Chapter 144

2005 -- S 0170

Enacted 07/01/05

A N A C T

RELATING TO WATERS AND NAVIGATION - - COASTAL RESOURCES

MANAGEMENT COUNCIL

Introduced By: Senators Felag, and Sosnowski

Date Introduced: February 02, 2005

It is enacted by the General Assembly as follows:

SECTION 1. 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.

(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 6.1 of this title, 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.

(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.

(v) The council shall prepare, adopt, administer, and cause to be implemented, including

specifically through its powers of coordination as set forth in subdivision 3 of this section, a

marine resources development plan and such special area management plans as the council may

determine to be appropriate or desirable as follows:

(A) Marine resources development plan.

(1) The purpose of the marine resources development plan shall be to provide an

integrated strategy for: (a) improving the health and functionality of Rhode Island's marine

ecosystem; (b) providing for appropriate marine-related economic development; and (c)

promoting the use and enjoyment of Rhode Island's marine resources by the people of the state.

(2) The marine resources development plan shall include specific goals and objectives

necessary to accomplish its purposes, performance measures to determine progress toward

achieving such goals and objectives, and an implementation program.

(3) The marine resources development plan shall be prepared in cooperation with the

department of environmental management, the statewide planning program, and the economic

development corporation, with the involvement of such other state agencies as may be

appropriate, and with such technical support as may be necessary and appropriate from the

Narragansett Bay Estuary Program, the Coastal Institute at the University of Rhode Island, and

Rhode Island Sea Grant.

(4) The plan shall be responsive to the requirements and principles of the federal coastal

zone management act as amended, including, but not limited to, the expectations of the act for

incorporating the federal clean water act into coastal zone management programs.

(5) The marine resources development plan shall take into account local land use

management responsibilities as provided for under title 45 and harbor management

responsibilities, and the preparation of the plan shall include opportunities for involvement and/or

comment by cities and towns.

(6) The marine resources development plan shall be adopted by the council in

accordance with the provisions of this subsection by July 1, 2005, shall as appropriate incorporate

the recommendations of the Governor's Narragansett Bay and Watershed Planning Commission,

and shall be made consistent with systems level plans as appropriate, in order to effectuate the

purposes of systems level planning. The council shall update the marine resources development

plan at least once every five (5) years.

(7) The council shall administer its programs, regulations, and implementation activities

in a manner consistent with the marine resources development plan.

(8) The marine resources development plan and any updates thereto shall be adopted as

appropriate as elements of the state guide plan pursuant to section 42-11-10.

(B) Special area management plans.

(1) The council shall adopt such special area management plans as deemed necessary

and desirable to provide for the integration and coordination of the protection of natural

resources, the promotion of reasonable coastal-dependent economic growth, and the improved

protection of life and property in the specific areas designated council as requiring such integrated

planning and coordination.

(2) The integrated planning and coordination herein specified shall include, but not be

limited to, federal agencies, state agencies, boards, commissions, and corporations, including

specifically the economic development corporation, and cities and towns, shall utilize to the

extent appropriate and feasible the capacities of entities of higher education, including Rhode

Island Sea Grant, and shall provide for the participation of advocacy groups, community-based

organizations, and private persons.

(3) The council shall administer its programs, regulations, and implementation activities

in a manner consistent with special area management plans.

(4) Special area management plans and any updates thereto shall be adopted as

appropriate as elements of the state guide plan pursuant to section 42-11-10.

(2) Implementation.

(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. The comments of the director shall include findings with regard to the consistency of the

policies, plans and/or regulations with the requirements of laws administered by the department.

The council shall consider the director's comments prior to adoption of any such policies, plans or

regulations and shall respond in writing to findings of the director with regard to the consistency

of said policies, plans and/or regulations with the requirements of laws administered by the

department.

(ii) (A) The council shall have exclusive jurisdiction below mean high water for all

development, operations, and dredging, consistent with the requirements of chapter 6.1 of this

title 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 any 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.

(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 subparagraph (1)(ii)(H) of this section and chapter 6.1 of this title.

The Rhode Island Resource Recovery Corporation prior to purchasing cover material for the state

landfill shall first contact CRMC to see if there is a source of suitable dredged material available

which shall be used in place of the purchase cover material. Other state agencies engaged in the

process of dump closures shall also contact the CRMC to see if there is a source of suitable

dredged material available, which shall be used in place of the purchase cover material. In

addition, cities and towns may contact the CRMC prior to closing city or town controlled dump

sites to see if there is a source of suitable dredge material available, which may be used in place

of the purchase cover material.

(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.

(vi) The council may require an owner or operator of a commercial wharf or pier of a

marine commercial facility, as defined in 300.3 of the Rhode Island Coastal Resources

Management Program, but not including those facilities defined in 300.4 of the Rhode Island

Coastal Resources Management Program, and which is capable of offloading cargo, and is or will

be subject to a new use or a significant intensification of an existing use, to demonstrate that the

commercial wharf or pier is fit for that purpose. For the purposes of this subsection, a commercial

wharf or pier shall mean a pier, bulkhead, wharf, docking facility, or underwater utilities. The

council may order said owner or operator to provide an engineering certification to the council's

satisfaction that the commercial wharf or pier is fit for the new use or intensification of an

existing use. If the council determines that the commercial wharf or pier is not fit, it may order

the owner or operator to undertake the necessary work to make the commercial wharf or pier safe,

within a reasonable time frame. If the council determines that the commercial wharf or pier,

because of is condition, is an immediate threat to public health and safety it may order the

commercial wharf or pier closed until the necessary work to make the commercial wharf or pier

safe has been performed and approved by the council. All work performed must conform to the

council's management program. The council is also given the authority to develop regulations to

carry out this provision and to impose administrative penalties of five thousand dollars ($5,000)

per day up to a maximum of twenty thousand dollars ($20,000) consistent with section 46-23-7.1

where there has been a violation of the orders under this provision.

(5) Rights-of-way.

(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;

(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

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 cancelation 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 2. This act shall take effect on January 15, 2006.

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LC00692

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