Chapter 185
2012 -- H 7961 SUBSTITUTE A
Enacted 06/11/12
A N A C T
RELATING TO
WATERS AND NAVIGATION - COASTAL RESOURCES MANAGEMENT COUNCIL
Introduced By: Representatives Tanzi, and Walsh
Date Introduced: March 15, 2012
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.
(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 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.
(C) The capability of
coastal resources to support various activities.
(D) Water quality
standards set by the director of the department 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.
(I) The
purpose of the marine resources development plan shall be to provide an
integrated strategy for: (a) improving the health and
functionality of
ecosystem; (b) providing for appropriate marine-related
economic development; and (c)
promoting the use and enjoyment of
(II) 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.
(III) 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
(IV) 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.
(V) 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.
(VI) 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
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.
(VII) The council shall
administer its programs, regulations, and implementation
activities in a manner consistent with the marine resources
development plan.
(VIII) 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.
(I) 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.
(II) 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.
(III) The council shall
administer its programs, regulations, and implementation
activities in a manner consistent with special area management
plans.
(IV) 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 department of 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.
(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), except as provided in subsection (iv) of this
section. 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" means
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.
(iv)
Notwithstanding the provisions of subsections (ii) and (iii)
above, the department of
environmental management shall maintain jurisdiction over the
administration of chapter 1, title
2, including permitting of freshwater wetlands
alterations and enforcement, with respect to all
agricultural activities undertaken by a farmer, as that term is
defined in subsection 2-1-22(j),
wherever located; provided, however, that with respect to
activities located partially or
completely within two hundred feet (200’) of the coastal
physiographic feature, the department
shall exercise jurisdiction in consultation with the
council.
(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
landfill shall first 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. 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
management program, but not including those facilities defined
in 300.4 of the
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" means 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;
(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
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
(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
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) "
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 upon passage.
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LC02240/SUB A
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