§ 46-23-6 - Powers and duties – Rights-of-way.
SECTION 46-23-6
§ 46-23-6 Powers and duties –Rights-of-way. – In order to properly manage coastal resources the council has the followingpowers and duties:
(i) The primary responsibility of the council shall be thecontinuing planning for and management of the resources of the state's coastalregion. The council shall be able to make any studies of conditions,activities, or problems of the state's coastal region needed to carry out itsresponsibilities.
(ii) The resources management process shall include thefollowing basic phases:
(A) Identify all of the state's coastal resources, water,submerged land, air space, fin fish, shellfish, minerals, physiographicfeatures, and so forth.
(B) Evaluate these resources in terms of their quantity,quality, capability for use, and other key characteristics.
(C) Determine the current and potential uses of each resource.
(D) Determine the current and potential problems of eachresource.
(E) Formulate plans and programs for the management of eachresource, identifying permitted uses, locations, protection measures, and soforth.
(F) Carry out these resources management programs throughimplementing authority and coordination of state, federal, local, and privateactivities.
(G) Formulation of standards where these do not exist, andreevaluation of existing standards.
(H) To develop comprehensive programs for dredging in tidalwaters and related beneficial use, disposal, monitoring dewatering andtransportation of dredge materials.
(I) To accept and administer loans and grants from thefederal government and from other sources, public or private, for the carryingout of any of its functions, which loans or grants shall not be expended forother than the purposes for which provided.
(J) To encourage, participate in, or conduct studies,investigations, research, and demonstrations relating to dredging, disposal ofdredge materials and transportation thereof in the tidal waters of the state asthe coastal resources management council may deem advisable and necessary forthe discharge of its duties under this chapter.
(K) To collect and disseminate information relating todredging, disposal of dredge materials and transportation thereof within thetidal waters of the state.
(L) To work with the appropriate federal and state agenciesto develop as provided for in this chapter and in chapter 6.1 of this title, acomprehensive plan for dredging in tidal waters and related beneficial use,disposal, monitoring dewatering and transportation of dredge materials.
(M) To apply for, accept and expend grants and bequests offunds, for the purpose of carrying out the lawful responsibilities of thecoastal resources management council.
(iii) An initial series of resources management activitiesshall be initiated through this basic process, then each phase shallcontinuously be recycled and used to modify the council's resources managementprograms and keep them current.
(iv) Planning and management programs shall be formulated interms of the characteristics and needs of each resource or group of relatedresources. However, all plans and programs shall be developed around basicstandards and criteria, including:
(A) The need and demand for various activities and theirimpact upon ecological systems.
(B) The degree of compatibility of various activities.
(C) The capability of coastal resources to support variousactivities.
(D) Water quality standards set by the director of thedepartment of environmental management.
(E) Consideration of plans, studies, surveys, inventories,and so forth prepared by other public and private sources.
(F) Consideration of contiguous land uses and transportationfacilities.
(G) Whenever possible consistency with the state guide plan.
(v) The council shall prepare, adopt, administer, and causeto be implemented, including specifically through its powers of coordination asset forth in subdivision (3) of this section, a marine resources developmentplan and such special area management plans as the council may determine to beappropriate or desirable as follows:
(A) Marine resources development plan.
(I) The purpose of the marine resources development planshall be to provide an integrated strategy for: (a) improving the health andfunctionality of Rhode Island's marine ecosystem; (b) providing for appropriatemarine-related economic development; and (c) promoting the use and enjoyment ofRhode Island's marine resources by the people of the state.
(II) The marine resources development plan shall includespecific goals and objectives necessary to accomplish its purposes, performancemeasures to determine progress toward achieving such goals and objectives, andan implementation program.
(III) The marine resources development plan shall be preparedin cooperation with the department of environmental management, the statewideplanning program, and the economic development corporation, with theinvolvement of such other state agencies as may be appropriate, and with suchtechnical support as may be necessary and appropriate from the Narragansett BayEstuary Program, the Coastal Institute at the University of Rhode Island, andRhode Island Sea Grant.
(IV) The plan shall be responsive to the requirements andprinciples of the federal coastal zone management act as amended, including,but not limited to, the expectations of the act for incorporating the federalClean Water Act into coastal zone management programs.
(V) The marine resources development plan shall take intoaccount local land use management responsibilities as provided for under title45 and harbor management responsibilities, and the preparation of the planshall include opportunities for involvement and/or comment by cities and towns.
(VI) The marine resources development plan shall be adoptedby the council in accordance with the provisions of this subsection by July 1,2005, shall as appropriate incorporate the recommendations of the Governor'sNarragansett Bay and Watershed Planning Commission, and shall be madeconsistent with systems level plans as appropriate, in order to effectuate thepurposes of systems level planning. The council shall update the marineresources development plan at least once every five (5) years.
(VII) The council shall administer its programs, regulations,and implementation activities in a manner consistent with the marine resourcesdevelopment plan.
(VIII) The marine resources development plan and any updatesthereto shall be adopted as appropriate as elements of the state guide planpursuant to § 42-11-10.
(B) Special area management plans.
(I) The council shall adopt such special area managementplans as deemed necessary and desirable to provide for the integration andcoordination of the protection of natural resources, the promotion ofreasonable coastal-dependent economic growth, and the improved protection oflife and property in the specific areas designated council as requiring suchintegrated planning and coordination.
(II) The integrated planning and coordination hereinspecified shall include, but not be limited to, federal agencies, stateagencies, boards, commissions, and corporations, including specifically theeconomic development corporation, and cities and towns, shall utilize to theextent appropriate and feasible the capacities of entities of higher education,including Rhode Island Sea Grant, and shall provide for the participation ofadvocacy groups, community-based organizations, and private persons.
(III) The council shall administer its programs, regulations,and implementation activities in a manner consistent with special areamanagement plans.
(IV) Special area management plans and any updates theretoshall be adopted as appropriate as elements of the state guide plan pursuant to§ 42-11-10.
(i) The council is authorized to formulate policies and plansand to adopt regulations necessary to implement its various managementprograms. With respect to such policies and plans which relate to matters wherethe coastal resources management council and the department of environmentalmanagement have concurrent jurisdiction and upon formulation of the plans andregulations, the council shall, prior to adoption, submit the proposed plans orregulations to the director of the department of environmental management forthe director's review. The director shall review and submit comments to thecouncil within thirty (30) days of submission to the director by the council.The comments of the director shall include findings with regard to theconsistency of the policies, plans and/or regulations with the requirements oflaws administered by the department. The council shall consider the director'scomments prior to adoption of any such policies, plans or regulations and shallrespond in writing to findings of the director with regard to the consistencyof said policies, plans and/or regulations with the requirements of lawsadministered by the department.
(ii) The council shall have exclusive jurisdiction below meanhigh water for all development, operations, and dredging, consistent with therequirements of chapter 6.1 of this title and except as necessary for thedepartment of environmental management to exercise its powers and duties and tofulfill its responsibilities pursuant to §§ 42-17.1-2 and 42-17.1-24,and any person, firm, or governmental agency proposing any development oroperation within, above, or beneath the tidal water below the mean high watermark, extending out to the extent of the state's jurisdiction in theterritorial sea, shall be required to demonstrate that its proposal would not:
(I) Conflict with any resources management plan or program;
(II) Make any area unsuitable for any uses or activities towhich it is allocated by a resources management plan or program adopted by thecouncil; or
(III) Significantly damage the environment of the coastalregion.
(B) The council shall be authorized to approve, modify, setconditions for, or reject any such proposal.
(iii) The authority of the council over land areas (thoseareas above the mean high water mark) shall be limited to two hundred feet(200') from the coastal physiographic feature or to that necessary to carry outeffective resources management programs. This shall be limited to the authorityto approve, modify, set conditions for, or reject the design, location,construction, alteration, and operation of specified activities or land useswhen these are related to a water area under the agency's jurisdiction,regardless of their actual location. The council's authority over these landuses and activities shall be limited to situations in which there is areasonable probability of conflict with a plan or program for resourcesmanagement or damage to the coastal environment. These uses and activities are:
(A) Power generating over forty (40) megawatts anddesalination plants.
(B) Chemical or petroleum processing, transfer, or storage.
(C) Minerals extraction.
(D) Shoreline protection facilities and physiographicalfeatures, and all directly associated contiguous areas which are necessary topreserve the integrity of the facility and/or features.
(E) Coastal wetlands and all directly associated contiguousareas which are necessary to preserve the integrity of the wetlands includingany freshwater wetlands located in the vicinity of the coast. The actualdetermination of freshwater wetlands located in coastal vicinities and underthe jurisdiction of the coastal resources management council shall bedesignated on such maps that are agreed to in writing and made available forpublic use by the coastal resources management council and the director,department of environmental management, within three (3) months of [August6, 1996] The CRMC shall have exclusive jurisdiction over the wetlandsareas described in this section notwithstanding any provision of chapter 1,title 2 or any other provision except that the division of agriculturemaintains jurisdiction over all farming consistent with § 2-1-22(i) and(j). Within six (6) months of [August 6, 1996] the council incooperation with the director shall develop rules and regulations for themanagement and protection of freshwater wetlands, affected by an aquacultureproject, outside of those freshwater wetlands located in the vicinity of thecoast and under the exclusive jurisdiction of the director of the department ofenvironmental management. For the purpose of this chapter, a "coastal wetland"means any salt marsh bordering on the tidal waters of this state, whether ornot the tidal waters reach the littoral areas through natural or artificialwatercourses, and those uplands directly associated and contiguous theretowhich are necessary to preserve the integrity of that marsh. Marshes shallinclude those areas upon which grow one or more of the following: smoothcordgrass (spartina alterniflora), salt meadow grass (spartina patens), spikegrass (distichlis spicata), black rush (juncus gerardi), saltworts (salicorniaspp.), sea lavender (limonium carolinianum), saltmarsh bulrushes (scirpusspp.), hightide bush (iva frutescens), tall reed (phragmites communis), tallcordgrass (spartina pectinata), broadleaf cattail (typha latifolia), narrowleafcattail (typha angustifolia), spike rush (eleocharis rostellata), chairmaker'srush (scirpus amercana), creeping bentgrass (agrostis palustris), sweet grass(hierochloe odorata), and wild rye (etlymus virginicus).
(F) Sewage treatment and disposal and solid waste disposalfacilities.
(G) Beneficial use, dewatering, and disposal of dredgedmaterial of marine origins, where such activities take place within two hundred(200) feet of mean high water or a coastal physiographic feature, or wherethere is a reasonable probability of conflict with a plan or program forresources management or damage to the coastal environment.
(3) Coordination. The council has the followingcoordinating powers and duties:
(i) Functioning as a binding arbitrator in any matter ofdispute involving both the resources of the state's coastal region and theinterests of two (2) or more municipalities or state agencies.
(ii) Consulting and coordinating actions with local, state,regional, and federal agencies and private interests.
(iii) Conducting or sponsoring coastal research.
(iv) Advising the governor, the general assembly, and thepublic on coastal matters.
(v) Serving as the lead state agency and initial and primarypoint of contact for dredging activities in tidal waters and in that capacity,integrating and coordinating the plans and policies of other state agencies asthey pertain to dredging in order to develop comprehensive programs fordredging as required by subparagraph (1)(ii)(H) of this section and chapter 6.1of this title. The Rhode Island resource recovery corporation prior topurchasing cover material for the state landfill shall first contact the CRMCto see if there is a source of suitable dredged material available which shallbe used in place of the purchase cover material. Other state agencies engagedin the process of dump closures shall also contact the CRMC to see if there isa source of suitable dredged material available, which shall be used in placeof the purchase cover material. In addition, cities and towns may contact theCRMC prior to closing city or town controlled dump sites to see if there is asource of suitable dredge material available, which may be used in place of thepurchase cover material.
(vi) Acting as the state's representative to all bodiespublic and private on all coastal and aquaculture related matters.
(4) Operations. The council is authorized to exercisethe following operating functions, which are essential to management of coastalresources:
(i) Issue, modify, or deny permits for any work in, above, orbeneath the areas under its jurisdiction, including conduct of any form ofaquaculture.
(ii) Issue, modify, or deny permits for dredging, filling, orany other physical alteration of coastal wetlands and all directly relatedcontiguous areas which are necessary to preserve the integrity of the wetlands,including, but not limited to, the transportation and disposal of dredgematerials in the tidal waters.
(iii) Grant licenses, permits, and easements for the use ofcoastal resources which are held in trust by the state for all its citizens,and impose fees for private use of these resources.
(iv) Determining the need for and establishing pierhead,bulkhead, and harbor lines.
(v) Enforcing and implementing riparian rights in the tidalwaters after judicial decisions.
(vi) The council may require an owner or operator of acommercial wharf or pier of a marine commercial facility, as defined in 300.3of the Rhode Island coastal resources management program, but not includingthose facilities defined in 300.4 of the Rhode Island coastal resourcesmanagement program, and which is capable of offloading cargo, and is or will besubject to a new use or a significant intensification of an existing use, todemonstrate that the commercial wharf or pier is fit for that purpose. For thepurposes of this subsection, a "commercial wharf or pier" means a pier,bulkhead, wharf, docking facility, or underwater utilities. The council mayorder said owner or operator to provide an engineering certification to thecouncil's satisfaction that the commercial wharf or pier is fit for the new useor intensification of an existing use. If the council determines that thecommercial wharf or pier is not fit, it may order the owner or operator toundertake the necessary work to make the commercial wharf or pier safe, withina reasonable time frame. If the council determines that the commercial wharf orpier, because of is condition, is an immediate threat to public health andsafety it may order the commercial wharf or pier closed until the necessarywork to make the commercial wharf or pier safe has been performed and approvedby the council. All work performed must conform to the council's managementprogram. The council is also given the authority to develop regulations tocarry out this provision and to impose administrative penalties of fivethousand dollars ($5,000) per day up to a maximum of twenty thousand dollars($20,000) consistent with § 46-23-7.1 where there has been a violation ofthe orders under this provision.
(i) The council is responsible for the designation of allpublic rights-of-way to the tidal water areas of the state, and shall carry ona continuing discovery of appropriate public rights-of-way to the tidal waterareas of the state.
(ii) The council shall maintain a complete file of allofficial documents relating to the legal status of all public rights-of-way tothe tidal water areas of the state.
(iii) The council has the power to designate for acquisitionand development, and posting, and all other functions of any other departmentfor tidal rights-of-way and land for tidal rights-of-way, parking facilities,and other council related purposes.
(B) Further, the council has the power to develop andprescribe a standard sign to be used by the cities and towns to mark designatedrights-of-way.
(iv) In conjunction with this subdivision, every statedepartment controlling state-owned land close to or adjacent to discoveredrights-of-way is authorized to set out the land, or so much of the land thatmay be deemed necessary for public parking.
(v) No use of land for public parking shall conflict withexisting or intended use of the land, and no improvement shall be undertaken byany state agency until detailed plans have been submitted to and approved bythe governing body of the local municipality.
(vi) In designating rights-of-way, the council shall considerthe following matters in making its designation:
(A) Land evidence records;
(B) The exercise of domain over the parcel such asmaintenance, construction, or upkeep;
(C) The payment of taxes;
(D) The creation of a dedication;
(E) Public use;
(F) Any other public record or historical evidence such asmaps and street indexes;
(G) Other evidence as set out in § 42-35-10.
(vii) A determination by the council that a parcel is aright-of-way shall be decided by substantial evidence.
(viii) The council shall be notified whenever by the judgmentof the governing body of a coastal municipality, a public right-of-way to tidalwater areas located in such municipality has ceased to be useful to the public,and such governing body proposes an order of abandonment of such publicright-of-way. Said notice shall be given not less than sixty (60) days prior tothe date of such abandonment.
(i) The council is hereby authorized and empowered to issueassent for pre-existing residential boating facilities constructed prior toJanuary 1, 1985. These assents may be issued for pre-existing residentialboating facilities, even though such facilities do not meet current standardsand policies of the council; provided, however, that the council finds thatsuch facilities do not pose any significant risk to the coastal resources ofthe state of Rhode Island and do not endanger human safety.
(ii) In addition to the above criteria, the applicant shallprovide clear and convincing evidence that:
(A) The facility existed in substantially the sameconfiguration as it now exists prior to January 1, 1985;
(B) The facility is presently intact and functional; and
(C) The facility presents no significant threat to thecoastal resources of the state of Rhode Island or human safety.
(iii) The applicant, to be eligible for this provision, shallapply no later than January 31, 1999.
(iv) The council is directed to develop rules and regulationsnecessary to implement this subdivision.
(v) It is the specific intent of this subsection to requirethat all pre-existing residential boating facilities constructed on January 1,1985 or thereafter conform to this chapter and the plans, rules and regulationsof the council.
(i) Any littoral or riparian owner in this state who desiresto obtain a lease from the state of Rhode Island of any filled lands adjacentto his or her upland shall apply to the council, which may make the lease. Anylittoral or riparian owner who wishes to obtain a lease of filled lands mustobtain pre-approval, in the form of an assent, from the council. Any leasegranted by the council shall continue the public's interest in the filled landsincluding, but not limited to, the rights of navigation, fishery, and commerce.The public trust in the lands shall continue and run concurrently with theleasing of the lands by the state to private individuals, corporations, ormunicipalities. Upon the granting of a lease by the council, those rightsconsistent with the public trust and secured by the lease shall vest in thelessee. The council may approve a lease of filled lands for an initial term ofup to fifty (50) years, with, or without, a single option to renew for anadditional term of up to fifty (50) years.
(ii) The lessor of the lease, at any time, for cause, may byexpress act cancel and annul any lease previously made to the riparian ownerwhen it determines that the use of the lands is violating the terms of thelease or is inconsistent with the public trust, and upon cancellation thelands, and rights in the land so leased, shall revert to the state.
(8) "Marinas" as defined in the coastal resources managementprogram in effect as of June 1, 1997, are deemed to be one of the usesconsistent with the public trust. Subdivision (7) is not applicable to:
(i) Any riparian owner on tidal waters in this state (and anysuccessor in interest to the owner) which has an assent issued by the councilto use any land under water in front of his or her lands as a marina, whichassent was in effect on June 1, 1997;
(ii) Any alteration, expansion, or other activity at a marina(and any successor in interest) which has an assent issued by the council,which assent was in effect on June 1, 1997; and
(iii) Any renewal of assent to a marina (or successor ininterest), which assent was issued by the council and in effect on June 1, 1997.
(9) "Recreational boating facilities" including marinas,launching ramps, and recreational mooring areas, as defined by and properlypermitted by the council, are deemed to be one of the uses consistent with thepublic trust. Subdivision (7) is not applicable to:
(i) Any riparian owner on tidal waters in this state (and anysuccessor in interest to the owner) which has an assent issued by the councilto use any land under water in front of his or her lands as a recreationalboating facility; any alteration, expansion or other activity at a recreationalboating facility (and any successor in interest) which has an assent issued bythe council, which assent was in effect as of June 1, 1997; and
(ii) Any renewal of assent to a recreational boating facility(or successor in interest), which assent was issued by the council and ineffect on June 1, 1997.