Chapter 370
2012 -- S 2610 SUBSTITUTE A
Enacted 06/21/12
A N A C T
RELATING TO
WATERS AND NAVIGATION - OBSTRUCTIONS TO NAVIGATION
Introduced By: Senators Felag, DiPalma, Bates, Sosnowski, and McCaffrey
Date Introduced: March 01, 2012
It is enacted by the
General Assembly as follows:
SECTION 1. Chapter 46-6 of the General Laws entitled
"Obstructions to Navigation" is
hereby amended by adding thereto the following sections:
46-6-8.1.
Definitions. – As used in this chapter:
(1) “Abandoned
vessel” means a vessel that has been left, moored, or anchored in the
same area without the express consent, or contrary to the
rules of, the owner, manager, or lessee
of the submerged lands or waters below or on which the
vessel is located for more than forty-five
(45) consecutive days or for
more than a total of ninety (90) days in any three hundred sixty-five
(365) day period, and the vessel’s owner is: (i) Not known or cannot be located; or (ii) Known
and located but is unwilling to take control of the
vessel. Examples of abandoned vessels shall,
include, but not be limited to, the following:
(A) Any vessel that
is left unattended or has remained illegally on public property,
including docks, boat launching ramps, or moorings for more
than forty-five (45) days.
(B) Any vessel that
has been found adrift or unattended in or upon the waters or
submerged lands of the state of
constitute a hazard or obstruction to the use of the waters and
submerged lands of the state or
presents a potential health or environmental hazard.
(2) “Authorized
public entity” means the department of environmental management or
any municipality with jurisdiction or management
authority over the harbor areas where an
abandoned or derelict vessel or other obstruction is located.
(3) “Department”
means the department of environmental management.
(4) “Derelict vessel”
means a vessel whose owner is known and can be located, and who
is able to exert control of a vessel that:
(i)
Has been moored, anchored, or otherwise left in the waters or submerged lands
of the
state or on public property contrary to the rules adopted
by an authorized public entity;
(ii) Is sunk or in
danger of sinking;
(iii) Is obstructing
a waterway; and/or
(iv)
Is endangering life or property.
(5) “Director” means
the director of the department of environmental management.
(6) “Mean high water”
means a line of contour representing the eighteen and six-tenths
(18.6) year average as determined by the metonic cycle and/or its
equivalent as evidenced by the
records, tidal datum, and methodology of the
National Oceanic and Atmospheric
Administration.
(7) “Obstruction”
means any unlawful or unauthorized structure or thing that is deposited
or suffered to be or remain in the tidal waters or upon
the tidal lands of the state, and in the
judgment of the director, is, or is liable to cause or become
an obstruction to the safe and
convenient use of the waters and submerged lands of the state
for navigation and other lawful
purposes.
(8) “Owner” means a
person, other than a lienholder, having a property
interest in or title
to a vessel or other obstruction. The term includes a
person entitled to use or have possession of a
vessel or other obstruction subject to an interest in
another person, reserved, or created by
agreement and securing payment or performance of an obligation,
but it does not include a lessee
under a lease not intended as security.
(9) “Tidal lands”
means those lands that are below the mean high water.
(10) “Tidal waters”
means all waters seaward of mean high water.
(11) “Vessel” means
every description of watercraft, other than a seaplane on the water,
used or capable of being used as a means of transportation
on water.
(12) “Waters and
submerged lands of the state” means all tidal waters and tidal lands
within the territorial limits of the state, all inland
waters of the state, and all publicly owned
submerged lands lying beneath the inland waters of the state.
46-6-10.1.
Use or disposal of vessel or other obstruction. – (a)
After taking possession
of a vessel or other obstruction, pursuant to the terms
and conditions of sections 46-6-9 and 46-9-
10, the authorized public entity may use or dispose of
the vessel or other obstruction in any
appropriate and environmentally sound manner without further
notice to any owners, but must
give preference to uses that derive some monetary benefit
from the vessel or other obstruction,
either in whole or in scrap. If no value can be derived from
the vessel or other obstruction, the
authorized public entity must give preference to the least
costly, environmentally sound,
reasonable disposal option.
(b) If the authorized
public entity chooses to offer the vessel or other obstruction for sale
at public auction, either a minimum bid may be set or a
letter of credit may be required, or both,
to discourage future re-abandonment of the vessel or
other obstruction.
(c) Proceeds derived
from the sale of the vessel or other obstruction must first be applied
to any administrative costs that are incurred by the
authorized public entity during the notification
procedures set forth in section 46-6-9, removal and disposal
costs, and costs associated with
environmental damages directly or indirectly caused by the vessel
or other obstruction. If the
proceeds derived from the sale of the vessel or other
obstruction exceed all such costs, the
remaining moneys must be applied to satisfying any liens
registered against the vessel or other
obstruction.
(d) Any value derived
from the sale of a vessel greater than all liens and costs incurred
shall revert to the derelict and abandoned vessel and
obstruction removal account established in
section 46-6-10.3.
46-6-10.2.
Derelict and abandoned vessel and obstruction removal commission.
– (a)
There is hereby created a commission known as the
derelict and abandoned vessel and
obstruction removal commission which shall consist of five (5)
members as follows:
(1) One member who
shall be engaged in the marine trades industry, to be appointed by
the governor with advice and consent of the senate;
(2) One member who
shall represent a private, nonprofit environmental advocacy
organization whose purposes include protecting and preserving
by the governor with advice and consent of the senate;
(3) One member who
shall be a municipal harbormaster, to be appointed by the governor
with advice and consent of the senate;
(4) The director of
the department of environmental management or his or her designee;
and
(5) The executive
director of the coastal resources management council or his or her
designee.
(b) The chairperson
shall be elected by the members of the commission.
(c) The members
appointed by the governor shall serve three (3) year terms, and be
eligible for re-appointment.
(d) The purpose of
the commission shall be to prioritize the disbursement of funds from
the derelict and abandoned vessel and obstruction removal
account established in section 46-6-
10.3.
(e) The commission
shall be advisory to the director and shall provide recommendations
to the director for fund disbursement.
(f) The commission
shall develop criteria, in the form of guidelines, to prioritize removal
projects undertaken pursuant to this chapter, and in
accordance with the use of the derelict and
abandoned vessel and obstruction removal account established in
section 46-6-10.3. The
guidelines shall also include guidance to the authorized public
entities as to what removal
activities and associated costs are reasonable and eligible for
coverage by the fund. The director
shall review and approve, approve with conditions, or
reject these guidelines within thirty (30)
days of receipt. The commission may seek to revise the
guidelines at any time, by submitting
such revisions to the director for review and approval.
The guidelines shall be made publicly
available.
46-6-10.3.
Derelict and abandoned vessel and obstruction removal account. --
(a) All
fees assessed pursuant to section 46-6-10.4 shall be
deposited into a restricted receipt account,
hereby created and known as the derelict and abandoned
vessel and obstruction removal account.
The account is also authorized to receive fund transfers
and appropriations from the general fund,
and from any moneys collected pursuant to section
46-6-12. Funds from the account may only be
used to cover the costs of removing, disposing, and/or
selling derelict and abandoned vessels and
other obstructions, including any associated administrative
or environmental remediation costs, in
accordance with the provisions of this chapter.
(b) Priority for use
of funds from the account is for (1) The removal of
derelict and
abandoned vessels that are in danger of sinking or have sunk,
are breaking up or have broken up,
pose a hazard to navigation, and/or pose threats to the
environment; and (2) The removal of
obstructions that pose a hazard to navigation, and/or pose threats
to the environment.
(c) The department
shall keep all authorized public entities apprised of the balance of the
derelict and abandoned vessel and obstruction removal account
and the funds available for
disbursement.
46-6-10.4.
Derelict and abandoned vessel and obstruction removal fee.
– There is
hereby established a derelict and abandoned vessel and
obstruction removal fee which shall be in
addition to the vessel registration fee assessed pursuant to
subdivision 46-22-4(a)(1). The fee
shall be assessed biennially at the time vessel
registration fees are assessed by the department
pursuant to subdivision 46-22-4(a)(1). All derelict and
abandoned vessel and obstruction removal
fees shall be deposited in the derelict and abandoned
vessel and obstruction removal account
established pursuant to section 46-6-10.3. The fees shall be
assessed as follows:
Overall Vessel
Length (Ft) User
Fee
1-15 feet $2.00
16-20 feet $2.00
21-25 feet $6.00
26-30 feet $8.00
31-35 feet $12.00
36-40 feet $14.00
41-45 feet $16.00
46-50 feet $18.00
51 feet and above $20.00
Pursuant to paragraph
46-22-4(a)(1)(iii), vessels over thirty feet (30’)
may, upon request,
pay the derelict and abandoned vessel and obstruction
removal fee, along with the registration fee
annually at the rate of one-half (1/2) the biennial fee for a
vessel of the same length.
46-6-17.
Severability. – The provisions of this chapter
shall be severable and, if any of
the provisions shall be held invalid, the decision of the
court respecting that provision or
provisions shall not affect the validity of any other provision
which can be given effect without
that invalid provision.
SECTION 2. Sections 46-6-10, 46-6-11 and 46-6-12 of the
General Laws in Chapter 46-6
entitled "Obstructions to Navigation" are hereby
amended to read as follows:
46-6-10.
Removal of obstruction by director -- Payment of cost. –
(a) If the vessel or
other obstruction is: (1) not Not removed at or within the time specified in the
notice, and in a
manner and to a place satisfactory to the director, or (2)
If the vessel or other obstruction is in
immediate danger of sinking or has sunk, is breaking up or has
broken up, or is posing a hazard to
navigation; or (3) If the vessel or other obstruction poses an
imminent threat to human health or
safety, including a threat of environmental contamination;
and (4) if If
no owner or other person
is known to the director upon whom the notice can be
served, the director or other authorized
public entity may
proceed to remove the vessel or other obstruction, or to complete the removal
thereof, or to cause the removal to be done, in such manner
and to such place as the director or
other authorized public entity shall deem best; and the necessary cost and expense
of the
removal, if not paid by some owner or other person liable therefor, shall, when certified by the
director, be paid out of the derelict and abandoned vessel
and obstruction removal account or out
of the
treasury of the state out of any money appropriated therefor.
(b) Before taking
temporary possession of any vessel or other obstruction, the authorized
public entity must make reasonable attempts to consult with
the department of the
Coast Guard to ensure that other
remedies are not available.
The basis for taking temporary
possession of the vessel or other obstruction must be set out in
writing by the authorized public
entity within seven (7) days of taking action and be
submitted to the owner, if known, as soon
thereafter as reasonable. If the authorized public entity has
not already provided the required
notice, immediately after taking possession of the vessel or
other obstruction, the authorized
public entity must initiate the notice provisions in
subsection 46-6-9(a). The authorized public
entity must complete the notice requirements of subsection
46-6-9(a) before using or disposing of
the vessel or other obstruction as authorized in section
46-6-10.1.
46-6-11.
Liability for cost of removing obstruction -- Action for recovery.
-- The
owner of any vessel or of an interest in any vessel
willfully or maliciously wrecked, sunken, or
abandoned and removed as provided in section 46-6-10, whether
owning, at the time the vessel
first became an obstruction, or at any subsequent time
before the removal is completed, and all
persons having or exercising any control over the vessel or
any part thereof, and, in the case of
any other obstruction so removed, the person or persons
originally building, depositing, or
causing the obstruction, or at the time of the removal, or at
any time prior thereto, owning,
maintaining, or using the obstruction in whole or in part, shall
be liable to pay the cost and
expenses of the removal, or to repay the cost when paid out of
the derelict and abandoned vessel
and obstruction removal account or treasury as aforesaid; and the cost may be recovered
in a civil
action brought by the director in the name of the state
against the owners or other persons, or
against any one or more of them. The attorney general shall
conduct and commence the suits. All
moneys so repaid or recovered shall be paid into the derelict
and abandoned vessel and
obstruction removal account or treasury of the state. Any person who pays on a judgment or
otherwise more than his or her proportional part of the costs
and expenses aforesaid, shall have a
claim for contribution against all other parties liable therefor according to their respective
interests.
46-6-12.
removing a vessel or other obstruction as aforesaid are not
paid or repaid by some owner or other
person liable therefor within ten
(10) days after the removal is completed, the director of the
department of environmental management may sell the vessel or
other obstruction, or the
materials and appurtenances thereof, at public or private sale,
and the net proceeds of the sale
shall be paid into the derelict and abandoned vessel and
obstruction removal account or treasury
of the state and deducted from the amount to be repaid
or recovered as provided in section 46-6-
11.
SECTION 3. This act shall take effect upon passage;
provided, however, that section 46-
6-10.4 of this act shall
apply to all boat registrations, including renewals, effective March 1, 2013.
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LC01686/SUB A
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