TO: NOAA Office of Ocean and Coastal Resources Management
FROM: Jonathan Stone, Executive Director, Save The Bay
DATE: February 24, 2010
RE: Rhode Island Coastal Resources Management Program - CZMA 312 Evaluation
SAVE THE BAY COMMENTS - 2010 OCRM EVALUATION
Save The Bay welcomes the opportunity to provide the following comments regarding the
strength and performance of Rhode Island’s coastal management program. Save the Bay is RI’s
largest environmental organization and is an advocate for Narragansett Bay, its watershed and
tributaries, the coastal ponds and beaches. In this capacity, Save The Bay has multiple
relationships with CRMC. Save The Bay sees a fully functioning CRMC as one of the most
important protections for the Bay. Save The Bay is a partner with CRMC in activities such as
habitat restoration, has participated in the development of key policies and Special Area
Management Plans, and has publicly raised its concerns when CRMC’s actions or lack of
transparency do not further the protection and restoration of the Bay. Hence, Save The Bay
works with and evaluates CRMC actions on a variety of levels. Here, we specifically comment on
our concerns about the effective governance of CRMC, the structure and capacity of its legal
resources, its aggressiveness in program implementation and enforcement, the need for a clear
legal framework for permitting under the umbrella of Special Area Management Planning, and
more open and transparent oversight and review by the Council as a public body of the agency’s
budget and strategic direction.
A. COUNCIL OPERATIONS AND STAFF
1. Council (governance and appointments under existing statute)
The Coastal Resources Management Council has been operating with significantly diminished
capacity for close to five years. In 2006, the OCRM 312 Review noted that the sixteen member
Council was operating with only 11 members and recommended that “the state fill the Council’s
vacancies as soon as possible following the state’s determination of how those vacancies can be
filled.” Since that recommendation was made, the situation has deteriorated significantly and the
Council is down to eight of sixteen members with a quorum requirement of seven.
In December of 2008, the RI Supreme Court handed down an Advisory Opinion clarifying who
had appointment power with regard to CRMC. The Supreme Court ruled that members of the
CRMC were to be appointed by the Governor with the Advice and Consent of the Senate, in
accordance with the 2004 Separation of Powers amendment to the Rhode Island Constitution.
Further, the Supreme Court held that the amendment took effect without any action by the
Legislature. In response to the decision, four of the eleven remaining members, who had been
appointed by officers of the General Assembly, left the Council.
For the next few months, the Council operated with only seven members, all of whom had been
appointed originally by the Governor. However, several still lacked the necessary Advice and
Consent of the Senate. Save The Bay and other groups made their concerns about the tenuous
legal position of the Council public and urged the Governor and Senate to make additional
appointments and to provide Senate approval for those members without it.
During the 2009 legislative session, bills were introduced in both the House and Senate which
would have changed the composition of the Council or established CRMC as an independent
executive agency by abolishing the Council. However, deep differences among lawmakers on
the need and direction for reform of RI’s coastal management program blocked any legislative
action – and in the meantime, the Council and Staff continued to operate under existing statutory
authority.
In June of 2009, the Governor appointed one additional member and the Senate confirmed the
existing members in need of approval, setting in place the current membership of eight. In spite
of these actions, half of the seats on the Council remain empty; the meeting schedule has been
erratic because of quorum problems; and the ability of the Council to act should more than one
member need to recuse himself on an issue or case is in serious question. In 2009, the Council
cancelled seven of its twenty regularly scheduled meetings. Three of the remaining thirteen
meetings were rescheduled to avoid quorum problems.
The Rhode Island Supreme Court issued a decision last week regarding a very controversial and
problematic case for the Council. Champlin’s Realty Associates v. Michael Tikoian et al; Town of
New Shoreham v. Coastal Resources Management Council, Nos. 09-113, 09-114, 09-115
(February 18, 2010) The Court has sent the case back to CRMC to hear additional information
and issue a decision. However, the Court also upheld a lower court ruling which prevents the
current Chairman from participating in the case. With seven eligible members and a quorum of
seven, the Council is one illness or vacancy away from being able to act in this case.
Save The Bay feels strongly that the possibility of future legislation should not stand in the way of
the actions necessary to make the Council a strong and fully functioning body under its existing
statutory authority. The Governor has the authority and duty to fill the vacant seats on the
Council with the Advice and Consent of the Senate. As long as these seats are empty, the
public’s voice and the capacity of the Council are diminished. The Council needs a membership
with as much capacity, expertise and perspective as possible right now.
Save The Bay urges the evaluation team to include the filling of existing vacancies as a
Necessary Action in the final OCRM evaluation recommendations for 2010.
The Council itself can play a leading role in any public evaluation of the performance of the
State’s coastal management program by spending more time as a body on program management
and oversight. The Council does not regularly and publicly review its own budgetary or staffing
needs, work plans or legislative priorities. The sources of revenue and the areas of investment of
staff time and energy have shifted significantly in recent years, without a public discussion and
evaluation by the Council as a body.
Finally, Save The Bay is concerned that the Council has been unable to resolve the issues
necessary to reach agreement on renewal of the contract of CRMC’s long-time Executive
Director.
2. Staff
Save The Bay concurs with the 2006 assessment of the CRMC staff as “dedicated,
knowledgeable, accessible and responsive.” The technical expertise of the program staff has
been on display in the intervening period as CRMC tackles the daunting challenges of sea level
rise and ocean spatial planning. Save The Bay works closely with staff on issues such as habitat
restoration, dredging, permitting and regulatory program changes. We meet regularly with staff to
discuss topics of interest and depend on their hard work and integrity.
One staffing area that was not considered in the last review, but which Save The Bay feels should
be addressed now is the need for legal capacity and expertise. The agency has a heavy
regulatory work load and is also developing new policies in important new areas. In addition, the
staff faces substantial permitting and enforcement demands. Full-time in-house legal staff is an
important and necessary resource for the staff in this work. This should be in addition to and
separate from legal counsel for the Council itself.
The Council has long operated with out the benefit of hearing officers appointed by the Governor
per the existing statute as well. CRMC utilizes outside counsel as legal counsel for the Council,
support for the staff and as a “hearing officer” in certain administrative areas. Save The Bay
believes that this creates potential conflicts and leaves the staff without legal support and
representation in some hearing situations. We believe that the enforcement capacities of the
Council would be strengthened if appropriate hearing officers were appointed and ask that the
review team consider such appointments a Necessary Action in its recommendations for action.
These hearing officers could be lodged in the Department of Administration, where environmental
hearing officers are already located to reduce the expense and duplication.
B. Program Areas
1. Public access
Increasing and protecting public access is an area in which CRMC could improve its
performance. Existing rights-of-way (ROWs) along the Rhode Island shoreline are frequently
blocked, and CRMC could engage in a more energetic defense and consistent legal follow
through with CRMC designated ROWs in dispute. There are a number of key access
opportunities to be developed in Rhode Island which CRMC may be able to play a supportive
role, including the establishment of the Jamestown fishing pier and Rocky Point.
2. Coastal Habitat
Save The Bay would like to see CRMC make and enforce decisions that are more protective of
wetlands. In some cases, the Council has not enforced existing regulations but has instead
accepted easements offered by property owners in exchange for variances. We note that
concerns about “takings” issues have come into play when staff is determining how strongly to
enforce CRMC regulations and Save The Bay feels that this may result in reduced protection for
coastal resources. This is another example of an area in which strong in-house legal capacity
could strengthen the program. Finally in a very high profile and contentious wetlands case (W.
Frederick & Louise Williams v. Grover J. Fugate, in his official capacity as Executive Director of
the Rhode Island Coastal Resources Management Council v. Sakonnet Preservation Association;
No. 08-2188 (July 30, 2009); 2009 RISUP 08-2188 - 080309) which DEM had fought
successfully all the way to the Supreme Court, a protective decision by CRMC was overturned by
the RI Superior Court because of a poorly written record of the decision.
Save The Bay is an active participant in CRMC’s habitat restoration program, as a partner in
individual projects and a participant in the evaluation of projects for program funding. One
example of this successful and important partnership is the recently completed Gooseneck Cove
Project in Newport.
CRMC has also made substantial efforts to develop workable coastal buffer policies that address
the needs and conditions in both urban and residential areas, and Save The Bay has supported
those efforts. As the prior review noted, Rhode Island coastal residents often do not understand
the reasoning or benefits underpinning the regulations in this area, which can lead to problems
and a lack of broad public support for the work of the agency. This has been an area of focus for
the agency and should continue to be an area of emphasis.
3. Water quality and dredging
Save The Bay has worked closely with CRMC in the development of its Clean Marina Program
and it effort to help bring RI marinas into compliance with EPA’s stormwater management
requirements. Save the Bay has also worked productively with CRMC as a member of the
Dredging Task Force and the CRMC Working Group on Aquaculture Regulations.
4. Climate Change and Coastal Adaptation
Save The Bay is very enthusiastic about our Cooperative Agreement with CRMC for joint work on
the development and implementation of a Living Shorelines and Coastal Adaptation Program for
the State of Rhode Island. This is an ambitious project involving a host of federal and state
partners which is intended to develop a policy framework and to identify pilot projects to help RI
establish strategies for addressing sea level rise, shoreline retreat and increasing coastal
hazards. This is one of Save The Bay’s highest strategic priorities and we welcome the
opportunity to work with CRMC in this area. CRMC has worked hard to bring public attention
and commitment to the challenges of climate change and has taken the lead in developing
policies to address them.
5. Special Area Management Planning
In the area of coastal dependent uses and community development, CRMC’s Special Area
Management Plans have been an important and constructive area of activity.
Ocean SAMP: The Ocean SAMP has been an open, extensive, and participatory process. This
new effort at marine spatial planning has illustrated CRMC’s impressive capacity to bring
resources to and enlist stakeholder participation in a very complex policy development process.
CRMC has been working very hard to create a policy framework for marine spatial planning under
strong pressure to facilitate the development of renewable energy resources in RI waters. The
State of Rhode Island has already entered into a formal partnership with a single developer for
the building of wind turbines in RI coastal waters. This has given rise to concerns about the
extent to which the SAMP development process is driven by a single project. CRMC has not
made clear the linkages between the development of the Ocean SAMP and the subsequent
permitting steps. In part, this reflects that fact that CRMC is operating in a new area with a
substantial number of overlapping federal and state jurisdictions. The Council has begun to take
up chapters of the Ocean SAMP individually, but there are still substantial unanswered questions
about the process through which public comments will be made and final approval given for the
Ocean SAMP as a whole.
Massachusetts has been working on a similar marine spatial planning effort. Competition
between the two states for the economic benefits of future development has reduced the ability of
RI and MA coastal agencies to cooperate and link the development of their policies in adjoining
waters. This is an area in which NOAA may be able to play an important integrating role.
Aquidneck Island: Aquidneck Island is an area in which CRMC’s SAMP process has great
potential to help the local communities to address longstanding water quality problems and we
encourage the Council to put a high priority on water quality aspects of the plan.
3. Government Coordination and Decision-making
Save The Bay had direct experience with CRMC as a permittee when constructing our new Save
The Bay Center and we found CRMC to be very fair and constructive in these interactions.
CRMC has made an effort to focus more time and attention to policy versus permitting in recent
years. The shift to administrative review for Category A permitting cases has reinforced this
effort. Save The Bay finds that transparency and access to files regarding permitting is high and
that the staff is accessible. Staff reports provide valuable information and perspective and we
encourage CRMC to make these reports available to the public at the beginning of any public
review or comment period, when they can be most helpful.
CRMC has struggled recently in the handling of several highly visible and important cases. In
some cases, insufficient findings and evidence in records of decision have lead to the overturning
of CRMC decisions in Superior Court. The Champlin’s Marina case revealed multiple problems in
the procedures and conduct of the Council. As noted above, last week’s Supreme Court decision
gives the CRMC a second opportunity to review this application. The handling of this case going
forward will be extraordinarily important in shaping the public’s confidence in the Council and
staff.
In the case of the Weaver’s Cove – Hess LNG permit, CRMC’s opportunity to weigh in on this
extremely important Rhode Island issue was lost as a result of a legal challenge to its treatment
of its permit and federal consistency review. We noted in the staffing section above that
additional legal resources would strengthen the capacity of the Council and the staff and believe
that these examples bear this out.
RI Rivers, Bays and Watersheds Coordination Team: CRMC has been an active participant in
the work of the Rhode Island Bays, Rivers and Watershed Coordination Team (RIBRWCT). The
RI BRWCT has able leadership but is hampered by a lack of resources and leverage;
nevertheless, the RI BRWCT has been working to identify areas of cooperation among the
member agencies.
4. Conclusion
The CRMC is widely recognized as a national leader in coastal management and Save The Bay
shares that assessment. Save The Bay would like to see that position preserved and we have
offered these comments to further strengthen and improve this critically important agency.
Here is a summary of our key recommendations:
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Filling of vacancies on council
Addition of in-house legal counsel
Appointment of hearing officers
Increased aggressiveness of program implementation and enforcement
Establishment of a clear legal framework for permitting under the umbrella of Special
Area Management Planning, and
More open and transparent oversight and review by the Council as a public body of the
agency’s budget and strategic direction.
Save The Bay welcomes this opportunity to comment on the performance and future direction of
this extraordinarily important agency and would be happy to discuss any of the issues raised here
with the NOAA review team.