Rhode Island 2023 Regular Session

Rhode Island Senate Bill S0772 Compare Versions

Only one version of the bill is available at this time.

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5	5	2023 -- S 0772
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7	7	LC002355
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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 Gu, DiMario, Valverde, Sosnowski, and Lauria
18	18	Date Introduced: March 23, 2023
19	19	Referred To: Senate Environment & Agriculture
20	20
21	21
22	22	It is enacted by the General Assembly as follows:
23	23	SECTION 1. The title of Chapter 46-23 of the General Laws entitled "Coastal Resources 1
24	24	Management Council" is hereby amended to read as follows: 2
25	25	CHAPTER 46-23 3
26	26	Coastal Resources Management Council 4
27	27	CHAPTER 46-23 5
28	28	DEPARTMENT OF COASTAL RESOURCES 6
29	29	SECTION 2. Sections 46-23-1, 46-23-2, 46-23-4, 46-23-4.1, 46-23-6, 46-23-6.1, 46-23-7
30	30	6.2, 46-23-7, 46-23-7.1, 46-23-7.2, 46-23-7.3, 46-23-7.4, 46-23-7.5, 46-23-8, 46-23-9, 46-23-10, 8
31	31	46-23-11, 46-23-13, 46-23-14, 46-23-15, 46-23-15.1, 46-23-16, 46-23-18, 46-23-18.1, 46-23-18.2, 9
32	32	46-23-18.3, 46-23-18.4, 46-23-18.5, 46-23-18.6, 46-23-20, 46-23-20.1, 46-23-20.2, 46-23-20.3, 10
33	33	46-23-20.4, 46-23-20.5, 46-23-20.6, 46-23-21, 46-23-22, 46-23-23, 46-23-24 and 46-23-25 of the 11
34	34	General Laws in Chapter 46-23 entitled "Coastal Resources Management Council" are hereby 12
35	35	amended to read as follows: 13
36	36	46-23-1. Legislative findings. 14
37	37	(a)(1) Under article 1, § 17 of the Rhode Island Constitution, the people shall continue to 15
38	38	enjoy and freely exercise all the rights of fishery, and the privileges of the shore, to which they 16
39	39	have been heretofore entitled under the charter and usages of this state, including, but not limited 17
40	40	to, fishing from the shore, the gathering of seaweed, leaving the shore to swim in the sea and 18
41	41
42	42
43	43	LC002355 - Page 2 of 38
44	44	passage along the shore; and they shall be secure in their rights to use and enjoyment of the natural 1
45	45	resources of the state with due regard for the preservation of their values; and it is the duty of the 2
46	46	general assembly to provide for the conservation of the air, land, water, plant, animal, mineral and 3
47	47	other natural resources of the state, and to adopt all means necessary and proper by law to protect 4
48	48	the natural environment of the people of the state by providing adequate resource planning for the 5
49	49	control and regulation of the use of the natural resources of the state and for the preservation, 6
50	50	regeneration, and restoration of the natural environment of the state. 7
51	51	(2) The general assembly recognizes and declares that the coastal resources of Rhode 8
52	52	Island, a rich variety of natural, commercial, industrial, recreational, and aesthetic assets, are of 9
53	53	immediate and potential value to the present and future development of this state; that unplanned 10
54	54	or poorly planned development of this basic natural environment has already damaged or destroyed, 11
55	55	or has the potential of damaging or destroying, the state’s coastal resources, and has restricted the 12
56	56	most efficient and beneficial utilization of these resources; that it shall be the policy of this state to 13
57	57	preserve, protect, develop, and, where possible, restore the coastal resources of the state for this 14
58	58	and succeeding generations through comprehensive and coordinated long range planning and 15
59	59	management designed to produce the maximum benefit for society from these coastal resources; 16
60	60	and that preservation and restoration of ecological systems shall be the primary guiding principle 17
61	61	upon which environmental alteration of coastal resources will be measured, judged, and regulated. 18
62	62	(b)(1) That effective implementation of these policies is essential to the social and 19
63	63	economic well-being of the people of Rhode Island because the sea and its adjacent lands are major 20
64	64	sources of food and public recreation, because these resources are used by and for industry, 21
65	65	transportation, waste disposal, and other purposes, and because the demands made on these 22
66	66	resources are increasing in number, magnitude, and complexity; and that these policies are 23
67	67	necessary to protect the public health, safety, and general welfare. Pursuant to 16 U.S.C. § 1452 24
68	68	(“The Coastal Zone Management Act”), the general assembly hereby directs the council department 25
69	69	of coastal resources (referred to as “CRMC” the "department") to exercise effectively its 26
70	70	responsibilities in the coastal zone through the development and implementation of management 27
71	71	programs to achieve wise use of the land and water resources of the coastal zone. 28
72	72	(2) Furthermore, that implementation of these policies is necessary in order to secure the 29
73	73	rights of the people of Rhode Island to the use and enjoyment of the natural resources of the state 30
74	74	with due regard for the preservation of their values, and in order to allow the general assembly to 31
75	75	fulfill its duty to provide for the conservation of the air, land, water, plant, animal, mineral, and 32
76	76	other natural resources of the state, and to adopt all means necessary and proper by law to protect 33
77	77	the natural environment of the people of the state by providing adequate resource planning for the 34
78	78
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81	81	control and regulation of the use of the natural resources of the state and for the preservation, 1
82	82	regeneration, and restoration of the natural environment of the state. 2
83	83	(c) That these policies can best be achieved through the creation of a department of coastal 3
84	84	resources management council as the principal mechanism for management of the state’s coastal 4
85	85	resources. 5
86	86	(d) The general assembly recognizes and declares that maintenance dredging is required to 6
87	87	remove natural silt accumulations; Rhode Island has not had a general maintenance dredging policy 7
88	88	and programs for ports, port facilities, channels, harbors, public and private marinas and boating 8
89	89	facilities, recreational facilities and habitat areas and such programs should continue.; other major 9
90	90	coastal states have maintenance dredging policies and in-water maintenance dredge disposal sites; 10
91	91	as a result of the lack of a general maintenance dredging policy and program and as a result there 11
92	92	has been: 12
93	93	(1) A decrease in the depth of the Providence Channel from forty-four (44) feet in 1971 to 13
94	94	twenty-four (24) feet in 1996; 14
95	95	(2) Navigational restrictions on ocean going vessels through the state’s waterways and 15
96	96	channels; and 16
97	97	(3) A decrease in the number of available slips and moorings at marinas throughout the 17
98	98	state; and the lack of a maintenance dredging policy and programs have significant adverse 18
99	99	environmental and economic effects on the state and therefore it is in the best interest of the state, 19
100	100	the cities and towns of the state, and the citizens thereof for the state to have a general maintenance 20
101	101	dredging policy and programs to resolve issues related to dredge maintenance and disposal and 21
102	102	avoid future significant direct and indirect adverse impact on the environment and economy of the 22
103	103	state. 23
104	104	(e) The department of coastal resources management council is hereby designated as the 24
105	105	lead state agency for purposes of dredging in tidal waters and as such shall have the following 25
106	106	duties and responsibilities: 26
107	107	(1) To coordinate the interest of the state with regard to dredging; 27
108	108	(2) To formulate and adopt a state policy with regard to dredging which integrates those 28
109	109	interests; 29
110	110	(3) To cooperate with, negotiate, and to enter into agreements on behalf of the state with 30
111	111	the federal government and with other public bodies and private parties with regard to dredging; 31
112	112	(4) To act as the initial and primary point of contact for all applications to the state for 32
113	113	dredging projects in tidal waters; 33
114	114	(5) To develop, prepare, adopt pursuant to § 46-23-11, implement, and maintain a 34
115	115
116	116
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118	118	comprehensive plan for dredge material management; and 1
119	119	(6) To cooperate and coordinate with the departments of environmental management, 2
120	120	transportation, administration, and health, and the economic development corporation in the 3
121	121	conduct of these duties and responsibilities. 4
122	122	(f)(1) The legislature recognizes that under Article I, § 17, the submerged lands of the state 5
123	123	are impressed with a public trust and that the state is responsible for the protection of the public’s 6
124	124	interest in these lands. The state maintains title in fee to all soil within its boundaries that lies below 7
125	125	the high water mark, and it holds that land in trust for the use of the public. In benefiting the public, 8
126	126	the state preserves certain public rights which include, but are not limited to, fishery, commerce, 9
127	127	and navigation in these waters and the submerged lands that they cover. 10
128	128	(2) All the powers and duties previously vested in the coastal resources management 11
129	129	council since Since its establishment in 1971, are hereby transferred to the department of coastal 12
130	130	resources ("department"). the CRMC The department has had the authority to manage and plan for 13
131	131	the preservation of the coastal resources of the state including, but not limited to, submerged lands. 14
132	132	The legislature hereby declares that, in light of the unique size, scope, and overall potential impact 15
133	133	upon the environment of large scale filling projects involving twenty-five (25) acres or more, any 16
134	134	lease of tidal lands, or any license to use those lands, is subject to approval, disapproval, or 17
135	135	conditional approval by the direct enactment of the general assembly by legislative action. The 18
136	136	CRMC department shall review all requests for leases, licenses to use the land, and other authority 19
137	137	to use the land made by any applicant prior to presentation of the request to the general assembly, 20
138	138	and the CRMC department shall make recommendations on the request to the general assembly. 21
139	139	With the exception of any and all projects to fill land of twenty-five (25) acres or more, the general 22
140	140	assembly hereby recognizes and declares that the CRMC department is delegated the sole and 23
141	141	exclusive authority for the leasing of submerged and filled lands and giving licenses for the use of 24
142	142	that land. Accordingly, the CRMC department shall forthwith will develop, coordinate, and adopt 25
143	143	a system for the leasing of submerged and filled lands, and licenses for the use of that land, and 26
144	144	will ensure that all leases and licenses are consistent with the public trust. Pursuant thereto, the 27
145	145	CRMC department shall impose a maximum fee of eighty thousand dollars ($80,000) per annum 28
146	146	for any transatlantic cable that makes landfall in Rhode Island. All such fees collected shall be 29
147	147	deposited into the Bays, Rivers and Watersheds Fund, established pursuant to § 46-31-12.1, and 30
148	148	shall be disbursed according to the purposes of that fund as general revenue. Nothing contained in 31
149	149	this subsection negates, repeals, or alters the provisions, processes, and requirements for the leasing 32
150	150	of submerged land for the conduct of aquaculture as set out under chapter 10 of title 20. Therefore, 33
151	151	nothing in this chapter shall be construed to limit or impair the authority of the state, or any duly 34
152	152
153	153
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155	155	established agency of the state, to regulate filling or dredging affecting tidal lands owned by the 1
156	156	state or any other entity, and nothing in this chapter shall be construed to limit or impair the 2
157	157	obligation of the applicant to obtain all applicable regulatory approvals. Specifically, and without 3
158	158	limiting the foregoing, nothing in this subsection negates, repeals, or alters the provisions, 4
159	159	processes, and requirements for water quality certification contained in chapter 12 of this title. 5
160	160	(3) Definitions. As used in this chapter, the following words shall have the following 6
161	161	meanings, unless the context clearly requires otherwise: 7
162	162	(i) “Administrative penalty” means a monetary penalty not to exceed the civil penalty 8
163	163	specified by statute or, where not specified by statute, an amount not to exceed one thousand dollars 9
164	164	($1,000). 10
165	165	(ii) “Department,” or “director” means the director of the department coastal resources as 11
166	166	established herein or his or her duly authorized agent, unless stated otherwise. 12
167	167	(i)(iii) “Filled land” means portions of tidal lands which have been rendered by the acts of 13
168	168	man to be no longer subject to tidal action or beneath tidal waters. 14
169	169	(iii)(iv) “Mean high water” means a line of contour representing the 18.6 year average as 15
170	170	determined by the metonic cycle and/or its equivalent as evidenced by the records, tidal datum, and 16
171	171	methodology of the United States Coastal Geodetic Survey within the National Oceanic and 17
172	172	Atmospheric Administration. 18
173	173	(v) “Person” means any agency or political subdivision of the state, any state, public or 19
174	174	private corporation or authority, individual, trust, firm, joint stock company, partnership, 20
175	175	association, or other entity or any group thereof or any officer, employee or agent thereof, any 21
176	176	individual, group of individuals, firm, corporation, association, partnership, or private or public 22
177	177	entity, including a district, county, city, town, or other governmental unit or agent thereof, and in 23
178	178	the case of a corporation, any individual having active and general supervision of the properties of 24
179	179	the corporation. 25
180	180	(vi) “Service” means service upon a corporation under this section shall be deemed to 26
181	181	include service upon both the corporation and upon the person having active and general 27
182	182	supervision of the properties of the corporation. 28
183	183	(ii)(vii) “Tidal Lands” means those lands that are below the mean high water. 29
184	184	46-23-2. Coastal resources management council created — Appointment of members 30
185	185	Department of coastal resources -- Transfer of responsibilities and citizen advisory 31
186	186	committee. 32
187	187	(a) There is hereby created the coastal resources management council. The coastal 33
188	188	resources management council shall consist of ten (10) members. Nine (9) members shall be 34
189	189
190	190
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192	192	appointed by the governor, with advice and consent of the senate, and one member shall serve ex 1
193	193	officio. All current appointments to the coastal resources management council made by the 2
194	194	governor with advice and consent of the senate are hereby validated and ratified and those 3
195	195	appointees shall serve for the remainder of their term. 4
196	196	(1) Six (6) of the members shall be appointed or elected officials of local government: three 5
197	197	(3) of whom shall be appointed or elected officials in a municipality of fewer than twenty-five 6
198	198	thousand (25,000) in population, three (3) of whom shall be appointed or elected officials in a 7
199	199	municipality of more than twenty-five thousand (25,000) in population. The populations are to be 8
200	200	determined by the latest federal census. Elected or appointed municipal officials shall hold seats on 9
201	201	the council only so long as they remain in their elected or appointed office. Each municipal 10
202	202	appointment shall cease if the appointed or elected official shall no longer hold or change the office 11
203	203	which they held upon appointment. At least five (5) out of the six (6) appointed or elected members 12
204	204	must be appointed or elected in a coastal municipality. When the governor submits his or her 13
205	205	appointments to the senate for advice and consent, the governor shall specify the appointed or 14
206	206	elected office that each municipal appointment holds; the population of the municipality 15
207	207	represented; and the member being replaced. 16
208	208	(2) Three (3) members shall be appointed by the governor from the public, with the advice 17
209	209	and consent of the senate, one of the public members and his or her successors shall reside in a 18
210	210	coastal municipality. 19
211	211	(3) All members shall serve until their successors are appointed and qualified; during the 20
212	212	month of January, the governor shall appoint, with the advice and consent of the senate, a member 21
213	213	to succeed the members whose term will then next expire for a term of three (3) years commencing 22
214	214	on the first day of February next following and until their successor is named and qualified. A 23
215	215	member shall be eligible for successive appointments. No more than two (2) persons on the council 24
216	216	shall be from the same municipality. A vacancy other than by expiration shall be filled in the 25
217	217	manner of the original appointment but only for the unexpired portion of the term. 26
218	218	(a) There is hereby established within the executive branch of the state government a 27
219	219	department of coastal resources. The head of the department shall be the director of the department 28
220	220	coastal resources who shall be in the unclassified service and who shall be appointed by the 29
221	221	governor, with the advice and consent of the senate, and shall serve at the pleasure of the governor. 30
222	222	(b) Whenever, in any general law, public law or regulation the words “coastal resources 31
223	223	management council”, the “council” or “CRMC” shall appear, the same shall be deemed to refer to 32
224	224	and to mean the “department of coastal resources.” Whenever, in any general law, public law or 33
225	225	regulation the words “chairman” or “chairperson of the coastal resources management council” 34
226	226
227	227
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229	229	shall appear, the same shall be deemed to refer to and mean the “director of the department of 1
230	230	coastal resources”. 2
231	231	(c) The director of the department of coastal resources ("director") assuming any duties 3
232	232	formerly imposed upon any other department, division, board, commission, or other agency shall 4
233	233	perform those duties, notwithstanding that those duties were formerly performed by a board, 5
234	234	council department, or a single officer. Any ruling, decision, or order made by the director with 6
235	235	regard to matters within the director's jurisdiction shall be subject to any existing right of appeal to 7
236	236	a court of competent jurisdiction. 8
237	237	(d) There is hereby established a citizens advisory committee for coastal resources 9
238	238	(“committee”). The role of the advisory committee is to provide the department with input on policy 10
239	239	initiatives and program improvements and the director shall schedule and hold public committee 11
240	240	meetings at least two (2) times per year. 12
241	241	(1) The committee shall consist of ten (10) members. Nine (9) members shall be appointed 13
242	242	by the governor and one member shall serve ex officio. Members of the committee shall be 14
243	243	knowledgeable in coastal law and/or policy and include members representing coastal, urban, 15
244	244	indigenous, and environmental justice communities. No two (2) members shall reside in the same 16
245	245	community; and 17
246	246	(4)(2) The director of the department of environmental management, or their designee, 18
247	247	shall serve ex officio. The ex-officio member shall not be counted as serving from any particular 19
248	248	municipality. 20
249	249	(b) In addition to the foregoing voting members, the council may include a varying number 21
250	250	of other members who may serve in an advisory capacity without the right to vote and who may be 22
251	251	invited to serve by either the governor or the voting members. These advisory members may 23
252	252	represent the federal agencies such as the navy, coast guard, corps of engineers, public health 24
253	253	service, and the Federal Water Pollution Control Administration, and such regional agencies as the 25
254	254	New England River Basins Commission and the New England Regional Commission and any other 26
255	255	group or interest not otherwise represented. 27
256	256	(c)(e) There may be established a coastal resources The director may establish other 28
257	257	advisory committee which committee committees, appointed by the executive director of the 29
258	258	coastal resources management council, which may include, but not be limited to, representation 30
259	259	from the following groups: one of whom may be a representative of the university of Rhode Island 31
260	260	graduate school of oceanography and the college of resources development, one of whom may be 32
261	261	a representative of the Sea Grant National College Program, one of whom may be a representative 33
262	262	of the army corps of engineers, one of whom may be a representative of the federal environmental 34
263	263
264	264
265	265	LC002355 - Page 8 of 38
266	266	protection agency’s Narragansett Bay laboratory, one of whom shall be a representative of the 1
267	267	department of coastal resources management council, one of whom may be the director of the 2
268	268	department of environmental management; one of whom may be a member of the Rhode Island 3
269	269	Marine Trade Association and one of whom may be a representative of a regional environmental 4
270	270	group. The council director shall have the authority to appoint these additional members to the 5
271	271	advisory committee committees, established pursuant to the provisions of this subsection, as is 6
272	272	deemed necessary or advisable by the advisory committee or the council director. It shall be the 7
273	273	responsibility of the committee committees to advise the coastal resources management council 8
274	274	department on environmental issues relating to dredging and permitting related thereto, including, 9
275	275	but not limited to, those issues defined in §§ 46-23-18.1 — 46-23-18.3, inclusive coastal programs. 10
276	276	(d) The council shall have the authority to form committees of other advisory groups as 11
277	277	needed from both its own members and others. 12
278	278	46-23-4. Officers of the council — Quorum and vote required for action Attorneys 13
279	279	and employees of the department. 14
280	280	The governor shall select from the appointed members a chairperson and vice chairperson. 15
281	281	The council shall thereupon select a secretary from among its membership or staff. The council 16
282	282	may engage staff, including legal counsel, as it deems necessary. A quorum shall consist of six (6) 17
283	283	members of the council. A majority vote of those present shall be required for action. 18
284	284	(a) Staff attorney. There is hereby created the position(s) of staff attorney to the director of 19
285	285	the department of coastal resources. The director is hereby empowered and directed to hire a staff 20
286	286	attorney(s) consistent with this section. The director shall have at least one full-time attorney-at-21
287	287	law on staff. The staff attorney(s) shall be hired by and serve at the pleasure of the director and 22
288	288	shall serve in the unclassified service. The position of staff attorney(s) shall be a full-time and report 23
289	289	directly to the director. The staff attorney(s) shall be an attorney(s)-at-law and shall not otherwise 24
290	290	engage in the practice of law. The staff attorney(s) shall represent the director and staff on all 25
291	291	matters including representation at hearings. 26
292	292	(b) The director may engage staff, including legal counsel, as it deems necessary. 27
293	293	(c) Notwithstanding any other law to the contrary and upon the effective date of this 28
294	294	section, all employees of the coastal resources management council shall be transferred to the 29
295	295	department of coastal resources and retain civil service status, title, rate of pay and benefits. 30
296	296	46-23-4.1. The commissioner of coastal resources management Coordination of 31
297	297	agencies. 32
298	298	The council shall engage a commissioner of coastal resources management who shall be 33
299	299	an employee of the council and who shall not be a member of the council. The commissioner 34
300	300
301	301
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303	303	director shall coordinate and liaison with the director of the department of environmental 1
304	304	management, and his or her director's staff shall be at the same staff level as the other 2
305	305	commissioners staff at the department of environmental management and shall work directly with 3
306	306	each other. the other commissioners. The commissioner of coastal resources management shall be 4
307	307	in the unclassified service. The duties and powers of the commissioner of coastal resources 5
308	308	management shall be determined by the council. The council shall not engage a commissioner of 6
309	309	coastal resources management for more than five (5) years; provided, however, that the council 7
310	310	may renew its contract with the commissioner of coastal resources management. 8
311	311	46-23-6. Powers and duties — Rights-of-way Continuing authorities -- Powers and 9
312	312	duties -- Rights-of-way. 10
313	313	All prior actions taken by the coastal resources management council including, but not 11
314	314	limited to, permits issued, enforcement actions taken, special area management plans, policies and 12
315	315	all duly promulgated regulations remain valid and enforceable by the department. In order to 13
316	316	properly manage coastal resources the council has department is empowered to exercise all the 14
317	317	functions, powers, and duties heretofore vested in the coastal resources management council, 15
318	318	including, but not limited to, the following powers and duties: 16
319	319	(1) Planning and management. 17
320	320	(i) The primary responsibility of the council department shall be the continuing planning 18
321	321	for and management of the resources of the state’s coastal region. The council department shall be 19
322	322	able to make any studies of conditions, activities, or problems of the state’s coastal region needed 20
323	323	to carry out its responsibilities. 21
324	324	(ii) The resources management process shall include the following basic phases: 22
325	325	(A) Identify all of the state’s coastal resources, water, submerged land, air space, fin fish, 23
326	326	shellfish, minerals, physiographic features, and so forth. 24
327	327	(B) Evaluate these resources in terms of their quantity, quality, capability for use, and other 25
328	328	key characteristics. 26
329	329	(C) Determine the current and potential uses of each resource. 27
330	330	(D) Determine the current and potential problems of each resource. 28
331	331	(E) Formulate plans and programs for the management of each resource, identifying 29
332	332	permitted uses, locations, protection measures, and so forth. 30
333	333	(F) Carry out these resources management programs through implementing authority and 31
334	334	coordination of state, federal, local, and private activities. 32
335	335	(G) Formulation of standards where these do not exist, and reevaluation of existing 33
336	336	standards. 34
337	337
338	338
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340	340	(H) To develop comprehensive programs for dredging in tidal waters and related beneficial 1
341	341	use, disposal, monitoring dewatering and transportation of dredge materials. 2
342	342	(I) To accept and administer loans and grants from the federal government and from other 3
343	343	sources, public or private, for the carrying out of any of its functions, which loans or grants shall 4
344	344	not be expended for other than the purposes for which provided. 5
345	345	(J) To encourage, participate in, or conduct studies, investigations, research, and 6
346	346	demonstrations relating to dredging, disposal of dredge materials and transportation thereof in the 7
347	347	tidal waters of the state as the coastal resources management council department may deem 8
348	348	advisable and necessary for the discharge of its duties under this chapter. 9
349	349	(K) To collect and disseminate information relating to dredging, disposal of dredge 10
350	350	materials and transportation thereof within the tidal waters of the state. 11
351	351	(L) To work with the appropriate federal and state agencies to develop as provided for in 12
352	352	this chapter and in chapter 6.1 of this title, a comprehensive plan for dredging in tidal waters and 13
353	353	related beneficial use, disposal, monitoring dewatering and transportation of dredge materials. 14
354	354	(M) To apply for, accept and expend grants and bequests of funds, for the purpose of 15
355	355	carrying out the lawful responsibilities of the coastal resources management council department. 16
356	356	(iii) An initial series of resources management activities shall be initiated through this basic 17
357	357	process, then each phase shall continuously be recycled and used to modify the council’s resources 18
358	358	management department programs and keep them current. 19
359	359	(iv) Planning and management programs shall be formulated in terms of the characteristics 20
360	360	and needs of each resource or group of related resources. However, all plans and programs shall be 21
361	361	developed around basic standards and criteria, including: 22
362	362	(A) The need and demand for various activities and their impact upon ecological systems. 23
363	363	(B) The degree of compatibility of various activities. 24
364	364	(C) The capability of coastal resources to support various activities. 25
365	365	(D) Water quality standards set by the director of the department of environmental 26
366	366	management. 27
367	367	(E) Consideration of plans, studies, surveys, inventories, and so forth prepared by other 28
368	368	public and private sources. 29
369	369	(F) Consideration of contiguous land uses and transportation facilities. 30
370	370	(G) Whenever possible consistency with the state guide plan. 31
371	371	(v) The council department shall prepare, adopt, administer, and cause to be implemented, 32
372	372	including specifically through its powers of coordination as set forth in subdivision (3) of this 33
373	373	section, a marine resources development plan and such special area management plans as the 34
374	374
375	375
376	376	LC002355 - Page 11 of 38
377	377	council department may determine to be appropriate or desirable as follows: 1
378	378	(A) Marine resources development plan. 2
379	379	(I) The purpose of the marine resources development plan shall be to provide an integrated 3
380	380	strategy for: (a) improving the health and functionality of Rhode Island’s marine ecosystem; (b) 4
381	381	providing for appropriate marine-related economic development; and (c) promoting the use and 5
382	382	enjoyment of Rhode Island’s marine resources by the people of the state. 6
383	383	(II) The marine resources development plan shall include specific goals and objectives 7
384	384	necessary to accomplish its purposes, performance measures to determine progress toward 8
385	385	achieving such goals and objectives, and an implementation program. 9
386	386	(III) The marine resources development plan shall be prepared in cooperation with the 10
387	387	department of environmental management, the statewide planning program, and the commerce 11
388	388	corporation, with the involvement of such other state agencies as may be appropriate, and with such 12
389	389	technical support as may be necessary and appropriate from the Narragansett Bay Estuary Program, 13
390	390	the Coastal Institute at the University of Rhode Island, and Rhode Island Sea Grant. 14
391	391	(IV) The plan shall be responsive to the requirements and principles of the federal coastal 15
392	392	zone management act as amended, including, but not limited to, the expectations of the act for 16
393	393	incorporating the federal Clean Water Act into coastal zone management programs. 17
394	394	(V) The marine resources development plan shall take into account local land use 18
395	395	management responsibilities as provided for under title 45 and harbor management responsibilities, 19
396	396	and the preparation of the plan shall include opportunities for involvement and/or comment by 20
397	397	cities and towns. 21
398	398	(VI) The marine resources development plan shall be previously adopted by the council in 22
399	399	accordance with the provisions of this subsection by July 1, 2005, shall be adopted by the 23
400	400	department and shall as appropriate incorporate the recommendations of the Governor’s 24
401	401	Narragansett Bay and Watershed Planning Commission, and shall be made consistent with systems 25
402	402	level plans as appropriate, in order to effectuate the purposes of systems level planning. The council 26
403	403	department shall update the marine resources development plan at least once every five (5) years. 27
404	404	(VII) The council department shall administer its programs, regulations, and 28
405	405	implementation activities in a manner consistent with the marine resources development plan. 29
406	406	(VIII) The marine resources development plan and any updates thereto shall be adopted as 30
407	407	appropriate as elements of the state guide plan pursuant to § 42-11-10. 31
408	408	(B) Special area management plans. 32
409	409	(I) The council department shall adopt such special area management plans as deemed 33
410	410	necessary and desirable to provide for the integration and coordination of the protection of natural 34
411	411
412	412
413	413	LC002355 - Page 12 of 38
414	414	resources, the promotion of reasonable coastal-dependent economic growth, and the improved 1
415	415	protection of life and property in the specific areas designated council by the department as 2
416	416	requiring such integrated planning and coordination. 3
417	417	(II) The integrated planning and coordination herein specified shall include, but not be 4
418	418	limited to, federal agencies, state agencies, boards, commissions, and corporations, including 5
419	419	specifically the commerce corporation, and cities and towns, shall utilize to the extent appropriate 6
420	420	and feasible the capacities of entities of higher education, including Rhode Island Sea Grant, and 7
421	421	shall provide for the participation of advocacy groups, community-based organizations, and private 8
422	422	persons. 9
423	423	(III) The council department shall administer its programs, regulations, and 10
424	424	implementation activities in a manner consistent with special area management plans. 11
425	425	(IV) Special area management plans and any updates thereto shall be adopted as 12
426	426	appropriate as elements of the state guide plan pursuant to § 42-11-10. 13
427	427	(2) Implementation. 14
428	428	(i) The council department is authorized to formulate policies and plans and to adopt 15
429	429	regulations necessary to implement its various management programs. With respect to such policies 16
430	430	and plans which relate to matters where the coastal resources management council department and 17
431	431	the department of environmental management have concurrent jurisdiction and upon formulation 18
432	432	of the plans and regulations, the council department shall, prior to adoption, submit the proposed 19
433	433	plans or regulations to the director of the department of environmental management for the 20
434	434	director’s review. The director shall review and submit comments to the council department within 21
435	435	thirty (30) days of submission to the director by the council department. The comments of the 22
436	436	director shall include findings with regard to the consistency of the policies, plans and/or 23
437	437	regulations with the requirements of laws administered by the department. The council director of 24
438	438	the department of coastal resources shall consider the director’s comments prior to adoption of any 25
439	439	such policies, plans or regulations and shall respond in writing to findings of the director with 26
440	440	regard to the consistency of said policies, plans and/or regulations with the requirements of laws 27
441	441	administered by the department. 28
442	442	(ii)(A) The council department shall have exclusive jurisdiction below mean high water for 29
443	443	all development, operations, and dredging, consistent with the requirements of chapter 6.1 of this 30
444	444	title and except as necessary for the department of environmental management to exercise its 31
445	445	powers and duties and to fulfill its responsibilities pursuant to §§ 42-17.1-2 and 42-17.1-24, and 32
446	446	any person, firm, or governmental agency proposing any development or operation within, above, 33
447	447	or beneath the tidal water below the mean high water mark, extending out to the extent of the state’s 34
448	448
449	449
450	450	LC002355 - Page 13 of 38
451	451	jurisdiction in the territorial sea, shall be required to demonstrate that its proposal would not: 1
452	452	(I) Conflict with any resources management plan or program; 2
453	453	(II) Make any area unsuitable for any uses or activities to which it is allocated by a 3
454	454	resources management plan or program adopted by the council department; or 4
455	455	(III) Significantly damage the environment of the coastal region. 5
456	456	(B) The council department shall be authorized to approve, modify, set conditions for, or 6
457	457	reject any such proposal. 7
458	458	(iii) The authority of the council department over land areas (those areas above the mean 8
459	459	high water mark) shall be limited to two hundred feet (200′) from the coastal physiographic feature 9
460	460	or to that necessary to carry out effective resources management programs. This shall be limited to 10
461	461	the authority to approve, modify, set conditions for, or reject the design, location, construction, 11
462	462	alteration, and operation of specified activities or land uses when these are related to a water area 12
463	463	under the agency’s jurisdiction, regardless of their actual location. The council's department's 13
464	464	authority over these land uses and activities shall be limited to situations in which there is a 14
465	465	reasonable probability of conflict with a plan or program for resources management or damage to 15
466	466	the coastal environment. These uses and activities are: 16
467	467	(A) Power generating over forty (40) megawatts and desalination plants. 17
468	468	(B) Chemical or petroleum processing, transfer, or storage. 18
469	469	(C) Minerals extraction. 19
470	470	(D) Shoreline protection facilities and physiographical features, and all directly associated 20
471	471	contiguous areas which are necessary to preserve the integrity of the facility and/or features. 21
472	472	(E) Coastal wetlands and all directly associated contiguous areas which are necessary to 22
473	473	preserve the integrity of the wetlands including any freshwater wetlands located in the vicinity of 23
474	474	the coast. The actual determination of freshwater wetlands located in coastal vicinities and under 24
475	475	the jurisdiction of the coastal resources management council department shall be designated on 25
476	476	such maps that are agreed to in writing and made available for public use by the coastal resources 26
477	477	management council department and the director, and department of environmental management, 27
478	478	within three (3) months of [August 6, 1996]. The CRMC department shall have exclusive 28
479	479	jurisdiction over the wetlands areas described in this section notwithstanding any provision of 29
480	480	chapter 1, title 2 or any other provision, except as provided in subsection (iv) of this section. Within 30
481	481	six (6) months of [August 6, 1996] the council The department in cooperation with the director of 31
482	482	the department of environmental management shall develop maintain rules and regulations for the 32
483	483	management and protection of freshwater wetlands, affected by an aquaculture project, outside of 33
484	484	those freshwater wetlands located in the vicinity of the coast and under the exclusive jurisdiction 34
485	485
486	486
487	487	LC002355 - Page 14 of 38
488	488	of the director of the department of environmental management. For the purpose of this chapter, a 1
489	489	“coastal wetland” means any salt marsh bordering on the tidal waters of this state, whether or not 2
490	490	the tidal waters reach the littoral areas through natural or artificial watercourses, and those uplands 3
491	491	directly associated and contiguous thereto which are necessary to preserve the integrity of that 4
492	492	marsh. Marshes shall include those areas upon which grow one or more of the following: smooth 5
493	493	cordgrass (spartina alterniflora), salt meadow grass (spartina patens), spike grass (distichlis 6
494	494	spicata), black rush (juncus gerardi), saltworts (salicornia spp.), sea lavender (limonium 7
495	495	carolinianum), saltmarsh bulrushes (scirpus spp.), hightide bush (iva frutescens), tall reed 8
496	496	(phragmites communis), tall cordgrass (spartina pectinata), broadleaf cattail (typha latifolia), 9
497	497	narrowleaf cattail (typha angustifolia), spike rush (eleocharis rostellata), chairmaker’s rush (scirpus 10
498	498	amercana), creeping bentgrass (agrostis palustris), sweet grass (hierochloe odorata), and wild rye 11
499	499	(etlymus virginicus). 12
500	500	(F) Sewage treatment and disposal and solid waste disposal facilities. 13
501	501	(G) Beneficial use, dewatering, and disposal of dredged material of marine origins, where 14
502	502	such activities take place within two hundred feet (200′) of mean high water or a coastal 15
503	503	physiographic feature, or where there is a reasonable probability of conflict with a plan or program 16
504	504	for resources management or damage to the coastal environment. 17
505	505	(iv) Notwithstanding the provisions of subsections (ii) and (iii) above, the department of 18
506	506	environmental management shall maintain jurisdiction over the administration of chapter 1, title 2, 19
507	507	including permitting of freshwater wetlands alterations and enforcement, with respect to all 20
508	508	agricultural activities undertaken by a farmer, as that term is defined in § 2-1-22(j), wherever 21
509	509	located; provided, however, that with respect to activities located partially or completely within 22
510	510	two hundred feet (200′) of the coastal physiographic feature, the department shall exercise 23
511	511	jurisdiction in consultation with the council department. 24
512	512	(3) Coordination. The council department has the following coordinating powers and 25
513	513	duties: 26
514	514	(i) Functioning as a binding arbitrator in any matter of dispute involving both the resources 27
515	515	of the state’s coastal region and the interests of two (2) or more municipalities or state agencies. 28
516	516	(ii) Consulting and coordinating actions with local, state, regional, and federal agencies 29
517	517	and private interests. 30
518	518	(iii) Conducting or sponsoring coastal research. 31
519	519	(iv) Advising the governor, the general assembly, and the public on coastal matters. 32
520	520	(v) Serving as the lead state agency and initial and primary point of contact for dredging 33
521	521	activities in tidal waters and in that capacity, integrating and coordinating the plans and policies of 34
522	522
523	523
524	524	LC002355 - Page 15 of 38
525	525	other state agencies as they pertain to dredging in order to develop comprehensive programs for 1
526	526	dredging as required by subparagraph (1)(ii)(H) of this section and chapter 6.1 of this title. The 2
527	527	Rhode Island resource recovery corporation prior to purchasing cover material for the state landfill 3
528	528	shall first contact the CRMC department to see if there is a source of suitable dredged material 4
529	529	available which shall be used in place of the purchase cover material. Other state agencies engaged 5
530	530	in the process of dump closures shall also contact the CRMC department to see if there is a source 6
531	531	of suitable dredged material available, which shall be used in place of the purchase cover material. 7
532	532	In addition, cities and towns may contact the CRMC department prior to closing city or town 8
533	533	controlled dump sites to see if there is a source of suitable dredge material available, which may be 9
534	534	used in place of the purchase cover material. 10
535	535	(vi) Acting as the state’s representative to all bodies public and private on all coastal and 11
536	536	aquaculture related matters. 12
537	537	(4) Operations. The council department is authorized to exercise the following operating 13
538	538	functions, which are essential to management of coastal resources: 14
539	539	(i) Issue, modify, or deny permits for any work in, above, or beneath the areas under its 15
540	540	jurisdiction, including conduct of any form of aquaculture. 16
541	541	(ii) Issue, modify, or deny permits for dredging, filling, or any other physical alteration of 17
542	542	coastal wetlands and all directly related contiguous areas which are necessary to preserve the 18
543	543	integrity of the wetlands, including, but not limited to, the transportation and disposal of dredge 19
544	544	materials in the tidal waters. 20
545	545	(iii) Grant licenses, permits, and easements for the use of coastal resources which are held 21
546	546	in trust by the state for all its citizens, and impose fees for private use of these resources. 22
547	547	(iv) Determining the need for and establishing pierhead, bulkhead, and harbor lines. 23
548	548	(v) Enforcing and implementing riparian rights in the tidal waters after judicial decisions. 24
549	549	(vi) The council department may require an owner or operator of a commercial wharf or 25
550	550	pier of a marine commercial facility, as defined in 300.3 of the Rhode Island coastal resources 26
551	551	management program, but not including those facilities defined in 300.4 of the Rhode Island coastal 27
552	552	resources management program, and which is capable of offloading cargo, and is or will be subject 28
553	553	to a new use or a significant intensification of an existing use, to demonstrate that the commercial 29
554	554	wharf or pier is fit for that purpose. For the purposes of this subsection, a “commercial wharf or 30
555	555	pier” means a pier, bulkhead, wharf, docking facility, or underwater utilities. The council 31
556	556	department may order said owner or operator to provide an engineering certification to the council's 32
557	557	department's satisfaction that the commercial wharf or pier is fit for the new use or intensification 33
558	558	of an existing use. If the council department determines that the commercial wharf or pier is not fit, 34
559	559
560	560
561	561	LC002355 - Page 16 of 38
562	562	it may order the owner or operator to undertake the necessary work to make the commercial wharf 1
563	563	or pier safe, within a reasonable time frame. If the council department determines that the 2
564	564	commercial wharf or pier, because of is condition, is an immediate threat to public health and safety 3
565	565	it may order the commercial wharf or pier closed until the necessary work to make the commercial 4
566	566	wharf or pier safe has been performed and approved by the council department. All work performed 5
567	567	must conform to the council's department's management program. The council department is also 6
568	568	given the authority to develop regulations to carry out this provision and to impose administrative 7
569	569	penalties of five thousand dollars ($5,000) per day up to a maximum of twenty thousand dollars 8
570	570	($20,000) consistent with § 46-23-7.1 where there has been a violation of the orders under this 9
571	571	provision. 10
572	572	(5) Rights-of-way. 11
573	573	(i) The coastal resources management council department is responsible for the designation 12
574	574	of all public rights-of-way to the tidal water areas of the state, and shall carry on a continuing 13
575	575	discovery of appropriate public rights-of-way to the tidal water areas of the state. 14
576	576	(ii) The coastal resources management council department shall maintain a complete file 15
577	577	of all official documents relating to the legal status of all public rights-of-way to the tidal water 16
578	578	areas of the state. 17
579	579	(iii)(A) The council department has the power to designate for acquisition and 18
580	580	development, and posting, and all other functions of any other department for tidal rights-of-way 19
581	581	and land for tidal rights-of-way, parking facilities, and other council related purposes. 20
582	582	(B) Further, the council department has the power to develop and prescribe a standard sign 21
583	583	to be used by the cities and towns to mark designated rights-of-way. 22
584	584	(iv) In conjunction with this subdivision, every state department controlling state-owned 23
585	585	land close to or adjacent to discovered rights-of-way is authorized to set out the land, or so much 24
586	586	of the land that may be deemed necessary for public parking. 25
587	587	(v) No use of land for public parking shall conflict with existing or intended use of the land, 26
588	588	and no improvement shall be undertaken by any state agency until detailed plans have been 27
589	589	submitted to and approved by the governing body of the local municipality. 28
590	590	(vi) In designating rights-of-way, the council department shall consider the following 29
591	591	matters in making its designation: 30
592	592	(A) Land evidence records; 31
593	593	(B) The exercise of domain over the parcel such as maintenance, construction, or upkeep; 32
594	594	(C) The payment of taxes; 33
595	595	(D) The creation of a dedication; 34
596	596
597	597
598	598	LC002355 - Page 17 of 38
599	599	(E) Public use; 1
600	600	(F) Any other public record or historical evidence such as maps and street indexes; 2
601	601	(G) Other evidence as set out in § 42-35-10. 3
602	602	(vii) A determination by the council department that a parcel is a right-of-way shall be 4
603	603	decided by substantial evidence. 5
604	604	(viii) The council department shall be notified whenever by the judgment of the governing 6
605	605	body of a coastal municipality, a public right-of-way to tidal water areas located in such 7
606	606	municipality has ceased to be useful to the public, and such governing body proposes an order of 8
607	607	abandonment of such public right-of-way. Said notice shall be given not less than sixty (60) days 9
608	608	prior to the date of such abandonment. 10
609	609	(6) Pre-existing residential boating facilities. 11
610	610	(i) The council department is hereby authorized and empowered to issue assent for pre-12
611	611	existing residential boating facilities constructed prior to January 1, 1985. These assents may be 13
612	612	issued for pre-existing residential boating facilities, even though such facilities do not meet current 14
613	613	standards and policies of the council department; provided, however, that the council department 15
614	614	finds that such facilities do not pose any significant risk to the coastal resources of the state of 16
615	615	Rhode Island and do not endanger human safety. 17
616	616	(ii) In addition to the above criteria, the applicant shall provide clear and convincing 18
617	617	evidence that: 19
618	618	(A) The facility existed in substantially the same configuration as it now exists prior to 20
619	619	January 1, 1985; 21
620	620	(B) The facility is presently intact and functional; and 22
621	621	(C) The facility presents no significant threat to the coastal resources of the state of Rhode 23
622	622	Island or human safety. 24
623	623	(iii) The applicant, to be eligible for this provision, shall apply no later than January 31, 25
624	624	1999. 26
625	625	(iv) The council department is directed to develop rules and regulations necessary to 27
626	626	implement this subdivision. 28
627	627	(v) It is the specific intent of this subsection to require that all pre-existing residential 29
628	628	boating facilities constructed on January 1, 1985, or thereafter conform to this chapter and the plans, 30
629	629	rules and regulations of the council department. 31
630	630	(7) Lease of filled lands which were formerly tidal lands to riparian or littoral owners. 32
631	631	(i) Any littoral or riparian owner in this state who desires to obtain a lease from the state 33
632	632	of Rhode Island of any filled lands adjacent to his or her upland shall apply to the council 34
633	633
634	634
635	635	LC002355 - Page 18 of 38
636	636	department, which may make the lease. Any littoral or riparian owner who wishes to obtain a lease 1
637	637	of filled lands must obtain pre-approval, in the form of an assent, from the council department. Any 2
638	638	lease granted by the council department shall continue the public’s interest in the filled lands 3
639	639	including, but not limited to, the rights of navigation, fishery, and commerce. The public trust in 4
640	640	the lands shall continue and run concurrently with the leasing of the lands by the state to private 5
641	641	individuals, corporations, or municipalities. Upon the granting of a lease by the council department, 6
642	642	those rights consistent with the public trust and secured by the lease shall vest in the lessee. The 7
643	643	council department may approve a lease of filled lands for an initial term of up to fifty (50) years, 8
644	644	with, or without, a single option to renew for an additional term of up to fifty (50) years. 9
645	645	(ii) The lessor of the lease, at any time, for cause, may by express act cancel and annul any 10
646	646	lease previously made to the riparian owner when it determines that the use of the lands is violating 11
647	647	the terms of the lease or is inconsistent with the public trust, and upon cancellation the lands, and 12
648	648	rights in the land so leased, shall revert to the state. 13
649	649	(8) “Marinas” as defined in the coastal resources management program in effect as of June 14
650	650	1, 1997, are deemed to be one of the uses consistent with the public trust. Subdivision (7) is not 15
651	651	applicable to: 16
652	652	(i) Any riparian owner on tidal waters in this state (and any successor in interest to the 17
653	653	owner) which has an assent which was previously issued by the council ("council" refers to the 18
654	654	predecessor to the department, the coastal resources management council) to use any land under 19
655	655	water in front of his or her lands as a marina, which assent was in effect on June 1, 1997; 20
656	656	(ii) Any alteration, expansion, or other activity at a marina (and any successor in interest) 21
657	657	which has an assent previously issued by the council, which assent was in effect on June 1, 1997; 22
658	658	and 23
659	659	(iii) Any renewal of assent to a marina (or successor in interest), which assent was 24
660	660	previously issued by the council and in effect on June 1, 1997. 25
661	661	(9) “Recreational boating facilities” including marinas, launching ramps, and recreational 26
662	662	mooring areas, as defined by and properly permitted by the council department, are deemed to be 27
663	663	one of the uses consistent with the public trust. Subdivision (7) is not applicable to: 28
664	664	(i) Any riparian owner on tidal waters in this state (and any successor in interest to the 29
665	665	owner) which has an assent previously issued by the council to use any land under water in front 30
666	666	of his or her lands as a recreational boating facility; any alteration, expansion or other activity at a 31
667	667	recreational boating facility (and any successor in interest) which has an assent issued by the 32
668	668	council, which assent was in effect as of June 1, 1997; and 33
669	669	(ii) Any renewal of assent to a recreational boating facility (or successor in interest), which 34
670	670
671	671
672	672	LC002355 - Page 19 of 38
673	673	assent was previously issued by the council and in effect on June 1, 1997. 1
674	674	46-23-6.1. Newport “cliff walk” — Public right-of-way — Legal studies. 2
675	675	The council department is hereby directed to carry out any and all legal studies which it 3
676	676	shall deem necessary in order to designate the Newport “cliff walk”, so called, as a public right-of-4
677	677	way pursuant to § 46-23-6(5). 5
678	678	46-23-6.2. Abandonment of rights-of-way. 6
679	679	No city or town shall abandon a right-of-way designated as such by the council department 7
680	680	unless the council department approved the abandonment. 8
681	681	46-23-7. Violations. 9
682	682	(a)(1) In any instances wherein there is a violation of the coastal resources management 10
683	683	program, or a violation of regulations or decisions of the council department, the commissioner of 11
684	684	coastal resources management shall have the power to order any person to cease and desist or to 12
685	685	remedy any violation of any provisions of this chapter, or any rule, regulation, assent, order, or 13
686	686	decision of the council department whenever the commissioner director of coastal resources 14
687	687	management shall have reasonable grounds to believe that such violation has occurred. The director 15
688	688	shall have the power and duty to give notice of an alleged violation of law to the person responsible 16
689	689	thereof whenever the director determines that there are reasonable grounds to believe that there is 17
690	690	a violation of any provision of law within the director's jurisdiction or of any rule or regulation 18
691	691	adopted pursuant to authority granted to the director. Nothing in this chapter shall limit the authority 19
692	692	of the attorney general to prosecute offenders as required by law. 20
693	693	(b) The notice pursuant to subsection (a) of this section shall provide for a time within 21
694	694	which the alleged violation shall be remedied, and shall inform the person to whom it is directed 22
695	695	that a written request for a hearing on the alleged violation may be filed with the director within 23
696	696	twenty (20) days after service of the notice. The notice will be deemed properly served upon a 24
697	697	person if a copy thereof is served on the person personally; or sent by registered or certified mail 25
698	698	to the person's last known address; or if the person is served with notice by any other method of 26
699	699	service now or hereafter authorized in a civil action under the laws of this state. If no written request 27
700	700	for a hearing is made to the director within twenty (20) days of the service of notice, the notice 28
701	701	shall automatically become a compliance order; 29
702	702	(c) Whenever the director determines that there exists a violation of any law, rule, or 30
703	703	regulation within the director's jurisdiction that requires immediate action to protect the 31
704	704	environment, the director may, without prior notice of violation or hearing, issue an immediate-32
705	705	compliance order stating the existence of the violation and the action the director deems necessary. 33
706	706	The compliance order shall become effective immediately upon service or within such time as is 34
707	707
708	708
709	709	LC002355 - Page 20 of 38
710	710	specified by the director in such order. No request for a hearing on an immediate-compliance order 1
711	711	may be made; 2
712	712	(d) Any immediate-compliance order issued pursuant to subsection (c) of this section 3
713	713	without notice and prior hearing shall be effective for no longer than forty-five (45) days; provided, 4
714	714	however, that for good cause shown, the order may be extended one additional period not exceeding 5
715	715	forty-five (45) days; 6
716	716	(e) The director may, at their director's discretion and for the purposes of timely and 7
717	717	effective resolution and return to compliance, cite a person for alleged noncompliance through the 8
718	718	issuance of an expedited citation in accordance with § 46-23-7.1; 9
719	719	(f) If a person upon whom a notice of violation has been served under the provisions of this 10
720	720	section or if a person aggrieved by any such notice of violation requests a hearing before the director 11
721	721	within twenty (20) days of the service of notice of violation, the director shall set a time and place 12
722	722	for the hearing, and shall give the person requesting that hearing at least five (5) days’ written 13
723	723	notice thereof. After the hearing, the director may make findings of fact and shall sustain, modify, 14
724	724	or withdraw the notice of violation. If the director sustains or modifies the notice, that decision 15
725	725	shall be deemed a compliance order and shall be served upon the person responsible in any manner 16
726	726	provided for the service of the notice in this section; 17
727	727	(g) A compliance order issued pursuant to the provisions of this section shall state a time 18
728	728	within which the violation shall be remedied, and the original time specified in the notice of 19
729	729	violation shall be extended to the time set in the order; 20
730	730	(h) Whenever a compliance order has become effective, whether automatically where no 21
731	731	hearing has been requested, where an immediate-compliance order has been issued, or upon 22
732	732	decision following a hearing, the director may institute a proceeding for an injunction or other 23
733	733	equitable relief in the superior court of the state for enforcement of the compliance order and for 24
734	734	appropriate temporary relief, and in that proceeding, the correctness of a compliance order shall be 25
735	735	presumed and the person attacking the order shall bear the burden of proving error in the 26
736	736	compliance order, except that the director shall bear the burden of proving in the proceeding the 27
737	737	correctness of an immediate-compliance order. The remedy provided for in this section shall be 28
738	738	cumulative and not exclusive and shall be in addition to remedies relating to the removal or 29
739	739	abatement of nuisances or any other remedies provided by law; 30
740	740	(i) Any party aggrieved by a final judgment of the superior court may, within thirty (30) 31
741	741	days from the date of entry of such judgment, petition the supreme court for a writ of certiorari to 32
742	742	review any questions of law. The petition shall set forth the errors claimed. Upon the filing of the 33
743	743	petition with the clerk of the supreme court, the supreme court may, if it sees fit, issue its writ of 34
744	744
745	745
746	746	LC002355 - Page 21 of 38
747	747	certiorari; 1
748	748	(j) The director may impose administrative penalties in accordance with the provisions of 2
749	749	§ 46-23-7.1 and direct that such penalties be deposited as general revenue. 3
750	750	(2)(k) Council Department staff, conservation and law enforcement officers within the 4
751	751	department of environmental management, and state and municipal police shall be empowered to 5
752	752	issue written cease and desist orders in any instance where activity is being conducted which 6
753	753	constitutes a violation of any provisions of this chapter, or any rule, regulation, assent, order, or 7
754	754	decision of the council department. 8
755	755	(3)(l) Conservation Law enforcement officers within the department of environmental 9
756	756	management, council department staff, and state and municipal police shall have authority to apply 10
757	757	to a court of competent jurisdiction for a warrant to enter on private land to investigate possible 11
758	758	violations of this chapter; provided, that they have reasonable grounds to believe that a violation 12
759	759	has been committed, is being committed, or is about to be committed. 13
760	760	(b)(m) Any order or notice issued pursuant to subsection (a) shall be eligible for recordation 14
761	761	under chapter 13 of title 34, and shall be recorded in the land evidence records in the city/town 15
762	762	wherein the property subject to the order is located, and any subsequent transferee of the property 16
763	763	shall be responsible for complying with the requirements of the order and notice. 17
764	764	(c)(n) The coastal resources management council department shall file a discharge of 18
765	765	record in the land evidence records any notice filed pursuant to subsection (b) within thirty (30) 19
766	766	days after the violation has been remedied. 20
767	767	46-23-7.1. Administrative penalties Administrative penalties -- Authority to access. 21
768	768	(a) Any person who violates, or refuses or fails to obey, any notice or order issued pursuant 22
769	769	to § 46-23-7(a); or any assent, order, or decision of the council department, regulations or law 23
770	770	which the director has the authority to enforce, including any license or approval issued or adopted 24
771	771	by the director may be assessed an administrative penalty by the chairperson or executive director 25
772	772	in accordance with the following: 26
773	773	(1) The chairperson or executive director is authorized to assess an administrative penalty 27
774	774	of not more than ten thousand dollars ($10,000) for each violation of this section, and is authorized 28
775	775	to assess additional penalties of not more than one thousand ($1,000) for each day during which 29
776	776	this violation continues after receipt of a notice of violation, immediate-compliance order or cease-30
777	777	and-desist order from the council pursuant to § 46-23-7(a), but in no event shall the penalties in 31
778	778	aggregate exceed fifty thousand dollars ($50,000). Prior to the assessment of a penalty under this 32
779	779	subdivision, the property owner or person committing the violation shall be notified by certified 33
780	780	mail or personal service that a penalty is being assessed. The notice shall include a reference to the 34
781	781
782	782
783	783	LC002355 - Page 22 of 38
784	784	section of the law, rule, regulation, assent, order, or permit condition violated; a concise statement 1
785	785	of the facts alleged to constitute the violation; a statement of the amount of the administrative 2
786	786	penalty assessed; and a statement of the party’s right to an administrative hearing. 3
787	787	(2) The party shall have twenty-one (21) days from receipt of the notice within which to 4
788	788	deliver to the council a written request for a hearing. This request shall specify in detail the 5
789	789	statements contested by the party. The executive director shall designate a person to act as hearing 6
790	790	officer. If no hearing is requested, then after the expiration of the twenty-one (21) day period, the 7
791	791	council shall issue a final order assessing the penalty specified in the notice. The penalty is due 8
792	792	when the final order is issued. If the party shall request a hearing, any additional daily penalty shall 9
793	793	not commence to accrue until the council issues a final order. 10
794	794	(3) If a violation is found to have occurred, the council may issue a final order assessing 11
795	795	not more than the amount of the penalty specified in the notice. The penalty is due when the final 12
796	796	order is issued. 13
797	797	(4) The party may within thirty (30) days appeal the final order, of fine assessed by the 14
798	798	council to the superior court which shall hear the assessment of the fine de novo. 15
799	799	(b) Notice of violation and assessment of penalty. 16
800	800	(1) Whenever the director seeks to assess an administrative penalty on any person, the 17
801	801	director shall cause to be served upon the person, either by service, in hand, or by certified mail, 18
802	802	return receipt requested, a written notice of its intent to assess an administrative penalty that shall 19
803	803	include: 20
804	804	(i) A concise statement of the alleged act or omission for which the administrative penalty 21
805	805	is sought to be assessed; 22
806	806	(ii) Each law, rule, regulation, order, permit, license, or approval that has not been complied 23
807	807	with as a result of the alleged act or omission; 24
808	808	(iii) The amount that the director seeks to assess as an administrative penalty for each 25
809	809	alleged act or omission; 26
810	810	(iv) A statement of the person’s right to an adjudicatory hearing on the proposed 27
811	811	assessment; 28
812	812	(v) The requirements the person shall comply with to avoid being deemed to have waived 29
813	813	the right to an adjudicatory hearing; and 30
814	814	(vi) The manner of payment thereof if the person elects to pay the penalty and waive an 31
815	815	adjudicatory hearing. 32
816	816	(2) After written notice of noncompliance or intent to assess an administrative penalty has 33
817	817	been given, each day thereafter during which the noncompliance occurs or continues shall 34
818	818
819	819
820	820	LC002355 - Page 23 of 38
821	821	constitute a separate offense and shall be subject to a separate administrative penalty if reasonable 1
822	822	efforts have not been made to promptly come into compliance. 2
823	823	(3) For purposes of timely and effective resolution and return to compliance, the director 3
824	824	may cite a person for alleged noncompliance through the issuance of an expedited citation, which 4
825	825	may include assessment of penalties up to five thousand dollars ($5,000). Each expedited citation 5
826	826	shall include a concise statement of the alleged act or omission that constitutes noncompliance and 6
827	827	each law, rule, regulation, order, permit, license, or approval that has not been complied with; and 7
828	828	that person alleged to be in noncompliance shall have the right at any time to opt out of the alleged 8
829	829	expedited citation process. Failure to respond to an expedited citation shall be deemed as exercising 9
830	830	the right to opt out. An expedited citation shall not take effect without the voluntary agreement of 10
831	831	the person alleged to be in noncompliance. Expedited citations issued under this section without 11
832	832	notice and prior hearing shall be effective no longer than sixty (60) days from the date of receipt 12
833	833	by the person alleged to be in noncompliance. In the event that the alleged noncompliance and 13
834	834	penalty is unresolved and the expedited citation expires, the director retains the right to issue a 14
835	835	separate notice of violation and order and penalty, subject to appeal pursuant to § 46-23-6.2. A 15
836	836	person issued an expedited citation shall have the right at any time during the sixty (60) day 16
837	837	expedited citation process to request that the director issue a separate notice of violation and order 17
838	838	and penalty, subject to appeal pursuant to § 46-23-7. 18
839	839	(4) Whenever the director seeks to assess an administrative penalty on any person other 19
840	840	than through an expedited citation issued pursuant to § 46-23-7.1(c), the person shall have the right 20
841	841	to an adjudicatory hearing under chapter 35 of this title, the provisions of which shall apply except 21
842	842	when they are inconsistent with the provisions of this chapter. 22
843	843	(5) A person shall be deemed to have waived the person's right to an adjudicatory hearing 23
844	844	unless, within twenty (20) days of the date of the director’s notice that the director seeks to assess 24
845	845	an administrative penalty, the person files with the director a written statement denying the 25
846	846	occurrence of any of the acts or omissions alleged by the director in the notice, or asserting that the 26
847	847	money amount of the proposed administrative penalty is excessive. In any adjudicatory hearing 27
848	848	authorized pursuant to chapter 35 of this title, the director shall, by a preponderance of the evidence, 28
849	849	prove the occurrence of each act or omission alleged by the director. 29
850	850	(6) If a person waives his or her right to an adjudicatory hearing, the proposed 30
851	851	administrative penalty shall be a final agency order immediately upon the waiver. The director may 31
852	852	institute a proceeding for an injunction or other equitable relief in the superior court for Providence 32
853	853	county for enforcement of the final administrative penalty as a final agency order. 33
854	854	(c) Judicial review. 34
855	855
856	856
857	857	LC002355 - Page 24 of 38
858	858	If an administrative penalty is assessed at the conclusion of an adjudicatory hearing, the 1
859	859	administrative penalty shall be final upon the expiration of thirty (30) days if no action for judicial 2
860	860	review of the decision is commenced pursuant to § 46-23-20.4. 3
861	861	(d) Determination of administrative penalty. 4
862	862	(1) In determining the amount of each administrative penalty, the director shall include, 5
863	863	but not be limited to, the following to the extent practicable in his or her considerations: 6
864	864	(2) The actual and potential impact on public health, safety and welfare and the 7
865	865	environment of the failure to comply; 8
866	866	(3) The actual and potential damages suffered, and actual or potential costs incurred, by 9
867	867	the director, or by any other person; 10
868	868	(4) Whether the person being assessed the administrative penalty took steps to prevent 11
869	869	noncompliance, to promptly come into compliance and to remedy and mitigate whatever harm 12
870	870	might have been done as a result of such noncompliance; 13
871	871	(5) Whether the person being assessed the administrative penalty has previously failed to 14
872	872	comply with any rule, regulation, order, permit, license, or approval issued or adopted by the 15
873	873	director, or any law which the director has the authority or responsibility to enforce; 16
874	874	(6) Making compliance less costly than noncompliance; 17
875	875	(7) Deterring future noncompliance; 18
876	876	(8) The financial condition of the person being assessed the administrative penalty; 19
877	877	(9) The amount necessary to eliminate the economic advantage of noncompliance 20
878	878	including, but not limited to, the financial advantage acquired over competitors from the 21
879	879	noncompliance; 22
880	880	(10) Whether the failure to comply was intentional, willful, or knowing and not the result 23
881	881	of error; 24
882	882	(11) Any amount specified by state and/or federal statute for a similar violation or failure 25
883	883	to comply; 26
884	884	(12) Any other factor(s) that may be relevant in determining the amount of a penalty; 27
885	885	provided that, the other factors shall be set forth in the written notice of assessment of the penalty; 28
886	886	and 29
887	887	(e) The public interest. 30
888	888	(1) Limitations on amount of penalty. The administrative penalty shall be not more than 31
889	889	one thousand dollars ($1,000) for each violation or failure to comply unless a different amount is 32
890	890	authorized by statute as a civil penalty for the subject violation. Each and every occurrence and/or 33
891	891	day during which the violation or failure to comply is repeated shall constitute a separate and 34
892	892
893	893
894	894	LC002355 - Page 25 of 38
895	895	distinct violation. 1
896	896	(2) Rules and regulations. No administrative penalty shall be assessed by the director 2
897	897	pursuant to this chapter until the director has promulgated rules and regulations for assessing 3
898	898	administrative penalties. Notwithstanding the foregoing, penalties may be imposed within one 4
899	899	hundred and twenty (120) days of the effective date of this section prior to promulgation of penalty 5
900	900	regulations. 6
901	901	46-23-7.2. Proceedings for enforcement. 7
902	902	The superior court shall have jurisdiction to enforce the provisions of this chapter, the 8
903	903	coastal resource management program, or any rule, regulation, assent, or order issued pursuant 9
904	904	thereto. Proceedings under this section may follow the course of equity, and shall be instituted and 10
905	905	prosecuted in the name of and at the direction of the chairperson and council director by the attorney 11
906	906	general or counsel designated by the council director. Proceedings provided in this section shall be 12
907	907	in addition to, and may be utilized in lieu of, other administrative or judicial proceedings authorized 13
908	908	by this chapter. 14
909	909	46-23-7.3. Criminal penalties. 15
910	910	Any person who knowingly violates any provision of this chapter, the director of the coastal 16
911	911	resources management program department, or any rule, regulation, assent, or order shall be guilty 17
912	912	of a misdemeanor, and, upon conviction thereof shall be fined not more than one thousand dollars 18
913	913	($1,000) or by imprisonment of not more than three (3) months or both; and each day the violation 19
914	914	is continued or repeated shall be deemed a separate offense. 20
915	915	46-23-7.4. Penalty for blocking or posting of rights-of-way. 21
916	916	Any person who shall post or block any tidal water, public right-of-way, as designated by 22
917	917	the council department, shall be punished by a fine not exceeding one thousand dollars ($1,000) or 23
918	918	by imprisonment for not more than three (3) months or both; and each day the posting or blocking 24
919	919	continues or is repeated shall be deemed a separate offense. The chairperson of the council 25
920	920	department, through council's the department's legal counsel or the attorney general, may apply to 26
921	921	any court of competent jurisdiction for an injunction to prevent the unlawful posting or blocking of 27
922	922	any tidal water, public right-of-way. 28
923	923	46-23-7.5. Prosecution of criminal violations. 29
924	924	The chairperson and anyone designated by the chairperson director, without being required 30
925	925	to enter into any recognizance or to give surety for cost, may institute proceedings in the name of 31
926	926	the state. It shall be the duty of the attorney general and/or the solicitor of the city or town in which 32
927	927	the alleged violation has occurred to conduct the prosecution of all the proceedings. The 33
928	928	chairperson director may delegate his or her authority to bring prosecution by complaint and 34
929	929
930	930
931	931	LC002355 - Page 26 of 38
932	932	warrant to any law enforcement officials authorized by law to bring complaints for the issuance of 1
933	933	search or arrest warrants pursuant to chapters 5 and 6 of title 12. 2
934	934	46-23-8. Gifts, grants, and donations. 3
935	935	The council department is authorized to receive any gifts, grants, or donations made for 4
936	936	any of the purposes of its program, which shall be deposited as general revenues, and to disburse 5
937	937	and administer the gifts, grants, or donations amounts appropriated in accordance with the terms 6
938	938	thereof. The council department is authorized to receive any sums provided by an applicant for use 7
939	939	by the council department in its hearing process, which shall be deposited as general revenues, and 8
940	940	to disburse and administer the general revenue amounts appropriated in accordance with the rules 9
941	941	and regulations promulgated by the council department. 10
942	942	46-23-9. Subpoena. 11
943	943	The council department is hereby authorized and empowered to summon witnesses and 12
944	944	issue subpoenas in substantially the following form: 13
945	945	Sc. 14
946	946	To_______________________________ of __________________________ greeting: 15
947	947	You are hereby required, in the name of the state of Rhode Island, to make your appearance 16
948	948	before the commission on ___________________ in the _______________________________ 17
949	949	city of ___________________ on the___________________ day of__________________ to give 18
950	950	evidence of what you know relative to a matter upon investigation by the commission on 19
951	951	_______________________________________ and produce and then and there have and give the 20
952	952	following: 21
953	953	Hereof fail not, as you will answer to default under the penalty of the law in that behalf 22
954	954	made and provided. 23
955	955	Dated at ____________________ the __________________ day of ____________ in the 24
956	956	year _____________. 25
957	957	46-23-10. Cooperation of departments. 26
958	958	All other departments and agencies and bodies of state government are hereby authorized 27
959	959	and directed to cooperate with and furnish such information as the council department shall require. 28
960	960	46-23-11. Rules and regulations. 29
961	961	The rules and regulations promulgated by the council department shall be subject to the 30
962	962	Administrative Procedures Act (chapter 35 of title 42). 31
963	963	46-23-13. Application and hearing fees. 32
964	964	The council department shall be authorized to establish reasonable fees for applications 33
965	965	and hearings. All fees collected by the council department, including fees collected for leases, shall 34
966	966
967	967
968	968	LC002355 - Page 27 of 38
969	969	be deposited as general revenues. The state controller is hereby authorized and directed to draw his 1
970	970	or her orders upon the general treasurer for payment of such sum or sums as may be necessary from 2
971	971	time to time and upon receipt by him or her of duly authenticated vouchers presented by the 3
972	972	commissioner director of coastal resources management. 4
973	973	46-23-14. Expert testimony. 5
974	974	The council department shall be authorized to engage its own expert and outside 6
975	975	consultants, and the council department shall be empowered to use that testimony in making its 7
976	976	decisions. 8
977	977	46-23-15. Federal grants and interstate cooperation. 9
978	978	The council department is authorized to accept any federal grants. It is further given the 10
979	979	power to administer land and water use regulations as necessary to fulfill their responsibilities under 11
980	980	the Federal Coastal Zone Management Act, 16 U.S.C. § 1451 et seq., and to acquire fee simple and 12
981	981	less than fee simple interests under any federal or state program. The council department is 13
982	982	authorized to coordinate and cooperate with other states in furtherance of its purposes. The council 14
983	983	department may expend those grants and appropriations. The coastal resources management 15
984	984	council department for the purposes of the federal Coastal Zone Management Act, 16 U.S.C. § 16
985	985	1451 et seq., is the coastal zone agency under §§ 301 through 313 and §§ 318 and 6217 of said act. 17
986	986	46-23-15.1. Coordination of harbor safety and enforcement patrols. 18
987	987	Coastal municipalities which share a common boundary along their public waters may 19
988	988	enter into a binding memorandum of agreement allowing for harbormasters and other officials 20
989	989	charged with enforcement of harbor management plan harbor ordinances from one coastal 21
990	990	municipality to enforce the harbor ordinances of the bordering coastal municipality upon the public 22
991	991	waters of the bordering coastal municipality when the coastal municipalities have harbor 23
992	992	management plans approved by the coastal resources management council department and the 24
993	993	memorandum of agreement is approved by the respective town or city councils departments. This 25
994	994	binding memorandum of agreement shall specify how each coastal municipality is to receive any 26
995	995	fines collected under this reciprocal enforcement agreement and the jurisdiction in which any 27
996	996	disputes arising out of this reciprocal enforcement agreement shall be litigated. 28
997	997	46-23-16. Length of permits, licenses, and easements. 29
998	998	The council department is authorized to grant permits, licenses, and easements for any term 30
999	999	of years or in perpetuity. Permits, licenses, or easements which are issued by the council department 31
1000	1000	for the filling of the submerged or submersible lands of the state of Rhode Island remain subject to 32
1001	1001	the public trust, and no title is conveyed by such documents. All such permits, licenses, and 33
1002	1002	easements shall clearly state that no title is being conveyed. Permits, licenses or easements issued 34
1003	1003
1004	1004
1005	1005	LC002355 - Page 28 of 38
1006	1006	by the council department are valid only with the conditions and stipulation under which they are 1
1007	1007	granted and imply no guarantee of renewal. The initial application or an application for renewal 2
1008	1008	may be subject to denial or modification. If an application is granted, said permit, license and 3
1009	1009	easement may be subject to revocation and/or modification for failure to comply with the conditions 4
1010	1010	and stipulations under which the same was issued or for other good cause. The division of coastal 5
1011	1011	resources of the department of environmental management shall transfer all of the records and files 6
1012	1012	of the former division of harbours and rivers to the council. 7
1013	1013	46-23-18. Prohibited activities. 8
1014	1014	(a) No person, either as principal, agent or servant nor any firm, corporation, or any other 9
1015	1015	entity shall, without a permit issued by the department of coastal resources management council, 10
1016	1016	construct a marina within two thousand feet (2000′) of a shellfish management area as defined by 11
1017	1017	rules and regulations of the department of environmental management. Such permit shall include 12
1018	1018	any permit required under subsection (b). 13
1019	1019	(b) No person, either as principal, agent, or servant, or any firm, corporation or any other 14
1020	1020	entity, shall, within the tidal waters of the state, conduct or cause to conduct dredging, 15
1021	1021	transportation and/or disposal of dredge materials without a permit issued by the coastal resources 16
1022	1022	management council department, a water quality certification issued by the department of 17
1023	1023	environmental management pursuant to chapter 12 of this title and any permit required by the army 18
1024	1024	corps of engineers. In addition, no person, either as principal, agent, or servant, nor any firm, 19
1025	1025	corporation or any other entity, shall dispose of dredge materials other than in tidal waters without 20
1026	1026	any permit, approval or certification that may otherwise be required. 21
1027	1027	46-23-18.1. Permitting. 22
1028	1028	(a) Any person, either as principal, agent, or servant, or any firm, corporation or any other 23
1029	1029	entity desiring to conduct any activity or activities specified in § 46-23-18 shall file an application 24
1030	1030	for a permit with the coastal resources management council department upon forms furnished by 25
1031	1031	coastal resources management council the department. 26
1032	1032	(b) A hearing shall be held on the application within thirty (30) days of filing. 27
1033	1033	(c) The applicant shall bear the burden of proving that the activity or activities specified in 28
1034	1034	the application will cause no significant adverse impact upon the environment or natural resources 29
1035	1035	of the state, and the coastal resources management council department shall be empowered to deny 30
1036	1036	the application if the applicant does not demonstrate, in addition to other requirements of this 31
1037	1037	chapter, that the activity or activities will not: 32
1038	1038	(i) Significantly adversely affect any shellfish management area as designated by the 33
1039	1039	department of environmental management or the marine fisheries council; 34
1040	1040
1041	1041
1042	1042	LC002355 - Page 29 of 38
1043	1043	(ii) Be in a significant conflict with the marine ecology within or adjacent to the state’s 1
1044	1044	territorial waters; or 2
1045	1045	(iii) Significantly harm or destroy existing fishing grounds. 3
1046	1046	(d) With respect to an application seeking a permit from the coastal resources management 4
1047	1047	council department to conduct or cause to conduct dredging, transportation and/or disposal of 5
1048	1048	dredge material, the applicant shall also satisfy the council department that the proposal in the 6
1049	1049	application is consistent with a comprehensive program developed pursuant to § 46-23-6(1)(ii)(H). 7
1050	1050	(e) In determining whether an applicant has met the burden of proof under subsection (c), 8
1051	1051	the coastal resources management council department shall apply standards that conform with the 9
1052	1052	federal Environmental Protection Agency’s applicable standards and guidelines for the 10
1053	1053	management of dredge materials, including, but not limited to, the federal Environmental 11
1054	1054	Protection Agency’s rules, regulations and guidelines for deviating from said standards. 12
1055	1055	(f) The applicant shall, at least three (3) days before commencing any dredging, give 13
1056	1056	written notice to the coastal resources management council department of the intent to commence 14
1057	1057	the activities specified in the permit. 15
1058	1058	46-23-18.2. Rules and regulations. 16
1059	1059	The council, upon recommendation by the coastal resources advisory committee, 17
1060	1060	department shall issue reasonable rules and regulations governing the dredging, transporting and 18
1061	1061	disposal of all dredge materials in accordance with this chapter. 19
1062	1062	46-23-18.3. Sites for disposal of spoil from dredge operations, selection. 20
1063	1063	(a) The council, upon recommendation of the coastal resources advisory committee, on or 21
1064	1064	before the first day of January, 1999 and department shall, periodically thereafter as necessary, 22
1065	1065	shall consistent with the comprehensive programs required in § 46-23-6(1)(ii)(H), identify and 23
1066	1066	establish one or more in-water disposal sites to be used for the purpose of disposal of dredge 24
1067	1067	materials from marinas and yacht clubs. 25
1068	1068	(b) The council, upon recommendation of the coastal resources advisory committee, on or 26
1069	1069	before the first day of January, 2002 and department shall, periodically thereafter as necessary, 27
1070	1070	shall and consistent with the comprehensive programs required in § 46-23-6(1)(ii)(H), identify and 28
1071	1071	establish one or more in-water disposal sites to be used for the purpose of disposal of dredge 29
1072	1072	materials from all sources not otherwise delineated in (a) above. 30
1073	1073	46-23-18.4. Enforcement. 31
1074	1074	The provisions of §§ 46-23-18 through 46-23-18.3 this chapter shall be enforced by the 32
1075	1075	coastal resources management council department. Nothing herein shall be deemed to abrogate the 33
1076	1076	department of environmental management’s authority to enforce its water quality standards adopted 34
1077	1077
1078	1078
1079	1079	LC002355 - Page 30 of 38
1080	1080	pursuant to § 46-12-3(7) or (24). 1
1081	1081	46-23-18.5. Fees for disposal. 2
1082	1082	The council department is authorized to impose a fee of not less than eleven dollars and 3
1083	1083	sixty-five cents ($11.65) per cubic yard for the disposal of dredge materials at the sites established 4
1084	1084	by the council department pursuant to § 46-23-18.3, with eleven dollars and sixty-five cents 5
1085	1085	($11.65) being deposited into the general fund. The amount of the fee established by the council 6
1086	1086	department pursuant to the section shall be reviewed by the council department on an annual basis 7
1087	1087	and revised as the council department deems necessary, but in no event shall the fee be set at an 8
1088	1088	amount less than eleven dollars and sixty-five cents ($11.65) per cubic yard of material. 9
1089	1089	46-23-18.6. Coastal Resources Management Council Dredge Fund Department of 10
1090	1090	coastal resources dredge fund. 11
1091	1091	There is hereby created a separate fund to be held by the coastal resources management 12
1092	1092	council department to be known as the dredge fund. Any amount charged above the eleven dollars 13
1093	1093	and sixty-five cents ($11.65) must be deposited into the fund and shall not be deposited into the 14
1094	1094	general fund of the state, but shall be kept by the general treasurer of the state in a separate fund 15
1095	1095	for the coastal resources management council department, and shall be paid out by the treasurer 16
1096	1096	upon the order of the council director, without the necessity of appropriation or re-appropriation by 17
1097	1097	the general assembly. Funds must be used to create additional dredging and disposal options. 18
1098	1098	46-23-20. Administrative hearings. 19
1099	1099	All contested cases, all contested enforcement proceedings, and all contested 20
1100	1100	administrative fines shall be heard by the an administrative hearing officers, or by subcommittees 21
1101	1101	officer as provided in § 46-23-20.1, pursuant to the regulations promulgated by the council; 22
1102	1102	provided, however, that no proceeding and hearing prior to the appointment of the hearing officers 23
1103	1103	shall be subject to the provisions of this section. Notwithstanding the foregoing, the commissioner 24
1104	1104	of coastal resources management director shall be authorized, in his or her the director's discretion, 25
1105	1105	to resolve contested licensing and enforcement proceedings through informal disposition pursuant 26
1106	1106	to regulations promulgated by the council department. 27
1107	1107	46-23-20.1. Hearing officers — Appointment — Compensation — Subcommittee. 28
1108	1108	(a) The governor, with the advice and consent of the senate, shall appoint two (2) hearing 29
1109	1109	officers at least one hearing officer who shall be attorneys-at-law, who, prior to their appointment, 30
1110	1110	shall have practiced law for a period of not less than five (5) years for a term of five (5) years; 31
1111	1111	provided, however, that the initial appointments shall be as follows: one hearing officer shall be 32
1112	1112	appointed for a term of three (3) five (5) years and one if a second hearing officer shall be is 33
1113	1113	appointed then the appointment shall be for a term of five (5) three (3) years. The appointees shall 34
1114	1114
1115	1115
1116	1116	LC002355 - Page 31 of 38
1117	1117	be addressed as hearing officers. 1
1118	1118	(b) The If multiple hearing officers are appointed, the governor shall designate one of the 2
1119	1119	hearing officers as chief hearing officer. The hearing officers shall hear proceedings as provided 3
1120	1120	by this section, and the council department, with the assistance of the chief hearing officer, may 4
1121	1121	promulgate such rules and regulations as shall be necessary or desirable and consistent with the 5
1122	1122	administrative adjudication regulations to effect the purposes of this section. 6
1123	1123	(c) A hearing officer shall be devoted full time to these administrative duties, and shall not 7
1124	1124	otherwise practice law while holding office nor be a partner nor an associate of any person in the 8
1125	1125	practice of law. 9
1126	1126	(d) Compensation for hearing officers shall be determined by the unclassified pay board. 10
1127	1127	(e) Whenever the chairperson of the coastal resources management council or, in the 11
1128	1128	absence of the chairperson, the commissioner of coastal resources makes a finding that the hearing 12
1129	1129	officers are otherwise engaged and unable to hear a matter in a timely fashion, he or she may 13
1130	1130	appoint a subcommittee which will act as hearing officers in any contested case coming before the 14
1131	1131	council. The subcommittee shall consist of at least one member; provided, however, that in all 15
1132	1132	contested cases an additional member shall be a resident of the coastal community affected. The 16
1133	1133	city or town council of each coastal community shall, at the beginning of its term of office, appoint 17
1134	1134	a resident of that city or town to serve as an alternate member of the aforesaid subcommittee should 18
1135	1135	there be no existing member of the coastal resources management council from that city or town 19
1136	1136	available to serve on the subcommittee. Any member of the subcommittee actively engaged in 20
1137	1137	hearing a case shall continue to hear the case, even though his or her term may have expired, until 21
1138	1138	the case is concluded and a vote taken thereon. Hearings before subcommittees shall be subject to 22
1139	1139	all rules of practice and procedure as govern hearings before hearing officers. Notwithstanding any 23
1140	1140	other law to the contrary, if a hearing officer is not appointed, confirmed and engaged within sixty 24
1141	1141	(60) days of the effective date of this section, or the position of hearing office is vacant for more 25
1142	1142	than sixty (60) days, the director shall hire a hearing officer, who shall be in the unclassified service, 26
1143	1143	for a term of five (5) years and shall meet the requirements set forth in subsections (c) and (d) of 27
1144	1144	this section. 28
1145	1145	(f) If at least one hearing officer has been appointed, confirmed and engaged or hired by 29
1146	1146	the director and is unable to hear a matter in a timely manner as required by law, the director may 30
1147	1147	hire a hearing officer employed by the state in such capacity, who shall have practiced law for a 31
1148	1148	period of not less than five (5) years and meets the requirements set forth in subsection (c) of this 32
1149	1149	section to adjudicate pending contested cases. 33
1150	1150	46-23-20.2. Clerk. 34
1151	1151
1152	1152
1153	1153	LC002355 - Page 32 of 38
1154	1154	The commissioner director of the department of coastal resources or his or her designee 1
1155	1155	shall serve as clerk to the hearing officers. The clerk shall have general charge of the office, keep 2
1156	1156	a full record of proceedings, file and preserve all documents and papers, prepare such papers and 3
1157	1157	notices as may be required, and perform such other duties as required. The commissioner director 4
1158	1158	shall have the power to issue subpoenas for witnesses and documents and to administer oaths in all 5
1159	1159	cases before any hearing officer or pertaining to the duties of his or her office. 6
1160	1160	46-23-20.3. Prehearing procedure. 7
1161	1161	(a) Prior to the commencement of any hearing, the hearing officer may in his or her 8
1162	1162	discretion direct the parties or their attorneys to appear before him or her for such conferences as 9
1163	1163	shall be necessary. At the conferences, the hearing officer may order any party to file, prior to the 10
1164	1164	commencement of any formal hearing, exhibits that the party intends to use in the hearing, and the 11
1165	1165	names and addresses of witnesses that the party intends to produce in its direct case, together with 12
1166	1166	a short statement of the testimony of each witness. Following entry of an order, a party shall not be 13
1167	1167	permitted, except in the discretion of the hearing officer, to introduce into evidence, in the party’s 14
1168	1168	direct case, exhibits which are not filed in accordance with the order. At the conference, the hearing 15
1169	1169	officer may designate a date before which he or she requires any party to specify what issues are 16
1170	1170	conceded, and further proof of conceded issues shall not be required. The hearing officer shall also 17
1171	1171	require the parties to simplify the issues, to consider admissions of fact and of documents which 18
1172	1172	will avoid unnecessary proof, and to limit the number of expert witnesses. The hearing officer shall 19
1173	1173	enter an order reciting the concessions and agreements made by the parties, and shall enter an order 20
1174	1174	on such other matters as are pertinent to the conduct of the hearing, and unless modified, the hearing 21
1175	1175	shall be conducted by the order. 22
1176	1176	(b) The hearing officer may also order the parties to file, prior to the commencement of 23
1177	1177	any hearing, the testimony of any or all of their respective witnesses, and to submit the testimony 24
1178	1178	to the hearing officer and the opposing party or the opposing counsel by such date as the hearing 25
1179	1179	officer shall determine. The witness shall testify under oath, and all of the testimony shall be in a 26
1180	1180	question and answer format. Save for good cause shown, said testimony shall be the direct 27
1181	1181	examination of the witness; provided, however, that the witness shall be available at the hearing 28
1182	1182	for cross-examination by the opposing party or opposing counsel. 29
1183	1183	(c) The council department, with the assistance of the chief hearing officer, shall 30
1184	1184	promulgate, by regulation, such other prehearing procedures and/or hearing procedures as deemed 31
1185	1185	necessary, including the use of portions of the superior court civil rules of discovery where such 32
1186	1186	are not inconsistent with the applicable provisions of the Administrative Procedures Act, chapter 33
1187	1187	35 of title 42. 34
1188	1188
1189	1189
1190	1190	LC002355 - Page 33 of 38
1191	1191	46-23-20.4. Hearings — Orders. 1
1192	1192	(a) Subject to the provisions of this chapter, every hearing for the adjudication of a violation 2
1193	1193	or for a contested matter shall be held before a hearing officer or a subcommittee. The chief hearing 3
1194	1194	officer shall assign a hearing officer to each matter not assigned to a subcommittee. After due 4
1195	1195	consideration of the evidence and arguments, the hearing officer shall make written proposed 5
1196	1196	findings of fact and proposed conclusions of law which shall be made public when submitted to the 6
1197	1197	council department for review. The council department may, in its discretion, adopt, modify, or 7
1198	1198	reject the findings of fact and/or conclusions of law; provided, however, that any modification or 8
1199	1199	rejection of the proposed findings of fact or conclusions of law shall be in writing and shall state 9
1200	1200	the rationales therefor. 10
1201	1201	(b) The director of the department of environmental management and the director of the 11
1202	1202	department of coastal resources management council shall promulgate such rules and regulations, 12
1203	1203	not inconsistent with law, as to assure uniformity of proceedings as applicable. 13
1204	1204	46-23-20.5. Ex parte consultations. 14
1205	1205	Council members The department shall have no communication directly or indirectly, with 15
1206	1206	a hearing officer relating to any issue of fact or of law on any matter then pending before the hearing 16
1207	1207	officer. 17
1208	1208	46-23-20.6. Oaths — Subpoenas — Powers of hearing officers. 18
1209	1209	The hearing officers are hereby severally authorized and empowered to administer oaths, 19
1210	1210	and the hearing officers, in all cases of every nature pending before them, are hereby authorized 20
1211	1211	and empowered to summon and examine witnesses and to compel the production and examination 21
1212	1212	of papers, books, accounts, documents, records, certificates and other legal evidence that may be 22
1213	1213	necessary or proper for the determination and decision of any question before or the discharge of 23
1214	1214	any duty required by law of the hearing officer. All subpoenas and subpoena duces tecum shall be 24
1215	1215	signed by a hearing officer or the commissioner of coastal resources director, and shall be served 25
1216	1216	as subpoenas are served in civil cases in the superior court; and witnesses so subpoenaed shall be 26
1217	1217	entitled to the same fees for attendance and travel as are provided for witnesses in civil cases in the 27
1218	1218	superior court. In cases of contumacy or refusal to obey the command of the subpoena so issued, 28
1219	1219	the superior court shall have jurisdiction upon application of the council department with proof by 29
1220	1220	affidavit of the fact, to issue a rule or order returnable, in not less than two (2) nor more than five 30
1221	1221	(5) days, directing the person to show cause why he or she should not be adjudged in contempt. 31
1222	1222	Upon return of such order, the justice, before whom the matter is brought for hearing, shall examine 32
1223	1223	under oath the person, and the person shall be given an opportunity to be heard, and if the justice 33
1224	1224	shall determine that the person has refused without reasonable cause or legal excuse to be examined 34
1225	1225
1226	1226
1227	1227	LC002355 - Page 34 of 38
1228	1228	or to answer legal or pertinent questions, he or she may impose a fine upon the offender or forthwith 1
1229	1229	commit the offender to the adult correctional institutions, there to remain until he or she submits to 2
1230	1230	do the act which he or she was so required to do, or is discharged according to law. 3
1231	1231	46-23-21. Notice of permit — Recordation. 4
1232	1232	A notice of permit shall be eligible for recordation under chapter 13 of title 34 as 5
1233	1233	determined by the executive director, and shall be recorded at the expense of the applicant in the 6
1234	1234	land evidence records of the city or town where the property subject to permit is located, and any 7
1235	1235	subsequent transferee of the property shall be responsible for complying with the terms and 8
1236	1236	conditions of the permit. The clerk of the various cities and towns shall record any orders, findings, 9
1237	1237	or decisions of the council department at no expense to the council department. 10
1238	1238	46-23-22. Solid waste disposal licenses — Hearings. 11
1239	1239	The chairperson director of the department of coastal resources management council and 12
1240	1240	the commissioner of the environmental protection branch director of the department of 13
1241	1241	environmental management shall coordinate concurrent hearings on solid waste disposal license 14
1242	1242	applications; provided, however, that the chairperson and the commissioner of the environmental 15
1243	1243	protection branch of the department of environmental management director may designate a 16
1244	1244	hearing officer or subcommittee to hear all matters pertaining to the application and; provided 17
1245	1245	further, that the hearing officer may be from the department of environmental management, or the 18
1246	1246	department of coastal resources management council hearing officer, a subcommittee, or an ad hoc 19
1247	1247	hearing officer. The commissioner director of coastal resources management with the approval of 20
1248	1248	the chairperson may waive jurisdiction in those instances where the commissioner director finds 21
1249	1249	that there is no substantive coastal resources issue or that another agency or branch has adjudicated 22
1250	1250	or addressed the issue. 23
1251	1251	46-23-23. Municipal comprehension plan consideration. 24
1252	1252	The coastal resources management council department shall conform to the requirements 25
1253	1253	of the Comprehensive Planning and Land Use Regulation Act, § 45-22.2. 26
1254	1254	46-23-24. Lien on property. 27
1255	1255	The executive director may record the notice of fee or final order of fine as a lien on the 28
1256	1256	subject property in the land evidence records of the town or city in which said property is located. 29
1257	1257	Recordation of said fee or final order of fine shall be the only manner by which said lien may be 30
1258	1258	perfected against the subject property. 31
1259	1259	46-23-25. Issuance of beach vehicle registration permits. 32
1260	1260	(a) The department of coastal resources management council may issue beach vehicle 33
1261	1261	registration permits in accordance with § 31-8-1.1 of the general laws and adopt regulations that 34
1262	1262
1263	1263
1264	1264	LC002355 - Page 35 of 38
1265	1265	the council department deems necessary to carry out the provisions of this section. The council 1
1266	1266	department may appoint responsible citizens or corporations of the state, engaged in operating 2
1267	1267	sporting goods stores to act as agents with authority to issue permits in the manner and under the 3
1268	1268	conditions as set forth below. Before an appointment shall occur, that citizen or corporation of the 4
1269	1269	state shall deliver to the council department a bond with a surety company authorized to do business 5
1270	1270	in the state of Rhode Island. The requirements and conditions of the bond shall be established by 6
1271	1271	the regulations. 7
1272	1272	(b) Any person or corporation appointed by the council department as provided in section 8
1273	1273	(a) above shall, upon the application of any person entitled to receive a permit under this chapter 9
1274	1274	and upon payment of the specified permit fee, register and issue to the person a beach vehicle 10
1275	1275	registration permit in the form prescribed and furnished by the council department. The permit shall 11
1276	1276	bear the name, place of residence, and signature of the registrant, and the vehicle make, model, 12
1277	1277	year, and license plate number and shall authorize the registrant to own and operate a beach vehicle 13
1278	1278	in the state of Rhode Island during those seasons and in those manners and according to those 14
1279	1279	conditions as shall be provided by regulations established by the council department. 15
1280	1280	SECTION 3. Chapter 46-23 of the General Laws entitled "Coastal Resources Management 16
1281	1281	Council" is hereby amended by adding thereto the following sections: 17
1282	1282	46-23-6.4. Uniform appeal period established. right to adjudicatory hearing. 18
1283	1283	All requests for an adjudicatory hearing with the department shall be in writing and shall 19
1284	1284	be filed with the department or clerk within twenty (20) calendar days of receipt of the contested 20
1285	1285	agency action for all enforcement actions, including appeal of an administrative penalty. All license 21
1286	1286	and permit appeals shall be filed with the director of the department of coastal resources within 22
1287	1287	thirty (30) calendar days of receipt of the contested agency action. Every notice of contested agency 23
1288	1288	action shall provide notice of the twenty (20) day or thirty (30) day appeal period and of the 24
1289	1289	procedures for filing an appeal. The time and manner of filing established in this chapter are 25
1290	1290	mandatory and jurisdictional. 26
1291	1291	46-23-26. Severability. 27
1292	1292	If any provision of this chapter or the application thereof to any person or circumstances is 28
1293	1293	held invalid, that invalidity shall not affect other provisions or applications of the chapter, which 29
1294	1294	shall be given effect without the invalid provision or application, and to this end the provisions of 30
1295	1295	this chapter are declared to be severable. 31
1296	1296	SECTION 4. Sections 46-23-2.1, 46-23-5, 46-23-6.3 and 46-23-12 of the General Laws in 32
1297	1297	Chapter 46-23 entitled "Coastal Resources Management Council" are hereby repealed. 33
1298	1298	46-23-2.1. Members — Term of office — Vacancies. 34
1299	1299
1300	1300
1301	1301	LC002355 - Page 36 of 38
1302	1302	(a) The term of office of the appointed members shall be three (3) years, only so long as 1
1303	1303	the members shall remain eligible to serve on the council under the appointment authority. 2
1304	1304	(b) The members are eligible for successive appointments. 3
1305	1305	(c) Elected or appointed municipal officials shall hold seats on the council, only so long as 4
1306	1306	they remain in their elected or appointed office. 5
1307	1307	(d) A vacancy other than by expiration shall be filled in the manner of the original 6
1308	1308	appointment but only for the unexpired portion of the term. The governor shall have the power to 7
1309	1309	remove his or her appointee for just cause. 8
1310	1310	46-23-5. Expenses of members. 9
1311	1311	(a) The members of the council and the chairperson shall not be compensated for their 10
1312	1312	service on the board, but the members and chairperson shall be reimbursed for their actual expenses 11
1313	1313	necessarily incurred in the performance of their duties. 12
1314	1314	(b) [Deleted by P.L. 2005, ch. 117, art. 21, § 34.] 13
1315	1315	46-23-6.3. Tolling of expiration periods. 14
1316	1316	(a) Notwithstanding any other provision set forth in this chapter, all periods pertaining to 15
1317	1317	the expiration of any approval or permit issued pursuant to any state statute or any regulation 16
1318	1318	promulgated thereto pertaining to the development of property shall be tolled until June 30, 2016. 17
1319	1319	For the purposes of this section, “tolling” means the suspension or temporary stopping of the 18
1320	1320	running of the applicable permit or approval period. 19
1321	1321	(b) Said tolling need not be recorded in the land evidence records to be valid, however, a 20
1322	1322	notice of the tolling must be posted in the municipal planning department and near the land evidence 21
1323	1323	records. 22
1324	1324	(c) The tolling shall apply only to approvals or permits in effect on November 9, 2009, and 23
1325	1325	those issued between November 9, 2009, and June 30, 2016, and shall not revive expired approvals 24
1326	1326	or permits. 25
1327	1327	(d) The expiration dates for all permits and approvals issued before the tolling period began 26
1328	1328	will be recalculated as of July 1, 2016, by adding thereto the number of days between November 27
1329	1329	9, 2009, and the day on which the permit or approval would otherwise have expired. The expiration 28
1330	1330	dates for all permits and approvals issued during the tolling period will be recalculated as of July 29
1331	1331	1, 2016, by adding thereto the number of days between the day the permit or approval was issued 30
1332	1332	and the day the permit or approval otherwise would have expired. 31
1333	1333	46-23-12. Representation from coastal communities. 32
1334	1334	Upon the expiration of a term of a member appointed by the governor, as an appointed or 33
1335	1335	elected official of local government from a coastal municipality as set out in § 46-23-2, the governor 34
1336	1336
1337	1337
1338	1338	LC002355 - Page 37 of 38
1339	1339	shall appoint an appointed or elected official of a coastal municipality which, at the time of the 1
1340	1340	governor’s appointment, has no appointed or ex officio representation on the council. 2
1341	1341	SECTION 5. This act shall take effect upon passage. 3
1342	1342	========
1343	1343	LC002355
1344	1344	========
1345	1345
1346	1346
1347	1347	LC002355 - Page 38 of 38
1348	1348	EXPLANATION
1349	1349	BY THE LEGISLATIVE COUNCIL
1350	1350	OF
1351	1351	A N A C T
1352	1352	RELATING TO WATERS AND NAVIGATION -- COASTAL RESOURCES MA NAGEMENT
1353	1353	COUNCIL
1354	1354	***
1355	1355	This act would replace the coastal resources management council with a state department 1
1356	1356	of coastal resources and transfer all of the powers and duties between the two (2) authorities. It 2
1357	1357	would also create a non-binding advisory committee to replace CRMC. 3
1358	1358	This act would take effect upon passage. 4
1359	1359	========
1360	1360	LC002355
1361	1361	========
1362	1362