2024 -- H 7729

========

LC005201

========

     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2024

____________

A N   A C T

RELATING TO AGRICULTURE AND FORESTRY -- AGRICULTURE FUNCTIONS OF

DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

     Introduced By: Representatives Cotter, Tanzi, Cortvriend, Casimiro, Edwards,
Newberry, Speakman, Donovan, McEntee, and McGaw

     Date Introduced: February 28, 2024

     Referred To: House Environment and Natural Resources

     It is enacted by the General Assembly as follows:

     SECTION 1. Section 2-1-22 of the General Laws in Chapter 2-1 entitled "Agricultural

Functions of Department of Environmental Management" is hereby amended to read as follows:

     2-1-22. Procedure for approval by director — Notice of change of ownership —

Recordation of permit.

     (a) Application for approval of a project to the director of environmental management shall

be made in a form to be prescribed by the director and provided by the director upon request. Prior

to the application, a request may be made for preliminary determination as to whether this chapter

applies. A preliminary determination shall be made by the director only after an on-site review of

the project and the determination shall be made within thirty (30) days of the request. This chapter

shall be determined to apply if a significant alteration appears to be contemplated and an application

to alter a freshwater wetland, buffer, or floodplain will be required. Within fourteen (14) days after

receipt of the completed application accompanied by plans and drawings of the proposed project,

the plans and drawings to be prepared by the registered professional engineer to a scale of not less

than one inch (1") to one hundred feet (100'), the director shall notify all landowners whose

properties are within two hundred feet (200') of the proposed project and the director will also

notify the city or town council, the conservation commission, the planning board, the zoning board,

and any other individuals and agencies in any city or town within the borders of which the project

lies that may have reason, in the opinion of the director, to be concerned with the proposal. The

director may also establish a mailing list of all interested persons and agencies who or that may

wish to be notified of all applications.

     (b) If the director receives any objection to the project within forty-five (45) days of the

mailing of the notice of application from his or her office, the objection to be in writing and of a

substantive nature, the director shall then schedule a public hearing in an appropriate place as

convenient as reasonably possible to the site of the proposed project. The director shall inform by

registered mail all objectors of the date, time, place, and subject of the hearing to be held. The

director shall further publish notice of the time, place, date, and subject of the hearing in one local

newspaper circulated in the area of the project and one statewide newspaper, the notices to appear

once per week for at least two (2) consecutive weeks prior to the week during which the hearing is

scheduled. The director shall establish a reasonable fee to cover the costs of the investigations,

notifications and publications, and hearing and the applicant shall be liable for the fee.

     (c) If no public hearing is required, or following a public hearing, the director shall make

his or her decision on the application and notify the applicant by registered mail and the applicant’s

attorney and any other agent or representative of the applicant by mail of this decision within a

period of six (6) weeks. If a public hearing was held, any persons who objected, in writing, during

the forty-five (45) day period provided for objections shall be notified of the director’s decision by

first-class mail.

     (d) In the event of a decision in favor of granting an application, the director shall issue a

permit for the applicant to proceed with the project and shall require the applicant to pay a permit

fee of one hundred dollars ($100). The permit may be issued upon any terms and conditions,

including time for completion, that the director may require. Permits shall be valid for a period of

one year from the date of issue and shall expire at the end of that time unless renewed. A permit

may be renewed for up to three (3) additional one-year periods upon application by the original

permit holder or a subsequent transferee of the property subject to permit, unless the original permit

holder or transferee has failed to abide by the terms and conditions of the original permit or any

prior renewal. The director may require new hearings if, in his or her judgment, the original intent

of the permit is altered or extended by the renewal application or if the applicant has failed to abide

by the terms of the original permit in any way. In addition, in the event a project authorized by a

permit was not implemented by the permit holder or transferee because approval of the project by

a federal agency, for which application had been timely made, had not been received or a federal

agency had stopped the project from proceeding, prior to the expiration of the permit, the permit

holder or transferee may apply for a renewal of the permit at any time prior to the tenth (10th)

anniversary of the original issuance, and the application shall be deemed to be an insignificant

LC005201 - Page 2 of 6

alteration subject to expedited treatment. The request for renewal of a permit shall be made

according to any procedures and form that the director may require.

     (e) The original permittee or subsequent transferee shall notify the director, in writing, of

any change of ownership that occurs while an original or renewal permit is in effect by forwarding

a certified copy of the deed of transfer of the property subject to the permit to the director.

     (f) A notice of permit and a notice of completion of work subject to permit shall be eligible

for recordation under chapter 13 of title 34 and shall be recorded at the expense of the applicant in

the land evidence records of the city or town where the property subject to permit is located and

any subsequent transferee of the property shall be responsible for complying with the terms and

conditions of the permit.

     (g) The director shall notify the person requesting a preliminary determination and the

person’s attorney, agent, and other representative of his or her decision by letter, copies of which

shall be sent by mail to the city or town clerk, the zoning board, the planning board, the building

official, and the conservation commission in the city or town within which the project lies.

     (h) The director shall report to the general assembly on or before February 1 of each

calendar year on his or her compliance with the time provisions contained in this chapter.

     (i) Normal farming activities shall be considered insignificant alterations and, as normal

farming activities, shall be exempted from the provisions of this chapter in accordance with the

following procedures:

     (1) Normal farming and ranching activities are those carried out by farmers as defined in

this title, including plowing, seeding, cultivating, land clearing for routine agriculture purposes,

harvesting of agricultural products, pumping of existing farm ponds for agricultural purposes,

upland soil and water conservation practices, and maintenance of existing farm drainage structures,

existing farm ponds and existing farm roads are permissible at the discretion of farmers in

accordance with best farm management practices which assure that the adverse effects to the flow

and circulation patterns and chemical and biological characteristics of freshwater wetlands are

minimized and that any adverse effects on the aquatic environment are minimized.

     (2) In the case of construction of new farm ponds, construction of new drainage structures,

and construction of new farm roads, the division of agriculture shall be notified by the filing of a

written application for the proposed construction by the property owner. The application shall

include a description of the proposed construction and the date upon which construction is

scheduled to begin, which date shall be no earlier than thirty (30) calendar days after the date of

the filing of the application. The division of agriculture shall review such applications to determine

that they are submitted for agricultural purposes and to ensure that adverse effects to the flow and

LC005201 - Page 3 of 6

circulation patterns and chemical and biological characteristics of freshwater wetlands are

minimized and that any adverse effects on the aquatic environment are minimized and will not

result in a significant alteration to the freshwater wetlands. Pursuant to this review, the division

shall notify the applicant, in writing, whether the proposal is an insignificant alteration. This notice

shall be issued not later than thirty (30) days after the date that the application was filed with the

division. In the event notice is given by the division as required, the application shall be

conclusively presumed to be an insignificant alteration. If no notice is given as required, or if an

application is approved as an insignificant alteration, the applicant may cause construction to be

done in accordance with the application, and neither the applicant, nor the applicant’s agents or

employees who cause or perform the construction in accordance with the application, shall be liable

for any criminal, civil, administrative or other fine, fee, or penalty, including restoration costs for

violations alleged to arise from the construction.

     (3) The division of agriculture shall, in coordination with the agricultural council’s

advisory committee, adopt regulations for subdivision (i)(2), and shall determine whether a

proposed activity, other than an activity listed in subdivision (i)(1), constitutes a normal farming

activity, or involves the best farm management practices. In making such a determination, the

division of agriculture shall consider the proposed activity on a case-by-case basis, relative to the

characteristics of the particular jurisdictional area in which the activity is proposed, and shall

consider whether the activity incorporates best farm management practices and ensures that adverse

effects to the flow and circulation patterns and chemical and biological characteristics of freshwater

wetlands, buffers, and floodplains are minimized and that any adverse effects on the aquatic

environment are minimized in each instance.

     (4) Except as otherwise provided for farm road construction, filling of freshwater wetlands

conforms to the provisions of this chapter.

     (j) For the purposes of this section, a “farmer” is an individual, partnership, or corporation

who operates a farm and has filed a 1040F U.S. Internal Revenue Form with the Internal Revenue

Service, has a state farm tax number, and has earned ten thousand dollars ($10,000) gross income

on farm products in each of the preceding four (4) years.

     (k) For the purposes of this section as applicable to normal farming and ranching activities

specified in §§ 2-1-22(i)(1) and (i)(2) above, freshwater wetlands shall be defined as: freshwater

wetlands, floodplains, areas subject to storm flowage, areas subject to flooding as defined in § 2-1-

20 and the land area within two hundred feet (200′) of a flowing body of water having a width of

ten feet (10′) or more during normal flow; the area of land within one hundred feet (100′) of a

flowing body of water having a width of less than ten feet (10′) during normal flow; and the area

LC005201 - Page 4 of 6

of land within fifty feet (50′) of a bog, marsh of one acre or greater, swamp of three (3) acres or

greater and pond not less than one quarter (¼) acre in extent. These areas shall also serve as the

jurisdictional area.

     (l) For purposes of this section "agricultural land" means land used for forestry or timber

production.

     SECTION 2. This act shall take effect upon passage.

========

LC005201

========

LC005201 - Page 5 of 6

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO AGRICULTURE AND FORESTRY -- AGRICULTURE FUNCTIONS OF

DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

***

     This act would provide a definition for "agricultural land" and remove the definition of

"farmer" within the chapter on agricultural functions of the department of environmental

management.

     This act would take effect upon passage.

========

LC005201

========

LC005201 - Page 6 of 6