Rhode Island 2023 Regular Session

Rhode Island Senate Bill S0417 Compare Versions

Version 1 (Old)

Version 2 (New)

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5		-	2023 -- S 0417 ~~SUBSTITUTE A~~
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9	9		S TATE OF RHODE IS LAND
10	10		IN GENERAL ASSEMBLY
11	11		JANUARY SESSION, A.D. 2023
12	12		____________
13	13
14	14		A N A C T
15	15		RELATING TO WATERS AND NAVIGATION -- COASTAL RESOURCES MA NAGEMENT
16	16		COUNCIL
17	17		Introduced By: Senators McKenney, Sosnowski, Euer, Pearson, Miller, DiMario, Gallo,
18	18		DiPalma, Gu, and Kallman
19	19		Date Introduced: February 16, 2023
20	20		Referred To: Senate Judiciary
21	21
22	22
23	23		It is enacted by the General Assembly as follows:
24	24		SECTION 1. Legislative findings. 1
25	25		(1) The general assembly finds that the lack of a workable, readily identifiable right of 2
26	26		access to the shore by the public has led to confusion, conflict and disputes between those 3
27	27		attempting to exercise their rights and privileges to the shoreline and the rights of landowners whose 4
28	28		property abuts the shore. 5
29	29		(2) The general assembly recognizes and declares the public's rights and privileges of the 6
30	30		shore of this, the ocean state, are not only guaranteed in the State Constitution but have enjoyed a 7
31	31		long use throughout history to our founding documents, including the 1663 Rhode Island Charter 8
32	32		from King Charles II. The general assembly further acknowledges the use and enjoyment of the 9
33	33		shore by Native Americans for thousands of years prior to that. 10
34	34		From the Rhode Island Charter (1663-1843) 11
35	35		"Our express will and pleasure is, and we do, by these presents, for us, our heirs and 12
36	36		successors, ordain and appoint that these presents, shall not in any manner, hinder any of our loving 13
37	37		subjects, whatsoever, from using and exercising the trade of fishing upon the coast of New England, 14
38	38		in America, but that they, and every or any of them, shall have full and free power and liberty to 15
39	39		continue and use the trade of fishing upon the said coast, in any of the seas thereunto adjoining, or 16
40	40		any arms of the seas, or salt water, rivers and creeks, where they have been accustomed to fish, and 17
41	41		to build and set upon the waste land belonging to the said Colony and Plantations, such wharves, 18
42	42
43	43
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45	45		stages and workhouses as shall be necessary for the salting, drying and keeping of their fish, to be 1
46	46		taken or gotten upon that coast." 2
47	47		(3) Rhode Island's historical commitment to the public rights and privileges of the shore is 3
48	48		so strong that is was written into our Constitution in 1843 making us unique to other states: 4
49	49		From the Rhode Island Constitution (1843) 5
50	50		"The people shall continue to enjoy and freely exercise all the rights of fishery, and the 6
51	51		privileges of the shore, to which they have been heretofore entitled under the charter and usages of 7
52	52		this state. But no new right is intended to be granted, nor any existing right impaired, by this 8
53	53		declaration". 9
54	54		(4) The general assembly also recognizes that its public trust duty to preserve the public's 10
55	55		rights and privileges of the shore is a progressive and evolving doctrine that is expected to adjust 11
56	56		to changing circumstances. In this spirit, voters of Rhode Island overwhelmingly supported the 12
57	57		reinforcement of these rights and privileges in 1986 following the constitutional convention of that 13
58	58		same year. 14
59	59		Added to the constitution in 1986 15
60	60		"Section 16. Compensation for taking of private property for public use -- Regulation of 16
61	61		fishery rights and shore privileges not public taking. 17
62	62		Private property shall not be taken for public uses, without just compensation. The powers 18
63	63		of the state and of its municipalities to regulate and control the use of land and waters in the 19
64	64		furtherance of the preservation, regeneration, and restoration of the natural environment, and in 20
65	65		furtherance of the protection of the rights of the people to enjoy and freely exercise the rights of 21
66	66		fishery and the privileges of the shore, as those rights and duties are set forth in Article I, Section 22
67	67		17, shall be an exercise of the police powers of the state, shall be liberally construed, and shall not 23
68	68		be deemed to be a public use of private property. 24
69	69		"Section 17. The people shall continue to enjoy and freely exercise all the rights of fishery, 25
70	70		and the privileges of the shore, to which they have been heretofore entitled under the charter and 26
71	71		usages of this state, including but not limited to fishing from the shore, the gathering of seaweed, 27
72	72		leaving the shore to swim in the sea and passage along the shore; and they shall be secure in their 28
73	73		rights to use and enjoyment of the natural resources of the state with due regard for the preservation 29
74	74		of their values; and it is the duty of the general assembly to provide for the conservation of the air, 30
75	75		land, water, plant, animal, mineral and other natural resources of the state, and to adopt all means 31
76	76		necessary and proper by law to protect the natural environment of the people of the state by 32
77	77		providing adequate resource planning for the control and regulation of the use of the natural 33
78	78		resources of the state and for the preservation, regeneration, and restoration of the natural 34
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82	82		environment of the state." 1
83	83		(5) In 1982, our state supreme court, acknowledging that it was acting in the absence of 2
84	84		guidance from the general assembly, defined the public’s rights to the shore by the mean high water 3
85	85		(MHW) line, derived from an arithmetic average of high-water heights measured over an 18.6-year 4
86	86		metonic cycle. The 1986 Constitutional Convention considered and rejected defining the mean high 5
87	87		tide line for purposes of public access by this means and, accordingly, amended the constitution. 6
88	88		Moreover, since 1982, there has also been a greater awareness by the public, judiciary and 7
89	89		lawmakers of the scientific findings that establish the difficulties in using the MHW line as the 8
90	90		indicator of public rights to the shore. 9
91	91		The general assembly accepts the conclusions of the coastal scientists from the University 10
92	92		of Rhode Island who have documented that: 11
93	93		(i) The MHW line is not a visible feature that can be seen on the beach like a watermark or 12
94	94		debris line. MHW is an elevation, calculated from the average of all the high tides, two (2) per day 13
95	95		in Rhode Island, over a nineteen (19) year period and the MHW line is where this elevation 14
96	96		intersects the beach profile. It cannot be determined by the naked eye and requires special surveying 15
97	97		expertise and equipment, thereby making it impossible for the general public to know where the 16
98	98		line is. 17
99	99		(ii) The MHW line may change on a daily basis. Because the profile or shape of the beach 18
100	100		changes constantly, as waves move sand onshore, offshore and alongshore, the location where 19
101	101		MHW intersects the beach likewise changes. Even when the MHW line is found through precise 20
102	102		surveying, it does not remain in the same location for very long on a wave-dominated shoreline. 21
103	103		For instance, two (2) years of near weekly surveyed beach transects in the town of Charlestown 22
104	104		revealed that the position of the MHW line migrated back and forth across a one hundred twenty-23
105	105		five foot (125') swath of the beach profile. 24
106	106		(iii) The MHW line is based on measurements collected inside a tide gauge, an instrument 25
107	107		that filters out dynamic factors like breaking waves, which causes water to run up the beach. In 26
108	108		other words, the measure of MHW is insulated from the dynamic action of the surf, which projects 27
109	109		the water to a higher elevation. This results in a pervasive and predominant situation in which the 28
110	110		actual water line is significantly landward of the MHW line. Data has shown that, on most days, 29
111	111		due to the dynamic action of the surf and other factors, dry sand is exposed below the MHW line 30
112	112		for, at most, only a few hours over a tidal cycle. This exposure occurs only at or near the time of 31
113	113		low tide. 32
114		-	In sum, ~~while~~ the MHW ~~may be helpful for other purposes,~~ ~~such as findings or definitions~~ 33
115		-	~~pertaining to waters and navigation, use of the MHW for determining~~ shoreline access ~~has restricted~~ 34
	114	+	In sum, retaining the MHW line rule employed by the court in 1982 results in the public 33
	115	+	only having meaningful shoreline access at or near the time of low tide, if at all, at some locations. 34
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119		-	the public’s rights. Retaining the MHW line rule employed by the court in 1982 results in the public 1
120		-	only having meaningful shoreline access at or near the time of low tide, if at all, at some locations. 2
121		-	Thus, the constitutional right and privileges of the shore delineated in the 1986 Constitutional 3
122		-	Convention amendments have become illusory under such a rule. 4
123		-	(6) Insofar as the existing standard for determining the extent of the public’s access to the 5
124		-	shore is unclear and not easily discernable, due to the lack of a boundary that can be readily seen 6
125		-	by the casual observer on the beach, resulting in confusion, uncertainty and even confrontation, the 7
126		-	General Assembly is obligated to provide clarity. This enactment constitutes the necessary 8
127		-	clarification in accordance with Article I Section 17 of the R.I. Constitution. 9
128		-	SECTION 2. Chapter 46-23 of the General Laws entitled "Coastal Resources Management 10
129		-	Council" is hereby amended by adding thereto the following section: 11
130		-	46-23-26. The public's rights and privileges of the shore. 12
131		-	(a) The public's rights and privileges of the shore are established by Article I, Sections 16 13
132		-	and 17 of the Rhode Island Constitution. 14
133		-	(b) For purposes of this chapter, the "recognizable high tide line" means a line or mark left 15
134		-	upon tidal flats, beaches, or along shore objects that indicates the intersection of the land with the 16
135		-	water's surface level at the maximum height reached by a rising tide. The recognizable high tide 17
136		-	line may be determined by a line of seaweed, oil or scum along shore objects, a more or less 18
137		-	continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or 19
138		-	characteristics, or other suitable means that delineate the general height reached by the water's 20
139		-	surface level at a rising tide. If there is more than one line of seaweed, oil, scum, fine shell, or 21
140		-	debris, then the recognizable high tide line means the most seaward line. In the absence of residue 22
141		-	seaweed or other evidence, the recognizable high tide line means the wet line on a sandy or rocky 23
142		-	beach. The line encompasses the water's surface level at spring high tides and other high tides that 24
143		-	occur with periodic frequency, but does not include the water's surface level at storm surges in 25
144		-	which there is a departure from the normal or predicted reach of the water’s surface level due to 26
145		-	the piling up of water against a coast by strong winds, such as those accompanying a hurricane or 27
146		-	other intense storms. 28
147		-	(c) Notwithstanding any provision of the general laws to the contrary, the public's rights 29
148		-	and privileges of the shore may be exercised, where shore exists, on wet sand or dry sand or rocky 30
149		-	beach, up to ten feet (10') landward of the recognizable high tide line; provided, however, that the 31
150		-	public's rights and privileges of the shore shall not be afforded where no passable shore exists, nor 32
151		-	on land above the vegetation line, or on lawns, rocky cliffs, sea walls, or other legally constructed 33
152		-	shoreline infrastructure. Further, no entitlement is hereby created for the public to use amenities 34
153		-
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156		-	privately owned by other persons or entities, including, but not limited to: cabanas, decks, and 1
157		-	beach chairs. 2
158		-	(d) Any landowner whose property abuts the shore shall, with respect to the public’s 3
159		-	exercise of rights and privileges of the shore as defined in this chapter, be afforded the liability 4
160		-	limitations pursuant to chapter 6 of title 32. 5
161		-	(e) The coastal resources management council (CRMC) in collaboration with the 6
162		-	department of environmental management (DEM), shall develop and disseminate information to 7
163		-	educate the public and property owners about the rights set out in this section. 8
164		-	(f) The CRMC in collaboration with the DEM, and the attorney general, shall determine 9
165		-	appropriate language and signage details for use at shoreline locations. 10
166		-	SECTION 3. This act shall take effect upon passage. 11
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	119	+	Thus, the constitutional right and privileges of the shore delineated in the 1986 Constitutional 1
	120	+	Convention amendments have become illusory under such a rule. 2
	121	+	SECTION 2. Chapter 46-23 of the General Laws entitled "Coastal Resources Management 3
	122	+	Council" is hereby amended by adding thereto the following section: 4
	123	+	46-23-26. The public's rights and privileges of the shore. 5
	124	+	(a) The public's rights and privileges of the shore are established by Article I, Sections 16 6
	125	+	and 17 of the Rhode Island Constitution. 7
	126	+	(b) The public's rights and privileges of the shore may be exercised, where shore exists, on 8
	127	+	wet sand or dry sand or rocky beach, up to the natural vegetation line; provided, however, that the 9
	128	+	public's rights and privileges of the shore shall not be afforded where no passable shore exists, nor 10
	129	+	on land above the natural vegetation line, rocky cliffs, or sea walls and other legally constructed 11
	130	+	shoreline infrastructure. No entitlement is hereby created for the public to use privately owned 12
	131	+	amenities, including, but not limited to: cabanas, decks and beach chairs. 13
	132	+	(c) Any landowner whose property abuts the shore shall, with respect to the public’s 14
	133	+	exercise of rights and privileges of the shore as defined in this chapter, be afforded the liability 15
	134	+	limitations pursuant to chapter 6 of title 32. 16
	135	+	(d) The coastal resources management council (CRMC) in collaboration with the 17
	136	+	department of environmental management, shall develop and disseminate information to educate 18
	137	+	the public and property owners about the rights set out in this section. 19
	138	+	(e) The CRMC in collaboration with the department of environmental management, and 20
	139	+	the attorney general, shall determine appropriate language and signage details for use at shoreline 21
	140	+	locations. 22
	141	+	SECTION 3. This act shall take effect upon passage. 23
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173	148		EXPLANATION
174	149		BY THE LEGISLATIVE COUNCIL
175	150		OF
176	151		A N A C T
177	152		RELATING TO WATERS AND NAVIGATION -- COASTAL RESOURCES MA NAGEMENT
178	153		COUNCIL
179	154		***
180	155		This act would provide that the public's rights and privileges of the shore established by 1
181	156		Article I, Sections 16 and 17 of the State Constitution may be exercised where shore exists, on wet 2
182		-	or dry sand or rocky beach up to ~~ten feet (10') landward of~~ the ~~high tide~~ line but not where no 3
183		-	~~passable shore exists~~ with abutting landowners afforded limited liability. 4
	157	+	or dry sand or rocky beach up to the natural vegetation line but not where no passable shore exists 3
	158	+	with abutting landowners afforded limited liability. 4
184	159		This act would take effect upon passage. 5
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