2012 -- H 7801

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LC01749

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO WATERS AND NAVIGATION - OBSTRUCTIONS TO NAVIGATION

     Introduced By: Representatives Malik, Gallison, and Morrison

     Date Introduced: February 28, 2012

     Referred To: House Environment and Natural Resources

It is enacted by the General Assembly as follows:

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     SECTION 1. Chapter 46-6 of the General Laws entitled "Obstructions to Navigation" is

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hereby amended by adding thereto the following sections:

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     46-6-8.1. Legislative findings. -- The general assembly finds that there has been an

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increase in the number of derelict and abandoned vessels that are either grounded or anchored

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upon publicly or privately owned submerged lands. These vessels are public nuisances and safety

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hazards as they often pose hazards to navigation, detract from the aesthetics of Rhode Island’s

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waterways, and threaten the environment with the potential release of hazardous materials. The

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legislature further finds that the costs associated with the disposal of derelict and abandoned

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vessels are substantial, and that in many cases there is no way to track down the current vessel

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owners in order to seek compensation. As a result, the costs associated with the removal of

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derelict vessels become a burden on public entities and the taxpaying public.

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     46-6-8.2. Definitions. – As used in this chapter: (1) “Abandoned vessel” means a vessel

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that has been left, moored, or anchored in the same area without the express consent, or contrary

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to the rules of, the owner, manager, or lessee of the tidal lands below or on which the vessel is

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located for either a period of more than thirty (30) consecutive days or for more than a total of

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ninety (90) days in any three hundred sixty-five (365) day period, and the vessel’s owner is: (i)

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Not known or cannot be located; or (ii) known and located but is unwilling to take control of the

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vessel. For the purposes of this subsection (1) only, “in the same area” means within a radius of

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five (5) miles of any location where the vessel was previously moored or anchored on tidal lands.

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An example of an abandoned vessel shall be, but is not limited to, the following:

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     (A) Any vessel that is left unattended or has remained illegally on public property,

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including public marinas, docks, boat launching ramps, boat yard, or mooring for more than thirty

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(30) days.

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     (B) Any vessel that has remained on private property; including private marinas, docks or

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boat yards for more than ninety (90) days without consent of the owner or person in control of the

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property.

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     (C) Any vessel that has been found adrift or unattended in or upon the waters of the state

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of Rhode Island, and is found in a condition of disrepair as to constitute a hazard or obstruction to

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the use of the waters of the state of Rhode Island or presents a potential health or environmental

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hazard.

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     (2) “Authorized public entity” means any of the following: The department of

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environmental management; the department of fish and wildlife; a port district; environmental

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police and any city, town, or county with ownership, management, or jurisdiction over the tidal

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lands where an abandoned or derelict vessel is located.

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     (3) “Department” means the department of environmental management.

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     (4) “Derelict vessel” means the vessel’s owner is known and can be located, and exerts

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control of a vessel that:

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     (i) Has been moored, anchored, or otherwise left in the waters of the state or on public

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property contrary to the rules adopted by an authorized public entity;

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     (ii) Has been left on private property without authorization of the owner; or

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     (iii) Has been left for a period of seven (7) consecutive days;

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     (iv) Is sunk or in danger of sinking;

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     (v) Is obstructing a waterway; and

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     (vi) Is endangering life or property.

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     (5) “Mean high water” means a line of contour representing the eighteen and six-tenths

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(18.6) year average as determined by the metonic cycle and/or its equivalent as evidenced by the

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records, tidal datum, and methodology of the United States Coastal Geodetic Survey within the

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National Oceanic and Atmospheric Administration.

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     (6) “Owner” means a person, other than a lienholder, having a property interest in or title

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to a vessel. The term includes a person entitled to use or have possession of a vessel subject to an

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interest in another person, reserved, or created by agreement and securing payment or

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performance of an obligation, but it does not include a lessee under a lease not intended as

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security.

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     (7) “Tidal lands” means those lands that are below the mean high water.

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     (8) “Vessel” means every description of watercraft, other than a seaplane on the water,

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used or capable of being used as a means of transportation on water.

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     (9) “Waters of this state” means any waters within the territorial limits of this state, and

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the marginal sea adjacent to this state and the high seas when navigated as a part of a journey or

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ride to or from the shore of this state.

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     46-6-8.3. Use or disposal of vessel. – (a) After taking custody of a vessel, the authorized

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public entity may use or dispose of the vessel in any appropriate and environmentally sound

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manner without further notice to any owners, but must give preference to uses that derive some

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monetary benefit from the vessel, either in whole or in scrap. If no value can be derived from the

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vessel, the authorized public entity must give preference to the least costly, environmentally

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sound, reasonable disposal option.

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     (b) If the authorized public entity chooses to offer the vessel at public auction, either a

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minimum bid may be set or a letter of credit may be required, or both, to discourage future

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reabandonment of the vessel.

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     (c) Proceeds derived from the sale of the vessel must first be applied to any

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administrative costs that are incurred by the authorized public entity during the notification

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procedures set forth in section 46-6-9, removal and disposal costs, and costs associated with

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environmental damages directly or indirectly caused by the vessel. If the proceeds derived from

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the vessel exceed all administrative costs, removal and disposal costs, and costs associated with

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environmental damages directly or indirectly caused by the vessel, the remaining moneys must be

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applied to satisfying any liens registered against the vessel.

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     (d) Any value derived from a vessel greater than all liens and costs incurred reverts to the

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derelict vessel removal account established in section 46-6-8.4.

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     46-6-8.4. Derelict vessel removal account. -- (a) The derelict vessel removal account is

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created in the state treasury. All receipts from section 46-6-l2 and those moneys specified in

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sections 46-8-5 and 46-22.1 must be deposited into the account. The account is authorized to

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receive fund transfers and appropriations from the general fund, deposits from the derelict vessel

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removal surcharge, and moneys from boat registration per sections 46-8-5 and 46-22.1.

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Expenditures from the account shall be used by the department to reimburse authorized public

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entities for up to ninety percent (90%) of the total reasonable and auditable administrative,

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removal, disposal, and environmental damage costs of abandoned or derelict vessels when the

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previous owner is either unknown after a reasonable search effort or insolvent. Reimbursement

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shall not be made unless the department determines that the public entity has made reasonable

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efforts to identify and locate the party responsible for the vessel, regardless of the title of owner

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of the vessel. Funds in the account resulting from transfers from the general fund or from the

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deposit of funds from the boat registration fees as provided for under sections 46-8-5 and 46-22.1,

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shall be used to reimburse one hundred percent (100%) of these costs and should be prioritized

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for the removal of large vessels.

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     (b) Priority for use of this account is for the removal of derelict and abandoned vessels

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that are in danger of sinking, breaking up, or blocking navigation channels, or that present

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environmental risks such as leaking fuel or other hazardous substances. The department must

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develop criteria, in the form of guidelines, to prioritize removal projects associated with this

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chapter, but may not consider whether the applicant is a state or local entity when prioritizing.

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The guidelines must also include guidance to the authorized public entities as to what removal

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activities and associated costs are reasonable and eligible for reimbursement.

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     (c) The department must keep all authorized public entities apprised of the balance of the

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derelict vessel removal account and the funds available for reimbursement. The guidelines

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developed by the department must also be made available to the other authorized public entities.

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This subsection (c) must be satisfied by utilizing the least costly method, including maintaining

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the information on the department’s Internet website, or any other cost-effective method.

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     (d) An authorized public entity may contribute ten percent (10%) of costs that are not

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eligible for reimbursement by using in-kind services, including the use of existing staff,

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equipment, and volunteers.

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     (e) This chapter does not guarantee reimbursement for an authorized public entity.

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Authorized public entities seeking certainly in reimbursement prior to taking action under this

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chapter may first notify the department of their proposed action and the estimated total costs.

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Upon notification by an authorized public entity, the department must make the authorized public

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assistance and assure reimbursement for up to two (2) years following the removal action if an

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assurance is appropriate given the balance of the fund and the details of the proposed action.

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     46-6-17. Severability. – The provisions of this chapter shall be severable and, if any of

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the provisions shall be held invalid, the decision of the court respecting that provision or

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provisions shall not affect the validity of any other provision which can be given effect without

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that invalid provision.

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     SECTION 2. Section 46-6-9 of the General Laws in Chapter 46-6 entitled "Obstructions

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to Navigation" is hereby amended to read as follows:

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     46-6-9. Notice to owner to remove obstruction -- Penalty. -- (a) If any person resident

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or being in the United States is known to the director as the owner of a vessel, or any interest

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therein, or as having or exercising any control over the vessel as master, agent, insurer, or

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otherwise, or, in case of any other unlawful or unauthorized obstruction, as having alone or with

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others built, deposited, or caused the obstruction, or as owning, maintaining, or using the

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obstruction in whole or in part, the director shall give notice in writing to the owner or other

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person to remove the vessel or other obstruction within thirty (30) days of the date of the notice,

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or such extension of time as may be granted by the director.

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      (b) It shall be deemed a sufficient notice to all owners and other persons, if served upon

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any one or more of them by the director, or by the director's order, by delivering the notice in

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hand, or by leaving it at the usual place of business, residence, or abode, or by duly mailing it to

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the post office address of the owner or other person on whom the notice is to be served.

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      (c) Failure to comply with the notice shall result in a fine of one hundred dollars ($100)

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per day until the obstruction is removed.

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     (d)(1) If a vessel is: (i) In immediate danger of sinking, breaking up, or blocking

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navigational channels; or (ii) Poses a reasonably imminent threat to human health or safety,

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including a threat to environmental contamination; and (iii) The owner of the vessel cannot be

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located or is unwilling or unable to assume immediate responsibility for the vessel, any

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authorized public entity may tow, beach, or otherwise take temporary possession of the vessel.

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     (e) Before taking temporary possession of the vessel, the authorized public entity must

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make reasonable attempts to consult with the department of the United States Coast Guard to

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ensure that other remedies are not available. The basis for taking temporary possession of the

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vessel must be set out in writing by the authorized public entity within seven (7) days of taking

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action and be submitted to the owner, if known, as soon thereafter as reasonable. If the authorized

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public entity has not already provided the required notice, immediately after taking possession of

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the vessel, the authorized public entity must initiate the notice provisions in subsection 46-6-9(a)

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of this section. The authorized public entity must complete the notice requirements of subsection

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(a) of this section before using or disposing of the vessel as authorized in section 46-6-8.3.

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     SECTION 3. This act shall take effect upon passage.

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LC01749

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO WATERS AND NAVIGATION - OBSTRUCTIONS TO NAVIGATION

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     This act would allow the authorized public entity to use or dispose of derelict or

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abandoned vessels without further notice to any owners. Preference is to a use which would

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derive some monetary benefit from the vessel.

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     This act would take effect upon passage.

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LC01749

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