1.1.1 Authority and Purpose

A. Pursuant to the federal Coastal Zone Management Act of 1972 (16 U.S.C. §§ 1451 through 1466) and R.I. Gen. Laws Chapter 46-23 the Coastal Resources Management Council is authorized to develop and adopt policies and regulations necessary to manage the coastal resources of the state and to provide for the integration and coordination of the protection of natural resources, the promotion of reasonable coastal-dependent economic growth, and the improved protection of life and property from coastal hazards. Further, the Council is authorized to collaborate with the state building commissioner and adopt freeboard calculations (a factor of added safety above the anticipated flood level) in accordance with R.I. Gen. Laws § 23-27.3-100.1.5.5.

B. The regulations herein constitute the RICR regulatory component of the Coastal Resources Management Program Red Book and must be read in conjunction with the Red Book guidance document containing the findings and other non-regulatory components for the full and proper context that forms the basis and purpose of this Part. The Red Book guidance document should be employed in interpreting R.I. Gen. Laws § 46-23-1, et seq.

1.1.2 Definitions

A. Definitions for this Part are as follows:

1. “Activities and alterations inland of shoreline features and their contiguous areas within state boundaries that may require a Council Assent” means: solid waste disposal; minerals extraction; power generation over forty (40) megawatts; chemical and petroleum processing, transfer, and storage (excluding storage facilities of less than 2,400 barrel capacity); and sewage treatment and disposal (excluding onsite wastewater treatment systems) desalination plans, and activities affecting freshwater wetlands in the vicinity of the coast.

2. "Agency" means boards, commissions, departments, or offices thereof, other than the legislature or the courts, authorized by law to make rules, determine contested cases, or issue permits.

3. "Agricultural land" means:

a. tilled or tillable land upon which a crop is being or has recently been produced;

b. actively managed orchards, nurseries and cranberry bogs, and

c. land used for livestock pasturing.

4. “Alteration of a marina” means any activity that result in changes to the existing or previously approved recreational boating facility design. Such activities include, but are not limited to, the removal, addition, or relocation of piles, floating docks or fixed piers and changes to the marina perimeter limit.

5. “Alterations to coastal wetlands” means any alterations to the functions and values of wetlands including but not limited to: filling, removing or grading; dredging and dredged materials disposal; and any significant cutting or removal of vegetation; and excavation, draining, damming and/or diverting of hydrological flows in a coastal wetland. Any activity, including the aforementioned, taking place in an area adjacent to a coastal wetland which impacts the coastal wetland, shall be considered an alteration to coastal wetlands.

6. “Alterations to the circulation of tidal waters” means all structures and fill material that alter the behavior of waters within tidal water bodies, including the removal of tidal waters for industrial cooling or other purposes and the installation of structures in embayments and salt ponds that alter the volumes and/or timing of exchange with outlying tidal waters.

7. “Alterations to the flows of tributaries” means the installation of dams or other devices or fill material that alter flows of tributaries to tidal waters and that significantly change the timing and/or volumes of fresh water to coastal waters.

8. "Anadromous fish" means oceanic or estuarine species that spawn in fresh water.

9. “Approved harbor management plan” or “HMP” means a plan that has been prepared by a municipality in accordance with the CRMC municipal harbor regulations and CRMC Guidelines for the Development of Municipal Harbor Management Plans, adopted by a city or town council, and approved by the Coastal Resources Management Council.

10. “Approved waters” means marine waters of the state classified by RIDEM as approved areas fit for the taking of shellfish for human consumption on a regular basis according to criteria established by the National Shellfish Sanitation Program.

11. "Aquaculture" (refer to definitions of "marine aquaculture" and "freshwater aquaculture" in § 1.1.2 of this Part herein.)

12. "Areas of historic and archaeological significance" means those resources as defined by R.I. Gen. Laws § 45-22.2-4(12).

13. “Associated residential structures” means, but is not limited to, decks, porches, walls, boardwalks, swimming pools, roads, driveways, and shall include other structures integral to or ancillary to a residential building including minor grading, filling or excavation typically 10 cubic yards or less.

14. “Barrier” means and island or spit comprised of sand and/or gravel, extending parallel to the coast and separated from the mainland by a coastal pond, tidal water body, or coastal wetland. In addition to a beach, barriers have, in most cases, a frontal foredune zone and often, back barrier dune fields. The lateral limits of barriers are defined by the area where unconsolidated sand or gravel of the barrier abuts bedrock or glacial sediment. This definition of a barrier system is commonly associated with many geomorphic descriptors. These descriptors include, but are not limited to, barrier islands, bay barriers, and spits. Spits are further described as tombolo, shingle, cuspate, and flying spits. The terms “bar” and “ridge” were once used to describe a barrier system, but have since been replaced with the term “barrier”. The barriers or portions thereof designated by the federal government as undeveloped pursuant to their criteria, under the Coastal Barrier Resources Act of 1982 (Public Law 97-348) are noted in Table 5 in § 1.2.2(C) of this Part. In these federally designated areas, flood insurance for most forms of construction is not available. Many of the state’s barriers have been mapped and assigned by the Coastal Resources Management Council into three categories as follows:

a. “Undeveloped barrier” means those essentially free of commercial/industrial buildings, (excluding public utility lines) houses, surfaced roads, and structural shoreline protection facilities.

b. “Moderately developed barrier” means those that are essentially free of houses, commercial/ industrial buildings and/or facilities (excluding utility lines) that contain surfaced roads, recreational structures, and/or structural shoreline protection facilities.

c. “Developed barriers” mean those that contain houses and/or commercial/industrial structures; they may also contain surfaced roads and structural shoreline protection facilities.

15. “Beach grass” means the dominant vegetative cover of sand dunes (Ammophila spp.).

16. “Beach pavilion” means a recreational structure constructed for recreational purposes on a shoreline feature, its contiguous area, or in tidal waters that serves members of the public, owned by a municipal, state, or federal program.

17. “Boat” means any vessel or watercraft as defined by R.I. Gen. Laws § 46-12-1(1).

18. “Boat and float lift systems” means accessory structures to residential boating facilities that raise either a boat or float out of the water. Generally, a cradle or strap supports the vessel or float while it is being lifted by a pulley-type lift system. Overhead arms or crane-like systems may also be used to lift vessels out of the water.

19. “Boat or vessel count” means any space where a vessel may be docked or stored by wet slip, float, mooring or other device. Dry stack vessels will receive a separate boat count. Dinghies, canoes, kayaks and other small tenders (12’ or less) to vessels shall not be included in the boat count.

20. “Breachway” means a connecting channel, usually between a coastal pond and the ocean, which permits water exchange between the two.

21. “Breakwater” means either an exposed or submerged structure that protect a shore, harbor, anchorage, or basin by intercepting waves. Sometimes breakwaters are placed parallel to the open shoreline to retard the force of incoming waves to headland and barrier beaches.

22. “Buffer zone” means a land area on or contiguous to a shoreline feature that is retained in its natural undisturbed condition.

23. “Bulkhead” means a wood, steel, or concrete structure built to retain or prevent mass wasting and collapse of a bluff into the sea; it provides limited protection from damage by waves.

24. “Certified verification agent” or “CVA” means an individual or organization, experienced in the design, fabrication, and installation of an energy related facility or structure, who will conduct specified third-party reviews, inspections, and verifications in accordance with this Part.

25. “Climate” means the long-term weather average observed within a geographic region, and climate change refers to fluctuations in the Earth’s climate system as a result of both natural and anthropogenic causes. Currently the long term climate change trend is evidenced by rising global temperatures; increasing storm intensity extremes within the hydrologic cycle resulting in more frequent floods and droughts; and rising sea level.

26. "Coastal beaches" means expanses of unconsolidated, usually unvegetated sediment commonly subject to wave action, but may also include a vegetative beach berm. Beaches extend from mean low water landward to an upland rise, usually the base of a dune, headland bluff, or coastal protection structure, pilings or foundation.

27. “Coastal buffer zone” means a land area adjacent to a shoreline (coastal) feature that is, or will be, vegetated with native shoreline species and which acts as a natural transition zone between the coast and adjacent upland development. A coastal buffer zone differs from a construction setback in that the setback establishes a minimum distance between a shoreline feature and construction activities, while a buffer zone establishes a natural area adjacent to a shoreline feature that must be retained in, or restored to, a natural vegetative condition. The coastal buffer zone is generally contained within the established construction setback.

28. “Coastal headlands, bluffs, and cliffs” means elevated land forms on headlands directly abutting coastal waters, a beach, coastal wetland, and rocky shore.

29. “Coastal environment” means the complete system of living organisms and physical surroundings within the waters and shore lands of estuaries, the nearshore ocean and the terrestrial areas influenced by this system.

30. "Coastal pond" means a coastal lagoon usually located behind a barrier which, in its natural condition, permanently or occasionally exchanges waters with the ocean.

31. “Coastal wetland” means salt marshes and freshwater or brackish wetlands contiguous to salt marshes or physiographical features. Areas of open water within coastal wetlands are considered a part of the wetland. In addition, coastal wetlands also include freshwater and/or brackish wetlands that are directly associated with non-tidal coastal ponds and freshwater or brackish wetlands that occur on a barrier beach or are separated from tidal waters by a barrier beach.

32. “Coastal wetland creation” means the construction of a new coastal wetland where one had not previously existed.

33. “Coastal wetland mitigation” means efforts to compensate for unavoidable losses after impacts associated with a proposed activity have been avoided and minimized to the maximum extent practicable. The Council recognizes the restoration of historic wetlands and the creation of new wetlands as the only acceptable means of compensating for unavoidable losses of coastal wetlands.

34. “Commercial and industrial structures and operations” means all buildings and structures and alterations to facilities related to the manufacturing and interchange of goods or commodities, or any other business activity located on a shoreline feature, its contiguous area, or within tidal waters.

35. “Commercial marine facility” or “CMF” means, but is not limited to, commercial structures located partially or wholly within CRMC Type 4, 5 or 6 waters such as bridges, commercial moorings, ship building or repair facilities, public ferry facilities, piers, wharfs, bulkheads, bulk and liquid cargo transfer facilities or other commercial type structures within CRMC jurisdiction.

36. "Compelling public purpose" means of such concern to the public welfare that it outweighs private of individual interests.

37. “Contiguous brackish wetlands” means those wetlands which border directly on salt marshes and where one or more of the following species predominate: tall reed (Phragmites communis), tall cordgrass (Spartina pectinata), broadleaf cattail (Typha latifolia), narrowleaf cattail (Typha angustifolia), spike rush (eleocharis rostellata), chairmaker's rush (Scirpus americana), creeping bentgrass (Agrostis palustris) sweet grass (Hierochloe odorata), wild rye (elymus virginicus).

38. “Contiguous freshwater wetlands” means those wetlands which border directly on salt marshes or brackish wetlands or physiographical features and which, except for size limitations, meet the definition of bog, marsh, swamp, or pond under the Rhode Island Freshwater Wetlands Act (R.I. Gen. Laws § 2-1-18 et seq.).

39. “Corner buoys” means buoys that mark the intersection points of mooring area perimeter limits.

40. "Council" means the Rhode Island Coastal Resources Management Council.

41. "Council meeting" means any meeting of the full Council or a subcommittee.

42. "Council representative" means a person appointed or employed as the Council's representative or agent.

43. “Critical coastal areas” means watersheds of poorly flushed estuaries, and are geographic areas which may vary in their ecological functions and generally require specific initiatives to manage them.

44. "Depositing shore" means a shore which is accumulating sand or other sediments, as opposed to a shore which is eroding.

45. “Destination harbor” means a harbor in which the primary use is by people arriving by vessel. The following are considered destination harbors: Newport Harbor and Old and New Harbors on Block Island.

46. "Development" means any material change in the use of any structure or land or water body, including but not limited to any building mining, dredging, fillings, excavation, or drilling operation: alteration of the shore, rivers, streams, lakes or ponds: devegetation, demolition, deposition of fill, solid or liquid waste: construction, installation, alteration, reconstruction of a structure: a change in the type of class or use of land: or a material increase in the intensity of use.

47. “Direct federal activities” means activities, including development projects, performed by a federal agency, or contractor on behalf of the federal agency. Examples of such actions include: installation of mooring buoys by the National Park Service; fisheries management plans by the National Marine Fisheries Service; naval exercises; the disposal of excess federal land by the General Services Administration; U.S. Army Corps of Engineers (Corps) navigational dredging and beach renourishment projects; OCS oil and gas lease sales by the Bureau of Ocean Energy Management; improvements to military bases; and naval disposal of radioactive or hazardous waste performed by a private contractor.

48. "Discharge" means the addition of any pollutant to waters of the state, directly or indirectly and includes: spilling, leaking, pumping, pouring, emitting, emptying, and/or dumping.

49. “Dredging” means the excavation of sediments from beneath tidal and coastal pond waters by mechanical or hydraulic means. Dredging for navigational purposes is divided into two categories:

a. improvement dredging includes new projects in previously un-dredged areas; and,

b. maintenance dredging includes projects whose purpose is to restore channels and basins to dimensions that support and maintain existing levels of use.

50. “Dredged materials disposal” means the process of discharging, depositing, dumping, or utilizing the sediments produced by a dredging operation.

51. “Dune” means an elevated accumulation of sand formed by wind action. Dunes which are undisturbed appear as hills, mounds, or ridges of sand and are typically vegetated with beach grass and shrubs. The more or less continuous ridge of dunes parallel to, and just inland of, the beach is termed the foredune zone.

52. “Eelgrass” or “Zostera marina” means a marine vascular plant capable of both vegetative and sexual growth. Eelgrass can occur in salinity ranges averaging 5-36 practical salinity units and in depths of less than one meter to six (6) meters in Rhode Island waters at MLW depending on water clarity.

53. “Effluents” means the outflow from a river, a pipe, or other watercourse.

54. “Energy-related activities” means all operations and construction of structures involved in power generation and petroleum processing, transfer, and storage.

55. “Enforceable policies” means those policies which are legally binding through constitutional provisions, laws, regulations, land use plans, ordinances, or judicial or administrative decisions, by which a State exerts control over private and public land and water uses and natural resources in the coastal zone (See 16 U.S.C. § 1453(6a)).

56. “Environmental site conditions” means all environmental factors that affect a particular location. These items shall primarily include, fetch, wave conditions, wind conditions, bathymetry, currents, soil bearing capacity, ice impacts, tide range, flood elevation, velocity zone, littoral conditions, erosion/accretion characteristics, presence of wetlands, sub-aquatic vegetation, marine resources and associated habitats. This may include other site specific environmental conditions that may be relevant for review.

57. “Erosion and sediment control plan” or “ESCP” means a description of the proposed best management practices, detailed site plans, and written narrative that, when implemented, provides protection and restoration of coastal resources by reducing erosion and controlling sediment onsite as well as minimizing other negative impacts associated with land development activities.

58. "Existing hospitality industry business" means a qualifying commercial business which has been continuously operating prior to March 3, 2015 that has lost a view of the shoreline over time. Qualifying commercial business are one of the following: a resort, restaurant, or hotel that provides hospitality services to the general public including tourists where such services are dependent upon a view of the shoreline to support their business.

59. “Federal assistance to state and local governments” means assistance provided under a federal program to any unit of state or local government or related public entity through grant or contractual arrangements, loans, subsidies, guarantees, insurance or other form of financial aid.

60. “Federal license” or “federal permit” means any form of approval required by a federal agency (but does not include approvals to other federal agencies). Examples of such actions are: activities requiring Corps 404 permits; Interstate Commerce Commission water carrier licenses; Corps permits for use of ocean dump-sites; Nuclear Regulatory Commission permits for nuclear power plants; and delicensing of nuclear facilities by the Nuclear Regulatory Commission.

61. "Filling in tidal waters" means the placement of materials below the mean high water and includes the utilization of dredged materials to create land in tidal waters for purposes other than the creation of wetlands or beach replenishment.

62. “Filling, removing, or grading of shoreline features” means:

a. “Filling” means the deposition of materials of upland origin onto shoreline features or their contiguous areas.

b. “Removing” means the process of taking away any portion of a shoreline or its contiguous area by any method, including excavation, blasting, or mining.

c. “Grading” means the process whereby fill or the soils of a shoreline or its contiguous area are redistributed or leveled.

63. “Fixed terminal section” means the seaward-most section of a residential boating facility which is configured as a T-section or L-section that provides access between a fixed dock and a vessel.

64. “Floating business” means a building constructed on a raft or hull that is represented as a place of business, including but not limited to waterborne hotels, restaurants, marinas or marina related businesses.

65. "Footprint" means the square footage of the ground floor area encompassed by the structural foundation of a building.

66. “Freshwater aquaculture” means the culture of aquatic species under natural or artificial conditions in freshwater ponds, tanks, raceways or other freshwater impoundments located within the coastal zone or in inland locations throughout the state.

67. “Freshwater wetland” means those wetlands defined by R.I. Gen. Laws § 2-1-20(8), and further defined in the CRMC Rules for Freshwater Wetlands in the Vicinity of the Coast (Part 2 of this Subchapter) and any or all wetlands located in the vicinity of the coast, created as part of, or the result of, any activity permitted or directed by the CRMC or DEM including, but not limited to: restored wetlands; value replacement wetlands created to compensate for wetland loss such as flood plain excavations; and any wetlands created, altered or modified after July 16, 1971.

68. “Functional residential boating facility” means a facility that has been in continuous uninterrupted use.

69. “Groin” means a structure built of rock, steel, timber, or concrete that extends across a beach into tidal waters and is used to entrap sand in the longshore transport system; groins are generally perpendicular to the shoreline's coastal trend.

70. “Harbor commission” means a commission or locally appointed body which is responsible for the development and/or implementation of a local municipal harbor management plan.

71. “Harbormaster” means the person identified within the local harbor management plan to assist in the implementation of the approved HMP.

72. “Historic and archaeological resources” means districts, sites, buildings, structures, objects, and landscapes included in or eligible for inclusion in the state and national registers of historic places, or areas designated as historically or archaeologically sensitive according to the predictive model developed by the Rhode Island Historical Preservation and Heritage Commission.

73. “Horizontal datum” means either a fixed benchmark or a site-specific control point that establish location for a point on a map consistent with a coordinate system. The North American Datum of 1983 (NAD 83) is the official horizontal datum for the United States.

74. “Houseboat” means a building constructed on a float, barge, or hull as defined in R.I. Gen. Laws § 46-22-9.1.

75. “Jetties” means structures, usually of dumped stone in Rhode Island (rubble mound), that retard the migration of a tidal inlet (breachway) in order to provide safer passage for boats in and out of coastal lagoons and estuaries.

76. “Larva” means the early form of an animal that at birth or hatching is fundamentally unlike its parent and must metamorphose before assuming the adult form.

77. “Launching ramp” means a manmade or natural facility used for the launching and retrieval of boats.

78. “License” means the whole or part of any agency permit, certificate, approval, registration, charter, or similar form of permission required by law, not including those required solely for revenue purposes.

79. “Limited marina” means any facility marina intended for use by recreational vessels with a boat count between five (5) and twenty five (25).

80. “Limited recreational boating facilities” means a pier, dock ramp or float, or combination of such facilities constructed in accordance with the standards for residential boating facilities herein (§ 1.3.1(D) of this Part), which provide low intensity boating activities associated with land uses zoned by the local municipality as institutional or open space (or an appropriate sub-district of institutional or open space zoning) and may accommodate up to four (4) boats.

81. “Low impact development” or “LID” means a site planning and design strategy aimed at maintaining or replicating the predevelopment hydrology through the use of site planning, source control, and small- scale practices integrated throughout a site to prevent, infiltrate, and manage stormwater runoff as close to its source as possible. LID achieves natural resource protection by replenishing groundwater supplies, minimizing the stormwater runoff volume discharged to surface waters, and improving water quality. Examples of LID practices include bioretention, vegetated swales, stormwater planters, porous pavement or concrete, green roofs, rainwater collection systems for water reuse, and other similar methods.

82. “Maintenance of structures” means the rebuilding, reconstructing, repairing or re-establishing to previously approved conditions and dimensions a damaged or deteriorated structure or facility. Maintenance includes only those activities that do not significantly alter the assented design, purpose and size of the structure. Maintenance provisions for marina in-water facilities and residential boating facilities are found at § 1.3.1(D) of this Part.

83. “Manmade shoreline” means those shorelines that are characterized by concentrations of shoreline protection structures and the existence of other permitted alterations, to the extent that natural shoreline features are no longer dominant. They most commonly abut Type 3, 5, and 6 waters.

84. “Marina” means any dock, pier, wharf, float, floating business, or combination of such facilities that accommodate five or more recreational boats.

85. “Marina perimeter limit” or “MPL” means a defined perimeter based on in water facilities which defines and limits the area for structures to be located.

86. “Marine aquaculture” means the culture of aquatic species under natural or artificial conditions in the state’s waters including but not limited to: fish farming utilizing pens, tanks, or impoundments (which may be land-based); the culture of shellfish on the sea floor in permitted and leased areas, in cages, or suspended from structures in the water; and the culturing of aquatic plants. Note: land-based aquaculture operations (i.e., above mean high water) are also regulated under § 1.3.1(C) of this Part.

87. “Marine railway” or “slipway” means mechanical means for the lifting of a vessel out of the water to an elevation above the highest tides or for the launching of a vessel into the water. It is a system of cradles or carriages that are lowered into or raised from the water along an inclined track on a system of rollers or wheels.

88. “Maximum extent practicable” or “MEP” means the applicant has made all reasonable efforts to meet the standard, including the evaluation of alternative methods to achieve the same level of treatment. To show that a proposed development has met a standard to the maximum extent practicable, the applicant must demonstrate the following:

a. all reasonable efforts have been made to meet the standard in accordance with current local, state, and federal regulations;

b. a complete evaluation of all possible management measures has been performed; and

c. if full compliance cannot be achieved, the highest practicable level of management is being implemented.

89. “Moor” means to permanently secure a vessel to the submerged land of a waterbody by use of mooring tackle.

90. “Mooring” means the location where a vessel is secured to the submerged land of a waterway by mooring tackle.

a. “Private mooring” means a mooring rented by a resident or nonresident of a municipality under a permit granted by said municipality, and which is located within a CRMC approved mooring field.

b. “Riparian mooring” means a mooring rented by a riparian property owner under a permit granted by a municipality located within coastal waters bordering that property as bounded by the seaward extension of that property’s lateral lot lines. Said mooring may or may not be located within a CRMC approved mooring field.

c. “Commercial mooring” means a mooring rented by a commercial entity (e.g., marina, yacht club, etc.) under a permit granted by a municipality to residents or nonresidents, and which is located within a CRMC approved mooring field.

91. “Mooring area” means a designated water area managed by a municipality or non-governmental entity where five (5) or more recreational vessels are moored.

a. “Public mooring area” means those mooring areas managed by municipal or state agencies. Public mooring areas shall be delineated in approved HMPs.

b. “Marina mooring area” means those mooring areas managed by a private organization (e.g., marinas, yacht clubs, etc.). Marina mooring areas shall be considered as marina facilities and are subject to the provisions of the CRMP governing marina activities.

92. “Mooring tackle” means the hardware used to secure a vessel at a mooring.

93. “Mosquito control ditching” means the maintenance and construction of ditches in coastal wetlands in order to enhance tidal flushing and thereby reduce and control mosquito breeding sites.

94. “Municipal harbor rules, regulations and programs” means all rules, regulations, programs or management functions exercised by a municipality that apply to the use of tidal waters adjacent to a municipality.

95. “North American Vertical Datum of 1988” or “NAVD 88” means the vertical control datum of orthometric height established for vertical control surveying in the United States of America based upon the General Adjustment of the North American Datum of 1988.

96. “Ocean dumping” means the disposal of materials or pollutants without a permit into waters of the state. Ocean dumping does not include discharges of effluent incidental to the operation of vessels, the dumping of fish wastes, or the placement or deposit of materials on the sea floor for the purpose of enhancing fisheries.

97. “Oil” means oil of any kind and in any form as defined in R.I. Gen. Laws § 46-12.5.1-1(5).

98. “One-hundred-year flood level” means the flood elevation relative to NAVD 88 that has a one (1) percent probability of being equaled or exceeded in any given year. The100-yr flood extent line has been designated by the Federal Emergency Management Agency on Flood Insurance Rate Maps.

99. “Onsite wastewater treatment system” or “OWTS” means any system of piping, tanks, dispersal areas, alternative toilets or other facilities designed to function as a unit to convey, store, treat or disperse wastewater by means other than discharge into a public wastewater system.

100. “Open marsh water management” or “OMWM” means the maintenance and construction of reservoirs and connectors in order to enhance the tidal food web and thereby reduce and control mosquito breeding sites.

101. “Operator” means any person owning or operating an oil carrying tanker vessel with a capacity of more than 5,000 gallons whether by lease, contract, or any other form of agreement. (Note: this definition applies to § 1.3.8 of this Part)

102. “Outer continental shelf exploration, development and production activities” means those activities associated with the exploration or development of, or production from, any area which has been leased under the Outer Continental Shelf Lands Act (See 43 U.S.C. § 29).

103. “Outhaul” means a recreational boating facility that consists of a non-single-point anchoring device, for the purpose of securing a boat in tidal waters and retrieving it from shore.

104. “Person” means any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than an agency.

105. “Petroleum hydrocarbons” means a compound originating from oil, gas, or other petroleum base and composed primarily of hydrogen and carbon.

106. “Petroleum products” means crude or refined oils, kerosene, gasoline, natural gas, or liquefied natural gas (LNG), liquefied petroleum gas (LPG), synthetic natural gas (methane or SNG), or other petroleum derivatives.

107. “Physiographic feature” means a landform or element of the landscape.

108. “Plankton” means small, suspended aquatic plants and animals which drift or swim weakly in the water column.

109. “Point source discharge” means any discernible, confined, and discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft from which a pollutant is or may be discharged.

110. "Pollutant" means any material or effluent as defined R.I. Gen. Laws § 46-12-1(15).

111. “Priority of use” means a reflection of the Council's assessment of those uses deemed most likely to be consistent with adopted Council policies and regulations.

112. “Program” or “CRMP” means the State of Rhode Island Coastal Resources Management Program.

113. “Property line extension” or “PLE” means projections of property lines used to demarcate the sideways bounds of a tidal water area adjacent to property on which a marina or residential dock is proposed to be sited. The PLE is used in the application process as a tool to assess dock siting and is not to be construed as conveying any rights or privileges to an applicant or property nor as a determination of riparian rights.

114. “Public access to the shore” means a general term used to describe the ways and means by which the public may legally reach and enjoy the coastal areas and resources of the State.

115. “Public right-of-way” means a parcel of land over which the public has a right to access tidal waters.

116. “Public roadways” means all roadways other than private driveways used to access either public or private roads.

117. “Public trust resources” means the resources held in trust for the benefit of the public and includes tangible physical, biological matter substance or systems, habitat or ecosystem contained on, in or beneath the tidal waters of the state, and also include intangible rights to use, access, or traverse tidal waters for traditional and evolving uses including but not limited to recreation, commerce, navigation and fishing.

118. “Recreation” means any voluntary experience engaged primarily during leisure time from which the individual derives satisfaction.

119. “Recreational structures” means swim floats, beach pavilions and other structures that are located in the water or constructed for recreational purposes on a shoreline feature, its contiguous area, or in tidal waters.

120. “Recreational boating facilities” means marinas, launching ramps, outhauls, residential and limited recreational boating facilities, recreational wharves, piers and slips, floats or floating docks, and mooring areas.

121. “Redevelopment” means any construction, alteration, or improvement that disturbs a total of 10,000 square feet or more of existing impervious area where the existing land use is commercial, industrial, institutional, governmental, recreational, or multi-family residential.

122. “Residential boating facility” means a dock, pier, wharf, or float, or combination of such facilities, that shares a common boundary or is located directly across the width of a public road with a private residence, developed condominium, developed cooperative or other home owners’ association properties that may accommodate up to four (4) boats.

123. “Residential building” means houses, and other structures as defined in the Rhode Island State Building Code (510-RICR-00-00-2) which are used primarily for human habitation and are built on a shoreline feature or its contiguous area.

124. “Restoration” means a return to former, natural or unimpaired condition.

125. “Revetment” means a structure built to armor a sloping shoreline face usually composed of one or more layers of stone or concrete riprap. A revetment blankets, and generally conforms to, the contours or a coastal feature.

126. “Rhode Island State Plane Coordinate System of 1983” or “RISPCS 1983” means a transverse Mercator projection of the North American datum of 1983, which can be used for defining and stating the geographic positions or locations of points on the surface of the earth within the state and defined in R.I. Gen. Laws § 34-8-4. The Rhode Island Coordinate System of 1983 shall be used for all HMPs.

127. “Riparian rights” means the rights and privileges of a person owning land containing or bordering on a watercourse.

128. “Riprap” means stone or concrete blocks that are dumped or placed and installed without mortar.

129. “Rocky shore” means naturally occurring shorelines composed of bedrock ledge or boulder strewn areas extending from below mean low water to above the mean high water mark. These areas frequently contain tide pools.

130. “Runoff” means that portion of precipitation which is not absorbed into the ground and which directly or indirectly drains through natural or manmade channels to surface water bodies.

131. “Salt marsh” means areas regularly or irregularly inundated by salt water through either natural or artificial water courses and where one or more of the following species predominate: smooth cordgrass (Spartina alterniflora), salt meadow grass (Spartina patens), spike grass (Distichlis spicata), black rush (Juncus gerardi), saltwort (Salicornia spp.), sea lavender (Limonium carolinianum), saltmarsh bulrush (Scirpus spp.), high tide bush (Iva frutescens). Saltmarsh includes both high saltmarsh and low saltmarsh defined as follows:

a. High salt marsh is defined as that portion of the saltmarsh that is typically flooded by spring, moon, or other flooding tides but otherwise is not flooded on a daily basis. The vegetative composition of high salt marsh typically consists of one or more of the following: salt meadow grass (Spartina patens); short-form Spartina alterniflora spike grass (Distichlis spicata); black rush (Juncus gerardi); tall reed (Phragmites communis); Sea Lavender (Limonium carolinianum); tall cordgrass (Spartina pectinata); saltmarsh bulrushes (Scirpus spp.); and high tide bush (Iva frutescens).

b. Low salt marsh is defined as that portion of the saltmarsh that is flooded daily and the vegetative composition typically consists predominantly of smooth cordgrass (Spartina alterniflora).

132. “Scarp” means a line of cliffs, bluffs produced by faulting or erosion.

133. “Sea level” means the height of the sea with respect to a horizontal control point or benchmark such as the North American Vertical Datum of 1988 (NAVD 88). Sea level rise refers to the net increase in mean sea level over time in response to global climate, local tectonic changes, glacial isostatic adjustment, and ocean dynamics. Sea level rise indicates a positive trend, thus an increase in sea level as compared to historic measurements.

134. “Sea Level Affecting Marshes Model” or “SLAMM” means a model that simulates the dominant processes involved in wetland conversion and shoreline modifications during long-term sea level rise. The model projects the likely wetland conditions for selected sea level rise scenarios and the extent of landward wetland migration.

135. “Seawall” means a structure built of placed or dumped stone, concrete, or steel sheet pile. Concrete seawalls often have curved, or stepped face designed to withstand the direct onslaught of ocean waves.

136. “Sedimentation” means the settling to the bottom of suspended sediments.

137. “Seed” means: Quahogs (Mercenaria mercenaria) with a shell size along the longest axis less than 20mm; Oysters (Crassostrea virginica and Ostrea edulis) with a shell size along the longest axis less than 32mm; and any Blue Mussels (Mytilus edulis) that have settled during the current calendar year.

138. “Setback” means the minimum distance from the inland boundary of a coastal feature or buffer zone at which construction or an approved activity or alteration may take place.

139. “Sewage” means fecal material and human waste pursuant to R.I. Gen. Laws § 46-12-1(21). For purposes of this Part sewage further includes pollutant as defined herein.

140. “Sewage treatment plant” means sewage collection and treatment facilities, including state, municipal, or privately owned and operated collection, pumping, treating, disposal or dispersion facilities designed for the treatment of sewage from residences, commercial buildings, industrial plants and institutions, together with any groundwater, surface water, or surface runoff that may be present in the waste stream.

141. “Shellfish stock” means a population of species living within defined limits (e.g., the Narragansett Bay steamer clam stock or the Ninigret Pond wild oyster stock).

142. “Shoreline category/type” means one of the seven categories of Rhode Island shorelines designated as part of this program.

143. “Significant damage to the environment” means detriment, harm, or destruction of the environment, as opposed to damage of trivial consequence.

144. “Significant expansion of a marina” means any expansion greater than 25 % of existing or previously authorized boat capacity, or an expansion of fifty (50) or more vessels.

145. “Spat” means a molluscan bivalve larva that is in the water column or recently settled.

146. “Spat collection” means the use and placement of submerged apparatus to attract or capture larval shellfish by a CRMC Assent holder.

147. “Storm surge” means an elevation in the sea surface from the effects of a storm.

148. “Stormwater management plan” means a plan describing the proposed methods and measures to prevent or minimize stormwater runoff (water quality and quantity) impacts associated with a development project both during and after construction. It identifies selected low impact development source controls and treatment practices to address those potential impacts, the engineering design of the treatment practices, and maintenance requirements for proper performance of the selected practices. The stormwater management plan details how a project complies with the eleven (11) minimum stormwater management standards and performance criteria detailed in the most recent version of the Rhode Island Stormwater Design and Installation Standards Manual. When such a plan is implemented, it provides protection and restoration of receiving waters by reducing pollutant loadings and other negative impacts associated with changes in land use (i.e., urbanization).

149. “Stormwater runoff” means that portion of precipitation that does not naturally infiltrate into the landscape (e.g., without human influence) but rather travels overland as surface flow. It is also commonly referred to as "stormwater". Stormwater runoff is a significant contributor of pollutants such as sediments, bacteria, nutrients (nitrogen and phosphorus), hydrocarbons (oil and grease), metals, and other substances that adversely affect water quality and the coastal environment. In addition, significant discharges of stormwater may alter salinity and thereby, adversely impact the coastal environment, especially in poorly flushed estuaries and embayments.

150. “Structural lot coverage” means that part of a lot or parcel that is covered by roofed structures of at least 200 square feet in size. Structural lot coverage is calculated in square feet and is either equal to the total square footage occupied by one or more foundations, or, in the case of cantilevered structures, the total square footage occupied by the structure and calculated as if a foundation supported the cantilevered portions of the structure. Structural foundations shall be broadly interpreted to include sona-tubes, pilings, concrete blocks, columns, or other types of foundation material which provide structural support to a structure which is covered by a roof.

151. “Structural perimeter limit” or “SPL” means a defined perimeter based on in-water commercial and/or industrial structures and operations which defines and limits the area for said structures and operations to be located.

152. “Structural shoreline protection facilities” means revetments, bulkheads, seawalls, groins, breakwaters, jetties, and other structures, the purpose or effect of which is to control the erosion of coastal features, and includes any sheet pile walls, concrete or stone walls, or other structures that are located within the 50-foot minimum setback or the erosion setback pursuant to § 1.1.9 of this Part and which would extend to a depth below grade to protect land or structures from active or future shoreline erosion.

153. “Subdivision” means the division or re-division of land as defined in R.I. Gen. Laws § 45-23-32(52).

154. “Submerged aquatic vegetation” or “SAV” means rooted, vascular, flowering plants that, except for some flowering structures, live and grow below the water surface in coastal and estuarine waters in large meadows or small disjunct beds. SAV species of concern include eelgrass (Zostera marina) and widgeon grass (Ruppia maritima), with eelgrass as the dominant SAV in Rhode Island waters.

155. “Submerged aquatic vegetation habitat” or “SAV habitat” means the sediment and water column, and the physical, chemical and biological processes that are necessary to support SAV. SAV habitat occurs in continuously vegetated beds and in intermittent vegetated beds, including unvegetated areas between vegetated beds.

156. “Swim float” means any float that is 150 square feet or less, bottom anchored and approved by the CRMC and local harbormaster on a seasonal basis (May 15 – October 15) that does not have vessels attached.

157. “Terminal float” means a floating dock or docks that are typically at the seaward terminus of a residential boating facility to which the berthed vessels are typically affixed and from which the vessels are boarded or berthed. Terminal floats are typically accessed from a ramp leading from a fixed pier. Four foot wide floats that are used to provide perpendicular access to the berthing area in lieu of the utilization of a fixed pier are defined as access floats, not terminal floats. Additional floats, not at the seaward end and not used primarily for access, shall be considered a terminal float.

158. “Transfer” means both on loading and offloading between vessels.

159. “Transient berthing” means berthing for less than thirty days (30) by a vessel that is typically kept at another location. Transient vessels and slips for transient vessels shall be considered part of the overall boat count allowed. Touch and Go facilities shall limit berthing to a maximum of forty eight (48) hours.

160. “Tributary” means any flowing body of water or watercourse which provides intermittent or perennial flow to tidal waters, coastal ponds, coastal wetlands or other down-gradient watercourses which eventually discharges to tidal waters, coastal ponds or coastal wetlands.

161. “Tributary wetland” means freshwater wetlands that are connected via a watercourse to a coastal wetland and/or tidal waters.

162. “Undue hardship” means an inappropriate, unsuitable, unlawful, or excessive standard or requirement levied upon an applicant. This does not include economic diminution in value.

163. “Upweller” means a mechanical device to increase water flow for shellfish seed intended to accelerate their growth.

164. “Vertical datum” means either a fixed benchmark such as NAVD 88 or a site specific tidal datum such as mean high water, mean low water and mean sea level. NGVD 29 is based on the local mean sea level in 1929, which has changed over time. NAVD 88 is the official civilian vertical datum for surveying and mapping activities in the United States. Tidal datum, such as mean sea level (MSL) or mean high water (MHW), vary according to the specific location, and represent the mean heights observed over the national tidal datum epoch.

165. “Vessel” means every description of watercraft, other than a seaplane on water, used or capable of being used as a means of transportation on water and shall include barges and tugs. Specifically excluded by this definition are floating homes or houseboats.

166. “Water-dependent” means activities and/or uses which can only be conducted on, in, over, or adjacent to tidal waters or coastal ponds because the use requires access to the water from transportation, recreation, energy production, or source of water and also includes non-water-dependent activities that provide access to the shore to broad segments of the public.

167. “Water quality volume” or “WQv” means the storage needed to capture and treat 90% of the average annual stormwater runoff volume, and in Rhode Island this equates to one (1)-inch of runoff from impervious surfaces.

168. “Water use category/type” means one of six use designations assigned to Rhode Island coastal waters as part of this program.

169. “Wetland restoration” means the re-establishment of a wetland (on the site of an historical wetland) which has been degraded to such an extent that the site performs little or none of its original wetland functions.

170. “Wetland walkover structure” means a pile-supported structure no more than 30 inches wide that provides passage over a wetland. Any pile supported structure that does not meet the requirements of § 1.3.1(Q) of this Part or terminates in a wetland or in tidal or non-tidal waters is not a wetland walkover structure.

171. “Widgeon grass” or “Ruppia maritima” means a rooted, submerged aquatic plant which is capable of both vegetative and sexual growth. Widgeon grass exists primarily in saline and brackish waters, salt ponds and pools within salt marshes, and inland saline waters.

172. “Wild stock” means existing natural resources, including aquatic (freshwater and marine) animals or plants, which grow within the waters of the state.

1.1.3 Requirements for Applicants

A. Step one - Is a Council assent required?

1. All developments or operations within, above or beneath the tidal waters below the mean high water mark extending out to the extent of the state’s jurisdiction in the territorial sea, and those occurring on coastal features or within all directly associated contiguous areas which are necessary to preserve the integrity of coastal resources, or any portion of which extends onto the most inland shoreline feature or its 200 foot contiguous area, or as otherwise set out in the Coastal Resources Management Program, require a Council Assent.

2. Persons proposing the following activities any portion of which extends onto the most inland shoreline feature or its 200 foot contiguous area are required to apply for a Council Assent: subdivisions, cooperatives, or other multi-ownership facilities [of six (6) units or more], or facilities requiring or creating 40,000 sq. ft. or more of parking.

3. Persons proposing the following activities within critical coastal areas, which include the watersheds of poorly flushed areas delineated on maps accompanying this program, are required to apply for a Council Assent: subdivisions, cooperatives, and other multi-ownership facilities [of six (6) units or more]; any structure serviced by an on-site sewage disposal system servicing 2,000 gallons or more per day; any activity which results in the creation of 40,000 sq. ft. or more of impervious surface; construction or extension of municipal or industrial sewage facilities or systems (not connections to individual homes); construction or extension of water distribution systems or supply lines (not connections to individual homes).

4. Persons proposing selected inland activities anywhere in the state that may require a Council Assent shall request a review of the project to determine whether impacts on the environment of the coastal region are likely and, therefore, whether a Council Assent will be required. These selected inland activities are:

a. power generating over forty (40) megawatts

b. chemical or petroleum processing, transfer or storage;

c. minerals extraction;

d. sewage treatment and disposal and solid waste disposal facilities; and

e. desalination plants

5. Persons proposing any project or activity which may alter the character any freshwater wetland in the vicinity of the coast, and which is not specifically exempt under the Rules and Regulations for the Protection and Management of Freshwater Wetlands in the Vicinity of the Coast (Part 2 of this Subchapter), are required to apply for a Council Assent. When it is not clear as to whether or not freshwater wetlands exist in the area of any proposed activity, or whether the proposed activity requires a Council Assent, persons should consult with the Council prior to undertaking any activity.

B. Step two - Where Is the activity or alteration being proposed?

1. Locate the area where an activity or alteration is proposed on the maps that accompany this Program. Then note the water use category (if an on land activity is proposed, the adjoining water use category). If the shoreline is designated a critical erosion area, note the average annual erosion rate. In these areas, non-water dependent structures must be set back a distance equivalent to 30 times the annual erosion rate (see § 1.1.9 of this Part). The prerequisites, standards, and Category B requirements for on land activities listed in §§ 1.3.1(A) through 1.3.1(R) and in §§ 1.3.5 and 1.3.6 of this Part apply to both shoreline features and their 200 foot contiguous area.

2. Identify the shoreline features that may be affected. The maps give some indication of the shoreline features that may be involved, but this must be verified by inspecting the site. The definitions of shoreline features in § 1.1.2 of this Part will further assist you in identifying what shoreline features are present.

3. If the proposed activity or alteration is not located in Rhode Island's coastal waters, on or within the 200 foot contiguous area, or a statewide activity listed in § 1.3.3 of this Part, determine if it is located within a critical coastal area. If the proposed alteration or activity is listed in § 1.3.4 of this Part, then you will need to apply for a Council Assent.

4. If the proposed project or activity may alter the character of any freshwater wetland in the vicinity of the coast and is not specifically exempt, then you will need to apply for a Council Assent.

C. Step three - What regulations apply?

1. The prerequisites, policies, and standards in this Program are regulations that must be met by all persons who undertake alterations and activities under the Council's jurisdiction.

2. If the alteration proposed is for tidal waters or for a shoreline feature, turn to Table 1 in § 1.1.5 of this Part and match the activity with the water area and shoreline type. The table will tell you if the activity you propose is prohibited or will be processed as a Category A or Category B application. Table 2 in § 1.1.5 of this Part lists the review categories for activities proposed in the 200 foot area contiguous to shoreline features.

3. If the proposed alteration is within a critical coastal area, consult the appropriate CRMC Special Area Management Plan for supplemental policies, standards, and requirements. Table 3 in § 1.1.5 of this Part lists the review categories for inland activities subject to the requirements of § 1.3.3 or § 1.3.4 of this Part.

4. If the proposed project or activity is located within any freshwater wetland in the vicinity of the coast, the area of land within fifty feet (50') or on a riverbank, then the CRMC Rules and Regulations for the Protection and Management of Freshwater Wetlands in the Vicinity of the Coast (Part 2 of this Subchapter) shall apply.

D. Category A applications

1. Review the policies in § 1.2 of this Part for the water use and shoreline categories your proposal may affect. These may set limits on what may be permitted or provide guidance on how the work should by undertaken.

2. Turn to the appropriate section in § 1.3 of this Part and; note any prerequisites that you must meet before filing for a Council Assent; and review all standards. When filing a Category A application you must commit yourself to upholding all applicable standards. If you cannot or do not wish to meet one or more standards, you must apply for a variance (§ 1.1.7), if applicable.

3. File your application. If the activity you propose is not starred (*) on Table 1 in § 1.1.5 of this Part and you meet all applicable standards, and if all information requirements have been verified by the Council's staff, review of the application will begin. If grounds for a substantive objection (see § 1.1.6(H) of this Part) exist on the proposed site (for example, the presence of rare or endangered species or severe building constraints), a Council member or the Council's staff will recommend review by the full Council, and the application will be put out to public notice.

4. If the activity you propose is starred (*), public notice will be given of your proposal; abutters to the affected property and local and state officials will be notified of your proposal. If one or more substantive objections (see § 1.1.6(H) of this Part) are filed within the 30 day notice period, a public hearing on your proposal will be scheduled and a Council subcommittee appointed to hear the objections, review your application, and recommend action to the full Council.

E. Category B applications

1. Complete steps 1 and 2 above (§§ 1.1.3(A) and (B) of this Part) as for a Category A Assent.

2. Prepare in writing an environmental assessment of your proposal. This must address all items listed in § 1.3.1(A) of this Part and any additional requirements for Category B applications listed for the activity in question in the appropriate sections of § 1.3 of this Part. The amount of detail appropriate for each topic will vary depending on the magnitude of the project and the likely impacts. If, in your opinion, some issues do not apply, simply note: "Does not apply."

3. All Category B applications are put out to public notice. A public hearing will be scheduled if one or more substantive objections are filed within the thirty (30) day notice period. A Council subcommittee will review your proposal, the comments prepared by its staff, and all other pertinent materials, and will recommend action to the full Council. If your proposal is uncontested, you may expect Council action within thirty (30) working days of verification by the Council's staff that all informational requirements have been met. The Council shall base its decision on consideration of how your proposal conforms to goals for the shoreline features and water use categories affected, other relevant policies, and the significance of the likely impacts of your proposal on the environment of the coastal region.

1.1.4 Alterations and Activities That Require an Assent from the Coastal Resources Management Council (formerly § 100)

A. Tidal waters, shoreline features, and contiguous Areas (formerly § 100.1)

1. A Council Assent is required for any alteration or activity that are proposed for:

a. tidal waters within the territorial seas (including coastal ponds, some of which are not tidal but which are coastal waters associated with a barrier beach system, and are physiographical features);

b. shoreline features; and

c. areas contiguous to shoreline features.

(1) Contiguous areas include all lands and waters directly adjoining shoreline features that extend inland two hundred (200) feet from the inland border of that shoreline feature. A Council Assent is required for any alteration or activity any portion of which extends onto the most inland shoreline feature or its 200 foot contiguous area. Representative activities are listed in Tables 1, 2 and 3 of § 1.1.5 of this Part. Any alteration or activities as defined in § 1.1.5 of this Part must have an assent card posted and have a copy of the assent available at the site where the intended activity or alteration is to take place. Failure to post assent card and/or have a copy of the assent available constitutes a violation under this program.

2. Council Assents are also required for any other activity or alteration not listed in Tables 1, 2 and 3 of § 1.1.5 of this Part, but which has a reasonable probability of conflicting with the Council's goals and its management plans or programs, and/or has the potential to damage the environment of the coastal region.

3. Tidal waters and coastal ponds have been assigned to one of six use categories. Findings, goals, and policies pertaining to each water use category are found in § 1.2 of this Part. High resolution, large scale maps showing the use categories are available on the CRMC website at: http://www.crmc.ri.gov/maps/maps_wateruse.html for each coastal community. The precise delineation of the seaward boundaries of the state's territorial sea must be clarified through special state legislation. Until that time, the Council shall use as a guide-line the boundaries shown in Figure 1 of § 1.1.5(D) of this Part. The land-ward boundary of the territorial sea is the mean high water mark along the Rhode Island coast.

4. Shoreline features together encompass the entire shore and are assigned to the following categories:

a. Coastal beaches and dunes;

b. Barrier beaches;

c. Coastal wetlands;

d. Coastal cliffs, bluffs, and banks;

e. Rocky shores;

f. Manmade shorelines; and

g. Dunes

5. The prerequisites, standards, and Category B requirements for on land activities listed in §§ 1.3.1(A) through 1.3.1(R) and in §§ 1.3.5 and 1.3.6 of this Part apply to shoreline features, their 200-foot contiguous area, and inland activities subject to §§ 1.3.3 and 1.3.4 of this Part.

B. Inland of shoreline features and contiguous areas (formerly § 100.2)

1. The Council reserves the right to review the following categories of alterations and activities proposed inland of shoreline features and their contiguous areas pursuant to R.I. Gen. Laws § 46-23-6:

a. Power generating plants over 40 megawatts capacity;

b. Chemical or petroleum processing, transfer, or storage facilities (excluding those of less than a 2,400-barrel capacity);

c. Freshwater wetlands in the vicinity of the coast;

d. Minerals extraction;

e. Sewage treatment and disposal facilities (excluding onsite wastewater treatment systems);

f. Solid waste disposal facilities; and,

g. Desalination plants.

2. Where, on the basis of a review, it is found that a proposal has a reasonable probability of conflict with adopted resources management plans or programs, and/or has the potential to damage the coastal environment the Council shall require that an Assent be obtained. Inland activities and alterations that may be subject to Council permitting are defined, and Council findings, goals, policies, and regulations are set forth in § 1.3.3 of this Part.

C. Critical coastal areas (formerly § 100.3)

1. Watersheds of poorly flushed estuaries: The Council reserves the right to review any activity proposed within the watersheds of poorly flushed estuaries and critical coastal areas. Therefore the Council has developed and adopted Special Area Management Plans in order to address the specific environmental concerns of those priority management areas. In addition to those activities captured under the Council's management program, activities within the Salt Pond Region and Narrow River Special Area Management Plans (SAMP) (as delineated on the maps accompanying each SAMP) that have a reasonable probability of conflicting with the goals of this plan must submit an application for an assent. These activities are:

a. Subdivisions, cooperatives, and other multi-ownership facilities [of six (6) units or more];

b. Any structure serviced by an on-site sewage disposal system servicing 2,000 gallons or more per day;

c. Any activity which results in the creation of 40,000 sq. ft. or more of impervious surface;

d. Construction or extension of municipal or industrial sewage facilities or systems (not connections to individual homes); and,

e. Water distribution systems or extensions of supply lines (not connections to individual homes).

f. All roadway construction and upgrading projects; and

g. Development affecting freshwater wetlands in the vicinity of the coast.

2. Applicants proposing one or more of these activities shall apply to the Council. For more detailed mapping of the poorly flushed estuaries and their adjacent land use areas, as well as policies and recommendations pertaining to these areas, please see the appropriate Special Area Management Plan.

D. Freshwater wetlands in the vicinity of the coast (formerly § 100.4)

1. Applicability

a. A Council Assent is required for any project or activity which may alter the character of any freshwater wetland in the vicinity of the coast. Applicants are referred to the CRMC’s Rules and Regulations for the Protection and Management of Freshwater Wetlands in the Vicinity of the Coast (Part 2 of this Subchapter) (i.e., the Rules) for specific programmatic requirements.

b. The Rules apply to all freshwater wetlands within the Council’s jurisdiction, the jurisdictional resource areas which are area(s) of land within fifty feet (50’), riverbanks, and flood plains, and, all activities which could alter the character of any freshwater wetland or part thereof in the vicinity of the coast.

c. The authority of the CRMC to apply the Rules to freshwater wetlands in the vicinity of the coast, area(s) of land within fifty (50) feet, riverbanks, and flood plains, is that which is necessary to carry out the effective management of the resource.

d. Projects or activities subject to the CRMC’s jurisdiction due to the nature of the activity, its proximity to any coastal feature, or its location within the boundaries of the Narrow River or Salt Ponds watersheds (as defined in the Narrow River and Salt Ponds Special Area Management Plans (SAMP)), and the proposed project is also subject to these Rules, the CRMC shall apply the provisions of the RICRMP and any applicable SAMP in addition to these Rules. Where these separate regulatory programs may conflict, the more stringent definition, policy, standard and/or prohibition shall apply.

2. Policies

a. It is the policy of the Council to prohibit the alteration, filling, removing or grading of any tributary or tributary wetland. In all cases the precise boundary of the freshwater wetland shall be determined through a field inspection and verification by CRMC staff.

b. The Council’s Rules and Regulations for the Protection and Management of Freshwater Wetlands in the Vicinity of the Coast (Part 2 of this Subchapter), are incorporated herein and the following constitute the functions and values of freshwater wetlands, area(s) of land within fifty (50) feet, riverbanks, and flood plains:

(1) Wildlife and Wildlife Habitat: Freshwater wetlands, area(s) of land within fifty (50) feet, riverbanks, and flood plains are important areas for the production and diversity of wildlife. Wetlands, area(s) of land within fifty (50) feet, riverbanks, and flood plains provide habitat for individual species and communities of animals and plants. Animals include both game and non-game species, which may be either obligate or facultative, and which may be permanent residents, seasonal or transient in nature. Wetlands, area(s) of land within fifty (50) feet, riverbanks, and flood plains serve as travel corridors, nesting sites, feeding sites, resting sites, nursery and/or brood rearing sites, escape cover, and seasonal breeding, migration, and over-wintering habitat for wildlife. Wetlands, area(s) of land within fifty (50) feet, riverbanks, and flood plains provide critical habitat for some plant and animal species, and provide habitat for rare animal and rare plant species.

(2) Recreation and Aesthetics: Freshwater wetlands, area(s) of land within fifty (50) feet, riverbanks, and flood plains provide and potentially provide a variety of important active and passive recreational and aesthetic values to the general populace. Such active and passive recreational values include, but are not limited to activities such as; hunting, fishing, trapping, cross-country skiing, ice skating, boating, waterskiing, canoeing, camping, swimming, bicycling, hiking/walking, horseback riding, harvesting of natural foods or plant materials, bird watching, education and nature studies or other animal observations and photography. Aesthetic values include, but are not limited to, the wetlands, area(s) of land within fifty (50) feet, riverbanks, and flood plains visual, aural and cultural qualities such as its prominence as a distinct feature in the local area, including its prominence as open space; whether the wetland, area of land within fifty (50) feet, riverbank, or flood plain is a rare type; whether the wetland, area of land within fifty (50) feet, riverbank, or flood plain actually maintains or provides suitable habitat for any rare animal or rare plant species; whether the wetlands, area(s) of land within fifty (50) feet, riverbanks, and flood plains has any outstanding or uncommon geomorphologic features; and whether the wetlands, area(s) of land within fifty (50) feet, riverbanks, and flood plains contains archaeological evidence or historic significance.

(3) Flood Protection: Freshwater wetlands, area(s) of land within fifty (50) feet, riverbanks, and flood plains protect life and/or property from flooding and flood flows by storing, retaining, metering out, and otherwise controlling flood waters from storm events. Further, wetlands, area(s) of land within fifty (50) feet, riverbanks, and flood plains control the damaging effects of flood flows by dissipating erosive forces, providing frictional resistance to flood flows, and providing shoreline anchoring values.

(4) Surface Water and Groundwater: Freshwater wetlands, area(s) of land within fifty (50) feet, riverbanks, and flood plains provide and/or maintain surface and/or groundwater supplies by acting as a recharge or discharge area, or in the case of some ponds, acting as surface water reservoirs. While groundwater recharge and discharge functions and values may vary seasonally, a freshwater wetlands, area(s) of land within fifty (50) feet, riverbanks, and flood plains may, either individually or cumulatively, be an important factor in replenishing ground and surface water supplies, maintaining stream flows, transporting surface waters, and storing or metering out surface waters and/or groundwater during seasons or periods of droughts.

(5) Water Quality: Freshwater wetlands, area(s) of land within fifty (50) feet, riverbanks, and flood plains protect and/or maintain important water quality functions and values by nutrient retention or removal; pollution filtration; sediment removal; oxygen production; turbidity reduction; maintenance or modification of stream flow; temperature and oxygen regimes in both flowing and surface water bodies, and providing and maintaining safe drinking water supplies.

c. The functions and values of freshwater wetlands in the vicinity of the coast further the goals and objectives of the Council’s management programs for the protection and management of coastal resources.

3. Prerequisites

a. A water quality certificate from the Department of Environmental Management shall be a prerequisite for any application to alter freshwater wetlands pursuant to the Council’s Rules and Regulations for the Protection and Management of Freshwater Wetlands in the Vicinity of the Coast (Part 2 of this Subchapter).

4. Prohibitions

a. Filling, removing, or grading (§ 1.3.1(B) of this Part) is prohibited on any tributary or tributary wetland. Any activity not prohibited herein shall be evaluated against the Council’s Rules and Regulations for the Protection and Management of Freshwater Wetlands in the Vicinity of the Coast (Part 2 of this Subchapter). However, the following exceptions may be permitted by the Council:

(1) The fifty (50) foot wetland perimeter and river bank wetland areas outside the wetland “edge” (RIFWWA, R.I. Gen. Laws §§ 2-1-20(d) and (g)) shall not be considered part of the wetland under this section.

(2) Filling, removing, or grading of freshwater wetlands, excluding areas regulated as coastal wetlands (§ 1.2.2(C) of this Part) may receive relief from this prohibition in instances where filling is required to access otherwise buildable land and when no other reasonable alternatives for access exist and when the applicant has satisfied the variance burdens of proof set forth in § 1.1.7 of this Part. Buildable land shall be defined as a land area which satisfies all federal, state, and municipal requirements for the intended development. To be defined as buildable land, the intended development must also satisfy the requirements in applicable Special Area Management Plans and meet all of the Department of Environmental Management’s regulations and requirements for OWTS in “Critical Resource Areas.” In cases where the Council approves filling of a freshwater wetland in order to access otherwise buildable land, the applicant shall be subject to the following requirements:

(AA) The applicant shall be required to mitigate the area of wetland lost on a 2 to 1 (2:1) area basis;

(BB) The wetland that is replaced shall be consistent with that which was filled;

(CC) The mitigation, when feasible, shall take place on-site and in an area which is hydrologically connected to the impacted wetland. When not feasible the Council shall consider other viable alternatives, including increased mitigation ratios;

(DD) Setback and buffer requirements shall be required for the wetland replacement area;

(EE) Enhancement of existing wetland shall not be an acceptable form of mitigation under this section;

(FF) When applicable, all wetland replacement projects will require the approval of the Rhode Island Department of Environmental Management, Division of Freshwater Wetlands; and,

(GG) When applicable, the applicant shall concurrently submit applications to the RIDEM and to the CRMC so that a concurrent review of the proposed activities can occur.

1.1.5 Review Categories and Prohibited Activities in Tidal Waters and on Adjacent Shoreline Features

A. Table 1: Water type matrices

B. Table 2: Review categories in the 200 foot area contiguous to shoreline features

C. Table 3: Review Categories for Inland Activities (§§ 1.3.3 and 1.3.4 of this Part)

D. Figure 1: Rhode Island's territorial sea and geographic location description (GLD) boundary

1.1.6 Applications for Category A and Category B Council Assents (formerly § 110)

A. The regulations contained herein are regulations that must be met by all persons who undertake alterations and activities under the Council’s jurisdiction.

B. Through the adoption and implementation of the Marine Resources Development Plan by the Council on January 10, 2006, permit applications which meet the thresholds below in § 1.1.6(C) of this Part, have received no objections, and are consistent with the goals and policies of the coastal resources management program will be reviewed and acted upon administratively by the executive director or his/her designee not less than 20 calendar days after the staff report(s) is/are completed and placed in the public file. Category B applications which do not meet the thresholds below or have received an objection(s) will be reviewed by the full Council, and are not subject to the 20 day wait period that the applications reviewable under §1.1.6(C) of this Part (below) are. All public notice requirements, prerequisites, policies, prohibitions and standards shall remain in full force and effect and any reference to review and/or action by the full council cited herein shall be superseded by this rule.

C. If the executive director or deputy director in their discretion determines the application does not meet the goals and policies contained in the coastal resources management program and its applicable special area management plans, or fails to meet the variance criteria for any required variances, they may require that the application be reviewed and acted upon by the full council. The applicant will be notified of that determination in writing.

D. Applications eligible for administrative review include the following.

1. Subdivisions of twenty (20) units or less;

2. Residential docks less than 200 feet (MLW) in length in the Sakonnet River or the open waters of Narragansett Bay;

3. Residential docks up to 75 feet (MLW) in length as are permissible in CRMC water types set forth in the CRMP;

4. Terminal floats less than 200 square feet;

5. Aquaculture sites of up to three (3) acres in the salt ponds or upper Narragansett Bay; less than 10 acres elsewhere;

6. Structural shoreline protection facilities of less than 300 linear feet;

7. Dredging, and dredge material disposal at pre-approved locations of less than 100,000 cubic yards for marinas or state navigation projects;

8. Beach nourishment projects of less than 100,000 cubic yards;

9. Wetland mitigation that is habitat restoration when an applicant is a federal, state, or municipal entity;

10. Harbor management plans that are recommended for approval;

11. Boat and float lifts;

12. Habitat restoration projects undertaken by public entities or in partnership with public entities; and

13. RIDOT road and bridge projects that do not require variances or special exceptions.

E. Category A applications. (formerly § 110.1)

1. The activities and alterations listed as "A" in Table 1 (shoreline features and tidal waters), Table 2 (the 200 foot area contiguous to shoreline features) or Table 3 (inland activities) in § 1.1.5 of this Part include routine matters and categories of construction and maintenance work that do not require review by the full Council if the criteria in §§ 1.1.6(E)(1)(a) through (d) below are all met.

a. The goals, policies, prerequisites, and standards of this document that apply to the areas and activities in question are met.

b. All buffer zone and setback requirements as contained in §§ 1.1.9 and 1.1.11 of this Part and/or as contained in applicable special area management plans are met.

c. Substantive objections are not raised by abutters of those Category A applications sent out to public notice, the CRMC members have not raised objections, or the Executive Director has not made a determination that the Category A activity in question is more appropriately reviewed as a Category B activity. (Note that starred Category A activities listed in Table 1 in § 1.1.5 of this Part are put out to notice). It should be noted that all notice procedures are subject to the provisions of R.I. Gen. Laws Chapter 42-35, the Administrative Procedures Act (APA).

d. Proof of certification of compliance with all applicable state and local statutes, ordinances, and regulations is provided.

2. If the Council's executive director verifies that these criteria have been met, an Assent for the proposed activity or alteration will be issued. This Assent may include stipulations or conditions to ensure compliance with the goals, policies, and standards of this Program.

3. If the criteria listed in § 1.1.6(E)(1) of this Part are not verified as met or a substantive objection is filed, the application shall be considered a Category B application and will be reviewed by the full Council.

4. Applicants desiring relief from one or more standards may apply for a variance (see § 1.1.7 of this Part).

F. Category B applications (formerly § 110.2)

1. Applicants for activities and alterations listed as "B" in Tables 1, 2, or 3 in § 1.1.5 of this Part, in addition to adhering to the applicable policies, prerequisites, and standards, are required to address all Category B requirements as listed in applicable sections of the program and, where appropriate, other issues identified by the Council.

2. Formal notice will be provided to all interested parties once completed forms for a Category B application have been filed with the Council. A public hearing will be scheduled if there are one or more substantive objections to the project, or at the consensus of four or more members of the Council.

3. A Category B Assent shall be issued if the Council finds that the proposed alteration conforms to the goals, policies, prerequisites, informational requirements and standards of this Program.

G. Substantive objections (formerly § 110.3)

1. Substantive objections are defined by one or more of the following:

a. threat of direct loss of property of the objector(s) at the site in question;

b. direct evidence that the proposed alteration or activity does not meet all of the policies, prerequisites, and standards contained in applicable sections of this document;

c. evidence is presented which demonstrates that the proposed activity or alteration has a potential for significant adverse impacts on one or more of the following descriptors of the coastal environment:

(1) circulation and/or flushing patterns;

(2) sediment deposition and erosion;

(3) biological communities, including vegetation, shellfish and finfish resources, and wildlife habitat;

(4) areas of historic and archaeological significance;

(5) scenic and/or recreation values;

(6) water quality;

(7) public access to and along the shore;

(8) shoreline erosion and flood hazards; or

(9) evidence that the proposed activity or alteration does not conform to state or duly adopted municipal development plans, ordinances, or regulations.

H. Findings of no significant impact (formerly § 110.4)

1. Certain construction and alteration activities within 200 feet of a coastal feature frequently are found to pose little impact or threat to coastal resources and therefore do not warrant full CRMC staff review. These activities are often associated with existing residential, commercial, and/or industrial sites or previously assented structures or activities and include, but are not limited to, interior renovations, construction of attached decks, dormers, porches, second story additions, roofing, siding or window and door alterations, installation of detached tool sheds, flag poles, fences along property bounds located landward of the coastal feature and certain types of landscaping work.

2. These associated structures and activities, depending on the extent of alteration and proximity to the coastal feature, may, on a case by case basis, and after preliminary review of the proposed activity or upon staff recommendation, be determined by the Council's Executive Director or Deputy Director as having an insignificant threat to coastal resources. In such cases, an application for a finding of no significant impact to undertake the proposed activity will be required. The property owner will receive a letter from the Executive Director or Deputy Director informing him/her of the determination, the limits of authorized work, and a time frame within which the work is to be completed. This letter must be kept on-site and available for inspection by appropriate CRMC officials.

I. Coastal hazard analysis application requirements

1. The following new projects when subject to the jurisdiction of the CRMC must file a coastal hazard analysis with their CRMC application using the “CRMC Coastal Hazard Application Guidance” provided in Chapter 5 of the CRMC Shoreline Change Special Area Management Plan (Beach SAMP):

a. construction of new residential buildings as defined in § 1.1.2 of this Part;

b. construction of new commercial and industrial structures as defined in § 1.1.2 of this Part;

c. construction of new beach pavilions as defined in § 1.1.2 of this Part;

d. construction of any new private or public roadway, regardless of length;

e. construction of any new infrastructure project subject to §§ 1.3.1(F), (H), and (M) of this Part; and

f. construction of any new subdivisions with six (6) or more lots, any portion of which is within 200 feet of a shoreline feature.

2. The following modifications to existing projects subject to the jurisdiction of the CRMC must file a coastal hazard analysis with their CRMC application using the “CRMC Coastal Hazard Application Guidance” provided in Chapter 5 of the CRMC Shoreline Change Special Area Management Plan (Beach SAMP):

a. any expansion of existing commercial structures over tidal waters;

b. any expansion greater than 600 square feet to existing residential, commercial, industrial or beach pavilion structures;

c. second story additions greater than 600 square feet to any existing residential, commercial, industrial or beach pavilion structures; and

d. any modification to existing residential, commercial, industrial or beach pavilion structures when such structures are located within the CRMC minimum setback specified by § 1.1.9 of this Part.

3. All projects meeting the analysis thresholds established in §§ 1.1.6(I)(1) and (2) of this Part above shall complete the CRMC coastal hazard application worksheet (provide hyperlink) and provide the following information as part of the application:

a. identify the project design life (20, 30 50 years, etc.), which is the period of time during which a structure is expected by its designers to be functional within its specified parameters; in other words, the life expectancy of the structure before failure. This period of time is used to establish the appropriate sea level rise (SLR) scenario for analysis;

b. using Table 1 in Chapter 5 of the Beach SAMP that is based upon the NOAA sea level rise high curve as adopted by the CRMC in § 1.1.10 of this Part determine the SLR projection at the end of the project design life; and

c. assess the exposure and potential risk from coastal hazards at the project site based upon:

(1) sea level rise;

(2) shoreline erosion;

(3) base flood elevation (BFE) from FEMA flood insurance rate map; and

(4) STORMTOOLS design elevation.

4. All projects meeting the analysis thresholds established in §§ 1.1.6(I)(1) and (2) of this Part above shall provide site plans of the proposed project with the following overlays:

a. Sea level rise analysis showing the corresponding proposed project design life SLR scenario (maximum of 9.61 feet for NOAA high curve by 2100). Applicants should consider evaluating the coastal hazards risk associated with frequent storm events (1, 3 or 5-year storms) combined with minimal sea level rise of 1-2 feet to account for extreme high tide events which can occur any year during the expected project design life;

b. 100-yr return storm event and the 100-yr storm event with the corresponding design life SLR scenario;

c. projected erosion rate for structure design life at the project site using the appropriate CRMC shoreline change map; and

d. Sea Level Affecting Marshes Model (SLAMM) for 1, 3 and 5 feet SLR scenarios for large projects and subdivisions only.

5. All projects meeting the analysis thresholds established in §§ 1.1.6(I)(1) and (2) of this Part above shall describe the proposed coastal adaptation techniques incorporated into the project design to overcome or accommodate any coastal hazard exposure risks resulting from the analyses required by § 1.1.6(I) of this Part.

1.1.7 Variances (formerly § 120)

A. Applicants desiring a variance from a standard shall make such request in writing and address the six criteria listed below in writing. Except as otherwise provided herein, the application shall then be granted a variance only if the Council finds that the following six criteria are met.

1. The proposed alteration conforms with applicable goals and policies of the Coastal Resources Management Program.

2. The proposed alteration will not result in significant adverse environmental impacts or use conflicts, including but not limited to, taking into account cumulative impacts.

3. Due to conditions at the site in question, the applicable standard(s) cannot be met.

4. The modification requested by the applicant is the minimum variance to the applicable standard(s) necessary to allow a reasonable alteration or use of the site.

5. The requested variance to the applicable standard(s) is not due to any prior action of the applicant or the applicant’s predecessors in title. With respect to subdivisions, the Council will consider the factors as set forth in § 1.1.7(B) of this Part below in determining the prior action of the applicant.

6. Due to the conditions of the site in question, the standard(s) will cause the applicant an undue hardship. In order to receive relief from an undue hardship an applicant must demonstrate inter alia the nature of the hardship and that the hardship is shown to be unique or particular to the site. Mere economic diminution, economic advantage, or inconvenience does not constitute a showing of undue hardship that will support the granting of a variance.

B. In reviewing requests for buffer zone variances for subdivisions of five (5) lots or less, the Council will review on a case-by-case basis the extent to which the prior action of the applicant or its predecessor in title created or caused the need for a variance, whether the applicant has created the need for a variance by the subdivision and whether the subdivision complies with local zoning requirements.

C. Relief from a standard does not remove the applicant's responsibility to comply with all other Program requirements.

D. Prior to requesting approval for a CRMC variance, in those instances where a variance would be obviated if a variance for a setback were acquired from the local municipality, the applicant must first exhaust his remedies before the local municipality.

1.1.8 Special Exceptions (formerly § 130)

A. Special exceptions may be granted to prohibited activities to permit alterations and activities that do not conform to a Council goal for the areas affected or which would otherwise be prohibited by the requirements of this document only if and when the applicant has demonstrated that:

1 The proposed activity serves a compelling public purpose which provides benefits to the public as a whole as opposed to individual or private interests. The activity must be one or more of the following:

a. an activity associated with public infrastructure such as utility, energy, communications, transportation facilities, however, this exception shall not apply to activities proposed on all classes of barriers, barrier islands or spits except as provided in § 1.2.2(C)(4)(i) of this Part;

b. a water-dependent activity that generates substantial economic gain to the state; and/or

c. an activity that provides access to the shore for broad segments of the public.

2. All reasonable steps shall be taken to minimize environmental impacts and/or use conflict.

3. There is no reasonable alternative means of, or location for, serving the compelling public purpose cited.

B. Special exceptions may be granted only after proper notice in accordance with R.I. Gen. Laws Chapter 42-35, the Administrative Procedures Act, a public hearing has been held, and the record of that hearing has been considered by the full Council. The Council shall make public the findings and conclusions upon which a decision to issue a Special Exception are based.

C. In granting a special exception, the Council shall apply conditions as necessary to promote the objectives of the Program. Such conditions may include, but are not limited to, provisions for:

1. Minimizing adverse impacts of the alteration upon other areas and activities by stipulating the type, intensity, and performance of activities, and the hours of use and operation;

2. Controlling the sequence of development, including when it must be commenced and completed;

3. Controlling the duration of use or development and the time within which any temporary structure must be removed;

4. Assuring satisfactory installation and maintenance of required public improvements;

5. Designating the exact location and nature of development; and

6. Establishing detailed records by submission of drawings, maps, plots, or specifications.

1.1.9 Setbacks (formerly § 140)

A. A setback is the minimum distance from the inland boundary of a coastal feature at which an approved activity or alteration may take place.

B. Setbacks shall be maintained in areas contiguous to coastal beaches, coastal wetlands, coastal cliffs and banks, rocky shores, and existing manmade shorelines, and apply to the following categories of activities and alterations:

1. Filling, removal, or grading, except when part of an approved alteration involving a water dependent activity or structure (see § 1.3.1(B) of this Part);

2. Residential buildings and garages excluding associated structures (see § 1.1.6(H) of this Part);

3. New individual sewage disposal systems, sewage treatment plants, and associated sewer facilities excluding outfalls (See § 1.3.1(F) of this Part). Repairs and replacements of existing (permitted) individual sewage disposal systems shall be exempt from the Council's setback requirements;

4. Industrial structures, commercial structures, and public recreation structures that are not water dependent (See § 1.3.1(C) of this Part); and

5. Transportation facilities that are not water dependent (see § 1.3.1(M) of this Part).

C. Setbacks will be determined using the rates of change as found on the accompanying Shoreline Change Maps for Watch Hill to the Easternmost Point of Quicksand Beach (Little Compton) abutting Massachusetts. The minimum distance of a setback shall be not less than 30 times the calculated average annual erosion rate for less than four dwelling units and not less than 60 times the calculated average annual erosion rate for commercial, industrial or dwellings of more than 4 units. At a minimum however, setbacks shall extend either fifty (50) feet from the inland boundary of the coastal feature or twenty-five (25) feet inland of the edge of a Coastal Buffer Zone, whichever is further landward. Due to site conditions over time, field verification of a coastal feature or coastal buffer zone may result in a setback determination different than that calculated using a shoreline change rate.

D. Where the applicant demolishes a structure, any contemporary or subsequent application to rebuild shall meet applicable setback requirements.

E. Applicants for alterations and activities who cannot meet the minimum setback standards may apply to the Council for a variance (see § 1.1.7 of this Part).

F. The setback provisions do not apply to minor modifications or restoration of structures that conform with all other policies and standards of this program.

1.1.10 Climate Change and Sea Level Rise (formerly § 145)

A. Policies

1. The Council will review its policies, plans and regulations to proactively plan for and adapt to climate change and sea level rise. The Council will integrate climate change and sea level rise scenarios into its programs to prepare Rhode Island for these new, evolving conditions and make our coastal areas more resilient.

2. The Council’s sea level rise policies are based upon the CRMC’s legislative mandate to preserve, protect, and where possible, restore the coastal resources of the state through comprehensive and coordinated long-range planning.

3. The Council recognizes that sea level rise is ongoing and its foremost concern is the accelerated rate of rise and the associated risks to Rhode Island coastal areas today and in the future. The Council recognizes that the lower the sea level rise estimate used, the greater the risk that policies and efforts to adapt sea level rise and climate change will prove to be inadequate. Therefore, the policies of the Council may take into account different risk tolerances for differing types of public and private coastal activities. In addition, the Council will regularly review new scientific evidence regarding sea level change.

4. The Council relies upon the most recent NOAA sea level rise data to address both short- and long-term planning horizons and the design life considerations for public and private infrastructure. The Council’s policy is to adopt and use the most recent sea level change scenarios published by NOAA (currently Technical Report NOS CO-OPS 083 (2017)), and the NOAA sea level rise change curves for Newport and Providence as provided in the U.S. Army Corps of Engineers online sea level rise calculator tool available at: http://corpsclimate.us/ccaceslcurves.cfm. The Council requires the use of the NOAA High scenario curve for projecting sea level rise for future conditions. In addition, the Council adopts and recommends use of the STORMTOOLS online mapping tool developed on behalf of the CRMC by the University of Rhode Island Ocean Engineering program to evaluate the flood extent and inundation from sea level rise and storm surge.

1.1.11 Coastal Buffer Zones (formerly § 150)

A. Prerequisites

1. All applications for which § 1.1.11 of this Part applies shall be initially reviewed by the Executive Director or his designee. The Executive Director may grant a variance for such applications in accordance with this section, or refer any application to the Council for a hearing if based upon the application a determination is made that the proposed activity warrants a Council hearing.

B. Policies

1. Coastal buffer zones provide multiple uses and multiple benefits to those areas where they are applied (Desbonnet et al 1993). The multiple uses and benefits of coastal buffer zones include:

a. Protection of water quality: Buffer zones along the perimeter of coastal water bodies can be effective in trapping sediments, pollutants (including oil, detergents, pesticides, herbicides, insecticides, wood preservatives and other domestic chemicals), and absorbing nutrients (particularly nitrogen) from surface water runoff and groundwater flow. The effectiveness of vegetated buffers as a best management practice for the control of nonpoint source runoff is dependent upon their ability to reduce the velocity of runoff flow to allow for the deposition of sediments, and the filtration and biological removal of nutrients within the vegetated area. In general, the effectiveness of any vegetated buffer is related to its width, slope, soil type, and resident species of vegetation. Effective buffers for nonpoint source pollution control, which remove at least 50%, and up to 99%, of sediments and nutrients entering them, range from 15 feet to 600 feet in width. The removal of pollutants can be of particular importance in areas abutting poorly flushed estuaries that are threatened by an excess of nutrients or are contaminated by runoff water, such as the South Shore Salt Ponds and the Narrow River. Large, well flushed water bodies, such as Narragansett Bay, are also susceptible to nonpoint source pollutant inputs, and can be severely impacted by nonpoint source pollutants as has been documented in studies completed for the Narragansett Bay Project.

b. Protection of coastal habitat: Coastal buffer zones provide habitat for native plants and animals. Vegetation within a buffer zone provides cover from predation and climate, and habitat for nesting and feeding by resident and migratory species. Some species which use coastal buffer zones are now relatively uncommon, while others are considered rare, threatened or endangered. These plants and animals are essential to the preservation of Rhode Island's valuable coastal ecosystem. The effectiveness of vegetated buffers as wildlife habitat is dependent upon buffer width and vegetation type. In general, the wider the buffer the greater its value as wildlife habitat. Larger buffer widths are typically needed for species that are more sensitive to disturbances (e.g., noise). Furthermore, those buffers that possess vegetation native to the area provide more valuable habitat for sustaining resident species. A diversity of plant species and types (e.g., grasses, shrubs and trees) promotes biodiversity within the buffer area, and the region overall.

c. Protection of scenic and aesthetic quality: One of the primary goals of the Council is to preserve, protect, and where possible restore the scenic value of the coastal region in order to retain the visual diversity and unique visual character of the Rhode Island coast as seen by hundreds of thousands of residents and tourists each year from boats, bridges, and such vantage points as roadways, public parks, and public beaches (See § 1.3.5 of this Part). Coastal buffer zones enhance and protect Rhode Island's scenic and visual aesthetic resources along the coast. Coastal buffers also preserve the natural character of the shoreline, while mitigating the visual impacts of coastal development. Visual diversity provides for both contrast and relief between the coastal and inland regions, leading to greater aesthetic value of the landscape.

d. Erosion Control: Coastal buffer zones provide a natural transition zone between the open coast, shoreline features and upland development. Natural vegetation within a coastal buffer zone helps to stabilize the soil, reduces the velocity of surface water runoff, reduces erosion of the soil by spreading runoff water over a wide area, and promotes absorption and infiltration through the detrital (leaf) layer and underlying soils. The extensive root zones often associated with buffer zone vegetation also help prevent excessive shoreline erosion during coastal storm events by stabilizing underlying soils.

e. Flood Control: Coastal buffer zones aid in flood control by reducing the velocity of runoff and by encouraging infiltration of precipitation and runoff into the ground rather than allowing runoff to flow overland and flood low lying areas. In addition, coastal buffer zones often occupy the flood plain itself and thus add to coastal flood protection.

f. Protection of historic and archaeological resources: Coastal buffer zones protect areas of cultural and historic importance such as archaeological sites by helping prevent intrusion while protecting the sites' natural surroundings.

2. The establishment of a coastal buffer zone is based upon the CRMC's legislative mandate to preserve, protect and, where possible, restore ecological systems. The determination of the inland boundary of the coastal buffer zone must balance this mandate with the property owner's rights to develop and use the property.

3. The Council shall require coastal buffer zones in accordance with the requirements of this section for the following:

a. new residential development;

b. commercial and industrial development;

c. activities subject to §§ 1.3.1(H) and 1.3.1(M) of this Part; and

d inland activities identified in § 1.3.3 of this Part. For existing residential structures, the Council shall require a coastal buffer zone for Category "A" and "B" activities when the footprint of the structure is expanded 50 percent or more.

4. The vegetation within a buffer zone must be either retained in a natural, undisturbed condition, or properly managed in accordance with the standards contained in this section. In cases where native flora (vegetation) does not exist within a buffer zone, the Council may require restoration efforts which include, but are not limited to, replanting the coastal buffer zone with native plant species.

5. Coastal buffer zones shall remain covered with native flora and in an undisturbed state in order to promote the Council's goal of pre-serving, protecting, and restoring ecological systems. However, the Council may permit minor alterations to coastal buffer zones that facilitate the continued enjoyment of Rhode Island's coastal resources. All alterations to coastal buffer zones or alterations to the natural vegetation (i.e., areas not presently maintained in a landscaped condition) within the Council's jurisdiction shall be conducted in accordance with the standards contained in this section as well as all other applicable policies and standards of the Council. In order to ensure compliance with these requirements, the Council may require applicants to submit a buffer zone management plan.

6. In order to enhance conservation, protect water quality, and maintain the low intensity use characteristic of Type 1 and 2 waters, greater buffer widths shall be applied along the coastline abutting these water types.

7. In critical areas and when the property owner owns adjoining lots, these lots shall be considered as one lot for the purposes of applying the values contained in Table 4 of this Part and ensuring that the appropriate buffer zone is established.

a. Table 4: Coastal buffer zone designations for residential development

C. Standards

1. All coastal buffer zones shall be measured from the inland edge of the most inland shoreline (coastal) feature. In instances when the coastal feature accounts for 50 percent or more of the lot, the Council may grant a variance to the required buffer width.

2. Coastal buffer zone requirements for new residential development: The minimum coastal buffer zone requirements for new residential development bordering Rhode Island's shoreline are contained in Table 4 in § 1.1.11(C)(6)(a) of this Part. The coastal buffer zone requirements are based upon the size of the lot and the CRMC's designated water types (Type 1 - Type 6). Where the buffer zone requirements noted above cannot be met, the applicant may request a variance in accordance with § 1.1.7 of this Part. A variance to 50% of the required buffer width may be granted administratively by the Executive Director if the applicant has satisfied the burdens of proof for the granting of a variance. Where it is determined that the applicant has not satisfied the burdens of proof, or the requested variance is in excess of 50% of the required width, the application shall be reviewed by the full Council. Instances where a lot is equal to or less than 20,000 square feet and not located within the watershed of a poorly-flushed estuary, a variance to the required buffer width may be granted by the Executive Director.

3. Coastal buffer zone requirements for alterations to existing structures on residential lots. All calculations for the requirements of a coastal buffer zone shall be made on the basis of structural lot coverage. Structural lot coverage shall mean the total square foot area of the structure(s) on a lot or parcel (ref. § 1.3.1(C) of this Part).

a. Where alterations to an existing structure or structures result in the expansion of the structural lot coverage such that the square footage of the foundation increases by less than 50 percent, no new coastal buffer zone shall be required.

b. Where alterations to an existing structure or structures result in the expansion of the structural lot coverage such that the square footage of the foundation increases by 50 percent or more, the Coastal Buffer Zone requirement shall be established with a width equal to the percentage increase in the structural lot coverage as of August 8, 1995, multiplied by the value contained in § 1.1.11(C)(6)(a) of this Part (Table 4).

c. Coastal buffer zones shall not be required when a structure is demolished and rebuilt on the existing footprint. Where a structure is demolished and rebuilt and will result in an expansion of the structural lot coverage such that the square footage of the foundation increases by 50% or more, a coastal buffer zone shall be established with a width equal to the percentage increase in a structure’s footprint, multiplied by the value contained in § 1.1.11(C)(7)(a) of this Part (Table 4).

d. Where the applicant demolishes a structure, any contemporary or subsequent application to rebuild shall meet applicable setback requirements.

e. Structures that are less than 200 square feet in area are excluded from these requirements.

f. In addition, the Executive Director shall have the authority to grant a variance to this requirement for category "A" assents in accordance with the burdens of proof contained in § 1.1.7 of this Part.

4. Coastal buffer zone requirements for all commercial and industrial development and activities subject to the requirements of §§ 1.3.1(H), (M) or 1.3.3 of this Part shall be determined on a case-by-case basis by the Council. § 1.1.11(C)(6)(a) of this Part (Table 4) may be used as appropriate guidance. However, depending on the activity proposed and its potential impacts on coastal resources, the Council may require a coastal buffer zone with a width greater than that found in § 1.1.11(C)(6)(a) of this Part (Table 4).

5. All property abutting critical habitat areas, as defined by the Rhode Island National Heritage Program or the Council, shall possess a minimum vegetated buffer zone of 200 feet between the identified habitat and any development area. The Executive Director shall have the authority to grant a variance to these requirements in accordance with the burdens of proof contained in § 1.1.7 of this Part.

6. All property abutting coastal natural areas listed in § 1.2.2(E)(3) of this Part shall have a minimum vegetated coastal buffer zone of 25 feet from the inland edge of the coastal feature. The Executive Director shall have the authority to grant a variance to these requirements in accordance with the burdens of proof contained in § 1.1.7 of this Part.

7. All property located within the boundaries of a Special Area Management (SAM) Plan approved by the Council shall meet additional buffer zone requirements contained within these SAM plans. When a SAM plan's buffer zone requirements apply, the buffer width values contained in this section will be compared to those required by the SAM plan, and the larger of the buffer widths applied

8. The setback required by § 1.1.9 of this Part for all new and existing residential, commercial, and industrial structures shall exceed the Coastal Buffer Zone requirement by a minimum of 25 feet for fire, safety, and maintenance purposes. Where the 25 foot separation distance between the inland edge of the buffer and construction setback cannot be obtained, the applicant may request a variance in accordance with § 1.1.7 of this Part. The Executive Director shall have the authority to grant variances to this requirement. However, a vegetated coastal buffer zone shall not directly contact any dwelling's footprint.

D. Buffer management and maintenance requirements

1. All alterations within established coastal buffer zones or alterations to natural vegetation (i.e., areas not presently maintained in a landscaped condition) within the Council's jurisdiction may be required to submit a buffer zone management plan for the Council's approval that is consistent with the requirements of this section and the Council's most recent edition of buffer zone management guidance. Buffer zone management plans shall include a description of all proposed alterations and methods of avoiding problem areas such as the proper placement and maintenance of pathways. Applicants should consult the Council's most recent edition of buffer zone management guidance when preparing a buffer management plan.

2. In order to promote the Council's goal to preserve, protect and, where possible, restore ecological systems, coastal buffer zones shall be vegetated with native flora and retained in a natural, undisturbed condition, or shall be properly managed in accordance with Council's most recent edition of buffer zone management guidance. Such management activities compatible with this goal include, but are not limited to:

a. Shoreline access paths: Pathways which provide access to the shoreline are normally considered permissible provided they are less than or equal to six (6) feet wide and follow a path that minimizes erosion and gullying within the buffer zone (e.g., a winding, but direct path). Pathways should avoid, or may be prohibited in, sensitive habitat areas, including, but not limited to, coastal wetlands. Pathways may be vegetated with grasses and mowed or may be surfaced with crushed stone or mulch.

b. View corridors: Selective tree removal and pruning and thinning of natural vegetation may be allowed within a defined corridor in order to promote a view of the shoreline, but shall not exceed more than 25% of the length as measured along the shoreline and no more than 25% of the total buffer zone area. Only the minimal alteration of vegetation necessary to obtain a view shall be acceptable to the Council. Shoreline access paths shall be located within view corridors to the maximum extent practicable in order to minimize disturbance of coastal buffer zones. View corridors shall be prohibited in sensitive or critical habitat areas.

c. Habitat management: Management of natural vegetation within a buffer zone to enhance wildlife habitat and control nuisance and non-native species of vegetation may be allowed. Homeowner control of pest species of vegetation such as European bittersweet and nuisance species such as poison ivy is normally considered acceptable. However, the indiscriminate use of herbicides or the clear-cutting of vegetation shall be prohibited. The use of fertilizers is generally prohibited within the coastal buffer zone except when used to enhance the replanting of native vegetation (e.g., hydro-seeding) approved by the Council. However, the clearing or outright elimination of natural vegetation for such purposes as controlling ticks or pollen shall not be permitted.

d. Safety and welfare: Selective tree removal, pruning and thinning of natural vegetation within a coastal buffer zone may be allowed by the Council on a case-by-case basis for proven safety and welfare concerns (e.g., removal of a damaged tree in close proximity to a dwelling). In order to promote child safety and manage pets in areas harboring ticks, fences along the inland edge of a coastal buffer zone and along shoreline access pathways may be permitted.

e. Shoreline recreation: The CRMC recognizes that shoreline recreation is one of the predominant attractions for living on, or visiting the Rhode Island coast. In order to allow for such uses, minor alterations of buffer zones may be permitted along the shoreline if they are determined to be consistent with Council's requirements. These alterations may include maintaining a small clearing along the shore for picnic tables, benches, and recreational craft (e.g., dinghies, canoes, day sailboats, etc.). Additionally, the CRMC may allow small, non-habitable structures including storage sheds, boat houses and gazebos within coastal buffer zones, where appropriate. However, these structures may be prohibited in sensitive or critical habitat areas. Due to the potential for these structures to impact values provided by coastal buffer zones, the Council shall exercise significant discretion in this area.

f. All proposals for coastal buffer zone management should involve minor alterations which do not depreciate the values and functions of coastal buffer zones as specified in § 1.1.11 of this Part. No more than 25% of the total buffer zone area shall be affected by the management options provided in section B of the CRMC “CRMC Coastal Buffer Zone Management Guidance.” Areas to remain unaltered shall be clearly identified on the proposed plans. Furthermore, when invasive species management is also being conducted, the buffer zone area managed under section B must be included within the total area allowed for management in section D of the “CRMC Coastal Buffer Zone Management Guidance.”

E. Prohibitions

1. Establishment or maintenance of shoreline access pathways is prohibited on coastal wetlands and where inappropriate on coastal features as determined by the CRMC.

1.1.12 Fees (formerly § 160)

A. R.I. Gen. Laws § 46-23-6(4)(iii) authorizes the Council to "grant licenses, permits, and easements for the use of Coastal Resources, which are held in trust by the state for all its citizens, and impose fees for private use of such resources."

B. The Council requires fees for land created by the filling of tidal waters and the long term (dead) storage of vessels. Factors to be considered in establishing the fee include:

1. The degree of preemption associated with the activity or alteration involved;

2. The degree of irreversibility associated with the activity or alteration;

3. The value of opportunities for other activities lost to the public as the result of the activity; and

4. The economic return to the applicant resulting from pursuing the activity of making the permitted alterations.

C. Payments required by the fee shall be determined by the Council upon the completion of a professional appraisal based on the criteria listed above. The Assent recipient shall bear the cost of the appraisal.

D. Where public access is provided, the fee may be reduced by Council. In considering the reduction of fees, the Council shall determine the amount of public access, the potential use by the public of this public access, and any other relevant considerations.

E. A Council Assent for aquaculture activities within tidal waters and coastal ponds excluding seasonally deployed aquaculture apparatus such as spat collectors and experimental gear sites, as approved by the council, may include a lease for the approved site.

1. The annual lease fee is seventy-five ($75.00) for half an acre or less, one hundred and fifty dollars ($150.00) for a half to one acre, and one hundred dollars ($100.00) for each additional acre. Annual lease fees are payable in full, in advance, on the first business day in the month of January of each year during the Assent period. Any assignment or sublease of the whole or any portion of a leased area shall constitute a breach of the lease and be cause for termination of the lease, unless such assignment or subletting has received the prior approval of the Council.

2. In the event a lease holder fails to make full payment of the annual lease fee within the time period established within the lease, for each rental year, the lease agreement shall be terminated, and all Assents and authorities granted shall be revoked. In the event the leased area is not actively used for a period of one year, the lease shall be terminated and the Assent shall be revoked. Lease holders shall be notified 60 days prior to such revocation and may appeal the revocation to the full Council.

3. Persons wishing to deploy small scale seasonal apparatus such as spat collectors or experimental aquaculture gear, shall apply for a Council Assent and may, at the discretion of the full Council be charged a lease fee.

F. Whenever the Council receives an application for assent or modification of an assent for an activity or alteration which has already occurred, or has been constructed or partially constructed, the Council may charge an administrative fee, in addition to any other fees required by the Council which shall be assessed at the time the Council grants an assent. The Council shall assess the administrative fee taking into account the additional demand on Council resources, and/or any adverse impacts to the coastal environment and/or the adjacent waterway. This shall not be construed to, and in no way shall, prohibit the Council from seeking any other remedies it deems appropriate.

1.1.13 Violations and Enforcement Actions (formerly § 170)

A. R.I. Gen. Laws Chapter 46-23 sets out the Council’s authorities for enforcement.

B. Whenever a member of the staff or a Coastal Resources Management Council Member witnesses a violation of the CRMC Plan or Assent, that individual is hereby authorized to issue a warning to the person violating the Plan on a form approved by the CRMC and a report of that warning shall be delivered by the staff or Council member to the Executive Director upon issuance.

C. In determining the amount of each administrative penalty, assessed in accordance with authorities established in § 1.1.13(A) of this Part, the Hearing Officer or his designee shall consider any scheduled amounts adopted by the Council and all other factors, which he deems relevant, including but not limited to:

1. The actual and potential impact on public health, safety and welfare and the environment of the failure to comply;

2. The actual potential damages suffered, and actual or potential costs incurred, by the Council, or by any other person;

3. Whether the person being assessed the administrative penalty took steps to prevent noncompliance, to promptly come into compliance and to remedy and mitigate whatever harm might have been done as a result of such noncompliance;

4. Whether the person being assessed the administrative penalty has previously failed to comply with any rule, regulation, order, permit, license or approval issued or adopted by the commission, or any law which the commission has the authority or the responsibility to enforce;

5. Making compliance less costly than noncompliance;

6. Deterring future noncompliance;

7. The amount necessary to eliminate the economic advantage of noncompliance including but not limited to the financial advantage acquired over competitors from the noncompliance;

8. Whether the failure to comply was intentional, willful or knowing and not the result of error;

9. Any amount specified by state and/or federal statute for a similar violation or failure to comply;

10. Any other factor(s) that may be relevant in determining the amount of a penalty, provided that the other factors shall be set forth in the written notice of assessment of the penalty; and

11. The public interest.

1.1.14 Emergency Assents (formerly § 180)

A. Catastrophic Storms Assent

1. The Executive Director may grant an Emergency Assent when catastrophic storms, flooding, and/or erosion has occurred at a site under Council jurisdiction, and where, if immediate action is not taken, the existing conditions may cause one or more of the following:

a. Immediate threat to public health and safety; and

b. Immediate and significant adverse environmental impacts.

2. These Emergency Assents may permit only such action at the site that will correct conditions in §§ 1.1.14(A)(1)(a) and (b) of this Part in a manner consistent with the policies of the Program.

B. Imminent Peril Assent

1. The Chairman, Vice Chairman, or in their absence the Executive Director, may grant an Emergency Assent in circumstances where they determine that there is imminent peril and where, if immediate action is not taken, the existing conditions may cause one or more of the following:

a. Bodily harm or a threat to public health;

b. Significant adverse environmental impacts; or

c. Significant economic loss to the State.

2. The reasons for these findings shall be stated on the record.

C. Post Hurricane and Storm Permitting Procedures

1. It shall be the policy of the Council to establish emergency procedures for the issuance of assents in the event of the following:

a. A hurricane, severe storm or other disaster has caused severe and widespread damage in portions of CRMC jurisdiction; and

b. The Governor has submitted a formal request to the President to declare areas within CRMC jurisdiction a major disaster area; and

c. The Executive Director of the CRMC determines the probable number of applications for CRMC assents resulting directly from the disaster will cause significant delays in the orderly processing of assents and, thereby impose an undue hardship on disaster victims and other applicants; and

d. The CRMC shall provide adequate public notice of its decisions to impose emergency procedures.

2. The Council encourages other state agencies and each coastal community to adopt emergency permitting procedures equivalent to those of the CRMC in order to speed appropriate reconstruction and minimize adverse economic and environmental impacts.

3. The Council shall impose a temporary moratorium to remain in effect for a maximum of 30 days from the disaster declaration. The purpose of the moratorium shall be to provide the Council and affected coastal communities with adequate time to assess damages, determine changes in natural features that may change vulnerability to damage, and identify mitigation opportunities. The temporary moratorium shall apply to the following:

a. Applications for new alterations and activities requiring Council Assent, which do not result from the disaster.

b. Reconstruction of all residential and associated residential structures, commercial and recreational structures in both A zone and V zone that were destroyed 50% or more by storm induced flood, wave and wind damage.

4. During the moratorium, priority consideration will be given to necessary and/or emergency alterations, reconstruction, or replacement of essential public facilities, such as roads, bridges, and public utilities. The Council recognizes that a major hurricane or other storm events may severely damage or destroy infrastructure and utilities such as roads, bridges, water and sewer lines located in high hazard areas. When such damage occurs, it shall be the policy of the Council to require the review of alteration reconstruction options which may lessen or mitigate the probability of future recurrent damage.

5. During the moratorium the Executive Director of the Council shall solicit the recommendations of the Rhode Island Department of Environmental Management and the local municipalities for the purchase of open space or other mitigative responses in high damage areas and make a policy decision about re-permitting according to best available options for hurricane mitigation.

6. Procedures and priorities for addressing post storm reconstruction applications after the moratorium are as follows:

a. Priority will be given to consideration of applications for reconstruction of structures which were physically damaged or destroyed 50 percent or more by storm induced flooding, wave or wind damage;

b. Applicants for repair or reconstruction in A, B, or C flood zones, as delineated on the FEMA maps, may follow the procedures in § 1.3.1(N) of this Part (Maintenance);

c. Final priority will be given to any application for new alterations and activities unrelated to the disaster; and

d. If the Executive Director determines that a large number of post storm applications will be received, and that the normal processing will result in an undue burden or hardship to storm victims, and the Executive Director determines there is no overriding programmatic policy or goal to be served by holding a group of applications, then the Executive Director may, in specific instances, waive the requirements of a new Assent for structures physically destroyed 50 percent or more by storm induced flood, wave and wind damage, and allow for Emergency Permits to be issued.

1.2.1 Tidal and Coastal Pond Waters (formerly § 200)

A. The six categories of waters defined in this Program are directly linked to the characteristics of the shoreline, since the activities on the adjacent mainland are the primary determinant of the uses and qualities of any specific water site. Thus, Type 1 waters abut shorelines in a natural undisturbed condition, where alterations, including the construction of docks and any dredging, are considered by the Council as unsuitable. Type 2 waters are adjacent to predominantly residential areas, where docks are acceptable, but more intense forms of development, including more marinas and new dredging projects (but not maintenance dredging), would change the area's character and alter the established balance among uses. Alterations such as these would bring more intensive uses and are therefore prohibited in Type 2 waters. The waters along some 70 percent of the state's 420 miles of shoreline have been assigned to Type 1 and Type 2, and should be expected to retain their high scenic values and established patterns of low intensity use. Type 3 waters are dominated by commercial facilities that support recreational boating. Here, marinas, boatyards, and associated businesses take priority over other uses, and dredging and shoreline alterations are to be expected. Type 4 areas include the open waters of the Bay and the Sounds, where a balance must be maintained among fishing, recreational boating, and commercial traffic. Here high water quality and a healthy ecosystem are primary concerns. The last two water use categories are assigned to areas adjacent to ports and industrial waterfronts. In these waters, maintenance of adequate water depths is essential, high water quality is seldom achievable, and some filling may be desirable. Within Type 5 ports, a mix of commercial and recreational activities must coexist, while in Type 6 waters, water dependent industrial and commercial activities take precedence over all other activities. The water categories described in this section are complemented by policies for shoreline types (§ 1.2.2 of this Part), and the two must be combined to identify the Program's policies for a specific coastal site.

B. Type 1 Conservation Areas (formerly § 200.1)

1. Included in this category are one or more of the following:

a. water areas that are within or adjacent to the boundaries of designated wildlife refuges and conservation areas;

b. water areas that have retained natural habitat or maintain scenic values of unique or unusual significance; and

c. water areas that are particularly unsuitable for structures due to their exposure to severe wave action, flooding, and erosion.

2. Policies

a. The Council's goal is to preserve and protect Type 1 waters from activities and uses that have the potential to degrade scenic, wildlife, and plant habitat values, or which may adversely impact water quality or natural shoreline types.

b. The mooring of houseboats and floating businesses, the construction of recreational boating facilities, filling below mean high water, point discharge of substances other than properly treated runoff water (see § 1.3.1(F) of this Part), and the placement of industrial or commercial structures or operations (excluding fishing and aquaculture) are all prohibited in Type 1 waters.

c. In Type 1 waters, activities and alterations including dredging, dredged materials disposal, and grading and excavation on abutting shoreline features are all prohibited unless the primary purpose of the alteration or activity is to preserve or enhance the area as a natural habitat for native plants and wildlife or a beach renourishment/ replenishment project. Structural shoreline protection facilities shall not be permitted to preserve or enhance these areas as a natural habitat or to protect the shoreline feature.

d. Notwithstanding the Council's prohibition against construction of recreational boating facilities in Type 1 Waters, the Council recognizes that some residential boating facilities may have preexisted in Type 1 Waters prior to the formation of the Council. The Council's ultimate goal is to remove said structures and restore the areas involved to be free of all recreational boating facilities. Although recreational boating facilities are inconsistent with the Council's goals for Type 1 Waters, and in order to provide for the equitable transition and compliance with the Council's goals, preexisting residential boating facilities may be permitted under the limited terms and conditions set forth in § 1.3.1(D) of this Part.

e. Since runoff can be a major source of pollutants from developed areas, new or enlarged point discharges of untreated runoff shall be permitted in Type 1 waters only when it is demonstrated that no reasonable alternative exists and that no significant adverse impact to the receiving waters will result. The cumulative impacts of runoff are of particular concern in Type 1 waters.

f. Applicants for Council Assents for alterations or activities in or contiguous to Type 1 waters shall describe the measures taken to mitigate impacts on the scenic quality of the area (see § 1.3.5 of this Part).

g. Activities and alterations subject to Council jurisdiction contiguous to public parks, public beaches, public rights of way to the shore, and conservation areas abutting Type 1 waters shall not significantly interfere with public use and enjoyment of such facilities. Where significant interference is found, the Council shall suitably modify or prohibit that alteration or activity.

C. Type 2 Low Intensity Use (formerly § 200.2)

1. This category includes waters in areas with high scenic value that support low intensity recreational and residential uses. These waters include seasonal mooring areas where good water quality and fish and wildlife habitat are maintained.

2. Policies

a. The Council's goal is to maintain and, where possible, restore the high scenic value, water quality, and natural habitat values of these areas, while providing for low intensity uses that will not detract from these values.

b. New or deepened dredged channels and basins; new or deepened dredged channels and basins at existing marinas that result in an expansion greater than 25 percent of their capacity; new marinas and expansion of preexisting marinas in excess of 25 percent of their capacity; the mooring of houseboats and floating businesses; industrial and commercial structures and operations (excluding fishing and aquaculture); and filling are all prohibited in Type 2 waters. The Council's intent for preexisting marina operations located in Type 2 Waters is to allow for their continued maintenance and viability as such operations. Maintenance dredging, dock reconfigurations, activities such as travel lift operations and other best available technologies, and other ancillary activities necessary to maintain the operational viability of the facility, should be expected to occur at preexisting marina operations in these waters. Structural shoreline protection facilities should not be prohibited. Such allowances will only be instituted at marina facilities with approved marina perimeters and will be reviewed in accordance with applicable standards of § 1.3.1(D) of this Part. In order to be eligible for this policy, applications for marina perimeters must be submitted to the CRMC by April 1, 1994. Current capacities of preexisting marinas, as found in CRMC approved special area management plans, and similar management plans, should be recognized and no attempt should be made to require these preexisting marinas to meet their capacities as of January 1981.

c. Residential boating facilities, public launching ramps, and structural shoreline protection facilities may be permitted in Type 2 waters, provided it can be demonstrated that there will be no significant adverse impact to coastal resources, water dependent uses or public's use and enjoyment of the shoreline and tidal waters of the State. It is the Council's policy that one or more of the following conditions describe a situation, condition, or proposal that is deemed to have a significant adverse effect on Rhode Island's coastal resources and therefore is grounds for denial or modification of an application for an Assent:

(1) The construction of the proposed facility may cause significant impacts on coastal wetlands and other public trust resources (e.g. shellfish, finfish, submerged aquatic vegetation, etc.);

(2) Access to the construction site is not available without causing significant impacts to Rhode Island's coastal resources (e.g. coastal wetlands);

(3) The proposed facility would significantly interfere with and/or impact other public trust uses of the tidal or inter-tidal areas of the shoreline (e.g. interfere with navigation); or

(4) Water depths adjacent to the site would require dock span lengths in excess of the standards contained in § 1.3.1(D) of this Part in order to allow normal and appropriate use of the dock by a vessel.

d. Applicants for Council Assents for alterations or activities in Type 2 waters shall describe the measures taken to mitigate impacts on the scenic quality of the area (see § 1.3.5 of this Part).

e. Since runoff can be a major source of pollutants from developed areas to poorly flushed estuaries, new or enlarged discharges shall be permitted into the following Type 2 waters only when it is demonstrated that no reasonable alternative exists and that no significant adverse impact to the receiving waters will result:

(1) Winnapaug Pond

(2) Quonochontaug Pond

(3) Ninigret Pond (Charlestown Pond)

(4) Green Hill Pond

(5) Potters Pond

(6) Point Judith Pond

(7) Nannaquaket Pond

(8) Palmer River

(9) Kickemuit River

(10) Fishing Cove (Wickford)

(11) Pettaquamscutt River

f. Activities and alterations subject to Council jurisdiction contiguous to public parks, public beaches, public rights-of-way to the shore and conservation areas abutting Type 2 waters shall not significantly interfere with public use and enjoyment of such facilities. Where significant interference is found, the Council shall suitably modify or deny that alteration or activity.

D. Type 3 High Intensity Boating (formerly § 200.3)

1. This category includes intensely utilized water areas where recreational boating activities dominate and where the adjacent shorelines are developed as marinas, boatyards, and associated water enhanced and water dependent businesses.

2. Areas suitable for marinas are severely limited, and the steady growth in the number of recreational boats is increasing the competition for the available facilities. Unfortunately, sheltered waters suitable for marinas are limited, and most of the remaining potential sites contain salt marshes that could only be developed at great environ-mental as well as high economic costs. Persons proposing new marinas are also hampered by local zoning and high land costs, and neighborhood opposition is frequently vociferous. The solution to growing demand is therefore to use the available facilities more efficiently and to recycle already altered sites in the upper Bay and on excessed Navy holdings, such as Allens Harbor in North Kingstown and along the Aquidneck west shore.

3. Type 3 waters and the adjacent shoreline, while utilized intensely for the needs of the recreational boating public, nevertheless retain numerous natural assets of special concern to the Council. These include coastal wetlands, and the value these areas provide as fish and shellfish spawning and juvenile rearing grounds. These factors must be weighed when the Council considers proposals that may impact these assets.

4. Policies

a. The Council's goal is to preserve, protect, and, where possible, enhance Type 3 areas for high intensity boating and the services that support this activity. Other activities and alterations will be permitted to the extent that they do not significantly interfere with recreational boating activities or values.

b. The highest priority uses of Type 3 waters and adjoining land areas within the Council jurisdiction are:

(1) marinas, mooring areas, public launching ramps, and other facilities that support recreational boating and enhance public access to tidal waters; and

(2) boatyards and other businesses that service recreational boaters.

c. The Council encourages marinas to seek innovative solutions to increased demands for moorings, dockage, and storage space, and allows marina operators to alter the layout of their facilities (see § 1.3.1(D) of this Part).

d. The Council shall encourage more and improved public launching facilities by protecting existing facilities from interference by other uses subject to Council jurisdiction, identifying appropriate sites for new ramps and parking areas, and working with other agencies to build new ramps and maintain existing facilities.

E. Type 4 Multipurpose Waters (formerly § 200.4)

1. This category includes:

a. large expanses of open water in Narragansett Bay and the Sounds which support a variety of commercial and recreational activities while maintaining good value as a fish and wildlife habitat; and

b. open waters adjacent to shorelines that could support water dependent commercial, industrial, and/or high intensity recreational activities.

2. Polices

a. The Council's goal is to maintain a balance among the diverse activities that must coexist in Type 4 waters. The changing characteristics of traditional activities and the development of new water dependent uses shall, where possible, be accommodated in keeping with the principle that the Council shall work to preserve and restore ecological systems.

b. The Council recognizes that large portions of Type 4 waters include important fishing grounds and fishery habitats, and shall protect such areas from alterations and activities that threaten the vitality of Rhode Island fisheries.

c. Aquaculture leases shall be considered if the Council is satisfied there will be no significant adverse impacts on the traditional fishery.

d. The Council shall work to promote the maintenance of good water quality within the Bay. While recognizing that stresses on water quality will always be present in urban areas such as the Providence River, the Council shall work to promote a diversification of activities within the upper Bay region through the water quality improvement process.

F. Type 5 commercial and recreational harbors (formerly § 200.5)

1. These waters are adjacent to waterfront areas that support a variety of tourist, recreational, and commercial activities. They include all or portions of the following harbor areas:

a. Newport Harbor

b. Bristol Harbor

c. Warren waterfront

d. Wickford Harbor

e. Old Harbor, Block Island

f. East Greenwich Harbor

g. Watch Hill Harbor

2. Policies

a. The Council's goals are to maintain a balance among diverse port related activities, including recreational boating, commercial fishing, restaurants, and other water enhanced businesses; to promote the efficient use of space; and to protect the scenic characteristics that make these areas valuable to tourism.

b. The highest priority uses of Type 5 waters and adjoining land areas within Council jurisdiction are:

(1) berthing, mooring, and servicing of recreational craft, commercial fishing vessels, and ferries;

(2) water dependent and water enhanced commerce, including businesses catering to tourists;

(3) maintenance of navigational channels and berths, and removal of obstructions to navigation; and

(4) activities that maintain or enhance water quality and scenic qualities, including the preservation of historic features.

(AA) The Council shall suitably modify or prohibit activities that significantly detract from or interfere with these priority uses.

c. Applicants for Council Assents for alterations or activities in Type 5 waters shall describe measures taken to mitigate impacts on the scenic quality of the area (see § 1.3.5 of this Part).

G. Type 6 industrial waterfronts and commercial navigation channels (formerly § 200.6)

1. These water areas are extensively altered in order to accommodate commercial and industrial water dependent and water enhanced activities. They include all or portions of the following areas:

a. Port of Providence

b. Tiverton shipping area

c. Quonset Point and Davisville

d. Coddington Cove

e. Melville

f. Galilee and Jerusalem

g. Westerly waterfront

2. Policies

a. The Council's goals for Type 6 waters and adjacent lands under Council jurisdiction are to encourage and support modernization and increased commercial activity related to shipping and commercial fisheries.

b. Highest priority uses of Type 6 waters and adjacent lands under Council jurisdiction are:

(1) berthing, loading and unloading, and servicing of commercial vessels;

(2) construction and maintenance of port facilities, navigation channels, and berths; and

(3) construction and maintenance of facilities required for the support of commercial shipping and fishing activities.

(AA) The Council shall prohibit activities that substantially detract from or interfere with these priority uses.

c. The Council will encourage and support port development and modernization and increased economic activity in the marine industries by participating wherever possible in the joint long range planning and development activities with other state and local agencies, including the R.I. Port Authority, the Department of Environmental Management, and coastal cities and towns.

d. Through its Special Area Management Plan for Providence Harbor, and other planning initiatives, the Council will identify and designate acceptable disposal solutions and sites adequate to meet the need for dredging, and provide the assurances required by industry that channel depths will be maintained, while minimizing environmental effects. The solutions may be more costly than older disposal practices, and may involve innovative technology. The Council will also work in cooperation with the Cities of Providence and East Providence and the Corps of Engineers toward achieving the removal of dilapidated piers and abandoned barges, which presently preclude economic use of large areas within Providence Harbor.

1.2.2 Shoreline Features (formerly § 210)

A. Coastal Beaches (formerly § 210.1)

1. Policies

a. The Council's goals are:

(1) to preserve the qualities of, and public access to those beaches which are an important recreational resource (adjacent to Type 1 and 2 waters);

(2) to prevent activities that will significantly disrupt longshore and/or onshore offshore beach processes, thereby creating an erosion or flooding hazard; and,

(3) to prevent construction in high hazard areas; and

(4) to protect the scenic and ecologic value of beaches.

b. Alterations to beaches adjacent to Type 1 and Type 2 waters are prohibited except where the primary purpose of the project is to preserve or enhance the area as a natural habitat for native plants and wildlife. In no case shall structural shoreline protection facilities be used to preserve or enhance these areas as a natural habitat or to protect the shoreline feature.

c. Alterations to beaches adjacent to Type 3, 4, 5, and 6 waters may be permitted if:

(1) the alteration is undertaken to accommodate a designated priority use for the abutting water area;

(2) the applicant has examined all reasonable alternatives and the Council has determined that the selected alternative is the most reasonable;

(3) only the minimum alteration necessary to support the designated priority use is made;

(4) there is no change in the usage of the property;

(5) there is no change in the footprint of existing structures; and

(6) the construction will meet all current and applicable policies, standards, and requirements of the RICRMP.

d. Vehicular use of beaches where not otherwise prohibited or restricted by property owners or by private or public management programs is permitted only under the following conditions:

(1) Motorcycles, minibikes, snowmobiles, all terrain motorized cycles and tricycles are prohibited except for authorized management related vehicles.

(2) A Coastal Resources Management Council annually renewable use permit is required for all vehicles. Such permits may be obtained for a fee subject to the following requirements and conditions of §§ 1.2.1(B)(2)(d)(3) through (12) of this Part. In the event these requirements and conditions are not met, the use permit shall be subject to revocation by the Council or its agents.

(3) Vehicles shall have all documentation and registration necessary for operation on the public highways of this state.

(4) All permit applicants shall exhibit proof of current liability insurance coverage.

(5) All persons operating said vehicles shall have valid operator licenses.

(6) Maximum speed on all beaches shall not exceed 10 mph. Maximum speed on beaches shall not exceed 5 mph when approaching pedestrians.

(7) Ruts or holes caused by vehicles shall be filled and debris removed.

(8) Headlights shall be used by all vehicles while in motion between sunset and sunrise.

(9) Riding on or driving from any position outside the vehicles is prohibited.

(10) Vehicles are prohibited on swimming beaches during the period they are protected by lifeguards and in operation.

(11) Vehicles shall be at all times subject to town ordinances and all regulations restricting the use of private, state and federal properties.

(12) Vehicles are prohibited from entering areas which have been closed through signage and/or roped-off for the protection of beach nesting bird species including Federally-protected Piping Plover and State listed Least Tern. Such closures may occur on a temporary basis from April through August and are established on an as-needed basis by the US Fish and Wildlife Service based on nesting activity in the area. Information regarding such closures may be obtained by calling the US Fish and Wildlife Service at (401) 364-9124 or the CRMC at (401) 783-3370. Vehicles are also prohibited from entering areas closed though signage and/or roped-off to promote dune restoration, invasive species control and dune or beach re-vegetation efforts.

(13) The Council requires, for the operator's safety and benefit, that every vehicle operated on a beach carry the following equipment in good working order listed in §§ 1.2.1(B)(2)(d)((14)) through ((23)) of this Part:

(14) shovel (heavy duty or military entrenching tool);

(15) tow rope or chain (15 feet, load strength of 1,800 lbs., chain size 5/16");

(16) jack and support stand (minimum 18" x 18" x 5/8", plywood);

(17) street legal tires (4 ply tread, 2 ply sidewalls) snow or mud tires are not recommended;

(18) spare tire;

(19) low pressure tire gauge (0 20 lbs.);

(20) first aid kit;

(21) fire extinguisher;

(22) appropriate emergency signal devices and/or two way radio; and

(23) flashlight.

2. Prohibitions

a. The construction of new structures other than access ways, walkover structures, and beach facilities, are prohibited in setback areas.

b. The use of plastic snow fencing is prohibited due to the hazards presented to fish, marine mammals, and other wildlife in the aftermath of a storm event.

c. Alterations to beaches adjacent to Type 1 and Type 2 waters are prohibited except where the primary purpose of the project is to preserve or enhance the area as a natural habitat for native plants and wildlife.

B. Barrier Islands and Spits (formerly § 210.2)

1. Policies

a. On barriers classified as undeveloped in Table 5 in § 1.2.2(B)(3) of this Part, the Council’s goal is to preserve, protect, and where possible, restore these features as conservation areas and as buffers that protect salt ponds and the mainland from storms and hurricanes.

b. On barriers classified as developed in Table 5 in § 1.2.2(B)(3) of this Part, the Council’s goal is to ensure that the risks of storm damage and erosion for the people inhabiting these features are minimized, that activities that may reduce the effectiveness of the barrier as a storm buffer are avoided, and that associated wetlands and ponds are protected.

c. On Barriers classified as Moderately developed in Table 5 in § 1.2.2(B)(3) of this Part, the following policies shall apply:

(1) New development is prohibited on Moderately Developed Barriers except where the primary purpose of the project is restoration, protection or improvement of the feature as a natural habitat for plants and wildlife or as allowed under § 1.2.2(B)(1)(c) of this Part;

(2) Existing roads, bridges, utilities and shoreline protection facilities may be maintained only, in accordance with the requirements of § 1.3.1(N) of this Part;

(3) Existing recreational structures may be altered, rehabilitated, expanded or developed according to the following standards:

(4) Any expansion of or development activities associated with existing recreational structures shall not occur within or extend into any flood zone designated as V on the most current FEMA Flood Insurance Rate Maps, or as established by the Federal Emergency Management Agency;

(5) All activity shall be confined to the existing footprint of disturbance; for the purposes of this section, the footprint of disturbance shall be defined as that area encompassed by the perimeter of the structural foundation and/or areas determined by the CRMC to be substantially altered due to associated structures, excluding dunes, wetlands and areas encompassed within pertinent setback and buffer zone requirements of this program;

(6) Any proposed expansion of existing recreational structures shall be limited to an area equal to 25% of the square footage of the ground floor area encompassed by the structural foundation of the existing building as of June 23, 1983; associated structures shall not be used in calculating existing area;

(7) The activity shall meet or exceed all relevant standards for the appropriate flood zone designation; and

(8) All activities shall be subject to relevant setback and buffer zone requirements of this program, including accessory structures such as decks, porches, walls, boardwalks, swimming pools, roads, driveways, parking lots and other structures integral to or ancillary to the existing recreational structure.

d. Alterations to undeveloped barriers are prohibited except where the primary purpose of the project is protection, maintenance, restoration or improvement of the feature as a natural habitat for native plants and wildlife. In no case shall structural shoreline protection facilities be used to preserve or enhance these areas as a natural habitat or to protect the shoreline feature.

e. The Council recognizes the highly dynamic nature of barriers and that storms may cause sudden and significant changes to the geomorphic form of these coastal features. Accordingly, large scale public infrastructure improvements and dense development is inappropriate. Therefore, except as provided for herein, the construction or expansion of new infrastructure or utilities shall be prohibited on all barriers including water, gas and sewer lines. It is not the intention of these policies to apply to individual, on-site water supply systems or individual sewage disposal systems, or gas lines. The use of plastic snow-fencing on all barriers is prohibited.

f. It is the Council’s policy to assure that all construction permitted on developed barriers is undertaken to provide for the greatest physical security of the inhabitants of the barrier and adjoining mainland and to maintain, to as great an extent as possible, the qualities of the adjacent coastal pond and wetlands. (See detailed regulations for construction on dunes and beaches in § 1.2.2(B) of this Part, flood hazard areas in § 1.3.1(C) of this Part, and other applicable policies and standards in the Coastal Resources Management Program and special area management plans). The construction of new buildings is prohibited on developed barriers on which only roads, utility lines, and other forms of public infrastructure were present as of 1985.

g. With the exception of boardwalks and snow fencing utilized to trap sand, all residential and non-water dependent recreational, commercial, and industrial structures on undeveloped barriers physically destroyed 50 percent or more by storm induced flooding, wave or wind damage may not be reconstructed regardless of the insurance coverage carried.

h. Persons utilizing undeveloped beaches are required to observe the following rules:

(1) Destruction or removal of signs, snow fencing, or other sand stabilizing devices is prohibited; camping is prohibited unless in vehicles equipped with a self-contained toilet.

(2) Vehicles are permitted only on marked roads or trails and on the beach. Vehicles that drive on the beach and designated unstabilized trails on undeveloped barriers shall abide by the policies found in § 1.2.2(B) of this Part.

(3) Persons shall be at all times subject to applicable town ordinances and regulations restricting the use of private, state, or federal properties.

i. Existing recreational structures, such as beach pavilions, located on undeveloped and moderately-developed barriers that enhance the public's access to the water and generate tourism revenue for the State of Rhode Island may be permitted to be re-established in the event that they are physically destroyed 50% or more as a result of storm induced flooding, wave, or wind damage, provided that:

(1) applicable policies and standards of the RICRMP are met; and,

(2) public access to the shore is enhanced.

(3) Where possible, the reconstruction of these structures shall be behind the foredune zone as defined in § 1.2.2(B) of this Part. Any reconstruction of these facilities shall be limited to the square footage of the ground floor area encompassed by the structural foundation of the existing (associated structures shall not be used to calculate this area).

j. All policies contained in § 1.2.2(B) of this Part regarding beach vehicle use on coastal beaches shall apply to beach vehicle use on barrier islands and spits.

k. The CRMC does not require annual beach vehicle permits on the barrier spits of Seapowet Marsh and Point Fishing Area and Fogland Beach; both in Tiverton. Both spits are composed primarily of beach cobble and are excluded from an annual beach vehicle permit requirement.

2. Prohibitions

a. The use of plastic snow-fencing is prohibited on all barriers due to the hazards presented to fish, marine mammals, and other wildlife in the aftermath of a storm event.

b. Vehicle access across a back barrier flat to access the salt ponds is prohibited. Access to the ponds shall be on foot only.

c. Vehicles are prohibited in vegetated areas anywhere on the barriers.

d. Alterations to undeveloped barriers are prohibited except where the primary purpose of the project is protection, maintenance, restoration or improvement of the feature as a natural habitat for native plants and wildlife. In no case shall structural shoreline protection facilities be used to preserve or enhance these areas as a natural habitat or to protect the shoreline feature.

e. The construction of new infrastructure or utilities or expansion of existing infrastructure or utilities shall be prohibited on all barriers. Such infrastructure or utilities shall include but not be limited to public or private water, electric, gas and sewer lines. This prohibition does not apply to individual, on-site water supply systems and onsite wastewater treatment systems, or onsite bottled gas supply. Additionally, this prohibition does not apply to such ancillary activities as the installation of cable and/or telephone lines that will service an existing individual structure.

f. New development is prohibited on moderately developed barriers except where the primary purpose of the project is restoration, protection, or improvement of the feature as a natural habitat for plants and wildlife or as allowed under § 1.2.2(D) of this Part. In no case shall structural shoreline protection facilities be used to preserve or enhance these areas as a natural habitat or to protect the shoreline feature.

g. The construction of new buildings is prohibited on developed barriers on which only roads, utility lines, and other forms of public infrastructure were present as of 1985.

h. All residential construction shall be setback a minimum of 50 feet. Residential construction is prohibited in the setback zone. A special exception shall be required for relief from the 50 foot setback requirement on barriers unless the activity proposed is a beach facility or walkover structure in which case a variance from the setback provisions shall be required. A variance shall be required for relief from the setback requirement on barriers for the area that lies between the 50 foot minimum setback and any greater setback based on the annual erosion rate. No new onsite wastewater treatment systems shall be constructed within the 50 foot setback area. Walkover structures may be permitted over the dunes in order to gain access to the beach.

i. The prohibition for new infrastructure or expansion of existing infrastructure on all barriers does not apply to infrastructure which is intended to service the needs of the state such as transportation related projects, including stormwater drainage improvement projects, or transmission corridors or other infrastructure intended to meet a demonstrated state need that provides public benefit.

3. Table 5: Undeveloped, Moderately Developed, and Developed Barriers