidal water areas of the state.
(ii) The council shall maintain a complete file of all official documents relating to the legal status of all public rights-of-way to the tidal water areas of the state.
(iii) (A) The council has the power to designate for acquisition and development, and posting, and all other functions of any other department for tidal rights-of-way and land for tidal rights-of-way, parking facilities, and other council related purposes.
(B) Further, the council has the power to develop and prescribe a standard sign to be used by the cities and towns to mark designated rights-of-way.
(iv) In conjunction with this subdivision, every state department controlling state-owned land close to or adjacent to discovered rights-of-way is authorized to set out the land, or so much of the land that may be deemed necessary for public parking.
(v) No use of land for public parking shall conflict with existing or intended use of the land, and no improvement shall be undertaken by any state agency until detailed plans have been submitted to and approved by the governing body of the local municipality.
(vi) In designating rights-of-way, the council shall consider the following matters in making its designation:
(A) Land evidence records;
(B) The exercise of domain over the parcel such as maintenance, construction, or upkeep;
(C) The payment of taxes;
(D) The creation of a dedication;
(E) Public use;
(F) Any other public record or historical evidence such as maps and street indexes;
(G) Other evidence as set out in section 42-35-10.
(vii) A determination by the council that a parcel is a right-of-way shall be decided by substantial evidence.
(viii) The council shall be notified whenever by the judgment of the governing body of a coastal municipality, a public right-of-way to tidal water areas located in such municipality has ceased to be useful to the public, and such governing body proposes an order of abandonment of such public right-of-way. Said notice shall be given not less than sixty (60) days prior to the date of such abandonment.
(6) Pre-existing residential boating facilities.
(i) The council is hereby authorized and empowered to issue assent for pre-existing residential boating facilities constructed prior to January 1, 1985. These assents may be issued for pre-existing residential boating facilities, even though such facilities do not meet current standards and policies of the council, provided, however, that the council finds that such facilities do not pose any significant risk to the coastal resources of the state of Rhode Island and do not endanger human safety.
(ii) In addition to the above criteria, the applicant shall provide clear and convincing evidence that:
(A) The facility existed in substantially the same configuration as it now exists prior to January 1, 1985;
(B) The facility is presently intact and functional; and
(C) The facility presents no significant threat to the coastal resources of the state of Rhode Island or human safety.
(iii) The applicant, to be eligible for this provision, shall apply no later than January 31, 1999.
(iv) The council is directed to develop rules and regulations necessary to implement this subdivision.
(v) It is the specific intent of this subsection to require that all pre-existing residential boating facilities constructed on January 1, 1985 or thereafter conform to this chapter and the plans, rules and regulations of the council.
(7) Lease of filled lands which were formerly tidal lands to riparian or littoral owners.
(i) Any littoral or riparian owner in this state who desires to obtain a lease from the state of Rhode Island of any filled lands adjacent to his or her upland shall apply to the council, which may make the lease. Any littoral or riparian owner who wishes to obtain a lease of filled lands must obtain pre-approval, in the form of an assent, from the council. Any lease granted by the council shall continue the public's interest in the filled lands including but not limited to the rights of navigation, fishery, and commerce. The public trust in the lands shall continue and run concurrently with the leasing of the lands by the state to private individuals, corporations, or municipalities. Upon the granting of a lease by the council, those rights consistent with the public trust and secured by the lease shall vest in the lessee. The council may approve a lease of filled lands for an initial term of up to fifty (50) years, with, or without, a single option to renew for an additional term of up to fifty (50) years.
(ii) The lessor of the lease, at any time, for cause, may by express act cancel and annul any lease previously made to the riparian owner when it determines that the use of the lands is violating the terms of the lease or is inconsistent with the public trust, and upon cancellation the lands, and rights in the land so leased, shall revert to the state.
(8) "Marinas" as defined in the coastal resources management program in effect as of June 1, 1997, are deemed to be one of the uses consistent with the public trust. Subdivision (7) is not applicable to: (i) any riparian owner on tidal waters in this state (and any successor in interest to the owner) which has an assent issued by the council to use any land under water in front of his or her lands as a marina, which assent was in effect on June 1, 1997; (ii) any alteration, expansion, or other activity at a marina (and any successor in interest) which has an assent issued by the council, which assent was in effect on June 1, 1997; and (iii) any renewal of assent to a marina (or successor in interest), which assent was issued by the council and in effect on June 1, 1997.
(9) "Recreational boating facilities" including marinas, launching ramps, and recreational mooring areas, as defined by and properly permitted by the council, are deemed to be one of the uses consistent with the public trust. Subdivision (7) is not applicable to: (i) any riparian owner on tidal waters in this state (and any successor in interest to the owner) which has an assent issued by the council to use any land under water in front of his or her lands as a recreational boating facility; any alteration, expansion or other activity at a recreational boating facility (and any successor in interest) which has an assent issued by the council, which assent was in effect as of June 1, 1997; and (ii) any renewal of assent to a recreational boating facility (or successor in interest), which assent was issued by the council and in effect on June 1, 1997.
SECTION 7. Section 23-18.9-7 of the General Laws in Chapter 23-18.9 entitled "Refuse Disposal" is hereby amended to read as follows:
23-18.9-7. Definition -- As used in this chapter, the following terms shall, where the context permits, be construed as follows:
(1) "Cocktailing" means the adding, combining or mixing of hazardous waste as defined in section 23-19.1-4 with construction debris and demolition debris.
(2) "Construction and demolition (C&D) debris" means nonhazardous solid waste resulting from the construction, remodeling, repair, and demolition of utilities and structures; and uncontaminated solid waste resulting from land clearing. Such waste includes, but is not limited to wood (including painted, treated and coated wood and wood products), land clearing debris, wall coverings, plaster, drywall, plumbing fixtures, nonasbestos insulation, roofing shingles and other roof coverings, glass, plastics that are not sealed in a manner that conceals other wastes, empty buckets ten gallons or less in size and having no more than one inch of residue remaining on the bottom, electrical wiring and components containing no hazardous liquids, and pipe and metals that are incidental to any of the above. Solid waste that is not C&D debris (even if resulting from the construction, remodeling, repair, and demolition of utilities, structures and roads and land clearing) includes, but is not limited to, asbestos, waste, garbage, corrugated container board, electrical fixtures containing hazardous liquids such as fluorescent light ballasts or transformers, fluorescent lights, carpeting, furniture, appliances, tires, drums, containers greater than ten gallons in size, any containers having more than one inch of residue remaining on the bottom and fuel tanks. Specifically excluded from the definition of construction and demolition debris is solid waste (including what otherwise would be construction and demolition debris) resulting from any processing technique, other than that employed at a department-approved C&D debris processing facility, that renders individual waste components unrecognizable, such as pulverizing or shredding.
(3) "Construction and demolition debris processing facility" means a solid waste management facility that receives and processes construction and demolition debris of more than fifty (50) tons per day. Said facilities must demonstrate, through records maintained at the facility and provided to the department, that seventy-five percent (75%) of all material received by the facility is processed and removed from the site within six (6) weeks of receipt on a continuous basis, and that in no case stores material on site for over three (3) months; provided, however, such facilities do not include municipal compost facilities.
(4) "Construction and demolition debris separation facility" means a facility that receives, separates and or screens construction and demolition debris into its components for subsequent resale or processing which includes but is not limited to grinding, shredding, crushing, or landfilling at another location separate and apart from the location on which the separation occurs.
(5) "Director" means the director of the department of environmental management or any subordinate or subordinates to whom the director has delegated the powers and duties vested in him or her by this chapter.
(6) "Expansion" means any increase in volume, size, or scope, either vertically, horizontally, or otherwise; provided, however, that this section does not apply to the vertical expansion of the Charlestown Municipal landfill until the closure date of July 1, 2000.
(7) "Person" includes an individual, firm, partnership, association, and private or municipal corporation.
(8) "Recyclable materials" means those materials separated from solid waste for reuse. The director of the department of environmental management through regulations shall specify those materials that are to be included within the definition of recyclables. The materials to be included may change from time to time depending upon new technologies, economic conditions, waste stream characteristics, environmental effects, or other factors.
(9) "Segregated solid waste" means material separated from other solid waste for reuse.
(10) "Solid waste" means garbage, refuse, and other discarded solid materials generated by residential, institutional, commercial, industrial, and agricultural sources, but does not include solids or dissolved material in domestic sewage or sewage sludge or dredge material as defined in chapter 46-6.1, nor does it include hazardous waste as defined in chapter 19.1 of this title, nor does it include used asphalt, concrete, Portland concrete cement, or tree stumps.
(11) "Solid waste management facility" means any plant, structure, equipment, real and personal property, except mobile equipment or incinerators with a capacity of less than one thousand pounds (1,000 lbs.) per hour, operated for the purpose of processing, treating, or disposing of solid waste but not segregated solid waste. Any solid waste management facility that stores waste materials containing gypsum on site over three (3) months must install and maintain an active gas collection system approved by the department of environment management.
Section 36-4-2 of the General Laws in Chapter 36-4 entitled "Merit System" is hereby amended to read as follows:
36-4-2. Positions in unclassified service -- The classified service shall comprise all positions in the state service now existing or hereinafter established, except the following specific positions which with other positions heretofore or hereinafter specifically exempted by legislative act shall constitute the unclassified service:
(1) Officers and legislators elected by popular vote and persons appointed to fill vacancies in elective offices.
(2) Employees of both houses of the general assembly.
(3) Officers, secretaries, and employees of the office of the governor, office of the lieutenant governor, department of state, department of the attorney general, and the treasury department.
(4) Members of boards and commissions appointed by the governor, members of the state board of elections and the appointees of the board, members of the commission for human rights and the employees of the commission, and directors of departments.
(5) The following specific offices:
(i) In the department of administration: director, chief information officer;
(ii) In the department of business regulation: director;
(iii) In the department of elementary and secondary education: commissioner of elementary and secondary education;
(iv) In the department of higher education: commissioner of higher education;
(v) In the department of health: director;
(vi) In the department of labor and training: director, administrative assistant, administrator of the labor board and legal counsel to the labor board;
(vii) In the department of environmental management: director;
(viii) In the department of transportation: director;
(ix) In the department of human services: director;
(x) In the state properties committee: secretary;
(xi) In the workers' compensation court: judges, administrator, deputy administrator, clerk, assistant clerk, clerk secretary;
(xii) In the department of elderly affairs: director;
(xiii) In the department of mental health, retardation, and hospitals: director;
(xiv) In the department of corrections: director, assistant director (institutions/operations), assistant director (rehabilitative services), assistant director (administration), and wardens;
(xv) In the department of children, youth and families: director, one assistant director, one associate director, and one executive director;
(xvi) In the public utilities commission: public utilities administrator;
(xvii) In the water resources board: general manager.
(6) Chief of the hoisting engineers, licensing division, and his or her employees; executive director of the veterans memorial building and his or her clerical employees.
(7) One confidential stenographic secretary for each director of a department and each board and commission appointed by the governor.
(8) Special counsel, special prosecutors, regular and special assistants appointed by the attorney general, the public defender and employees of his or her office, and members of the Rhode Island bar occupying a position in the state service as legal counsel to any appointing authority.
(9) The academic and/or commercial teaching staffs of all state institution schools, with the exception of those institutions under the jurisdiction of the board of regents for elementary and secondary education and the board of governors for higher education.
(10) Members of the military or naval forces, when entering or while engaged in the military or naval service.
(11) Judges, referees, receivers, clerks, assistant clerks, and clerical assistants of the supreme, superior, family, and district courts, the traffic tribunal, jurors and any persons appointed by any court.
(12) Election officials and employees.
(13) Sheriffs, deputy sheriffs, and their employees and security officers of the traffic tribunal.
(14) Patient or inmate help in state charitable, penal, and correctional institutions and religious instructors of these institutions and student nurses in training, residents in psychiatry in training, and clinical clerks in temporary training at the institute of mental health within the state of Rhode Island medical center.
(15) (i) Persons employed to make or conduct a temporary and special inquiry, investigation, project or examination on behalf of the legislature or a committee therefor, or on behalf of any other agency of the state if the inclusion of these persons in the unclassified service is approved by the personnel administrator. The personnel administrator shall notify the house fiscal advisor and the senate fiscal advisor whenever he or she approves the inclusion of a person in the unclassified service.
(ii) The duration of the appointment of a person, other than the persons enumerated in this section, shall not exceed ninety (90) days or until presented to the unclassified pay plan board. The unclassified pay plan board may extend the appointment another ninety (90) days. In no event shall the appointment extend beyond one hundred eighty (180) days.
(16) Members of the division of state police.
(17) Executive secretary of the Blackstone Valley district commission.
(18) Artist and curator of state owned art objects.
(19) Mental health advocate.
(20) Child advocate.
(21) The positions of aquaculture coordinator and dredge coordinator within the coastal resources management council.
SECTION 9. This act shall take effect upon passage.