2004 -- H 8642

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LC03626

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2004

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A N A C T

RELATING TO WATERS AND NAVIGATION

     Introduced By: Representatives Naughton, Crowley, Giannini, Cerra, and Ginaitt

     Date Introduced: June 10, 2004

     Referred To: House Environment and Natural Resources

It is enacted by the General Assembly as follows:

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     SECTION 1. Chapter 42-17.1 of the General Laws entitled "Department of

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Environmental Management" is hereby amended by adding thereto the following section:

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     42-17.1-2.3. Watershed-based management. – In order to accomplish the duties and

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responsibilities for the protection, development, planning and utilization of the natural resources

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of the state, the director is authorized:

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     (a) to plan, coordinate, integrate, manage, exercise and/or implement the powers set forth

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in this chapter on a watershed basis for the purposes of preserving and/or improving ecosystem

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functionality, protecting public health, safety and welfare, and providing for the use of natural

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resources, including for recreational and agricultural purposes;

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     (b) to work in conjunction with the Rhode Island Rivers Council and in cooperation with

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federal, interstate, state, local and private agencies and community organizations and watershed

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groups and associations and persons to effectuate watershed-based management, as appropriate

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and desirable; and

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     (c) to coordinate and administer the activities of the department to achieve the purposes

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of systems level planning by the state.

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     SECTION 2. Sections 46-15-1, 46-15-18 and 46-15-22 of the General Laws in Chapter

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46-15 entitled "Water Resources Board" are hereby amended to read as follows:

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     46-15-1. Legislative declaration. -- The general assembly hereby finds and declares that:

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      (1) The state of Rhode Island and Providence Plantations has been endowed with many

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and abundant sources of water supplies located advantageously, for the most part, throughout the

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state. The proper development, protection, conservation, and use of these water resources are

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essential to the health, safety, and welfare of the general public, and to the continued growth and

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economic development of the state;

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      (2) In recent years it has become increasingly apparent that water supply management,

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protection, development, and use must be fully integrated into all statewide planning, and rivers

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and watershed planning and management processes, and that the allocation of the state's water

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resources to all users, purposes, and functions, including water to sustain our natural river and

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stream systems and natural biotic communities, must be equitably decided and implemented

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under a process which emphasizes efficiency of use and management, minimization of waste,

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protection of existing supplies, demand management, drought management, conservation, and all

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other techniques to ensure that our water resources serve the people of Rhode Island for the

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longest time, in the most efficient use, and in an environmentally sound manner;

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      (3) The character and extent of the problems of water resource development, utilization,

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and control, and the widespread and complex interests which they affect, demand action by the

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government of the state of Rhode Island in order to deal with these problems in a manner which

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adequately protects the general welfare of all the citizens of the state;

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      (4) In order to retain and encourage the expansion of our present industries, and to attract

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new industries, and to promote the proper growth and desirable economic growth of the entire

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state, and to sustain the viability of water resource-dependent natural systems, agriculture, and

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recreation, state government must play an active role in fostering and guiding the management of

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water resources; and

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      (5) There are state and municipal departments, special districts, private firms, and other

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agencies in the state who have capabilities and experience in the design, construction, operation,

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and financing of water supply and transmission facilities, which capabilities and experience must

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be brought to bear on the total problem of water resources development in a coordinated manner

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if the proper development, conservation, apportionment, and use of the water resources of the

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state are to be realized.; and

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      (6) It shall be the duty of the water resources board to regulate the proper development,

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protection, conservation and use of the water resources of the state.

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     46-15-18. Relations with other governmental bodies and agencies. -- In order to

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adequately protect the interests of the state in its water resources, the water resources board is

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hereby authorized to:

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      (1) Cooperate with the appropriate agencies of the federal government, of the state or

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other states, or any interstate bureau, group, division, or agency with respect to the use of ground

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and surface waters, which are without or wholly or partially contained within this state, and to

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endeavor to harmonize any conflicting claims which may arise therefrom.

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      (2) Appear, represent, and act for the state in respect to any proceeding before either a

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federal or state governmental body or agency where the water resources of the state may be

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affected, and may do and perform such acts in connection therewith as it deems proper to protect

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the interests of the state.

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      (3) Present for the consideration of the congress or officers of the federal government, as

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occasion requires, the just rights of the state in relation to its waters, and institute and prosecute

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appropriate actions and proceedings to secure those rights, and defend any action or proceeding

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calculated to impair those rights.

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     (4) Facilitate, encourage and support water resources management on a watershed basis,

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in a manner that supports systems level planning.

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     46-15-22. Transfer of powers and functions to the water resources board. -- There

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are hereby transferred to the water resources board:

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      (1) Those functions of the department of administration which were administered

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through or with respect to board programs in the performance of strategic planning as defined in

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section 42-11-10(c); and

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      (2) All officers, employees, agencies, advisory councils, committees, commissions, and

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task forces who were performing strategic planning functions as defined in section 42-11-10(c).;

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and

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     (3) Those duties and functions of the statewide planning program for support to the

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Rhode Island Rivers Council.

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     SECTION 3. Chapter 46-15.1 of the General Laws entitled "Water Supply Facilities" is

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hereby amended by adding thereto the following section:

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     46-15.1-5.1. Powers in support of the Rhode Island Rivers Council. – Upon the

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request of the Rhode Island Rivers Council, the board may exercise any powers set forth in

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section 46-15.1-5 on behalf of the Rhode Island Rivers Council in order to accomplish the

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purposes of the council.

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     SECTION 4. Sections 46-28-2, 46-28-4, 46-28-5, 46-28-7, 46-28-7.1, 46-28-8, 46-28-9

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and 46-28-10 of the General Laws in Chapter 46-28 entitled "The Rhode Island Rivers Council"

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are hereby amended to read as follows:

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     46-28-2. Legislative findings and declaration of public policy. -- (a) Unlike many other

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states, Rhode Island does not have an affirmative, clearly articulated program to manage and

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protect its rivers and watershed resources. State jurisdiction over rivers, environmentally,

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culturally, and economically is scattered among various state agencies, and in some instances,

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state policies and plans are conflicting. Rhode Island needs an affirmative, clearly articulated

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program to plan for, manage and protect its rivers and watershed resources on an integrated, inter-

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agency basis, that supports systems level planning.

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      (b) Many of the rivers of Rhode Island or sections thereof and related adjacent land

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possess outstanding aesthetic and recreational value of present and potential benefit to the citizens

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of this state. The preservation and protection of these rivers and their immediate environment

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together with their significant recreational, natural and cultural value is hereby declared to be a

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public policy. It shall be the policy of the state of Rhode Island to protect these values and to

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practice sound conservation policies and practices relative thereto. It is also recognized that it is

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in the public interest to:

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      (1) Preserve open space, natural resources and features, and scenic landscapes;

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      (2) Preserve cultural and historic landscapes and features;

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      (3) Preserve opportunities for recreational use of rivers;

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      (4) Encourage the establishment of greenways, which link open spaces together;

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      (5) Establish a rivers policy consistent with the Rhode Island Comprehensive Planning

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and Land Use Regulation Act, chapter 22.2 of title 45 as set forth in section 45-22.2-3(c); and

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      (6) Continue the regional and comprehensive planning activities for rivers, water quality,

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and land use conducted by the Rhode Island department of environmental management and the

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Rhode Island department of administration.; and

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     (7) Utilize the rivers policy and classification plan and other relevant elements of the state

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guide plan, plans and programs of state and federal agencies, and watershed action plans to

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coordinate the activities of the public and private sectors so as to achieve the objectives of this

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section.

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      (c) It is, therefore, essential that a Rhode Island policy be developed so that these

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purposes may be fulfilled. The general assembly affirms that it must assure the people of this

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generation and their descendents the opportunity to appreciate aesthetic and utilize the

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recreational qualities and resources of the state's streams and rivers. To implement these policies

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is the purpose of this chapter and in furtherance thereof to establish the Rhode Island rivers

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council Rivers Council which will coordinate and oversee the clean up and preservation of the

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quality of rivers in Rhode Island.

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     46-28-4. Establishment of council -- Purpose. -- There is hereby authorized, created,

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and established within the state of Rhode Island department of administration, division of

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planning as an associated function of the water resources board, established pursuant to chapters

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46-15 and 46-15.1, a Rhode Island rivers council Rivers Council known as "the Rhode Island

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rivers council Rivers Council," with such powers as are set forth in this chapter, for the purposes

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of coordinating, overseeing, and reviewing efforts to improve and preserve the quality of rivers

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and to develop plans to increase the utilization of river areas throughout the state., and to support

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and strengthen grassroots watershed organizations as local implementers of the plans. The rivers

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policy and classification plan prepared and recommended as provided for in subsection 46-28-

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7(3) and as adopted by the state planning council shall be the principal means of management and

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protection by the Rivers Council. The Rivers Council shall work in conjunction with watershed

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councils and all affected federal, regional and state agencies, including, but not limited to, the

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water resources board, the coastal resources management council, the department of

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environmental management, the department of health, the statewide planning program of the

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department of administration, and the economic development corporation, municipal

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governments, private organizations and persons in achieving the purposes set forth in this section,

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and implementing systems level planning for the state.

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     46-28-5. Council created -- Appointment of members. -- Such Effective until

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ratification of a constitutional amendment entitled "JOINT RESOLUTION TO APPROVE AND

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PUBLISH AND SUBMIT TO THE ELECTORS A PROPOSITION OF AMENDMENT TO

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THE CONSTITUTION OF THE STATE (SEPARATION OF POWERS)," such council shall

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consist of fifteen (15) members to be appointed in the following manner:

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      (1) Three (3) members shall represent the public and shall be appointed by the governor;

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three (3) members shall be appointed by the lieutenant governor; three (3) members shall be

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appointed by the speaker of the house of representatives as herein provided, at least one of whom

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shall be a member of the house, provided however that if more than one member of the house is

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appointed at least one member shall be from the minority party; two (2) members shall be

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appointed by the president of the senate as herein provided, at least one of whom shall be a

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member of the senate, provided, however not more than one senator shall be from the same

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political party; one member shall be the director of the department of environmental management

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or his or her designee; one member shall be the executive director of coastal resources

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management council or his or her designee; one member shall be the director of administration or

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his or her designee; one member shall be the president of the Rhode Island league of cities and

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towns or his or her designee.

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      (2)(a) Each member so appointed shall serve for three (3) years beginning in the first day

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of July, except that in the case of the first two (2) members appointed by the lieutenant governor

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and the first two (2) members appointed by the governor, one shall serve until July 1, 1991, and

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one until July 1, 1992. Members shall be appointed during the month of June of each year by the

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appointing authority and in the event of a vacancy occurring in the council, said vacancy shall be

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filled in a like manner as the original appointment for the remainder of the unexpired term.

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     (b) Effective upon ratification of a constitutional amendment entitled "JOINT

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RESOLUTION TO APPROVE AND PUBLISH AND SUBMIT TO THE ELECTORS A

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PROPOSITION OF AMENDMENT TO THE CONSTITUTION OF THE STATE

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(SEPARATION OF POWERS)," such council shall consist of fifteen (15) members to be

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appointed in the following manner:

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     (i) Five (5) public members shall be appointed by the governor with the advice and

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consent of the senate; four (4) public members shall be appointed by the lieutenant governor with

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the advice and consent of the senate; one member shall be the general manager of the water

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resources board or his or her designee; one member shall be the director of the department of

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environmental management or his or her designee; one member shall be the executive director of

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coastal resources management council or his or her designee; one member shall be the director of

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administration or his or her designee; one member shall be the executive director of the economic

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development corporation or his or her designee; and one member shall be the president of the

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Rhode Island league of cities and towns or his or her designee.

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     (ii) All duly appointed members as of January 1, 2005, whose appointments were not

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vacated by a change in appointing authority, shall continue as members until the expiration of

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their term or until their successors are duly appointed and qualified. Members shall be appointed

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during the month of January of each year by the appointing authority and in the event of a

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vacancy occurring in the council, said vacancy shall be filled in a like manner as the original

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appointment for the remainder of the unexpired term. The term of appointed members shall be

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three (3) years.

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     46-28-7. Powers and duties. -- The council shall have the following powers:

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      (1) To be entitled to ask for and receive from any commission, board, officer, or agency

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of the state such information, cooperation, assistance, and advice as shall be reasonable and

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proper in view of the nature of said functions;

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      (2) To assess, and evaluate and coordinate with federal, regional and state agencies the

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current programs and policies as they relate to efforts to clean up and preserve rivers and

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watersheds throughout the state; and to participate in coordination mechanisms to achieve

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systems level planning for the state;

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      (3) To prepare and recommend a rivers policy for the state of Rhode Island for adoption

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by the state planning council as a part of the state guide plan as described in section 42-11-

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10(c)(7), as amended, following the procedures for notification and public hearing set forth in

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section 42-35-3, as amended. Said policy shall be consistent with federal water quality

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requirements and shall give consideration to development, public or private, which has

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commenced at the time of the adoption of a rivers policy. Such rivers policy shall treat rivers as

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ecological systems;

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      (4) (i) To prepare and recommend a plan for the classification of all rivers in the state of

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Rhode Island for adoption by the state planning council as a part of the state guide plan, following

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the procedures for notification and public hearing set forth in section 42-35-3, as amended. The

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classifications shall identify characteristics of water bodies beyond their quality to reflect their

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current or potential uses for drinking water sources, agricultural irrigation, industrial processes,

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including cooling water sources, water-based recreation, aquatic habitat, aesthetic enhancement,

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and others. The classification plan shall be consistent with current water quality classifications

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adopted by the department of environmental management. Such classification plan shall contain a

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minimum of three (3) classes of rivers, including:

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      (A) Pristine rivers - those rivers or sections of rivers that are free of impoundments and

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generally inaccessible except by trail, with watersheds or shorelines essentially primitive and

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water relatively unpolluted;

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      (B) Recreational rivers - those rivers or sections of rivers that are readily accessible, that

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may have some development along their shorelines and may have undergone some impoundment

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or diversion in the past. These shall include sections of rivers along mill villages, but shall not

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include sections where development may be characterized as urban; and

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      (C) Working rivers - those rivers or sections of rivers that are readily accessible, that

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have development along their shorelines, that have undergone impoundment or diversion, and

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where development may be classified as urban.

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      (ii) In the classification of rivers, different sections of a single river may enjoy different

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classifications as appropriate.

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      (5) To make findings and recommendations among state agencies and political

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subdivisions by participating in administrative proceedings and by reporting to the governor

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regarding disputes and conflicts on river and watershed issues;

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      (6) To make findings and recommendations to state agencies and political subdivisions

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regarding measures necessary to protect river quality and to promote river uses consistent with

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the state's river policy and river classification plan;

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     (7) To formally recognize and to provide grants to local watershed councils;

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     (8) To foster public involvement in river planning and decision making processes by;

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     (i) Conducting public education programs about rivers and watersheds;

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     (ii) Promoting public access to and use of rivers, as appropriate; and

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     (iii) Holding informal workshops prior to the adoption of (A) the state's rivers policy, (B)

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the state's river classification plan or any portion thereof as provided for in subsection (d) of this

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section and (C) the establishment of any local watershed council; and

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     (iv) Providing technical assistance to local watershed councils to participate in watershed

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planning.

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     (9) To report activities, and findings, and recommend programs, policies and proposals to

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the governor and the general assembly.;

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     (10) Establish subcommittees as may be needed to carry out the purpose of this chapter;

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and

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     (11) To promulgate regulations and procedures as may be needed to issue grants and

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approve watershed action plans, including rules requiring notice by state or city and town

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agencies to local watershed councils regarding proposed actions pertaining to projects,

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developments and activities located wholly or partially within the watershed represented by the

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local watershed council.

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     46-28-7.1. Power and duties of the state planning council. -- In order to carry out the

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purposes of this chapter, the state planning council shall adopt a rivers policy and a classification

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plan for the state of Rhode Island as elements of the state guide plan in accordance with the

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provisions of section 42-11-10. The procedure for adoption shall be as follows: Upon notification

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from the rivers council that it has completed preparation of the rivers policy or classification plan

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as set forth in section 46-28-7(c) and (d), respectively, the state planning council and rivers

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council shall jointly conduct a public hearing in the manner specified in chapter 35 of title 42.

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Following the public hearing, the rivers council shall, in consultation with the division of state

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planning statewide planning program, make its recommendation to the state planning council.

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The state planning council may make any revisions or amendments to the rivers policy or

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classification plan as recommended by the rivers council that are necessary to carry out the

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purposes of this chapter, to achieve consistency with applicable provisions of law, or to consider

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comments made at the public hearing.

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     46-28-8. Local watershed councils. -- The rivers council shall establish and recognize

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local watershed councils to implement the rivers policy as adopted in accordance with the

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provisions of this chapter and set forth in the state guide plan. Unless a watershed is solely within

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one municipality's boundaries, each local watershed council shall be comprised of members from

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each municipality within the watershed area as designated by the department of environmental

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management. Such local watershed councils may be existing organizations where appropriate.

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Local watershed councils shall have standing to present testimony in all state and local

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administrative proceedings which impact on rivers and water quality and shall receive notice,

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pursuant to rules adopted by the council, from state or city and town agencies regarding proposed

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actions pertaining to projects, developments and activities located wholly or partially within the

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watershed represented by the local watershed council. Each local watershed council shall be a

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body corporate and politic, having a distinct legal existence from the state and any municipality

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within the watershed area in which such local watershed council is located. Each local watershed

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council shall have power:

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      (1) To advise and make recommendations for the watershed in the municipality where

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such watershed is located for the preparation or revision by the municipality of its comprehensive

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land use plan pursuant to the Rhode Island Comprehensive Planning and Land Use Regulation

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Act with regard to achieving and maintaining classifications assigned by the rivers council;

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      (2) To advise the municipalities with regard to public access to rivers for the preparation

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or revision by the municipality of a comprehensive land use plan pursuant to the Rhode Island

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Comprehensive Planning and Land Use Regulation Act;

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      (3) To establish and support river watch programs for the protection of the watershed in

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which it is located;

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      (4) To negotiate payments between two (2) or more of the municipalities within the

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watershed for the conduct of services or the erection of projects necessary for the purposes of the

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local watershed council, subject to majority vote of each of the city and town councils

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participating in each program or project;

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      (5) To acquire, hold, use, lease, sell, transfer, and dispose of any property, real, personal,

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or mixed, or interest or interests thereon;

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      (6) To own, operate, maintain, repair, improve, enlarge, and extend, in accordance with

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the provisions of this chapter, any property acquired hereunder, all of which, together with the

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acquisition of such property, are hereby declared to be public purposes; and

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      (7) To sell, lease, convey, or otherwise dispose of to any of the municipalities within the

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watershed any property or improvements thereto, which the local watershed council may

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hereafter acquire or construct; provided, however, that any sale, lease, conveyance, or other

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disposition of the property shall not prejudice or adversely affect any service which the local

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watershed council is providing to any other participating city or town;

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      (8) To sue and be sued in connection with any contracts made by, real estate or personal

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property owned by or leases or conveyances made by the local watershed council;

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      (9) To adopt and order a corporate seal;

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      (10) To make by-laws for the management and regulation of its affairs;

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      (11) To borrow money for any of its corporate purposes including the creation and

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maintenance of working capital;

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      (12) To fix rates and collect charges for the use of the facilities of or services rendered

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by or any commodities furnished by the local watershed council; and to pay as the same shall

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become due the expenses of operating and maintaining the properties of the river watershed

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council;

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      (13) To contract in its own name for any lawful purpose which would effectuate the

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purposes of this chapter; to execute all the instruments necessary to carry out the purposes of this

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chapter; to do all things necessary or convenient to carry out the powers expressly granted by this

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chapter. It is the intention of the legislature that any property acquired by the local watershed

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councils pursuant to the provisions of this chapter shall be financed as a self-liquidating

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enterprise, and that any indebtedness incurred by the local watershed councils shall be payable

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solely from the earnings or revenues derived from all or part of the property acquired by such

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river watershed council. Any indebtedness incurred by the local watershed councils shall not be

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deemed to constitute a debt or a pledge of the faith and credit of the state or of any municipality;

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      (14) To enter into cooperative agreements with other cities and towns, for any lawful

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corporate purposes necessary and desirable to effect the purposes of this chapter;

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      (15) In the performance of its functions the local watershed council may recommend to

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municipalities land and water conservation programs consistent with the state rivers policy

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provided for in section 46-28-7;

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      (16) To apply for, contract for, and expend any federal or state advances or grants or

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assistance which may be made available for purposes of this chapter.

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     46-28-9. Annual council report. Annual council report and special reports. – (a)

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Annual report. The council shall make an annual report to the governor and the general assembly

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on or before February 1 of each year. The report shall include a summary of the activities of the

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council and of each designated local watershed council and a consolidated financial statement of

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all funds received by and expended by the Rivers Council during the reporting period.

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     (b) Special reports. The council shall prepare such special reports as may be requested by

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the general assembly, or either branch thereof, the governor, or as may be determined by the

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council.

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     (1) Report on taxation of buffers. The council shall, in cooperation with the department of

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environmental management, the coastal resources management council, and the department of

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administration, report to the speaker of the house, the president of the senate, and the governor

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not later than January 15, 2005, its findings and recommendations with regard to the

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establishment of riparian and shoreline buffers and the taxation of property included in buffers

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and shall address the question of whether the valuation of areas included in buffers should be

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reduced for purposes of taxation.

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     46-28-10. Staffing. Administrative support and staffing. -- The division of planning

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water resources board shall be responsible for providing staff to assist administrative support in

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carrying out the responsibilities charged to the Rhode Island rivers council. Rivers Council; the

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water resources board, the department of environmental management, and the statewide planning

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program shall, as appropriate, provide the Rhode Island Rivers Council staff support as necessary

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to accomplish the purposes of this chapter.

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     SECTION 5. This act shall take effect upon passage.

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LC03626

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO WATERS AND NAVIGATION

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     This act would authorize the director of the department of environmental management to

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coordinate various governmental agencies and private organizations to insure that watershed

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management and preservation are optimized. It would also make the Rhode Island Rivers

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Council an arm of the Water Resources Board instead of the department of administration,

12-5

division of planning.

12-6

     This act would take effect upon passage.

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LC03626

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