2024 -- S 2746

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LC005162

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2024

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A N   A C T

RELATING TO WATERS AND NAVIGATION -- COASTAL RESOURCES MANAGEMENT

COUNCIL

     

     Introduced By: Senators Euer, DiMario, Gu, DiPalma, Sosnowski, and Valverde

     Date Introduced: March 08, 2024

     Referred To: Senate Environment & Agriculture

     It is enacted by the General Assembly as follows:

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     SECTION 1. Chapter 46-23 of the General Laws entitled "Coastal Resources Management

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Council" is hereby amended by adding thereto the following sections:

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     46-23-16.1. Cable siting.

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     (a) Any lease of tidal lands of twenty-five (25) acres or more, or any license to use those

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lands, is subject to approval, disapproval, or conditional approval by the direct enactment of the

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general assembly by legislative action. The coastal resources management council (CRMC) shall

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review all requests for leases, licenses to use the land, and other authority to use the land made by

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any applicant prior to presentation of the request to the general assembly, and the CRMC shall

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make recommendations on the request to the general assembly.

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     (b) Consistent with the public trust and the public's right to use and enjoyment of any

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proposed cable corridor, when reviewing requests for use of tidal lands for cables the CRMC shall:

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     (1) Apply parallel routing with existing linear infrastructure;

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     (2) Avoid sensitive resources to the maximum extent practicable, including, but not limited

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to, hard bottom habitat, cold water corals, submerged aquatic vegetation, emergent aquatic

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vegetation/marshlands, areas prone to coastal erosion, electromagnetic fields (EMF)-sensitive

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species aggregation areas and migration routes, clam beds, historic areas, threatened and

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endangered species habitat, and areas of potentially significant archeological resources;

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     (3) Limit the footprint of combined linear infrastructure to minimize resource

 

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fragmentation in zones without space limitations;

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     (4) Bundle cables to minimize number of routes;

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     (5) Limit crossings of other infrastructure and cross at right angles;

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     (6) Avoid anchorage areas and navigation channels;

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     (7) Minimize in-water transmission cable length to the extent that other environmental and

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anthropogenic resources and use are not impacted disproportionately;

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     (8) Where possible, installation at landfall should be one horizontal directional drill (HDD)

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per bundled high voltage direct current cable;

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     (9) Where possible, use public rights-of-way, transmission corridors, railroad corridors,

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and/or local, county, and/or state roads or highways that meet the permitting requirements and

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FHWA approval where applicable;

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     (10) Minimize crossings of active infrastructure and when crossings are necessary, use

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specialized crossing methods, including trenchless methods like HDD and jack-and-bore, at bridge

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crossings over water, other roadways, or railroads; existing utility crossings; and intersections with

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major arterial roadways;

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     (11) Avoid impacts to the commercial fishing industry as a result of submerged energy

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cable installation and operation within state waters.

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     (12) Avoid impacts to residential neighborhoods, environmental justice areas,

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disadvantaged communities, and underserved communities;

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     (13) Avoid sensitive resources to maximum extent practicable, including, but not limited

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to, areas of particular concern, state and federally-regulated wetlands, federally- or state-listed

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endangered or threatened species, or associated habitat, designated critical habitat, conservation

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and mitigation sites, and areas of potentially significant archeological resources.

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     (14) Establish standards, based upon best scientific evidence, for appropriate cable

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requirements including subsections (b)(1) through (b)(13) of this section; size, burial methods and

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depth, trenching methods, seasonal limitations on trenching, and appropriate requirements to avoid

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and minimize EMF effects. The council shall strictly scrutinize each request for use of a secondary

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cable protection method and may approve or disapprove of a request after a public hearing.

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Approval may be granted only when necessary and, when granted, the council shall place strict

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limitations and requirements on each use or location of a secondary cable protection method which

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may include increased monitoring and inspection of those locations.

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     (c) The CRMC shall require regular cable inspections by the applicant for the submerged

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cable annually; however, every area with a secondary cable protection method shall be inspected

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at least two (2) times each year. The inspection report shall be provided to the CRMC and general

 

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assembly within thirty (30) days of completion of each inspection.

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     (d) The CRMC shall require that the applicant or its successor shall monitor EMF levels

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along the cable route for multiple successive days each season of the year in order to get the most

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accurate EMF measurements.

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     (e) The CRMC shall require a fisheries monitoring plan prior to cable installation and for

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the life of the cables. The fisheries monitoring plan shall be incorporated within the lease of tidal

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lands as required by § 46-23-16.2.

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     (f) The CRMC shall promulgate rules and regulations as necessary to implement this

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section.

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     46-23-16.2. Fee for lease of tidal lands.

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     (a) There shall be a per annum fee assessed for submerged cables which shall be determined

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by a cost of twenty-five dollars ($25.00) per linear foot of the submerged cable, annualized over

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the course of the twenty (20) year life span of the submerged cable and adjusted annually for

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inflation as determined by the consumer price index but in no circumstance less than the linear

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price set forth at the commencement of the lease with additional costs that may be considered and

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included in the per annum fee, if areas of particular concern are disturbed.

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     (b) In light of the unique size, scope, and overall potential impact upon the environment of

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large scale projects involving twenty-five (25) acres or more, any fee assessed for the lease of tidal

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lands, or any license to use those lands, is subject to approval, disapproval, or conditional approval

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by the direct enactment of the general assembly by legislative action.

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     (c) All leases for submerged cables shall be recorded in the land evidence records of any

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and all municipalities where the submerged cable makes land fall. Recording fees shall be satisfied

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by the owner of the submerged cable.

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     SECTION 2. Section 46-23-1 of the General Laws in Chapter 46-23 entitled "Coastal

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Resources Management Council" is hereby amended to read as follows:

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     46-23-1. Legislative findings.

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     (a)(1) Under article 1, § 17 of the Rhode Island Constitution, the people shall continue to

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enjoy and freely exercise all the rights of fishery, and the privileges of the shore, to which they

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have been heretofore entitled under the charter and usages of this state, including, but not limited

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to, fishing from the shore, the gathering of seaweed, leaving the shore to swim in the sea and

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passage along the shore; and they shall be secure in their rights to use and enjoyment of the natural

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resources of the state with due regard for the preservation of their values; and it is the duty of the

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general assembly to provide for the conservation of the air, land, water, plant, animal, mineral and

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other natural resources of the state, and to adopt all means necessary and proper by law to protect

 

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the natural environment of the people of the state by providing adequate resource planning for the

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control and regulation of the use of the natural resources of the state and for the preservation,

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regeneration, and restoration of the natural environment of the state.

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     (2) The general assembly recognizes and declares that the coastal resources of Rhode

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Island, a rich variety of natural, commercial, industrial, recreational, and aesthetic assets, are of

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immediate and potential value to the present and future development of this state; that unplanned

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or poorly planned development of this basic natural environment has already damaged or destroyed,

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or has the potential of damaging or destroying, the state’s coastal resources, and has restricted the

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most efficient and beneficial utilization of these resources; that it shall be the policy of this state to

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preserve, protect, develop, and, where possible, restore the coastal resources of the state for this

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and succeeding generations through comprehensive and coordinated long range planning and

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management designed to produce the maximum benefit for society from these coastal resources;

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and that preservation and restoration of ecological systems shall be the primary guiding principle

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upon which environmental alteration of coastal resources will be measured, judged, and regulated.

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     (b)(1) That effective implementation of these policies is essential to the social and

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economic well-being of the people of Rhode Island because the sea and its adjacent lands are major

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sources of food and public recreation, because these resources are used by and for industry,

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transportation, waste disposal, and other purposes, and because the demands made on these

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resources are increasing in number, magnitude, and complexity; and that these policies are

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necessary to protect the public health, safety, and general welfare. Pursuant to 16 U.S.C. § 1452

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(“The Coastal Zone Management Act”), the general assembly hereby directs the council (referred

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to as “CRMC”) to exercise effectively its responsibilities in the coastal zone through the

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development and implementation of management programs to achieve wise use of the land and

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water resources of the coastal zone.

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     (2) Furthermore, that implementation of these policies is necessary in order to secure the

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rights of the people of Rhode Island to the use and enjoyment of the natural resources of the state

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with due regard for the preservation of their values, and in order to allow the general assembly to

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fulfill its duty to provide for the conservation of the air, land, water, plant, animal, mineral, and

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other natural resources of the state, and to adopt all means necessary and proper by law to protect

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the natural environment of the people of the state by providing adequate resource planning for the

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control and regulation of the use of the natural resources of the state and for the preservation,

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regeneration, and restoration of the natural environment of the state.

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     (c) That these policies can best be achieved through the creation of a coastal resources

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management council as the principal mechanism for management of the state’s coastal resources.

 

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     (d) The general assembly recognizes and declares that maintenance dredging is required to

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remove natural silt accumulations; Rhode Island has not had a general maintenance dredging policy

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and programs for ports, port facilities, channels, harbors, public and private marinas and boating

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facilities, recreational facilities and habitat areas; other major coastal states have maintenance

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dredging policies and in-water maintenance dredge disposal sites; as a result of the lack of a general

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maintenance dredging policy and program and as a result there has been:

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     (1) A decrease in the depth of the Providence Channel from forty-four (44) feet in 1971 to

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twenty-four (24) feet in 1996;

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     (2) Navigational restrictions on ocean going vessels through the state’s waterways and

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channels; and

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     (3) A decrease in the number of available slips and moorings at marinas throughout the

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state; and the lack of a maintenance dredging policy and programs have significant adverse

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environmental and economic effects on the state and therefore it is in the best interest of the state,

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the cities and towns of the state, and the citizens thereof for the state to have a general maintenance

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dredging policy and programs to resolve issues related to dredge maintenance and disposal and

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avoid future significant direct and indirect adverse impact on the environment and economy of the

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state.

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     (e) The coastal resources management council is hereby designated as the lead state agency

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for purposes of dredging in tidal waters and as such shall have the following duties and

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responsibilities:

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     (1) To coordinate the interest of the state with regard to dredging;

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     (2) To formulate and adopt a state policy with regard to dredging which integrates those

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interests;

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     (3) To cooperate with, negotiate, and to enter into agreements on behalf of the state with

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the federal government and with other public bodies and private parties with regard to dredging;

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     (4) To act as the initial and primary point of contact for all applications to the state for

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dredging projects in tidal waters;

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     (5) To develop, prepare, adopt pursuant to § 46-23-11, implement, and maintain a

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comprehensive plan for dredge material management; and

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     (6) To cooperate and coordinate with the departments of environmental management,

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transportation, administration, and health, and the economic development corporation in the

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conduct of these duties and responsibilities.

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     (f)(1) The legislature recognizes that under Article I, § 17, the submerged lands of the state

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are impressed with a public trust and that the state is responsible for the protection of the public’s

 

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interest in these lands. The state maintains title in fee to all soil within its boundaries that lies below

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the high water mark, and it holds that land in trust for the use of the public. In benefiting the public,

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the state preserves certain public rights which include, but are not limited to, fishery, commerce,

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and navigation in these waters and the submerged lands that they cover.

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     (2) Since its establishment in 1971, the CRMC has had the authority to manage and plan

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for the preservation of the coastal resources of the state including, but not limited to, submerged

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lands. The legislature hereby declares that, in light of the unique size, scope, and overall potential

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impact upon the environment of large scale filling projects involving twenty-five (25) acres or

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more, any lease of tidal lands, or any license to use those lands, is subject to approval, disapproval,

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or conditional approval by the direct enactment of the general assembly by legislative action. The

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CRMC shall review all requests for leases, licenses to use the land, and other authority to use the

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land made by any applicant prior to presentation of the request to the general assembly, and the

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CRMC shall make recommendations on the request to the general assembly. With the exception of

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any and all projects to fill land of twenty-five (25) acres or more, the general assembly hereby

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recognizes and declares that the CRMC is delegated the sole and exclusive authority for the leasing

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of submerged and filled lands and giving licenses for the use of that land. Accordingly, the CRMC

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will develop, coordinate, and adopt a system for the leasing of submerged and filled lands, and

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licenses for the use of that land, and will ensure that all leases and licenses are consistent with the

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public trust. Pursuant thereto, the CRMC shall impose a maximum fee of eighty thousand dollars

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($80,000) per annum for any transatlantic cable that makes landfall in Rhode Island. All such fees

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collected shall be deposited into the Bays, Rivers and Watersheds Fund, established pursuant to §

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46-31-12.1, and shall be disbursed according to the purposes of that fund. Nothing contained in this

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subsection negates, repeals, or alters the provisions, processes, and requirements for the leasing of

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submerged land for the conduct of aquaculture as set out under chapter 10 of title 20. Therefore,

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nothing in this chapter shall be construed to limit or impair the authority of the state, or any duly

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established agency of the state, to regulate filling or dredging affecting tidal lands owned by the

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state or any other entity, and nothing in this chapter shall be construed to limit or impair the

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obligation of the applicant to obtain all applicable regulatory approvals. Specifically, and without

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limiting the foregoing, nothing in this subsection negates, repeals, or alters the provisions,

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processes, and requirements for water quality certification contained in chapter 12 of this title.

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     (3) Definitions.

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     (i) “Filled land” means portions of tidal lands which have been rendered by the acts of man

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to be no longer subject to tidal action or beneath tidal waters.

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

 

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     (iii) “Mean high water” means a line of contour representing the 18.6 year average as

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determined by the metonic cycle and/or its equivalent as evidenced by the records, tidal datum, and

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methodology of the United States Coastal Geodetic Survey within the National Oceanic and

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Atmospheric Administration.

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     SECTION 3. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO WATERS AND NAVIGATION -- COASTAL RESOURCES MANAGEMENT

COUNCIL

***

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     This act would require that any lease of tidal lands, or any license issued to use those lands,

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be approved by the general assembly, including the use of tidal lands for cables or pipelines. This

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act would further require that the coastal resources management council review all requests for

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leases, licenses to use the land, and other authority to use the land, prior to presentation to the

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general assembly and to make recommendations on any request being presented to the general

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assembly.

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     This act would take effect upon passage.

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