Introduced By: Representatives Ginaitt and Reilly
Date Introduced : April 7, 1998
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 shall have 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 disposal, monitoring 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 a comprehensive plan for dredging in tidal waters and related disposal, monitoring 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.
(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. Consistent with section 46-23-1(e)(6), the council shall consider the director's comments prior to adoption of any plans or regulations.
(ii) (A) 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. 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.
(3) Coordination.. - The council shall have 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(A)(2)(h).
(vi) Acting as the state's representative to all bodies public and private on all coastal and aquaculture related matters.
(4) Operations.. - The council shall be 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.
(5) Rights-of-way.
(i) The council shall be 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 shall have 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 shall have 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 therewith, 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 thereof as may be deemed necessary for public parking.
(v) No such 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, {DEL 1998 DEL} {ADD 1999 ADD}.
(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.
SECTION 2. This act shall take effect upon passage.
