In accordance with notice to members of the Rhode Island Coastal Resources Management Council a meeting was held on Tuesday, March 23, 2004 at 6:00 PM at the Boardroom; Narragansett Bay Commission, One Service Road, Providence, RI.

MEMBERS

Mike Tikoian, Chair
Paul Lemont, Vice Chair
Jerry Sahagian
Joe Paolino
Fred Vincent
Neill Gray
Ray Coia
Dave Abedon
Sen. Susan Sosnowski
Sen. Dan DaPonte
Rep. Eileen Naughton

STAFF PRESENT

Grover Fugate, CRMC Executive Director
Dave Reis, CRMC Biologist
Dave Alves, CRMC Aquaculture Coordinator
Mike Deveau, CRMC Engineer
Brian Goldman, Legal Counsel

1. Chair Tikoian called the meeting to order at 6:14 PM.

Chair Tikoian made a brief statement of clarification on the council’s permitting process.

Mr. Gray requested that minutes be amended as follows: page 4 line 16 change the word “school” to “center” and page 9 line 19 change the word “property” to “project”. Mr. Coia, seconded by Mr. Abedon moved approval of the minutes of the March 9, 2004 minutes as amended. The motion was carried on a unanimous voice vote.

2. STAFF REPORTS

There were no staff reports.

3. SUBCOMMITTEE REPORTS

There were no subcommittee reports.

4. Chair Tikoian stated that he would hold the public hearing on the Block Island Harbor Management Plan to later in the agenda.

Chair Tikoian read through the agenda to see which applicants/attorneys were present.

5. APPLICATION FOR AQUACULTURE LEASE TRANSFER:

1977-07-003 ROBERT KRAUSE, RICHARD JOHNSTONE – This is the proposed sale of an aquaculture farm. The sale includes assets of the farm including gear, boat, stock, and CRMC aquaculture assent. The buyer is an experienced aquaculturist in Rhode Island waters and has required DEM Special Permit for Aquaculture. The DOH has been notified of the sale. This office has informed Mr. Krause that the performance bond must be continued, all operations are to remain the same as listed in the original assent issued to Mr. Johnstone and the buyer must have the required permits from DEM. Mr. Krause has responded that all of these conditions will be met. Located at Fort Neck Cove, Ninigret Pond, Charlestown, RI.

Robert Krause and Richard Johnstone, the applicants were present. David Alves gave council members a brief summary on the application. Mr. Alves stated that this aquaculture lease has been in Ninigret Pond since 1977. He said there was an agreement with Mr. Krause to sell the aquaculture lease. Mr. Alves stated that Mr. Krause has been doing aquaculture for 5 ½ years. Mr. Alves recommended approval of the sale. Chair Tikoian asked how many years were remaining on the lease. Mr. Alves responded that this was a 50-year lease and the lease has been active for 32 years. Mr. Fugate explained that this was a 50-year assent and the lease is renewed yearly. Chair Tikoian asked if they had received DOH approval on the sale. Mr. Alves stated that they received verbal approval but that they did not need DOH approval per say but they liked to get their approval. Mr. Coia, seconded by Mr. Gray moved approval of the sale of the aquaculture lease with all staff stipulations. The motion was carried on a unanimous voice vote.

6. Mr. Abedon welcomed four students from URI Wetland Ecologists – Adam Zitello, Mark Bender, Tracy Daly and Katherine Rosa to the meeting.

7. APPLICATIONS WHICH HAVE BEEN OUT TO NOTICE AND ARE BEFORE THE FULL COUNCIL FOR FINAL DECISION:

2001-07-091 NANCY TAYLOR & HARRY SCHULT – Freshwater Wetlands application requesting permit to construct an access road through freshwater wetlands to provide an alternative to an existing access road. Proposed alterations include: placement to fill in 1100 s.f. of wetland and 1125 s.f. of perimeter wetland; installation of culverts beneath the roadway. Located at Plat 124, Lot 12; Shore Road, Westerly, RI.

Chair Tikoian recused himself.

Vice Chair Lemont presided over the application.
The applicants were not present. Joseph DeAngelis, the applicants’ attorney was present on behalf of the applicants. Mr. DeAngelis stated that the applicants wanted to withdraw their application so they can re-look at their application. Mr. Coia, seconded by Mr. Paolino moved to accept the withdrawal of the application without prejudice. The motion was carried on a unanimous voice vote.

2003-01-074 RAYMOND E CHASE – Construct and maintain a 24’ x 24’ one and a half story commercial marina service building partially over tidal water. Located at Ponaug Marina, Plat 365, Lot 218; 285 Arnold’s Neck Road, Warwick, RI.

Raymond E. Chase, the applicant was present. Mr. Reis gave council members a brief summary on the application. Mr. Reis stated that the application was to construct a 24’ x 24’ one and a half story commercial marina service building partially over tidal waters. Mr. Reis stated that the structure would be 11’ over tidal water. Mr. Reis said staff recommended approval of the application because it was within the existing marina perimeter limit and there was no other location for the facility. Mr. Gray was concerned with the bulkhead and building out over water and filling tidal waters. Mr. Gray stated that the structure was to preserve auto spaces and that the applicant would only gain two parking spaces. Mr. Gray was concerned with building over the water to get only two parking spaces. Mr. Fugate explained that only a portion of the building would be built over tidal waters and the revetment will be moved out and the bulkhead would be rebuilt. Mr. Fugate said he could not say whether they would need to fill tidal waters. Mr. Fugate stated this was for sanitary facilities. Mr. Gray asked if they go out over water could they build a steel bulkhead and fill in with cement to lengthen the time of the bulkhead so they would not have to replace the bulkhead sooner. Mr. Vincent asked if the applicant had filed an application for water quality certification and if not when they plan to file an application. Mr. Reis stated that at the joint project meeting with CRMC and DEM, DEM recommended approval of the application. Chair Tikoian noted that if the application was approved it would be subject to water quality certification. Mr. Fugate stated that the applicant had an Army Corps permit. Mr. Vincent asked when the project meeting was held. Mr. Reis replied that he was not sure but it was in his report. Mr. Coia, seconded by Mr. Sahagian and Mr. Paolino moved approval of the application with all staff stipulations. The motion was carried. Mr. Gray was opposed.

8. INTERIM EXTENSION OF BLOCK ISLAND HARBOR MANAGEMENT PLAN

Mr. Fugate stated that the council approved interim approval as part of the Champlin’s Marina application and the Town of Block Island. Mr. Fugate said the Champlin application is still pending with additional subcommittee hearings scheduled. Mr. Fugate stated that the town wanted an extension of the approval until CRMC makes a decision on the Champlin’s application. Mr. Goldman explained that he spoke with Mr. Packer and Mr. Goldberg and the two of them agreed that since the subcommittee was still going that it made sense to grant a two month approval of the interim approval under the same conditions of the previous conditions which stated that nothing in the plan conflicted with the Supreme Court decision on the Town of Block Island versus Champlin’s as part of the stipulations. Mr. Sahagian asked if two months was adequate. Vice Chair Lemont said they need to look at the water quality and they can do this in 60 days if not it will take six months. Vice Chair Lemont had no problem with extending the interim approval for 60 days and reviewing the status then. Mr. Abedon asked who said two months. Mr. Goldman responded that both attorneys agreed to two months. Chair Tikoian said there were two issues outstanding the moorings and the conflict with the Supreme Court decision and asked if they had been addressed. Mr. Goldman and Mr. Fugate responded that they met with the town manager and suggested wording to put in the plan to make it consistent with the Supreme Court decision. Mr. DeAngelis noted that the DeFlippo family application was pending which was for a small eight-boat dock at Ballard’s. Mr. DeAngelis said the town advised them that the zoning code had not changed and they had no intention of changing the zoning code. Mr. DeAngelis wanted to make it known that the application will be based on the zoning regulations in place before and after the Champlin’s application. Chair Tikoian responded that the zoning procedure had nothing to do with the harbor management plan. Mr. DeAngelis felt it may because of the 600’ jurisdiction. Mr. Goldman stated that part of the discussions with the town was that the first plan had a 600’ jurisdiction limit and he had concerns with this. Mr. Goldman said he asked the town to give CRMC some proposed language if there was a 600’ jurisdiction in the plan they have to come in compliance with RIGL 46-4.10. Chair Tikoian asked Vice Chair Lemont, Mr. Goldman and Mr. Fugate to talk to the town regarding the zoning concerns. Senator Sosnowski, seconded by Mr. Vincent and Mr. Coia moved approval of the 2-month approval of the interim approval of the harbor management plan and that it be consist with the Supreme Court decision. The motion was carried on a unanimous voice vote.

9. APPLICATIONS WHICH HAVE BEEN OUT TO NOTICE AND ARE BEFORE THE FULL COUNCIL FOR FINAL DECISION:

2003-06-066 STEPHEN K. & LINDA A. LIND – Construct and maintain a residential boating facility to consist of: a 4’ x 36’ +/- fixed pier, 4’ x 20’ ramp and a 8’ x 18.75’ (150 square foot) float. The terminus of the proposed dock will extend to 50-feet beyond mean low water (MLW). See attached plans. Located at Plat N-E, Lot 26; 60 Circuit Drive, Narragansett, RI.

Chair Tikoian recused himself.

Vice Chair Lemont presided over the application.

Brian Lind, son of the applicants was present. Joseph DeAngelis, the applicant’s attorney and Herb Sirlois, the applicants’ engineer and Scott Rabideau, the applicants’ wetland biologist were also present on behalf of the applicant. Vice Chair Lemont stated that the application was to construct and maintain a residential boating facility to consist of a 4’ x 36’ +/- fixed pier, a 4’ x 20’ ramp and a 8’ x 18.75’ (150 s.f.) float to extend 50’ beyond mean low water. Mr. Reis gave council members a brief summary on the application. Mr. Reis stated that staff recommended denial of the application. Vice Chair Lemont asked why staff recommended denial of the application. Mr. Reis replied that the application is in Type 2 waters in the Narrow River and docks are allowed. He said he was concerned with the placement of the dock because the water was very shallow only 12-17 inches deep at mean low water. He said the sediment is silty in nature. Mr. Reis stated that according to the Gains study done in 1975 the tidal waters are only 6 inches deeper at mean high water. Mr. Reis was concerned with the facility being located in the cove and in order to reach the navigation channel you have to travel about 320 feet. Mr. Reis said you would have to travel over the silty sediment and this would be impacted by the propeller. He said this was a shallow cove with shallow water and was valuable to wildlife. Mr. Reis stated that they had asked DOT to do mitigation work in this area and the work would begin this summer. Mr. Reis stated that DOT was working with the town to restore the wetland. Mr. Reis noted that there was an appendix to his report which statement why there should be no dock in this area. Mr. DeAngelis stated that the application meet all criteria of the CRMC program. He said that no variances were requested. Mr. DeAngelis said the issue raised by Mr. Reis was whether or not a small boat at this dock would cause harm. He said he had two experts to address this. Mr. DeAngelis stated that the application meets all CRMC program regulations. He said there would be no significant adverse impact if the application was approved. Mr. DeAngelis explained that the Linds have been working on their property, which is three acres, for eight years. Mr. DeAngelis stated that the Lind’s donated land to the town to install water basins. Mr. Reis responded that the Lind’s did donate the land and received variances for their house. Mr. Reis stated that the parcel of land donated was not part of this application. Mr. DeAngelis stated that two-thirds of their property was donated to the town project. Brian Lind, son of the applicant, testified that they started this project eight years ago. Mr. Lind described the property and where the house is located. Mr. Lind stated that they donated land to the town for water basins and that the water basins were on his parent’s property and they needed to do an easement to the town. Mr. Lind said this was a shallow area and the dock would be used for one watercraft, a small Whaler series boat. Mr. Lind stated that there would not be a lot of trips with the boat during the boating season and felt there would not be a lot of disturbance to the area because of the use of the boat. Vice Chair Lemont asked what he meant by saying there would not be a lot of disturbance to the area as there would be limited boat use. Vice Chair Lemont asked what he would define as being disturbed. Mr. Lind was not sure how to answer the question. Herbert Sirlois, the applicants’ engineer, stated that he designed the dock and felt it met all of the CRMC program. Mr. Sirlois stated that the dock would not be more than 50’ beyond mean low water. He said the water depth is 12-17 inches at mean low water and a Whaler draws less than 12 inches of water. Mr. Sirlois explained that if they go out an additional 25 feet they would only get 4 more inches of additional water depth but they would need a variance. Mr. Sirlois said the closest dock in this area is hundreds of feet away. Mr. Sirlois felt there would be no navigational impact. Vice Chair Lemont stated that one of things the council has to take into consideration is Section 300.1 that there would be no significant impact to the water quality and sediment. Vice Chair Lemont asked how this dock would impact the area. Mr. Sirlois stated that he designed four docks in this area with shallow water depths and silty sediments and that turbidity was never an issue. Vice Chair Lemont asked what impact this dock would have. Mr. Sirlois felt there would be some impact but it would be minimal and felt any impact would be very minor. Mr. DeAngelis asked when he prepared for his testimony did he consult with the Army Corps regarding Mr. Reis’ concern about turbidity. Mr. Sirlois responded yes. Vice Chair Lemont stated that any testimony concerning the Army Corps was strictly hearsay. Mr. Rabideau stated that he performed the site inspection and did work on other docks in the area last year. Mr. DeAngelis submitted a plan of the site as identification. Mr. Rabideau gave council members an overview of where the project is and used aerial photographs that depicted the area. Mr. Rabideau stated that this area was type 2 waters. Mr. Rabideau said he was familiar with the drainage construction project taking place. Mr. Rabideau explained that a portion of the construction taken place was on the applicants’ property and described the drainage area and how they will work and be discharged. Mr. Rabidaeu felt the impact on the sediment by a Boston Whaler would be little or none. Mr. Rabideau felt the holding tanks would reduce the power of the flow and not have direct impact to area. Mr. Rabideau said if the applicant purchased a small Boston Whaler there would be no impact by the use of the boat in this area. Mr. Rabideau explained turbitity and said it was a function of settling distance and that settling in this area is shallow and would be quick. Mr. Rabideau said if the water was depth was larger the settling time would be longer. Mr. Rabideau felt turbitity would not have a significant impact on the sediment. Mr. Rabideau said if the applicant did not donate the land for the water basins there would be an impact on the cove by this dock. Mr. Rabideau said Narrow River would be degraded by stormwater runoff.

Vice Chair Lemont called for a recess at 7:18 p.m. Vice Chair Lemont called the meeting back to order at 7:20 p.m.

Council members had no questions of Mr. Rabideau. Mr. Reis wanted to address the testimony that had been given. He said he has had 17 years with CRMC and was very familiar with this property. Mr. Reis said he suggested putting the water basins in. Mr. Reis stated that a large variance on the buffer was given for the house and said at that time there was no decision to put a dock in. Mr. Reis described the DOT project to council members Mr. Reis said he had concerns with turbitity and the impact on wildlife. Mr. Reis described the channel. Mr. Reis said there are no docks this far back in this area and the standards for docks are based on the construction standards. Mr. Reis said they had sent a letter to the applicant which stated that they did not want a motorized vessel on the dock but would support a non-motorized vessel. Mr. Abedon asked what the result the letter had. Mr. Reis said they did not receive a written response but Mr. Silois stated that the applicants wanted a motorized boat. Vice Chair Lemont asked what the water depth was. Mr. Reis stated 12-17 inches at mlw and 6 more inches at high tide. Vice Chair Lemont asked what size boat the applicant would have. Mr. Lind stated that the boat would be a 16’ Boston Whaler with a 90 horse power engine and it would have an 11” draft. Mr. Sahagain stated that he has 43 years of boating on the Narrow River and felt that a tourist would do more damage if they veered off the channel than this dock. Mr. Sahagian stated that Mr. Deveau’s reported stated that there were no engineering objections to the application and wanted to know why he did not recommend approval of the application. Mr. Gray felt that the staff engineers were part of CRMC in total and that it is CRMC’s duty to protect the environment and if the application did not meet the whole elements of the program they could no support it. Mr. Gray said the propellor would be pulling water from the bottom even if the engine is up. Mr. Gray felt a 90 horse power engine would have a bigger propellor and the boat would be larger. Mr. Gray was concerned with this. Mr. Gray said there would be no way to enforce whether or not the engine was in a tilt position when they traveled this area. Mr. Gray felt this was a tough decision to make and wholeheartedly agreed with staff on their recommendation. Mr. Gray felt this was a no win situation. Mr. Paolino felt that anyone who uses a boat in this area would have to use common sense otherwise they would be getting dirt in their cooling system in the engine. He said they would have to lift the engine up or would have to replace the engine. Mr. Paolino felt the applicant would not have any problem. Mr. DeAngelis asked Mr. Lind if they had a boat now. Mr. Lind responded no. Mr. DeAngelis said his reference to the 90 horse power engine was the only boat they looked at. Mr. Lind said they only looked at the boat but they have not bought a boat yet. Mr. DeAngelis made a summary on the application. Mr. DeAngelis felt the application complied with all of the CRMC regulations and felt there would be no significant adverse impact. Mr. Lind stated that he would agree to a stipuation as to the length of the boat on the dock. Mr. Lind also stated that they had looked at 16’ boat. Mr. Paolino felt they could not put a 90 horse power engine on a 16’ boat they could probably only put a 40 horse power engine.

Vice Chair Lemont called for a recess at 7:43 p.m. Vice Chair Lemont called the meeting back to order at 7:45 p.m.

Mr. Abedon felt that Mr. Reis’ presentation was very persausive and felt this could lead to long-term impact to the area. Mr. Gray felt a compromise could be worked out with the applicant and was concerned with this area. Mr. Gray felt the term “Whale” type was an issue. Mr. Gray felt that a 13’ Whaler could be rowed in and out of the area and still have an engine on it. Mr. Gray said if the boat was rowed in and out it would address staff’s concern. Mr. Gray suggested that there be a boat size limit and that the boat have a flat bottom not a “v” bottom. Mr. Sahagian, seconded by Mr. Paolino moved approval of the application subject to any style boat not greater than a maximum of 17’ boat length and all staff stipulations. Vice Chair Lemont asked who was going to enforce this. Mr. Paolino did not feel right to put a limit on the size of the boat the applicant could have. Sen. Sosnowski felt it would be helpful to the applicant to put a boat size limit as they do not have a boat now. Vice Chair Lemont felt this would be a good faith issue. Rep. Naughton asked if they observed that it was not the right boat on the dock could this be enforced. Mr. Vincent asked if the condition of the assent still had a boat size limit. Vice Chair Lemont replied yes. Mr. Goldman stated that assents are recorded on the property and the conditions would follow the property and put a buyer on notice. Vice Chair Lemont called for a roll call vote:

On the motion for approval with a maximum 17’ boat length limit.

Rep. Naughton No Mr. Sahagian Yes

Sen. Sosnowski No Mr. Coia Yes

Mr. Vincent No Sen. DaPonte Yes

Mr. Abedon No Mr. Gray No

Mr. Paolino Yes Vice Chair Lemont No

4 Affirmative 6 Negative 0 Absentation

The motion failed.

Mr. Gray, seconded by Sen. Sosnowski moved approval of the application with a boat no larger than 16’, a flat bottom and that the engine be no larger than 25 horse power with all staff stipulations. Mr. Paolino was concerned with setting a limit on the size of the engine. Mr. Paolino felt a 25 horse power would not be powerful enough if there was too much weight on the boat. Mr. Sahagian asked if Mr. Gray and Sen. Sosnowski would consider increasing the size of the horse power engine for the boat. Vice Chair Lemont suggested that they use the recommended horse power on the plate rated. Vice Chair Lemont explained that the plate rated tells the maximum size engine and horse power you can have on a boat. Mr. Abedon was concerned with the engine size and the flat bottom boat. Mr. Gray said he was not comfortable with the plate rated language as they could put a larger horse power on the boat and felt that 25 horse power was sufficient. Mr. Coia stated that the applicant was asking for permission to build a dock. Mr. Coia felt there was no way to limit the size of a boat on the dock because if a friend came up to the dock with a different boat and it could be a larger boat than the applicants’ boat. Mr. Paolino also felt that if a person comes up to the dock with an 18’ boat there was no way to enforce this. The motion failed. Mr. Sahagian, seconded by Mr. Paolino moved approval of the application with a boat no larger than a 17 feet, a flat bottom skiff design with not greater than a 70 horse power engine. Vice Chair Lemont called for a roll call vote on the motion.

On the motion for approval of a no greater than 17’ boat with no larger than a 70 horse power engine.

Rep. Naughton No Mr. Sahagian Yes

Sen. Sosnowski Yes Mr. Coia Yes

Mr. Vincent No Sen. DaPonte Yes

Mr. Abedon No Mr. Gray No

Mr. Paolino Yes Vice Chair Lemont Yes

6 Affirmative 4 Negative 0 Absentation

The motion carried.

10. Enforcement Report – February, 2004

There were none held.

11. Category “A” List

\There were none held.

There being no further business before the council the meeting, the council adjourned at 8:05 p.m.

Respectfully submitted,

Grover Fugate

Executive Director CRMC
Reported by Lori A. Field