“High Tide Plus Ten”… The proposed legislation.

A version of this bill has been introduced several times, but no committee has ever been named, and the committee has never met.  It dies a silent death at the end of each legislative session during which it was introduced.

 

This version has been amended to remove the original restriction which would have only applied the law to Rhode Island’s “sandy shores.”  With sea level rise, what was a sandy shore may change its character…and the constitution does not change, our rights are intact no matter what the character of the coast.

 

2006 — H 7317

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LC00891

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S T A T E O F R H O D E I S L A N D

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2006

____________

A N  A C T

RELATING TO WATERS AND NAVIGATION — COASTAL RESOURCES MANAGEMENT

COUNCIL

Introduced By: Representatives Ginaitt, McHugh, Naughton, McNamara, and Long

Date Introduced: February 15, 2006

Referred To: House Environment and Natural Resources

It is enacted by the General Assembly as follows:

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

2 Resources Management Council” is hereby amended to read as follows:

3 46-23-1. Legislative findings. — (a) (1) Under article 1, section 17 of the Rhode Island

4 Constitution, the people shall continue to enjoy and freely exercise all the rights of fishery, and

5 the privileges of the shore, to which they have been heretofore entitled under the charter and

6 usages of this state, including but not limited to fishing from the shore, the gathering of seaweed,

7 leaving the shore to swim in the sea and passage along the shore; and they shall be secure in their

8 rights to use and enjoyment of the natural resources of the state with due regard for the

9 preservation of their values; and it is the duty of the general assembly to provide for the

10 conservation of the air, land, water, plant, animal, mineral and other natural resources of the state,

11 and to adopt all means necessary and proper by law to protect the natural environment of the

12 people of the state by providing adequate resource planning for the control and regulation of the

13 use of the natural resources of the state and for the preservation, regeneration, and restoration of

14 the natural environment of the state.

15 (2) The general assembly recognizes and declares the right of passage along the salt water-land boundary in

16 Rhode Island is not only guaranteed in the constitution but has enjoyed a long use going back to

17 our early days of statehood and is a matter of custom in Rhode Island. The passage along the

18 salt water-land boundary has in the ancient past and today been along the dry land above the water’s edge. The general

2

1 assembly finds that the public trust doctrine entitles the public to swim in the ocean and to use the

2 foreshore in connection therewith without assuring the public of a feasible access route would

3 seriously impinge on, if not effectively eliminate, the rights of the public trust doctrine. To find

4 otherwise would result in a barrier of privately-held property between the publicly-owned trust

5 lands and the vast majority of the public who own this common resource. The general assembly

6 recognizes and declares that lateral access along the salt water-land boundary of Rhode

Island is critical to the

7 state’s tourism economy. The general assembly also recognizes that while it is an ancient

8 document that much of our common law for coastal resources is built on, it is also a dynamic and

9 evolving doctrine that is expected to adjust to societal needs. Federal insurance, municipal sewers,

and new septic designs have fostered an explosion in building along the water’s edge which was unimaginable

a generation ago. Tradition and common

10 understanding in Rhode Island has always been that the public has a right to use the edge of the land to pursue our constitutionally guaranteed activities, even if the title to that land is held in

12 private ownership. The general assembly recognizes that until the courts more fully explore and

13 defineclarify our constitutional rights along the coast there is a need to protect the public right to pass along

14 the salt water-land boundary

in the state. In addition the scope of the private right to property is

15 always balanced against public rights in the use of that property, such as a neighbor’s right to

16 bring an action for nuisance. In essence, the private property owner maintains a title to the dry

17 sand beachproperty to the high tide line, but certain components of ownership, such as the ability

to share in reasonable use of

18 a limited corridor along the salt water-land boundary, are held by the general public.

19 The general assembly also recognizes that the public’s rights in these areas are defined

20 by the constitution and not completely unfettered in these areas. To balance these interests for

21 lateral access the general assembly realizes that a limited access right needs to be preserved and

22 protected along the salt water-land boundary of our coast. Thus the general assembly authorizes the

23 Coastal Resources Management Council to protect the public’s right to walk along a ten (10) foot

24 wide strip of land above the salt water-land boundary.The council shall use its enforcement powers to protect

25 this right. and to implement guidelines to insure that public safety and security are not compromised by this act.

This ten (10) foot strip shall be measured from the highest point wetted by the wave wash of the normal monthly

26 high tide cycles. It does not include storm washes and other extra normal wave events.

28 (2) (3) The general assembly recognizes and declares that the coastal resources of Rhode

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

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

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

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

33 restricted the most efficient and beneficial utilization of these resources; that it shall be the policy

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

3

1 state for this and succeeding generations through comprehensive and coordinated long range

2 planning and management designed to produce the maximum benefit for society from these

3 coastal resources; and that preservation and restoration of ecological systems shall be the primary

4 guiding principle upon which environmental alteration of coastal resources will be measured,

5 judged, and regulated.

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

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

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

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

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

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

12 1452 (“The Coastal Zone Management Act”), the General Assembly hereby directs the council

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

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

15 water resources of the coastal zone.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

31 lack of a general maintenance dredging policy and program and as a result there has been (1) a

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

33 (24) feet ni 1996; (2) navigational restrictions on ocean going vessels through the state’s

34 waterways and channels; and (3) a decrease in the number of available slips and moorings at

4

1 marinas throughout the state; and the lack of a maintenance dredging policy and programs have

2 significant adverse environmental and economic effects on the state and therefore it is in the best

3 interest of the state, the cities and towns of the state, and the citizens thereof for the state to have a

4 general maintenance dredging policy and programs to resolve issues related to dredge

5 maintenance and disposal and avoid future significant direct and indirect adverse impact on the

6 environment and economy of the state.

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

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

9 responsibilities:

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

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

12 interests;

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

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

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

16 dredging projects in tidal waters;

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

18 comprehensive plan for dredge material management; and

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

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

21 conduct of these duties and responsibilities.

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

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

24 public’s interest in these lands. The state maintains title in fee to all soil within its boundaries that

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

26 benefiting the public, the state preserves certain public rights which include but are not limited to

27 fishery, commerce, and navigation in these waters and the submerged lands that they cover.

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

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

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

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

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

33 disapproval, or conditional approval by the direct enactment of the general assembly by

34 legislative action. CRMC shall review all requests for leases, licenses to use the land, and other

5

1 authority to use the land made by any applicant prior to presentation of the request to the general

2 assembly, and the CRMC shall make recommendations on the request to the general assembly.

3 With the exception of any and all projects to fill land of twenty-five (25) acres or more, the

4 general assembly hereby recognizes and declares that the CRMC is delegated the sole and

5 exclusive authority for the leasing of submerged and filled lands and giving licenses for the use of

6 that land. Accordingly, the CRMC will develop, coordinate, and adopt a system for the leasing of

7 submerged and filled lands, and licenses for the use of that land, and will ensure that all leases

8 and licenses are consistent with the public trust. Nothing contained in this subsection negates,

9 repeals, or alters the provisions, processes, and requirements for the leasing of submerged land

10 for the conduct of aquaculture as set out under chapter 10 of title 20. Therefore, nothing in this

11 chapter shall be construed to limit or impair the authority of the state, or any duly established

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

13 other entity, and nothing in this chapter shall be construed to limit or impair the obligation of the

14 applicant to obtain all applicable regulatory approvals. Specifically, and without limitin g the

15 foregoing, nothing in this subsection negates, repeals, or alters the provisions, processes, and

16 requirements for water quality certification contained in chapter 12 of this title.

17 (3) Definitions.

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

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

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

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

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

23 and methodology of the United States coastal geodetic survey within the national oceanic and

24 atmospheric administration.

25 SECTION 2. Section 46-23-6 of the General Laws in Chapter 46-23 entitled “Coastal

26 Resources Management Council” is hereby amended to read as follows:

27 46-23-6. Powers and duties — Rights-of-way. [Effective January 15, 2006.] — In order

28 to properly manage coastal resources the council has the following powers and duties:

29 (1) Planning and management.

30 (i) The primary responsibility of the council shall be the continuing planning for and

31 management of the resources of the state’s coastal region. The council shall be able to make any

32 studies of conditions, activities, or problems of the state’s coastal region needed to carry out its

33 responsibilities.

34 (ii) The resources management process shall include the following basic phases:

6

1 (A) Identify all of the state’s coastal resources, water, submerged land, air space, fin fish,

2 shellfish, minerals, physiographic features, and so forth.

3 (B) Evaluate these resources in terms of their quantity, quality, capability for use, and

4 other key characteristics.

5 (C) Determine the current and potential uses of each resource.

6 (D) Determine the current and potential problems of each resource.

7 (E) Formulate plans and programs for the management of each resource, identifying

8 permitted uses, locations, protection measures, and so forth.

9 (F) Carry out these resources management programs through implementing authority and

10 coordination of state, federal, local, and private activities.

11 (G) Formulation of standards where these do not exist, and reevaluation of existing

12 standards.

13 (H) To develop comprehensive programs for dredging in tidal waters and related

14 beneficial use, disposal, monitoring dewatering and transportation of dredge materials.

15 (I) To accept and administer loans and grants from the federal government and from

16 other sources, public or private, for the carrying out of any of its functions, which loans or grants

17 shall not be expended for other than the purposes for which provided.

18 (J) To encourage, participate in, or conduct studies, investigations, research, and

19 demonstrations relating to dredging, disposal of dredge materials and transportation thereof in the

20 tidal waters of the state as the coastal resources management council may deem advisable and

21 necessary for the discharge of its duties under this chapter.

22 (K) To collect and disseminate information relating to dredging, disposal of dredge

23 materials and transportation thereof within the tidal waters of the state.

24 (L) To work with the appropriate federal and state agencies to develop as provided for in

25 this chapter and in chapter 6.1 of this title, a comprehensive plan for dredging in tidal waters and

26 related beneficial use, disposal, monitoring dewatering and transportation of dredge materials.

27 (M) To apply for, accept and expend grants and bequests of funds, for the purpose of

28 carrying out the lawful responsibilities of the coastal resources management council.

29 (iii) An initial series of resources management activities shall be initiated through this

30 basic process, then each phase shall continuously be recycled and used to modify the counc il’s

31 resources management programs and keep them current.

32 (iv) Planning and management programs shall be formulated in terms of the

33 characteristics and needs of each resource or group of related resources. However, all plans and

34 programs shall be developed around basic standards and criteria, including:

7

1 (A) The need and demand for various activities and their impact upon ecological

2 systems.

3 (B) The degree of compatibility of various activities.

4 (C) The capability of coastal resources to support various activities.

5 (D) Water quality standards set by the director of environmental management.

6 (E) Consideration of plans, studies, surveys, inventories, and so forth prepared by other

7 public and private sources.

8 (F) Consideration of contiguous land uses and transportation facilities.

9 (G) Whenever possible consistency with the state guide plan.

10 (v) The council shall prepare, adopt, administer, and cause to be implemented, including

11 specifically through its powers of coordination as set forth in subdivision (3) of this section, a

12 marine resources development plan and such special area management plans as the council may

13 determine to be appropriate or desirable as follows:

14 (A) Marine resources development plan.

15 (1) The purpose of the marine resources development plan shall be to provide an

16 integrated strategy for: (a) improving the health and functionality of Rhode Island’s marine

17 ecosystem; (b) providing for appropriate marine-related economic development; and (c)

18 promoting the use and enjoyment of Rhode Isla nd’s marine resources by the people of the state.

19 (2) The marine resources development plan shall include specific goals and objectives

20 necessary to accomplish its purposes, performance measures to determine progress toward

21 achieving such goals and objectives, and an implementation program.

22 (3) The marine resources development plan shall be prepared in cooperation with the

23 department of environmental management, the statewide planning program, and the economic

24 development corporation, with the involvement of such other state agencies as may be

25 appropriate, and with such technical support as may be necessary and appropriate from the

26 Narragansett Bay Estuary Program, the Coastal Institute at the University of Rhode Island, and

27 Rhode Island Sea Grant.

28 (4) The plan shall be responsive to the requirements and principles of the federal coastal

29 zone management act as amended, including, but not limited to, the expectations of the act for

30 incorporating the federal clean water act into coastal zone management programs.

31 (5) The marine resources development plan shall take into account local land use

32 management responsibilities as provided for under title 45 and harbor management

33 responsibilities, and the preparation of the plan shall include opportunities for involvement and/or

34 comment by cities and towns.

8

1 (6) The marine resources development plan shall be adopted by the council in

2 accordance with the provisions of this subsection by July 1, 2005, shall as appropriate incorporate

3 the recommendations of the Governor’s Narragansett Bay and Watershed Planning Commission,

4 and shall be made consistent with systems level plans as appropriate, in order to effectuate the

5 purposes of systems level planning. The council shall update the marine resources development

6 plan at least once every five (5) years.

7 (7) The council shall administer its programs, regulations, and implementation activities

8 in a manner consistent with the marine resources development plan.

9 (8) The marine resources development plan and any updates thereto shall be adopted as

10 appropriate as elements of the state guide plan pursuant to section 42-11-10.

11 (B) Special area management plans.

12 (1) The council shall adopt such special area management plans as deemed necessary

13 and desirable to provide for the integration and coordination of the protection of natural

14 resources, the promotion of reasonable coastal-dependent economic growth, and the improved

15 protection of life and property in the specific areas designated council as requiring such integrated

16 planning and coordination.

17 (2) The integrated planning and coordination herein specified shall include, but not be

18 limited to, federal agencies, state agencies, boards, commissions, and corporations, including

19 specifically the economic development corporation, and cities and towns, shall utilize to the

20 extent appropriate and feasible the capacities of entities of higher education, including Rhode

21 Island Sea Grant, and shall provide for the participation of advocacy groups, community-based

22 organizations, and private persons.

23 (3) The council shall administer its programs, regulations, and implementation activities

24 in a manner consistent with special area management plans.

25 (4) Special area management plans and any updates thereto shall be adopted as

26 appropriate as elements of the state guide plan pursuant to section 42-11-10.

27 (2) Implementation.

28 (i) The council is authorized to formulate policies and plans and to adopt regulations

29 necessary to implement its various management programs. With respect to such policies and

30 plans which relate to matters where the coastal resources management council and the department

31 of environmental management have concurrent jurisdiction and upon formulation of the plans and

32 regulations, the council shall, prior to adoption, submit the proposed plans or regulations to the

33 director of the environmental management for the director’s review. The director shall review and

34 submit comments to the council within thirty (30) days of submission to the director by the

9

1 council. The comments of the director shall include findings with regard to the consistency of the

2 policies, plans and/or regulations with the requirements of laws administered by the department.

3 The council shall consider the director’s comments prior to adoption of any such policies, plans or

4 regulations and shall respond in writing to findings of the director with regard to the consistency

5 of said policies, plans and/or regulations with the requirements of laws administered by the

6 department.

7 (ii) (A) The council shall have exclusive jurisdiction below mean high water for all

8 development, operations, and dredging, consistent with the requirements of chapter 6.1 of this

9 title and except as necessary for the department of environmental management to exercise its

10 powers and duties and to fulfill its responsibilities pursuant to sections 42-17.1-2 and 42-17.1-24,

11 and any person, firm, or governmental agency proposing any development or operation within,

12 above, or beneath the tidal water below the mean high water mark, extending out to the extent of

13 the state’s jurisdiction in the territorial sea, shall be required to demonstrate that its proposal

14 would not:

15 (I) Conflict with any resources management plan or program;

16 (II) Make any area unsuitable for any uses or activities to which it is allocated by a

17 resources management plan or program adopted by the council; or (III) Significantly damage the

18 environment of the coastal region.

19 (B) The council shall be authorized to approve, modify, set conditions for, or reject any

20 such proposal.

21 (iii) The authority of the council over land areas (those areas above the mean high water

22 mark) shall be limited to two hundred feet (200′) from the coastal physiographic feature or to that

23 necessary to carry out effective resources management programs. This shall be limited to the

24 authority to approve, modify, set conditions for, or reject the design, location, construction,

25 alteration, and operation of specified activities or land uses when these are related to a water area

26 under the agency’s jurisdiction, regardless of their actual location. The council’s authority over

27 these land uses and activities shall be limited to situations in which there is a reasonable

28 probability of conflict with a plan or program for resources management or damage to the coastal

29 environment. These uses and activities are:

30 (A) Power generating over forty (40) megawatts and desalination plants.

31 (B) Chemical or petroleum processing, transfer, or storage.

32 (C) Minerals extraction.

33 (D) Shoreline protection facilities and physiographic al features, and all directly

34 associated contiguous areas which are necessary to preserve the integrity of the facility and/or

10

1 features.

2 (E) Coastal wetlands and all directly associated contiguous areas which are necessary to

3 preserve the integrity of the wetlands including any freshwater wetlands located in the vicinity of

4 the coast. The actual determination of freshwater wetlands located in coastal vicinities and under

5 the jurisdiction of the coastal resources management council shall be designated on such maps

6 that are agreed to in writing and made available for public use by the coastal resources

7 management council and the director, department of environmental management, within three (3)

8 months of [August 6, 1996]The CRMC shall have exclusive jurisdiction over the wetlands areas

9 described in this section notwithstanding any provision of chapter 1, title 2 or any other provision

10 except that the division of agriculture maintains jurisdiction over all farming consistent with

11 section 2-1-22(i) and (j). Within six (6) months of [August 6, 1996]the council in cooperation

12 with the director shall develop rules and regulations for the management and protection of

13 freshwater wetlands, affected by an aquaculture project, outside of those freshwater wetlands

14 located in the vicinity of the coast and under the exclusive jurisdiction of the director of the

15 department of environmental management. For the purpose of this chapter, a “coastal wetland”

16 shall mean any salt marsh bordering on the tidal waters of this state, whether or not the tidal

17 waters reach the littoral areas through natural or artificial watercourses, and those uplands directly

18 associated and contiguous thereto which are necessary to preserve the integrity of that marsh.

19 Marshes shall include those areas upon which grow one or more of the following: smooth

20 cordgrass (spartina alterniflora), salt meadow grass (spartina patens), spike grass (distichlis

21 spicata), black rush (juncus gerardi), saltworts (salicornia spp.), sea lavender (limonium

22 carolinianum), saltmarsh bulrushes (scirpus spp.), hightide bush (iva frutescens), tall reed

23 (phragmites communis), tall cordgrass (spartina pectinata), broadleaf cattail (typha latifolia),

24 narrowleaf cattail (typha angustifolia), spike rush (eleocharis rostellata), chairmaker’s rush

25 (scirpus amercana), creeping bentgrass (agrostis palustris), sweet grass (hierochloe odorata), and

26 wild rye (etlymus virginicus).

27 (F) Sewage treatment and disposal and solid waste disposal facilities.

28 (G) Beneficial use, dewatering, and disposal of dredged material of marine origins,

29 where such activities take place within two hundred (200) feet of mean high water or a coastal

30 physiographic feature, or where there is a reasonable probability of conflict with a plan or

31 program for resources management or damage to the coastal environment.

32 (H) The general assembly authorizes the Coastal Resources Management Council to

33 protect the public’s right to walk along a ten (10) foot wide strip of land along the salt water-land

boundary and

34 the council shall use its enforcement powers to protect this right and to implement guidelines to

insure that public safety and security are not compromised by this act.. This ten (10) foot strip shall be

11

1 measured from the highest point wetted by thewave wash of the normal monthly high tide cycles.

It does not include storm

2 washes and other extra normal wave events.

4 (3) Coordination. – The council has the following coordinating powers and duties:

5 (i) Functioning as a binding arbitrator in any matter of dispute involving both the

6 resources of the state’s coastal region and the interests of two (2) or more municipalities or state

7 agencies.

8 (ii) Consulting and coordinating actions with local, state, regional, and federal agencies

9 and private interests.

10 (iii) Conducting or sponsoring coastal research.

11 (iv) Advising the governor, the general assembly, and the public on coastal matters.

12 (v) Serving as the lead state agency and initial and primary point of contact for dredging

13 activities in tidal waters and in that capacity, integrating and coordinating the plans and policies

14 of other state agencies as they pertain to dredging in order to develop comprehensive programs

15 for dredging as required by subparagraph (1)(ii)(H) of this section and chapter 6.1 of this title.

16 The Rhode Island Resource Recovery Corporation prior to purchasing cover material for the state

17 landfill shall first contact CRMC to see if there is a source of suitable dredged material available

18 which shall be used in place of the purchase cover material. Other state agencies engaged in the

19 process of dump closures shall also contact the CRMC to see if there is a source of suitable

20 dredged material available, which shall be used in place of the purchase cover material. In

21 addition, cities and towns may contact the CRMC prior to closing city or town controlled dump

22 sites to see if there is a source of suitable dredge material available, which may be used in place

23 of the purchase cover material.

24 (vi) Acting as the state’s representative to all bodies public and private on all coastal and

25 aquaculture related matters.

26 (4) Operations. – The council is authorized to exercise the following operating functions,

27 which are essential to management of coastal resources:

28 (i) Issue, modify, or deny permits for any work in, above, or beneath the areas under its

29 jurisdiction, including conduct of any form of aquaculture.

30 (ii) Issue, modify, or deny permits for dredging, filling, or any other physical alteration

31 of coastal wetlands and all directly related contiguous areas which are necessary to preserve the

32 integrity of the wetlands, including, but not limited to the transportation and disposal of dredge

33 materials in the tidal waters.

34 (iii) Grant licenses, permits, and easements for the use of coastal resources which are

12

1 held in trust by the state for all its citizens, and impose fees for private use of these resources.

2 (iv) Determining the need for and establishing pierhead, bulkhead, and harbor lines.

3 (v) Enforcing and implementing riparian rights in the tidal waters after judicial decisions.

4 (vi) The council may require an owner or operator of a commercial wharf or pier of a

5 marine commercial facility, as defined in 300.3 of the Rhode Island Coastal Resources

6 Management Program, but not including those facilities defined in 300.4 of the Rhode Island

7 Coastal Resources Management Program, and which is capable of offloading cargo, and is or will

8 be subject to a new use or a significant intensification of an existing use, to demonstrate that the

9 commercial wharf or pier is fit for that purpose. For the purposes of this subsection, a commercial

10 wharf or pier shall mean a pier, bulkhead, wharf, docking facility, or underwater utilities. The

11 council may order said owner or operator to provide an engineering certification to the council’s

12 satisfaction that the commercial wharf or pier is fit for the new use or intensification of an

13 existing use. If the council determines that the commercial wharf or pier is not fit, it may order

14 the owner or operator to undertake the necessary work to make the commercial wharf or pier safe,

15 within a reasonable time frame. If the council determines that the commercial wharf or pier,

16 because of is condition, is an immediate threat to public health and safety it may order the

17 commercial wharf or pier closed until the necessary work to make the commercial wharf or pier

18 safe has been performed and approved by the council. All work performed must conform to the

19 council’s management program. The council is also given the authority to develop regulations to

20 carry out this provision and to impose administrative penalties of five thousand dollars ($5,000)

21 per day up to a maximum of twenty thousand dollars ($20,000) consistent with section 46-23-7.1

22 where there has been a violation of the orders under this provision.

23 (5) Rights-of-way.

24 (i) The council is responsible for the designation of all public rights-of-way to the tidal

25 water areas of the state, and shall carry on a continuing discovery of appropriate public rights-of26

way to the tidal water areas of the state.

27 (ii) The council shall maintain a complete file of all official documents relating to the

28 legal status of all public rights-of-way to the tidal water areas of the state.

29 (iii) (A) The council has the power to designate for acquisition and development, and

30 posting, and all other functions of any other department for tidal rights-of-way and land for tidal

31 rights-of-way, parking facilities, and other council related purposes.

32 (B) Further, the council has the power to develop and prescribe a standard sign to be

33 used by the cities and towns to mark designated rights-of-way.

34 (iv) In conjunction with this subdivision, every state department controlling state-owned

13

1 land close to or adjacent to discovered rights-of-way is authorized to set out the land, or so much

2 of the land that may be deemed necessary for public parking.

3 (v) No use of land for public parking shall conflict with existing or intended use of the

4 land, and no improvement shall be undertaken by any state agency until detailed plans have been

5 submitted to and approved by the governing body of the local municipality.

6 (vi) In designating rights-of-way, the council shall consider the following matters in

7 making its designation:

8 (A) Land evidence records;

9 (B) The exercise of domain over the parcel such as maintenance, construction, or

10 upkeep;

11 (C) The payment of taxes;

12 (D) The creation of a dedication;

13 (E) Public use;

14 (F) Any other public record or historical evidence such as maps and street indexes;

15 (G) Other evidence as set out in section 42-35-10.

16 (vii) A determination by the council that a parcel is a right-of-way shall be decided by

17 substantial evidence.

18 (viii) The council shall be notified whenever by the judgment of the governing body of a

19 coastal municipality, a public right-of-way to tidal water areas located in such municipality has

20 ceased to be useful to the public, and such governing body proposes an order of abandonment of

21 such public right-of-way. Said notice shall be given not less than sixty (60) days prior to the date

22 of such abandonment.

23 (6) Pre-existing residential boating facilities.

24 (i) The council is hereby authorized and empowered to issue assent for pre-existing

25 residential boating facilities constructed prior to January 1, 1985. These assents may be issued for

26 pre-existing residential boating facilities, even though such facilities do not meet current

27 standards and policies of the council, provided, however, that the council finds that such facilities

28 do not pose any significant risk to the coastal resources of the state of Rhode Island and do not

29 endanger human safety.

30 (ii) In addition to the above criteria, the applicant shall provide clear and convincing

31 evidence that:

32 (A) The facility existed in substantially the same configuration as it now exists prior to

33 January 1, 1985;

34 (B) The facility is presently intact and functional; and

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1 (C) The facility presents no significant threat to the coastal resources of the state of

2 Rhode Island or human safety.

3 (iii) The applicant, to be eligible for this provision, shall apply no later than January 31,

4 1999.

5 (iv) The council is directed to develop rules and regulations necessary to implement this

6 subdivision.

7 (v) It is the specific intent of this subsection to require that all pre-existing residential

8 boating facilities constructed on January 1, 1985 or thereafter conform to this chapter and the

9 plans, rules and regulations of the council.

10 (7) Lease of filled lands which were formerly tidal lands to riparian or littoral owners.

11 (i) Any littoral or riparian owner in this state who desires to obtain a lease from the state

12 of Rhode Island of any filled lands adjacent to his or her upland shall apply to the council, which

13 may make the lease. Any littoral or riparian owner who wishes to obtain a lease of filled lands

14 must obtain pre-approval, in the form of an assent, from the council. Any lease granted by the

15 council shall continue the public’s interest in the filled lands including but not limited to the rights

16 of navigation, fishery, and commerce. The public trust in the lands shall continue and run

17 concurrently with the leasing of the lands by the state to private individuals, corporations, or

18 municipalities. Upon the granting of a lease by the council, those rights consistent with the public

19 trust and secured by the lease shall vest in the lessee. The council may approve a lease of filled

20 lands for an initia l term of up to fifty (50) years, with, or without, a single option to renew for an

21 additional term of up to fifty (50) years.

22 (ii) The lessor of the lease, at any time, for cause, may by express act cancel and annul

23 any lease previously made to the riparian owner when it determines that the use of the lands is

24 violating the terms of the lease or is inconsistent with the public trust, and upon cancellation the

25 lands, and rights in the land so leased, shall revert to the state.

26 (8) “Marinas” as defined in the coastal resources management program in effect as of

27 June 1, 1997, are deemed to be one of the uses consistent with the public trust. Subdivision (7) is

28 not applicable to: (i) any riparian owner on tidal waters in this state (and any successor in interest

29 to the owner) which has an assent issued by the council to use any land under water in front of his

30 or her lands as a marina, which assent was in effect on June 1, 1997; (ii) any alteration,

31 expansion, or other activity at a marina (and any successor in interest) which has an assent issued

32 by the council, which assent was in effect on June 1, 1997; and (iii) any renewal of assent to a

33 marina (or successor in interest), which assent was issued by the council and in effect on June 1,

34 1997.

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1 (9) “Recreational boating facilities” including marinas, launching ramps, and recreational

2 mooring areas, as defined by and properly permitted by the council, are deemed to be one of the

3 uses consistent with the public trust. Subdivision (7) is not applicable to: (i) any riparian owner

4 on tidal waters in this state (and any successor in interest to the owner) which has an assent issued

5 by the council to use any land under water in front of his or her lands as a recreational boating

6 facility; any alteration, expansion or other activity at a recreational boating facility (and any

7 successor in interest) which has an assent issued by the council, which assent was in effect as of

8 June 1, 1997; and (ii) any renewal of assent to a recreational boating facility (or successor in

9 interest), which assent was issued by the council and in effect on June 1, 1997.

10 SECTION 3. This act shall take effect upon passage.

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LC00891

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16

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO WATERS AND NAVIGATION — COASTAL RESOURCES MANAGEMENT

COUNCIL

***

1 This act would authorize the Coastal Resources Management Council to protect the

2 public’s right to walk along a ten (10) foot wide strip of land at the salt water’s edge, and to use its

3 enforcement powers to protect this right.

4 This act would take effect upon passage.

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LC00891

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