250-RICR-150-05-2
250-RICR-150-05-2. Rules and Regulations for Dredging and the Management of Dredged Materials (version Technical Revision, 10/05/2010 to 01/04/2022)
2.1 Purpose
A. In accordance with the
Marine Waterways and Boating Facilities Act of 2001, R.I. Gen. Laws
Chapter 46-6.1, the purpose of these regulations is to:
1. Ensure that dredging in the
marine environment and management of the associated dredged material
is conducted in a manner which is protective of groundwater and
surface water quality so as to ensure the continued viability and
integrity of drinking water and fish and wildlife resources.
2. Balance the need to prevent
environmental degradation with the need to prevent undue delay in the
planning, permitting and implementation of dredging projects.
3. Enhance and streamline the
permitting process by treating dredging and management of dredged
material as a distinct class of activities to be regulated on the
basis of the nature and characteristics of the material to be
dredged.
4. Encourage the beneficial
use of dredged material for brownfields redevelopment, beach
nourishment, landscaping, habitat restoration and/or creation,
construction projects, landfill cover and other useful purposes.
5. Identify and list sites
suitable for beneficial use and/or disposal of dredged material, and
establish criteria for identifying other suitable sites.
6. Establish standards and
criteria governing the dewatering of dredged material for beneficial
use or disposal.
7. Ensure timely and
coordinated review of applications for dredging and/or management of
dredged material, consistent with timeliness and procedures set forth
in statute, including internal coordination within the Department and
the issuance of a single regulatory decision by the Director, as well
as external coordination with the Coastal Resources Management
Council and with federal agencies to the extent they have to act on a
proposed project.
8. Ensure that project
planning and management of dredged materials follow the ranking of
priorities as set forth in statute and listed below, taking into
account the nature and characteristics of the dredged material, as
well as reasonable cost:
a. Beneficial use, including
but not limited to beach nourishment, restoration and/or creation of
habitat in the coastal zone;
b. Disposal.
2.2 Authority
These Rules and Regulations
are promulgated pursuant to the Marine Infrastructure Maintenance Act
of 1996, the Marine Waterways and Boating Facilities Act of 2001,
R.I. Gen. Laws Chapter 46-6.1, and are intended to be consistent with
the Hazardous Waste Management Act, R.I. Gen. Laws Chapter 23-19.1;
the Fresh Water Wetlands Act, R.I. Gen. Laws § 2-1-18 et seq. ;
the Clean Air Act, R.I. Gen. Laws Chapter 23-23; the Groundwater
Protection Act, R.I. Gen. Laws Chapter 46-13.1; the Water Pollution
Act, R.I. Gen. Laws Chapter 46-12; the Coastal Resources Management
Council Act, R.I. Gen. Laws Chapter 46-23; the federal Coastal Zone
Management Act 16 U.S.C. § 1454 et seq .; the federal Water
Pollution Control Act, 33 U.S.C. § 1251 et seq. (a/k/a the
federal Clean Water Act), in accordance with Chapter 42-35, and the
Administrative Procedures of the R.I. Gen. Laws.
2.3 Application
A. The terms and provisions of
these Rules and Regulations shall be liberally construed to permit
the Department to effectuate the purposes of state law, goals and
policies.
B. These Rules and Regulations
apply to all aspects of dredging proposed in marine waters of the
State of Rhode Island, and govern the issuance of all Department
approvals required under state law and delegated federal law,
including determinations relating to the protection of water quality,
wetlands and fish and wildlife; and, to the extent applicable, the
management of solid or hazardous waste. If the project involves a
significant alteration to freshwater wetlands, then §
2.9(C)(4) of this Part applies.
C. These Rules and Regulations
shall be implemented in accordance with a written protocol, adopted
jointly by the Department and the Council for purposes of further
coordinating and streamlining the interagency review of applications.
The Department and the Council may update the protocol from time to
time for said purposes, and shall provide a copy of the most recent
version with their application materials.
2.4 Definitions
A. For the purposes of these
regulations, the following terms shall have the following meanings:
1. "Applicant" means
the person, firm, partnership, corporation, public utility,
government agency and/or any other organization or association
seeking a determination, permit, or decision from the Department
through prescribed application procedures. The applicant must be the
owner of the property or easement which is the subject of the
application, or must be the government agency or entity with power of
condemnation over such property or easement.
2. "Beach nourishment"
means beach nourishment is the placement of sand at a location
determined to be acceptable along the coastal profile (including
underwater in the near-shore environment) to increase the
recreational or habitat value of the beach or to protect the beach
from erosion.
3. "Beneficial use"
means the use of dredged material in an environmentally protective
manner for some productive purpose included, but not limited to
Brownfields redevelopment, beach nourishment, landscaping and
grading, landfill cover, coastal habitat restoration and/or creation,
or construction.
4. "Coastal zone"
means the coastal waters of the state and adjacent land and other
areas that are under the regulatory jurisdiction of the Coastal
Resources Management Council pursuant to R.I. Gen. Laws Chapter 46-23
or the federal Coastal Zone Management Act, 16 U.S.C. § 1454 et
seq.
5. "CRMC" or
"council" means the Rhode Island Coastal Resources
Management Council.
6. "Department"
means the Rhode Island Department of Environmental Management.
7. "Director" means
the Director of the Rhode Island Department of Environmental
Management.
8. "Dewatering"
means the process of removing excess marine water from dredged
material prior to land disposal or beneficial use.
9. "Disposal" means
the relocation and/or placement of dredged material, other than for
an approved beneficial use or managed at an approved rehandling
facility, at any location for more than ninety (90) days after
dewatering is completed, unless an alternative time frame is approved
under § 2.11(A)(7) of this Part.
10. "Disposal site"
or "location" means a precise and approved geographic area
within which dredged material is permitted to be disposed.
11. "Dredged material"
means material excavated from the marine waters of the state,
including rock, gravel, sand, clay, silt, mud, organic material, and
material discarded by humans.
12. "Dredge window"
means that portion of the year when marine fisheries resources are
least susceptible to significant adverse impacts related to dredging
activity or in-water disposal.
13. "Dredging" means
the movement of sediments from beneath surface waters by mechanical
or hydraulic means.
14. "Habitat" means
specific type of place within an ecosystem occupied by an organism,
population, or community that contains both living and nonliving
components with specific biological, chemical, and physical
characteristics including the basic life requirements of food, water
and cover or shelter.
15. "Maintenance
dredging" means dredging an area within state waters to restore
channels and basins to dimensions that support and maintain existing
levels of use.
16. "Person" means
any individual, group of individuals, firm, corporation, association,
partnership or private or public entity, including a district,
county, city, town, or other governmental unit or agent thereof, and
in the case of a corporation, any individual having active and
general supervision of the properties of such corporation.
17. "Rehandling facility"
means a facility operated for the purpose of storing and distributing
dredged material for off-site disposal or beneficial use.
18. "Site" means a
specific location and all contiguous land, structures, appurtenances
and improvements associated with that location.
19. "Site operator"
means the person who is responsible for the operation of activities
at a beneficial use, dewatering, or disposal site for dredged
materials.
20. "Site owner"
means the person who owns all or a part of a beneficial use,
dewatering, or disposal site for dredged materials.
21. "USACE" means
the United States Army Corps of Engineers, its agents or
representatives.
2.5 General Provisions
A. No person shall perform
dredging, dewatering, handling, disposal, or make beneficial use of
dredged material without prior written approval from the Director,
except as provided for in § 2.12 of this Part.
B. Dredging, dewatering,
handling, disposal, or beneficial use of dredged material, whether
licensed or unlicensed, shall not cause pollution of the waters of
the United States or the State of Rhode Island so as to violate the
Water Pollution Act, R.I. Gen. Laws., Chapter 46-12, the Groundwater
Protection Act, R.I. Gen. Laws Chapter 46-13.1, the Fresh Water
Wetlands Act, R.I. Gen. Laws § 2-1- 18 et seq ., or §§ 402
and 404 of the Clean Water Act, 33 U.S.C. 1251 et seq. ; or
cause air pollution, including objectionable odors and fugitive dust,
so as to violate the Clean Air Act, R.I. Gen. Laws Chapter 23-23 or
the federal Clean Air Act, 42 U.S.C. § 7401 et seq ., and any
regulations promulgated under these authorities.
C. In accordance with 40
C.F.R. § 230.10, the in-water disposal of dredged material is
prohibited unless:
1. There is no practicable
alternative to the proposed disposal that would have less adverse
impact on the aquatic ecosystem, and that would not itself have
significant adverse environmental consequences. A practicable
alternative is defined as one that is “available and capable of
being done after taking into consideration cost, existing technology
and logistics in light of the overall project purposes";
2. The disposal will not cause
or contribute to violations of applicable water quality standards;
3. The disposal will not cause
or contribute to significant degradation of waters of the state; or,
4. Appropriate and practicable
steps to minimize the potential adverse impacts of the disposal on
the aquatic environment have been taken.
D. Land dewatering, disposal
or beneficial use of dredged material is prohibited in the following
areas, unless the dredged material meets the criteria listed in §
2.9(B)(3) of this Part or unless the dewatering, disposal or
beneficial use location is within 200 feet of the coastal zone:
1. Areas where groundwater is
classified as GAA, as defined in the DEM Rules and Regulations for
Groundwater Quality, Part 3 of this Subchapter;
2. Areas where groundwater is
classified as GA, as defined in the DEM Rules and Regulations for
Groundwater Quality, Part 3 of this Subchapter and where public water
is not available; and,
3. The watershed of a drinking
water reservoir or any Wellhead Protection Area as defined pursuant
to the Rules and Regulations for Groundwater Quality, Part 3 of this
Subchapter.
E. Land disposal of dredge
material shall be placed at a location in a manner that will prevent
its later erosion into a waterway or wetland.
2.6 Pre-Application Process
A. Before submitting an
application for permission to dredge, applicants are strongly
encouraged to take advantage of pre-application opportunities to
consult with the Department, the Council and any other agencies with
jurisdiction. The purpose of pre-application consultations is to
provide applicants with guidance and assistance in preparing a
complete application, including the results of an approved sampling
plan, so that the application can be reviewed and acted on in
accordance with the timelines set forth in statute.
B. To initiate a
pre-application consultation, applicants should provide notice of a
preliminary proposal to dredge to the Council. Upon receipt of such
notification the Council will schedule a joint CRMC-Department
pre-application meeting with the applicant. The Department shall
designate a single point of contact for purposes of this and all
subsequent meetings on the proposal. This point of contact will
usually be a member of the Office of Technical and Customer
Assistance (OTCA). Depending on the specifics and status of the
application, representatives of several Department programs will be
asked to participate, including in particular:
1. Office of Water Resources
2. Office of Air Resources
3. Office of Waste Management
4. Division of Fish and
Wildlife
C. Following the initial
pre-application meeting, the Department’s single point of contact
may schedule additional pre-application meetings with the applicant
to review specific regulatory requirements and their applicability to
specific aspects of the proposal.
D. Review and Approval of
Sediment Sampling Plan. Applicants are encouraged to use the
pre-application process to develop and secure Department approval of
the Sediment Sampling Plan required in § 2.7 of this Part. Approval
is required before implementation of the plan. Sampling results are
required as part of an application. Applicants should submit, at
least 7 days prior to a pre-application meeting, a proposed Sediment
Sampling Plan, in accordance with §§ 2.7(B)(1), 2.7(B)(2) and
2.7(B)(3) of this Part. Applicants may also obtain guidance and
approval for initial assessments, pollutant transport analyses or
background studies that may be needed as a follow-up to sediment
sampling, in accordance with §§ 2.7 or 2.9(B) of this Part.
E. Review of Impacts on
Fisheries, Wetlands and Other Aquatic Resources. Applicants are
encouraged to use the pre-application process once the dredged
material has been characterized and the disposal or beneficial use
location has been identified. The process will allow the applicant
to consult with the Department about existing information and the
need for new information regarding aquatic resources, potential
impacts from proposed activities, and means to avoid or minimize such
impacts, for example through modifications to design, methodology or
timing, in accordance with the provisions of §§ 2.8 through 2.11 of
this Part. Applicants may also obtain a determination whether the
project has potential to significantly alter freshwater wetlands so
as to trigger requirements for additional documentation under §
2.9(C) of this Part.
2.7 Characterizing Material to be Dredged
A. An application for
permission to dredge must include adequate characterization of the
material to be dredged, in accordance with the specific provisions
set forth in these regulations and any guidance provided by the
Department with the application form(s). The Department may waive a
specific requirement to the extent the Department finds the
requirement is not applicable or the information requested is either
not necessary or already available to determine compliance.
B. The Sediment Sampling Plan
must provide the following information:
1. A site plan of the area to
be dredged, including topography and bathymetry;
2. The proposed depth of
dredging;
3. The location of all
proposed sample collection points, which must be representative of
the material(s) to be dredged. Sampling points must include, but not
be limited to, areas impacted by past spill events or otherwise known
or suspected to contain contamination, and areas near outfalls,
fueling docks or pumps;
4. Proposed testing parameters
and protocols in accordance with § 2.7(C) of this Part; and,
5. Proposed sampling
procedures and sample handling protocols conducted in accordance with
§ 2.7(F) of this Part.
C. Analysis of dredged
material proposed for land disposal or beneficial use. At a minimum,
the material must be tested analytically for the following
parameters:
1. Grain Size Analysis
(including percent moisture);
2. Polychlorinated Biphenyls
(PCBs);
3. Total Petroleum
Hydrocarbons (TPH);
4. Total Metals Analysis for
arsenic, cadmium, chromium, copper, lead, mercury, nickel and zinc;
and,
5. Semi-Volatile Organic
Compounds (SVOCs).
D. Depending on the
characteristics of dredged material proposed and proposed location
for land disposal or beneficial use, the Department may require
dredged material be tested analytically for the following parameters:
1. Leachability: Analysis of
samples, using the Toxicity Characteristic Leaching Procedure (TCLP),
test Method 1311, or the Synthetic Precipitation Leaching Procedure
(SPLP), test Method 1312, in "Test Methods for Evaluating Solid
Waste" EPA Publication SW-846 shall be required to determine
compliance with GA Leachability Criteria. Determinations as to
whether a material meets the definition of hazardous waste by the
characteristic of toxicity must be based on results from the TCLP
test;
2. Chloride sampling (mg/kg
dry material) will be required after dewatering of the dredged
material is completed. Samples shall be representative of the entire
volume of dewatered material, and chloride sample results submitted
to the Department shall include a description of the sample location.
Samples will be required under the following conditions:
a. Where there is a point of
groundwater use within 1750 feet of the disposal or beneficial use
location, or,
b. Where there is a point of
groundwater use within 400 feet of the disposal or beneficial use
location, when that location is within 200 feet of the coastal zone.
3. Waiver of Testing
Requirements: The Department may waive the requirement that sediments
be tested for contaminants if it determines that the probability of
such contamination being present is low based on the absence of
suspected sources and documentation that the material being dredged
is at least 90% sand with a grain size greater than 0.0625 mm, as
determined in accordance with § 2.7(C)(1) of this Part. Sampling for
chlorides will not be required for material proposed to be used for
beach nourishment.
E. For in-water disposal of
dredged material, the following guidance documents, developed by the
USEPA and USACE, shall be used jointly by ACE and the applicant to
develop a sampling plan:
1. Evaluation of Dredged
Material Proposed for Ocean Disposal - Testing Manual (February 1991;
also known as the Green Book);
2. Guidance for Performing
Tests on Dredged Material Proposed for Ocean Disposal (Regional
Implementation Manual); and,
3. Evaluation of Dredged
Material Proposed for Discharge in Water of the U.S. - Testing Manual
(February 1998; also known as the Inland Testing Manual).
F. Sampling Procedures
1. Core samples must be taken
to the proposed depth of dredging including any overdraft, depending
on the dredging methodology anticipated.
2. Each core shall be
described. Grain size analysis shall be required for each core. A
core may be homogenized unless there are distinct strata in grain
size and composition, which are at least 2 feet in depth. The
Department shall be notified of any cores that show grain size
stratification prior to homogenizing. For cores that show grain size
stratification, each strata with a depth of 2 feet or greater must be
tested for grain size, Total Organic Carbon and percentage moisture.
3. Separate core samples may
be composited when the grain size and likelihood of contamination is
uniform based on depositional characteristics, spill history, and
location of outfalls. Approval must be obtained prior to compositing
the samples.
4. Samples must be collected
and managed to meet the method requirements for handling,
preservation and storage outlined in the documents as noted above in
§ 2.7(E) of this Part.
G. Approval of the Sampling
Plan: Once the Department has reviewed the sampling plan and accepted
it, the Department will issue a written approval of the sampling
plan. Upon receipt of approval, the applicant may go forward with
implementation. For in- water disposal, this evaluation will be
conducted in coordination with the Council and the USACE.
H. Modification of the
Sampling Plan: The applicant may only modify the sampling plan with
prior approval from the Department.
I. Recognition of Results:
Once the results of the sampling have been received, the applicant
may request a meeting with the Department to help the applicant
identify potential disposal locations and discuss refinements of the
project design. If a meeting is requested pursuant to this section,
the Department will notify the Council of this meeting and work with
the Council to provide coordinated, multi-agency input into the
project design. Following the meeting, the Department will provide
written acknowledgement of the results of the sampling and a
determination as to what disposal options are available to the
applicant based on the results provided.
J. Sampling Results: Sampling
results shall be valid for use in a dredging application for 5 years.
2.8 Application for Dredging and the Management of Dredged Material
A. An application for
permission to dredge in the marine waters of the state and/or to
dewater, dispose or make beneficial use of dredged material shall be
submitted to both the Department and the Council on forms prescribed
and provided by the agencies. The Department will accept applications
that have been made part of a submittal to the Council, provided such
part complies with all requirements set forth in these regulations
and in the form(s) prescribed by the Department.
B. To be accepted as complete,
an application must include, or address, at a minimum, all of the
following:
1. Site plan(s), including all
applicable requirements as identified in § 2.16 of this Part,
Appendix A;
2. Results of the sampling
conducted pursuant to the Sediment Sampling Plan, as approved by the
Department in accordance with § 2.7 of this Part;
3. A description of the
dredging process, including the proposed dredging method and an
estimate of the length of time necessary to complete the dredging
project;
4. Type of dredging equipment
to be used;
5. Stamped calculations
performed by a Professional Engineer with experience with dredge
projects, verifying the estimated volume of dredged material;
6. Cross sectional plans of
the area to be dredged. Plans must show the existing and proposed
contours of the dredging area;
7. A narrative description of
aquatic resources in the area to be dredged such as shellfish beds,
eel grass beds, spawning areas and migratory pathways for finfish,
and other aquatic resources;
8. The proposed starting and
completion dates for the dredging project. Depending on the size,
location and complexity of the project, the Department may require
the submission of an evaluation of the impacts to fishery resources
including migratory and spawning behavior and habitat, and the
presence of early life stages of particular sensitivity. Dredging
projects proposed outside the standard dredge window may require the
submission of additional resource information;
9. The method of transport to
the disposal or beneficial use area and a description of handling
techniques (i.e. stockpiling, dewatering);
10. Consistency of the
proposed project with the beneficial use and disposal priorities for
dredged material management established in the R.I. Gen. Laws Chapter
46-6.1-2 and with the dredging plan adopted by the Council pursuant
to R.I. Gen. Laws § 46-6.1-5;
11. Location(s) of dredged
material dewatering, handling, disposal or beneficial use site(s);
12. Other specific information
required by §§ 2.9, 2.10 and 2.11 of this Part, to the extent
applicable.
2.9 Land Disposal and Beneficial Use of Dredged Materials
A. Applications that propose
land disposal, beneficial use and beach nourishment must include, at
a minimum, the following information:
1. Site plan(s), including all
applicable requirements as identified in § 2.16 of this Part,
Appendix A;
2. Except in the case of beach
nourishment or where the dredged material meets the criteria in §
2.9(B)(3) of this Part, documentation of uses and classifications of
groundwater and surface water at or around the disposal location,
including:
a. Verification that the
dredged material disposal or beneficial use location is not within
any area prohibited in § 2.5(D) of this Part;
b. Location of points of
groundwater use within 1750 feet of the disposal or beneficial use
location, or, if disposal or beneficial use is proposed within 200
feet of the coastal zone, points of groundwater use within 400 feet
of the disposal or beneficial use location;
3. Stamped calculations
performed by a Professional Engineer with experience dredge material
handling, verifying the disposal or beneficial use location capacity
and the dewatering area capacity;
4. If the applicant is not the
owner of the proposed dewatering, disposal or beneficial use
location(s), documentation of the owner’s permission indicating the
estimated volume of dredged material to be dewatered, disposed or
beneficially used on his or her property.
B. Criteria for Sites Proposed
for the Land Disposal or Beneficial Use of Dredged Materials:
1. Except in the case of beach
nourishment or of creation or restoration of salt marsh, all dredged
material proposed to be beneficially used or disposed on land must
first be dewatered at a location approved in accordance with §
2.11 of this Part.
2. Dredged material proposed
to be used for beach nourishment must not exceed the following
criteria:
a. % Silt/Clay……………………………………
10 percent
b. % Moisture……………………………………
25 percent
c. Free of trash and debris
d. The Department reserves the
right to require testing beyond the above listed parameters if
reasonable potential exists to exceed residential direct exposure
criteria or water quality criteria.
3. Dredged material that does
not exceed the criteria in § 2.9(B)(2) of this Part and has a
chloride concentration that does not exceed 200 mg/kg dry material
may be disposed or beneficially used without further conditions.
4. Dredged material that does
not exceed the Residential Direct Exposure Criteria (Table 1, § 2.8
of this Part, Rules and Regulations for the Investigation and
Remediation of Hazardous Materials Releases (§ 140-30-1 of this
Title), and Appendix D (§ 2.19 of this Part)) may be disposed or
beneficially used as follows:
a. Where there are no points
of groundwater use within 1750 feet of the proposed disposal or use
location (or within 400 feet in the case of disposal or beneficial
use within 200 feet of the coastal zone), the material may be
disposed or beneficially used under the following conditions:
(1) Groundwater at the
proposed site is classified GB, as defined in the Rules and
Regulations for Groundwater Quality, Part 3 of this Subchapter; or,
(2) Groundwater at the
proposed site is classified GA, as defined in the Rules and
Regulations for Groundwater Quality (Part 3 of this Subchapter) the
location is not prohibited in § 2.5(D) of this Part, and the
material meets GA Leachability Criteria Table 2 (§ 2.8 of this
Part), Rules and Regulations for the Investigation and Remediation of
Hazardous Materials Releases (§140-30-1 of this Title) and Appendix
D (§2.19 of this Part). Dredged material proposed for disposal or
beneficial use within 200 feet of the coastal zone is not required to
meet GA Leachability Criteria.
b. Where there is an existing
groundwater use within 1750 feet of the proposed disposal or use
location (or within 400 feet in the case of disposal or beneficial
use within 200 feet of the coastal zone), and the chloride
concentration of the dredged material does not exceed 200 mg/ kg dry
material, the material may be disposed or beneficially used in
accordance with § 2.9(B)(4)(a)(1) or 2.9(B)(4)(a)(2) of this Part.
c. Where there is an existing
groundwater use within 1750 feet of the proposed disposal or use
location (or within 400 feet in the case of disposal or beneficial
use within 200 feet of the coastal zone), and the chloride
concentration of the dredged material exceeds 200 mg/ kg dry
material, an initial assessment of the impacts on the identified
groundwater use must be submitted.
(1) If the initial assessment
indicates, and the Department concurs, that the chloride
concentration in groundwater will not exceed the federal drinking
water standard of 250 mg/l at the point of groundwater use, the
material may be disposed or beneficially used in accordance with §
2.9(B)(4)(a)(1) or 2.9(B)(4)(a)(2) of this Part.
(2) If the initial assessment
indicates that the chloride concentration in groundwater will exceed
250 mg/l, a pollutant transport analysis may be submitted. If the
pollutant transport analysis indicates, and the Department concurs,
that the chloride concentration in groundwater will not exceed 250
mg/l at the point of groundwater use, the material may be disposed or
beneficially used in accordance with § 2.9(B)(4)(a)(1) or
2.9(B)(4)(a)(2) of this Part.
5. Dredged material that
exceeds Residential Direct Exposure Criteria but does not exceed the
Commercial/Industrial Direct Exposure Criteria (Table 1 (§ 2.8
of this Part), Rules and Regulations for the Investigation and
Remediation of Hazardous Materials Releases (§140-30-1 of this
Title) and Appendix D (§ 2.19 of this Part)), must be disposed or
beneficially used on property that is and will be used for
industrial/commercial activities in accordance with an Environmental
Land Use Restriction or Conservation Easement to be recorded in the
land evidence records for the property or affected portions of the
property. Such material may be disposed or beneficially used under
the following conditions:
a. Where there are no points
of groundwater use within 1750 feet of the proposed disposal or use
location (or within 400 feet in the case of disposal or beneficial
use within 200 feet of coastal zone), the material may be disposed or
beneficially used in accordance with §§ 2.9(B)(4)(a)(1) or
2.9(B)(4)(a)(2) of this Part.
b. Where there is an existing
groundwater use within 1750 feet of the proposed disposal or use
location (or within 400 feet in the case of disposal or beneficial
use within 200 feet of coastal zone) and the chloride concentration
of the dredged material does not exceed 200 mg/ kg dry material, the
material may be disposed or beneficially used where the groundwater
at the proposed location is classified GB or GA, as defined in the
Rules and Regulations for Groundwater Quality (Part 3 of this
Subchapter), provided the location is not prohibited in § 2.5(D) of
this Part, and provided the material does not exceed GA Leachability
Criteria (Table 2 (§ 2.8 of this Part), Rules and Regulations for
the Investigation and Remediation of Hazardous Materials Releases (§
140-30-1 of this Title) and Appendix D (§ 2.19 of this Part)).
c. Where there is an existing
groundwater use within 1750 feet of the proposed disposal or use
location (or within 400 feet in the case of disposal or beneficial
use within 200 feet of the coastal zone) and the chloride
concentration of the dredged material exceeds 200 mg/ kg dry
material, an initial assessment of the impacts on the identified
groundwater use must be submitted.
If the initial assessment
indicates, and the Department concurs, that the chloride
concentration in groundwater will not exceed the federal drinking
water standard of 250 mg/l at the point of groundwater use, the
material may be disposed or beneficially used in accordance with §
2.9(B)(5)(b) of this Part.
d. If the initial assessment
indicates that the chloride concentration in groundwater will exceed
250 mg/l, a pollutant transport analysis may be submitted. If the
pollutant transport analysis indicates, and the Department concurs,
that the chloride concentration in groundwater will not exceed 250
mg/l at the point of groundwater use, the material may be disposed or
beneficially used in accordance with §
2.9(B)(5)(b) of this Part.
6. Consideration of Naturally
Occurring Arsenic. Where the arsenic concentration of dredged
material exceeds the Residential Direct Exposure Criteria, and there
are no exceedances of any other Residential Direct Exposure Criteria,
the applicant may conduct a background study of the proposed disposal
and/or beneficial use location to determine whether the dredged
material would cause any additional adverse impacts at the site. If
the applicant chooses to conduct a background study, a proposed work
plan must be submitted to the Department for review and approval. If
the background study results indicate, and the Department concurs,
that the concentration of arsenic in the dredged material is below
the background concentration, and the background concentration is
less than 7.0 mg/kg, the dredged material may be disposed or
beneficially used at the proposed location without the need to file
an ELUR.
7. Dredged material that
exceeds Commercial/Industrial Direct Exposure Criteria must be
disposed at a facility licensed to accept and manage such material.
C. Land disposal projects that
may impact freshwater wetlands. The following provisions apply to
land sites that contain wetlands under the jurisdiction of the
Department, unless there is a valid DEM Freshwater Wetlands permit
for the disturbance and other activities affecting wetlands at the
site, no changes are proposed, and the disposal and/or beneficial use
is carried out in accordance with the permit:
1. Site plan(s), including all
applicable requirements as identified in § 2.16 of this Part,
Appendix A;
2. Any land disposal or
beneficial use site must be located outside of all freshwater
wetlands (R.I. Gen. Law § 2-1-20) where feasible. Measures must be
taken to protect wetlands adjacent to disposal sites from temporary
and long-term impacts. At a minimum, erosion, sedimentation, and
stormwater controls must be employed;
3. If alterations are
proposed, the applicant must demonstrate that impacts to freshwater
wetlands have been avoided to the maximum extent possible. If impacts
cannot be avoided, an applicant must demonstrate that all
alternatives to the proposed disposal or beneficial use which would
not alter the natural character of any freshwater wetlands were
considered and cannot be accomplished, and must further demonstrate
that impacts have been minimized to the maximum extent possible. The
applicant must consider and address the information listed in § 2.17
of this Part, Appendix B.
4. If the project has
potential to significantly alter freshwater wetlands, the applicant
will be required to file a separate Application to Alter Freshwater
Wetlands, pursuant to the Rules and Regulations Governing the
Administration and Enforcement of the Freshwater Wetlands Act.
2.10 In-Water Disposal of Dredged Materials
A. Applications that propose
in-water disposal, except as provided in § 2.10(B) of this Part,
must include the information listed below. Evaluation of this
information will be conducted in coordination with the USACE and the
CRMC and, as applicable, other information as may be required to
demonstrate compliance with the § 404(b)(1) guidelines in the Clean
Water Act. The Department will not issue a determination regarding
in-water disposal until a suitability determination has been issued
by the USACE.
1. Site plan(s), including all
applicable requirements as identified in § 2.16 of this Part,
Appendix A;
2. A narrative description of
aquatic resources in the proposed disposal area, including but not
limited to, shellfish beds, eel grass beds, migratory pathways for
finfish, breeding or nursery areas and other aquatic resources;
3. Information on the past
history of the proposed disposal area, including but not limited to,
prior disposal activity, historical spills and analytical test data;
4. A description of how the
dredged material will be deposited at the disposal location,
including the frequency and quantity of each disposal event, and
measures to control dispersion;
5. A narrative description of
any sequencing or staging activities that may be anticipated as part
of final disposal;
6. A plan for monitoring water
quality impacts from the disposal activities;
7. An Alternatives Analysis
describing alternatives to the proposed disposal location that were
investigated in accordance with and as required by the federal
404(b)(1) guidelines;
8. § 2.10(A)(8) of this Part,
an evaluation of the impact of the dredged material on the physical,
chemical and biological components of the aquatic environment. This
evaluation shall follow the tiered approach for evaluating in-water
disposal options as presented in the guidance documents referenced in
§ 2.7(E) of this Part. This analysis may include, but is not limited
to, a numerical mixing model using elutriate data to evaluate the
dispersion of contaminants throughout the water column as required to
predict the contaminant concentrations present in the water column
after consideration of mixing in order to determine compliance with
water quality standards;
B. Applications that propose
in-water disposal of dredged material at a federally designated
location, must include information as required in §§ 2.10(A)(4)-(5)
and 2.10(A)(7) of this Part.
2.11 Dewatering of Dredged Material
A. Applications that propose
dewatering must include the following information:
1. Site plan(s) and
engineering plans, including all applicable requirements as
identified in § 2.16 of this Part, Appendix A;
2. The selection and design of
settling basins shall be consistent with the USACE publication
entitled Engineering and Design, Confined Disposal of Dredged
Material, Engineer Manual No. 1110-2-5027. Characterization of the
dredged material, engineering computations for the system, and
analysis of receiving water mixing to demonstrate the discharge will
not violate water quality standards must be included. If the
dewatering facility processes dredged material from multiple dredging
operations, a Rhode Island Pollutant Discharge Elimination System
(RIPDES) permit may also be required;
3. A
determination that the proposed dewatering location(s) is not within
any area prohibited in § 2.5(D) of this Part;
4. Groundwater and surface
water classification(s) for the proposed dewatering location(s);
5. The dimensional area and
volume of the proposed dewatering, settling and storage basins and
staging areas and an estimate of the volume of material capable of
being handled at any one time. The proposed basins must be shown on
scale drawn site plans with cross sectional views of the berms;
6. Identification of the
proposed material handling methods (i.e. hydraulic or mechanical) and
an estimate of the proposed volume of runoff water expected from the
material;
7. A detailed estimate of the
time frame required for each aspect of the dewatering process, which
includes receiving, handling, dewatering and transferring dredged
material to the final disposal location(s). Where dredged material is
proposed for land disposal or beneficial use, sampling for chloride
concentration may be required after dewatering;
8. A complete Sediment and
Erosion Control Plan describing all aspects of the material transfer;
and,
9. A discussion of the
proposed methods to be used to reduce material losses when offloading
the dredge scows. The proposed method of collecting stormwater runoff
from any storage areas and directing it to the settling basins for
treatment.
B. All dewatering activities
must comply with the standards and criteria for disposal or
beneficial use in accordance with § 2.9 of this Part.
2.12 Dredged Material Rehandling Facilities
A. Applications to construct
and/or operate a dredged material rehandling facility shall be
submitted to the both the Department and the Council on forms
prescribed and provided by the agencies.
B. Applications to construct
and/or operate a dredged material rehandling facility may follow the
pre-application requirements in § 2.6 of this Part.
C. Siting of dredged material
rehandling facilities shall comply with the General Provisions and
Criteria for Sites Proposed for Land Disposal or Beneficial Use of
Dredged Material in §§ 2.5(D), 2.9(B) and 2.9(C) of this Part,
respectively.
D. To be considered complete,
an application must include, or address, at a minimum, all of the
following:
1. Any existing or pending
land use restrictions;
2. Any information available
on historic land use that may have impacted the site, including any
past spill or known contamination events, and a demonstration that
the rehandling facility will not exacerbate those conditions;
3. A demonstration that the
siting of dredged material rehandling facility complies with the
General Provisions and Criteria for Sites Proposed for Land Disposal
or Beneficial Use of Dredged Material in §§ 2.5(D), 2.9(B) and
2.9(C) of this Part, respectively;
4. Site plan(s), including all
applicable requirements as identified in § 2.16 of this Part,
Appendix A.
5. An Operating Plan,
including a thorough description of the following in narrative
format:
a. Operating hours;
b. Operating and design
capacities;
c. Dust control program;
d. Odor control program;
e. Methods for accepting
dredged materials, dewatering, if necessary, and storage and
segregation of different classes of dredged materials. Classification
must be based on testing performed prior to dredging operations.
Dredged materials may be classified as materials that do not exceed
the standards for beach nourishment, Residential Direct Exposure
Criteria, or Commercial/Industrial Direct Exposure Criteria. If a
facility chooses not to segregate dredged materials, all materials
will be classified as the most contaminated stored in the stockpile;
f. Anticipated length of time
required for dewatering various grades of dredged material at the
facility;
g. Methods and/or equipment
used for any processing operations, including separation techniques
and storage and/or handling procedures and storage of segregated
materials;
h. Anticipated interactions,
or areas of overlap, with other materials management operations at
the facility;
i. A contingency plan for
extreme circumstances, including but not limited to, steps to be
taken if dredged material were mistakenly released at the dock or at
other locations on route to the dewatering site, if the dewatering
basin(s) and storage facilities were reaching capacity due to slower
than expected dewatering times, or in the event of failure of the
containment berms;
j. Any additional sampling and
analysis of dredged materials that may be required for off-site
disposal or beneficial use, in accordance with § 2.9(B) of this
Part;
k. Proposed long-term
maintenance schedule for the proposed stormwater drainage structures;
l. Methods for ensuring that
dredged material proposed for off-site distribution is disposed or
beneficially used in accordance with the applicable requirements of
§§ 2.5(D), 2.9(B) and 2.9(C) of this Part.
E. Operating Requirements
1. The rehandling facility
must dispose of any dredged material that exceeds
Commercial/Industrial Direct Exposure Criteria at a facility licensed
to accept and manage such material.
2. The rehandling facility
must ensure that dredged material distributed from the facility is
disposed or beneficially used in accordance with §§ 2.5(D), 2.9(B)
and 2.9(C) of this Part.
3. The facility must provide
written notification to the owner of the property proposed for
disposal/beneficial use of dredged material of the requirements
specified in §§ 2.5(D), 2.9(B) and 2.9(C) of this Part.
4. The rehandling facility
must develop and maintain a tracking system to document that dredged
material distributed from the facility has been disposed or
beneficially used in accordance with the applicable requirements of
§§ 2.5(D), 2.9(B) and 2.9(C) of this Part.
5. The facility shall identify
to the Department a qualified staff person to act as the
Environmental Compliance Officer (ECO) for the facility.
6. Records must be maintained
at the facility and available for Department review upon request.
2.13 Review and Processing of Applications
A. General Evaluation
Criteria: In reviewing the application, the Department may use, but
is not limited to, the following documents: the most recent version
of the Rhode Island Soil Erosion and Sediment Control Handbook,
developed jointly by RIDEM and U.S. Department of Agriculture Natural
Resources Conservation Service; State of Rhode Island Stormwater
Design and Installation Standards Manual, developed jointly by RIDEM
and Coastal Resources Management Council; Storm Water Management for
Construction Activities (EPA 832-R-92-005), U.S. Environmental
Protection Agency; the Technical Support Document for Water
Quality-based Toxics Control, March 1991, EPA/505/2-90-001;
Evaluation of Dredged Material Proposed for Ocean Disposal -Testing
Manual, February 1991, EPA-503/8-91/001; Guidance for Performing
Tests on Dredged Material Proposed for Ocean Disposal, developed by
the USEPA and the USACE; Evaluation of Dredged Material Proposed for
Discharge in Water of the U.S. - Testing Manual, 1998, developed by
USEPA and USACE; Interim Regional Policy for New England Stream Flow
Recommendations, U. S. Department of Interior, Fish and Wildlife
Service; Water Quality Standards Handbook, 2nd. Ed., August 1994,
EPA-823-B-94-005a; § 404(b)(1) Guidelines of the Clean Water Act,
December 1980; and regulations, laws, standards or policies accepted
by the Department.
B. Application Completeness
1. Upon receipt of an
application, the Department will review the application for
completeness and shall, within thirty (30) days, notify the applicant
in writing whether the application is complete.
2. If the application is
incomplete, the Department shall list the information necessary to
make the application complete and shall specify in the notice of
deficiency a date for submitting the necessary information. Where the
Department has deemed an application to be deficient, the processing
of the application will be suspended and the applicant shall correct
said deficiencies to the satisfaction of the Department.
3. If the applicant fails or
refuses to correct said deficiencies within the specified time
period, and if an extension has not been granted by the Department,
the permit will be denied.
4. Certification of Complete
Applications: Once an application pursuant to these regulations is
considered complete, the Department may request additional
information from an applicant but only when necessary to clarify,
modify, or supplement previously submitted material. Requests for
such additional information will not render an application
incomplete, but if the applicant fails or refuses to submit such
information, the permit may be denied.
C. Timelines for Reviewing
Complete Applications
1. The Department will
complete reviews of applications for maintenance dredging projects
and the Director will forward the Department's decision to the
applicant and a copy to CRMC within one hundred and eighty (180) days
of determining that the application is complete.
2. The Department will
complete reviews of applications for new or expanded dredging
projects and the Director will forward the Department's decision to
the applicant and a copy to CRMC within five hundred and forty (540)
days of determining that the application is complete.
3. An application that
includes in-water disposal shall not be considered for decision
unless a suitability determination has been issued by the USACE for
the proposed disposal location.
D. Public Notice and
Consideration of Public Comment
1. Public Notice - Upon
determination that an application to dredge is complete, the
applicant shall provide written notice, in a form approved in writing
by the Department, of the proposed project to all abutters of any
property upon which new dredging or dewatering or maintenance
dredging of over ten thousand cubic yards of dredge material are
proposed and all abutters of any property where beneficial use or
disposal of dredge material will occur, and to any other such
persons, agencies or organizations deemed necessary by the Director.
a. For projects involving
beneficial reuse or disposal, the applicant shall also notify all
parties within 1750 feet of the proposed site of beneficial reuse or
disposal or publish a notice in a daily or weekly newspaper with
circulation in the involved area.
b. For projects involving
in-water disposal of over ten thousand cubic yards of dredge
material, the applicant will publish notice, in a form approved in
writing by the Department, in a daily newspaper with statewide
circulation. For projects involving in-water disposal of over ten
thousand cubic yards of dredge material, the Department may also
require the applicant to publish notice, in a form approved in
writing by the Department, in an additional daily or weekly newspaper
with circulation that includes the community nearest the proposed
location for in-water disposal.
2. Comment Period - The notice
will provide for a thirty-day comment period during which time all
interested persons may provide written comments or request a hearing
on the dredging project proposed by the application.
3. Public Hearing - The
Director may provide an opportunity for an oral comments if a hearing
is requested by twenty-five (25) persons, or by a governmental
subdivision or agency, or by an association having not less than
twenty-five (25) members. The applicant, all persons receiving
notice under § 2.13(E) of this Part, and all persons submitting
comments or requesting a hearing under § 2.13(E)(1) of this Part
shall be notified by the applicant, in a form approved in writing by
the Department, at least (14) days in advance, of the time and place
of the hearing.
4. Consideration of Comments -
The Director shall consider all written and oral comments and may
approve modifications to the application package made in response to
comments received, without requiring another notice and comment
period.
5. Notice of Decision - All
persons who submit comments, either orally at the hearing or in
writing, shall receive written notice of the final agency decision on
the application.
6. Modifications - The
Director may approve modifications to an approved dredging project
without further notice, provided that the project had been noticed in
accordance with this section, and such modifications are minor in
nature and will have little or no adverse environmental impact.
E. Appeals
1. Right to Appeal Department
Decision: Any person whose dredging permit application is denied by
the Department may appeal to the Director for review of the
Department’s decision on which the denial is based by filing an
appeal with the Administrative Adjudication Division.
2. Appeal Procedures
a. Filing of Appeal - All
appeals shall be in writing and shall be filed with and received by
the Department's Administrative Adjudication Division within twenty
(20) days of the effective date of the denial of the subject
application.
b. Contents of Appeal - Every
appeal shall contain a detailed basis upon which the appeal is taken
and a certified check, bank draft or money order in the amount of one
thousand five hundred ($1,500) dollars.
c. Notice of Administrative
Hearing - Upon receipt of an appeal, the Administrative Adjudication
Division shall notify the following, by first class mail, of the
date, time and place of the adjudicatory hearing, in conformance with
R.I. Gen. Laws § 42-35-9, the applicant and all other persons who
received notice pursuant to § 2.5 in this Part.
d. Conduct of Hearing - The
notice and conduct of the hearing by the Administrative Adjudication
Division shall comply in all respects with the administrative
procedures set forth in R.I. Gen. Laws Chapter 42-35 and the Rules of
Practice and Procedure for the Administrative Adjudication Division
for Environmental Matters.
3. Burden of Proof and
Standard of Review - At the adjudicatory hearing, the applicant shall
have the burden of proof to demonstrate through clear and convincing
evidence that:
a. A literal enforcement of
the regulations will result in unnecessary hardship;
b. That the dredging project
proposed in the application complies with R.I. Gen. Laws Chapter
46-6.1; and,
c. That the issuance of a
permit will not be contrary to the public interest, public health and
the environment.
4. Right to Appeal Council
Decision - Any interested party may file a substantive formal written
objection and/or request for hearing on dredging permit decisions
made by the Council pursuant to the Council’s Management
Procedures.
2.14 Severability
If any provision of these
Rules and Regulations, or the application thereof to any person or
circumstances, is held invalid by a court of competent jurisdiction,
the validity of the remainder of the Rules and Regulations shall not
be affected thereby.
2.15 Superseded Rules and Regulations
On the effective date of
these Rules and Regulations, all previous State of Rhode Island Rules
and Regulations, and any RI DEM policies regarding the administration
and enforcement of the Marine Waterways and Boating Facilities Act of
2001, R.I. Gen. Laws Chapter 46-6.1 shall be superseded. However, any
enforcement action taken by, or application submitted to, the
Department prior to the effective date of these Rules and Regulations
shall be governed by the Rules and Regulations in effect at the time
the enforcement action was taken, or application filed.
2.16 Appendix A - Application Site Plan Requirements
A. All site plans must be at
least 8-1/2" x 11" in size but no larger than 24" x
36". If plans larger than 8-1/2” x 11” are utilized, one set
of plans reduced to 8-1/2” x 11” are required with the CRMC
application package.
B. All site plans depicting
projects submitted for review and/or approval must have all markings
permanently fixed. Site plans which are pieced together with tape or
contain markings of pen, pencil, crayon, markers or other items which
can be changed or altered at a later date are not acceptable.
Blueline or blackline prints or photocopies of originals are
acceptable.
C. All site plans must contain
a title block, original date of the plan and latest revision date of
the plan if applicable. The title block must include the name of the
person or party involved, the proposed project title if any, the
principal street/road abutting the site, the tax assessor's plat and
lot number(s), the city or town, the name of the preparer and the
scale of the plan.
D. All site plans must be
prepared by a licensed or registered professional and must contain
the stamp of the professional affixed to each sheet prepared along
with the date and the signature of the Professional. Only one datum
for the project shall be utilized. The applicant shall also provide
proof of property ownership.
E. All site plans containing
more than one (1) sheet must be numbered consecutively. For all
projects, site plans must depict at minimum, the following:
1. Magnetic North Arrow;
2. Entire property boundary
outline and dimension;
3. Insert map showing location
of site in the community;
4. A locus using USGS
quadrangle map;
5. All streets and rights of
way within 50 feet of the property lines of the proposed activity
with fixed reference points including utility poles, house numbers,
stone walls, bulkheads, buildings, edge of woods/fields, trails,
parking areas, above and underground utilities, drainage structures
and any other infrastructure on-site or within 50 feet of the
property lines(s).
6. Fixed referenced points
including, but not limited to, stone walls, buildings, structures,
fences, edge of fields/woods, trails, bulkheads, access roads, and
parking lots;
7. Scale of plans; with
graphic scale if plans are reduced;
8. A legend which explains all
markings and/or symbols.
9. Surface Water Bodies.
10. Delineation of all
freshwater and coastal wetland jurisdictional areas of the DEM,
Council and ACOE within 100 feet of the property lines of the
project;
11. Any jurisdictional area
that extends beyond the property line shall be shown for 100 feet
beyond the property line.
12. Mean High Water (MHW) and
Mean Low Water (MLW) at NGVD.
13. Existing and proposed
utilities and drainage facilities;
F. For projects proposing
dredging, the following must be included:
1. The area to be dredged with
separate plans showing the existing and proposed contours of the
dredging area;
2. Cross sectional views in
two directions with a maximum spacing of 200’ of the area to be
dredged showing the existing and proposed contours of the dredging
area;
3. In-water facilities, such
as docks, piers, floats, etc. within 100 feet of the property line
including all moorings;
4. Location of federal
navigation projects, such as channels, anchorage areas, etc.;
5. Mean high and mean low
water elevations;
6. The datum used to reference
all grades and depths;
7. Location of aquatic
resources in the area such as shellfish beds, eel grass beds,
migratory pathways, habitat for finfish.
8. Location of sampling
points.
G. For projects proposing
dewatering, the following must be included:
1. Separate site plans that
detail the existing conditions and topography at two-foot intervals
and proposed site conditions and topography at two-foot intervals.
All existing topography and proposed grading shall be shown 50 feet
beyond the property lines;
2. The existing plans shall
detail the groundwater classification of the site, zoning
designations and the FEMA limits and elevations.
3. Proposed limits of
disturbance of the dredge area including all sides slopes of the
dewatering area, of any stock pile area, construction vehicle
access/storage;
4. Existing and proposed
contour lines at two foot intervals;
5. Proposed limits of
disturbance;
6. Temporary and permanent
erosion and sediment controls;
7. Temporary and permanent
stormwater and water quality management controls and best management
practices;
8. Location of all proposed
dewatering basins, settling basins, and storage areas for all dredged
material;
9. Cross-sectional views of
the settling basins, including wall construction and volume
calculations;
10. Details of the berms,
overflow and outlet weirs and runoff collection systems associated
with the proposed basins and all point source discharge locations.
The selection and design of settling basins shall be consistent with
the USACE publication entitled Engineering and Design, Confined
Disposal of Dredged Material, Engineer Manual No. 1110-2-5027.
11. Location of any pier or
dock proposed for transfer or off-loading of dredged material from
scows to land and their position relative to the dredge site and the
proposed dewatering location including certification by a
professional that such facilities are adequate for the proposed
purpose;
12. All access roads to be
utilized by trucks for offloading, transferring or removing dredged
material to the dewatering location(s) and final disposal
location(s);
13. Certification by a
Professional Engineer that all adjacent structures (within 25 feet of
the limit of disturbance) have the capacity to withstand the proposed
dredging/dewatering operations and that the stability has been
investigated and will not be effected;
14. Location of all wells
within 1750 feet.
H. For projects proposing
in-water disposal of dredged material, the following must be
included:
1. Site plans of the disposal
area showing existing bottom contours and those that will result from
disposal activities, including the geographic extent of filling, mean
high and low water marks, and the datum used to establish all grades;
2. Cross sectional plans of
the area where disposal will take place (unless disposal is to the
CAD). Plans must show existing and proposed contours.
3. Show access points to
disposal location.
4. Indicate natural resources
in and around the disposal location (i.e. eelgrass, shellfish etc.).
I. For projects proposing land
disposal or beneficial use of dredged materials, the following must
be included:
1. Location of the
disposal/beneficial use area including area 100 feet beyond the
proposed limits of disposal/reuse;
2. Separate plans detailing
the existing and proposed conditions including contours of two-foot
intervals. This is not required for landfill disposal but is required
for all types of land disposal/beneficial use;
3. Cross sections of the land
disposal/reuse in two directions at 200’ maximum spacing;
4. Describe the method of
placement of dredge material at the site including access points and
any disturbance placement may cause.
5. Existing and proposed
contours of the disposal/beneficial use area;
6. Groundwater classification
of the disposal/beneficial use area;
7. The edge and elevation of
any flood plain and the limit of any floodway (on the project datum);
8. The location of all wells
within 1750 feet;
9. Zoning approval from
municipality;
10. Temporary and permanent
erosion and sediment controls;
11. Temporary and permanent
stormwater and water quality management controls and best management
practices;
12. Show all dewatering and
stockpile locations.
J. For projects proposing
beach nourishment, the following must be included.
1. Location of the beach
nourishment use area including area 100 feet beyond the proposed
limits of disposal/reuse;
2. Separate plans detailing
the existing conditions and proposed nourishment locations including
contours of two-foot intervals.
3. Locations of any sensitive
habitat near the proposed beach nourishment site (including SAV, rock
lobster habitat, coastal wetlands, etc.).
K. For projects involving
freshwater wetlands, the following must be included:
1. The edge of any swamp;
marsh; bog; pond; emergent, submergent, shrub, or forested wetland;
or any special aquatic site;
2. The edge of any river,
stream, intermittent stream, area subject to flooding and/or storm
flowage;
3. The edge of any fifty-foot
(50') perimeter wetland;
4. The edge of any one hundred
foot (100') or two hundred foot (200') riverbank wetland;
5. The edge and elevation of
any flood plain and the limit of any floodway; Note: The Department
may grant an exception to this requirement when pre-determined
100-year flood elevations are not available from published sources
including previous engineering studies, and a registered professional
engineer provides clear and convincing documented evidence that the
project site is above any probable 100-year flood elevation;
6. The name of any surface or
flowing water body or any other wetland where applicable;
7. Where changes to existing
grades are proposed, the plan shall show both existing and proposed
contour line elevations at maximum intervals of two (2') feet. Where
no changes to grades are proposed, include a notation which so
indicates;
8. Profiles and/or cross
sections drawn to scale;
9. Proposed limits of all
vegetative clearing and surface or subsurface disturbance;
10. Temporary and permanent
erosion and sediment controls;
11. Temporary and permanent
stormwater, flood protection and/or water quality management
controls, and best management practices;
12. Proposed measures to
conduct, contain or otherwise control the movements of surface water,
groundwater, or stormwater flows; and the ultimate destination of
such flows;
13. Construction activities
either above or below the earth's surface which may affect any
wetland including the height of planned buildings.
L. For rehandling facility
projects, the following must be included:
1. The location of all wells
within 1750 feet;
2. All existing and proposed
infrastructure, including roadways; surface and subsurface utilities;
sewer and sanitary lines, water quality structures;
3. All existing and proposed
site drainage facilities, both above surface and subsurface;
4. Proposed locations of
loading and unloading areas;
5. Proposed location of
processing, tipping, sorting, and treatment areas;
6. Cross sections of proposed
storage basins, berms;
7. Cross sections and/or
details for any proposed structure;
8. Proposed sedimentation and
erosion controls;
9. Proposed weighing
facilities (if any);
10. On-site traffic patterns;
11. Proposed landscaping.
2.17 Appendix B Impact Avoidance and Minimization
A. Impact Avoidance
1. The applicant must consider
and address, at a minimum, the following issues in order to
satisfactorily demonstrate to the Department that all impacts to the
wetlands functions and values have been avoided to the maximum extent
possible, and that all alternatives to the proposed alterations which
would not alter the natural character of any freshwater wetlands were
considered and cannot be accomplished:
2. Description of the primary
purpose of the proposed project;
3. Whether the primary
proposed activity is water-dependent, or if it requires access to
freshwater wetlands as a central element of its primary purpose (e.g.
a pier);
4. Whether there are any areas
within the same property or other property owned or controlled by the
applicant that could be used to achieve the same project purpose
without altering the natural character of any freshwater wetlands;
5. Whether there are any other
properties not currently owned or controlled by the applicant but
which are reasonably available to the applicant that would not
involve wetland alterations and could be used to achieve the same
project purpose;
6. Whether there are
alternative designs, layouts, or technologies that could be used to
avoid freshwater wetlands or impacts on wetland functions and values
on the subject property or reasonably available properties which
would achieve the same project purpose, and whether these design
alternatives are feasible;
7. Description of all attempts
applicant has made to overcome or remove such constraints as zoning,
infrastructure, parcel size, or other similar constraints in order to
avoid wetland alterations; and,
8. Whether the available
alternatives which would not alter the natural character of any
freshwater wetlands on the subject property or reasonably available
properties, if incorporated in the proposed project, would result in
significant adverse consequences to the public health and safety,
and/or the environment.
B. Impact Minimization
1. The applicant must consider
and address, at a minimum, the following issues in order to
satisfactorily demonstrate to the Department that all impacts to the
wetland functions and values cannot be avoided, and therefore have
been reduced to the maximum extent possible:
a. Whether the proposed
project is necessary at the proposed scale and whether the scale of
the alteration could be reduced and still achieve the same primary
project purpose;
b. Whether the proposed
project is necessary at the proposed location or whether another
location within the site could achieve the same primary project
purpose while resulting in less impact to the wetland;
c. Whether there are
alternative designs, layouts, densities, or technologies that are
feasible, and which would result in less impact to the wetland while
still achieving the same project purpose; and,
d. Whether reduction in the
scale of the proposed project or relocation to minimize impact to the
wetland would result in significant adverse consequences to public
health and safety and/or the environment.
2.18 Appendix C - Environmental
Land Usage Restriction
This Declaration of
Environmental Land Usage Restriction (“Restriction”) is made on
this day of__________, [20__] by [Property Owner], a corporation
qualified in Rhode Island, and its successors and/or assigns (the
“Grantor”).
WITNESSETH:
WHEREAS, the Grantor is the
owner in fee simple of certain real property [Plat, Lot(s), address
and City or Town] Rhode Island (the “Property”), more
particularly described in Exhibit A [Legal Description] attached
hereto and made a part hereof;
WHEREAS, the Property has
accepted contaminated dredge sediments in excess of the Residential
Direct Exposure Criteria pursuant to the Rules and Regulations for
the Investigation and Remediation of Hazardous Material Releases
(“Remediation Regulations”);
WHEREAS, the Grantor has
determined that the environmental land use restrictions set forth
below are consistent with the regulations adopted by the Rhode Island
Department of Environmental Management (“Department”) pursuant to
R.I. Gen. Laws § 23-19.1-14;
WHEREAS, the Department's
written approval of this Restriction is contained in the document
entitled: [ ]; and,
WHEREAS, the
[Property/Contaminated Site] (or portion thereof identified in the
Class I survey which is attached hereto as Exhibit B and is made a
part hereof) has been determined to contain contaminated dredge
sediments; and,
WHEREAS, to prevent
exposure to or migration of hazardous substances and to abate hazards
to human health and/or the environment, and in accordance with the
Remediation Regulations, the Grantor desires to impose certain
restrictions upon the use, occupancy, and activities of and at the
[Dredged material disposal site];
WHEREAS, the Grantor
believes that this Restriction will effectively protect public health
and the environment from such contamination; and,
WHEREAS, the Grantor
intends that such restrictions shall run with the land and be binding
upon and enforceable against the Grantor.
NOW, THEREFORE, Grantor
agrees as follows:
Restrictions Applicable to
the [Dredged material disposal site]: In accordance with the
[permit], the Grantor shall assure that the use, occupancy and
activity of and at the [Dredged material disposal site] are
restricted as follows:
No residential use of the
[Property] is permitted;
No groundwater at the
[Property] is used as potable water;
No soil at the [Property]
is disturbed in any manner without written permission of the
Department;
Water does not infiltrate
soils at the [Property] containing hazardous substances in
concentrations exceeding the applicable Department approved
leachability criteria pursuant to the Remediation Regulations;]
No action shall be taken,
allowed suffered, or omitted if such action or omission is reasonably
likely to:
Create a risk of migration
of hazardous substances or potential hazard to human health or the
environment; or,
Result in a disturbance of
the structural integrity of any engineering controls designed or
utilized at the [Property] to contain hazardous substances or limit
human exposure to hazardous substances.
Emergencies: In the event
of any emergency which presents a significant risk to human health or
to the environment, including but not limited to maintenance and
repair of utility lines or a response to emergencies such as fire or
flood, the application of Paragraphs A (iii.-vii.) and B above may be
suspended, provided such risk cannot be abated without suspending
such Paragraphs and the Grantor complies with the following:
Notifies in writing the
Department of the emergency as soon as possible but no more than
three (3) business days after having learned of the emergency. (This
does not remove Grantor’s obligation to notify any other necessary
state, local or federal agencies.);
Limits both the extent and
duration of the suspension to the minimum period reasonable and
necessary to adequately respond to the emergency;
Implements reasonable
measures necessary, at that time, to prevent actual, potential,
present and future risk to human health and the environment resulting
from such suspension;
Communicates at the time of
written notification to the Department his or her intentions to
conduct the emergency response actions and provides a schedule to
complete the emergency response actions;
Continues to implement the
emergency response actions, on the schedule submitted to the
Department, to ensure that the [Property] is restored to its
condition prior to such emergency. Based upon information available
to the Department at the time of execution pertaining to
environmental conditions at the [Property], maintenance and repair of
utility lines shall only require restoration of the [Property] to its
condition prior to the maintenance and repair of the utility lines.
Submits to the Department,
at the completion of the emergency response action, a status report
describing the emergency activities that have been completed.
Release of Restriction;
Alterations of Subject Area: The Grantor shall not make, or allow or
suffer to be made, any alteration of any kind in, to, or about any
portion of the [Property] inconsistent with this Restriction unless
the Grantor has first received the Department's written approval of
such alteration. If the Department determines that the proposed
alteration is significant, it may require the amendment of this
Restriction. Insignificant alterations will be approved by the
Department via a letter from the Department. The Department shall not
approve any such alteration and shall not release the [Property] from
the provisions of this Restriction unless the Grantor demonstrates to
the Department's satisfaction that Grantor has managed the [Property]
in accordance with applicable regulations.
Notice of Lessees and Other
Holders of Interests in the [Property]: The Grantor, or any future
holder of any interest in the [Property], shall cause any lease,
grant, or other transfer of any interest in the [Property] to include
a provision expressly requiring the lessee, grantee, or transferee to
comply with this Restriction. The failure to include such provision
shall not affect the validity or applicability to the [Property] of
this Restriction.
Severability and
Termination: If any court of competent jurisdiction determines that
any provision of this Restriction is invalid or unenforceable, the
Grantor shall notify the Department in writing within fourteen (14)
days of such determination.
Binding Effect: All of the
terms, covenants, and conditions of this Restriction shall run with
the land and shall be binding on the Grantor and each owner and any
other party entitled to possession or use of the [Property] during
such period of ownership or possession.
Inspection &
Non-Compliance: It is the obligation of the Grantor, or any future
holder of any interest in the [Property/Contaminated Site], to
provide for independent inspections of the [Property] for compliance
with the ELUR every five (5) years.
[An officer or director of
the company with direct knowledge of past and present conditions of
the [Property] (the “Company Representative”), or] A qualified
environmental professional will, on behalf of the Grantor or future
holder of any interest in the [Property], evaluate the compliance
status of the [Property] every five (5) years. Upon completion of the
evaluation, the [Company Representative or] environmental
professional will prepare and simultaneously submit to the Department
and to the Grantor or future holder of any interest in the [Property]
an evaluation report detailing the findings of the inspection and
noting any compliance violations at the [Property]. If the [Property]
is determined to be out of compliance with the terms of the ELUR, the
Grantor or future holder of any interest in the
[Property/Contaminated Site] will submit a corrective action plan in
writing to the Department within ten (10) days of receipt of the
evaluation report, indicating the plans to bring the
[Property/Contaminated Site] into compliance with the ELUR,
including, at a minimum, a schedule for implementation of the plan.
In the event of any
violation of the terms of this Restriction which remains uncured more
than ninety (90) days after written notice of violation, all
approvals and agreements relating to the [Property] shall be null and
void at the option of the Department.
Terms Used Herein: The
definitions of terms used herein shall be the same as the definitions
contained in Section 3 (DEFINITIONS) of the Remediation Regulations.
It is so agreed:
[Name of person(s),
company, LLC or LLP] By:
Date:
Grantor
So Sworn Before Me:
Date:
Notary Public
My Commission Expires:
Date:
2.19 Appendix D