Deep Waters

The Coastal Resources Management Council affects everyone who works or plays on the water, but this powerful government agency can’t get its act together.

The lines of the shoreline here are distinctly unnatural. The forty-five acres jut at right angles into the Providence River beneath the bluff of East Providence, just south of Providence’s downtown skyline.

Called the South Quay, it was originally going to be a bustling port terminal run by the Providence & Worcester Railroad. More than thirty years ago, the company dumped gravel and grime into the river and then failed to build the complex. The fallow land is both an urban desert and a wildlife preserve that draws musk-rats, sandpipers, herons, egrets and migratory birds.

Today we have rules and regulators who would probably prevent a private company from filling in and taking control of public waterways.

Or do we?

The state agency responsible for protecting Rhode Island’s 420 miles of shoreline is the little-known Coastal Resources Management Council (CRMC). That’s the same regulator that in 1974 gave the P&W permission to create the South Quay.

It is impossible to predict, based on the track record of the eleven-member council, what the CRMC would do given another chance to vote on this same project.

The CRMC’s thirty-six-year history is a tangle of accomplishments and failures. The agency has become the envy of many other coastal states for its sweeping powers to manage its coastline, and its staff has won national praise. Yet the council that makes the key permitting decisions has rendered some highly questionable rulings and has been mired in controversy.

There is no debate that the CRMC plays a critical role in protecting Rhode Island’s most valuable treasure: its coastline. With two out of three Rhode Islanders now living in shoreline communities, an estimated $1 billion is expected to be spent in the next decade on coastal development. Builders want to convert urban, aging warehouses and industrial eyesores into new townhouses and restaurants, and they are eyeing pristine barrier beaches for everything from upscale resorts to wind turbine farms. The competition will only increase as the expected rise in sea levels reduces the available land in future decades.

Rhode Island’s coast has often faced development pressure, and it was extremely strong from energy companies in the late 1960s and early 1970s. Businesses wanted to construct an oil refinery in Tiverton, natural and liquefied gas tanks on Prudence Island and Jamestown, and nuclear power plants in North Kingstown and later Charlestown. Local and state officials realized that they had common interests in deciding what should be built on Rhode Island’s shores.

The Natural Resources Group — an informal collection of peo- ple from the fields of business, environment, government and academia — proposed the CRMC in 1969. Two years later, their idea was embraced and adopted by the General Assembly.

Designed as a super zoning board with seventeen members appointed by the governor, legislature and local communities, the CRMC would determine what could be built on the coast. Its mission, according to state law, was “to preserve, protect, develop and where possible restore the coastal resources of the state.” That conflicting mission still in the law has posed problems for the agency.

From its beginning, the council’s role in issuing permits to allow construction along the Rhode Island coast has been its more important function. Virtually everyone who wants to do work on the shore — whether building million-dollar resorts and beach house decks or creating breakwaters and dredging channels — must seek the permission of the CRMC.

The South Quay project was one of the CRMC’s first important decisions. The agency had no staff and no plan to guide development. It held a series of public hearings and then ruled that filling in forty-five acres would “bring about desirable economic activity in an area which is presently in a state of deterioration and decay.”

The council in its early years often approved permits, when it could find them. A 1979 study reported that the CRMC had only denied 2 percent of the permit requests it received while approving 80 percent. The other 18 percent were never acted on because apparently the files were lost.

Someone will have to decide whether it makes sense to build on property that would be underwater during a hurricane.

In 1986 the state finally came up with money to staff the CRMC, and it hired Grover Fugate, who is still the executive director. He found a two-year backlog in the cases that he could find. “The whole situation was in a shambles,” he says. “It took us three years to straighten the whole mess.”

Today the CRMC has a staff of thirty and an annual budget of $4.7 million. While the council remains controversial, much of the inner workings of the CRMC operate unseen and with few apparent problems. Indeed, some of its activities not only go well, they go very well.

The stench on Cedar Tree Point in Warwick on the morning of August 20, 2003, was overwhelming. Sprawled dead and rotting on the Greenwich Bay beach were menhaden, silversides, crabs, shrimp and eels. The dead sea life stretched in the sand as far as one could see. There were thousands of casualties.

 

At first Jack Early, a Cedar Tree Point resident, was stunned. Then, as the breadth of the fish kill sank in, he got angry. He blamed the people who had been entrusted with protecting the coast. He had long suspected they were failing, and this was the living proof.

Later, at a gathering of 150 other upset neighbors at a local school, he told state officials including Governor Donald Carceri that the fault lay with the CRMC. “The belief is, in this state, that CRMC is up for sale,” he said.

For nearly two years, he and other residents had been fighting a plan to drastically enlarge a nearby marina on Greenwich Bay. Both the CRMC staff and a subcommittee had recommended a smaller expansion, but the full council overruled those objections and approved the plan, even as residents worried that Greenwich Bay was turning into a big floating parking lot for boats.

Chris Ruhling, the president of the Rhode Island Marine Trades Association and a Greenwich Bay marina operator, believed that the criticism was unfair. “We are out on the water all of the time; we are one of the best stewards of the bay,” he says. “There is no one who wants the purity of the bay more than we do.”

At the time of the fish kill in 2003, the CRMC had already agreed it had to plan for the future of such a fragile ecosystem. Michael Tikoian, chairman of the CRMC, invited anyone upset about the fish kill to join the planning process.

And so began a remarkable learning experience. Residents, marina owners, government officials and marine scientists gathered, talked and learned from each other.

“We were able to learn much more about the concerns of our neighbors,” says Ruhling.

“By forcing everyone into the same room, there were real exchanges,” Early adds. “Listening became important. We realized we were all in this together.”

“There was dialogue; there was not debate,” Tikoian says.

Scientists explained that a convergence of events had depleted the oxygen in the bay, killing most of the sea life. The low oxygen levels were primarily caused by a high influx of nitrogen that came from several sources, including failing septic systems in the communities that ringed Greenwich Bay.

The scientific research helped forge a series of concessions. Residents and city officials in towns such as Warwick, where tie-ins to local sewer lines had been voluntary, agreed to make them mandatory. Marina operators agreed to limits on where and how much more that they could expand.

Fugate, the CRMC executive director, was struck by how positions changed as compromises were forged and a plan developed. “It was almost a 180 degree reversal in public positions,” he says.

The Greenwich Bay management plan was approved in 2005, one of a series that the CRMC has been developing around the state. Whether the plan will lead to a decrease in pollution into Greenwich Bay remains uncertain. “It will take a decade to reverse what we have been doing for the last 200 years,” says Fugate.

The Greenwich Bay plan is one of many unseen, untold stories that happen at the CRMC. Besides issuing development permits, the agency’s role has grown over the years. Among its recent tasks have been to assist in the state’s remarkable growth of an aquaculture industry, maintaining right-of-way passages to the ocean and supervising a $45 million dredging of the shipping channels of the Providence River that had been stalled for decades.

It is why many developers and environmentalists continue to praise the CRMC. “It is a well built program,” one of the best in the nation, says Curt Spalding, executive director of Save the Bay. “Our coastline looks a lot different from that of Connecticut or some of our other neighbors.”

 But while development is better managed here, major problems continue with the council’s most sensitive and important task.

Fairway Drive in Narragansett curves to the left off of Bonnet Shore Road. Motorists pass two single-family houses before thick brush and woods take over on the right of the street. Further down the drive, modest vacation homes emerge, but here the land falls away toward the ocean and is so wet that it has remained fallow for a quarter mile to Westquage Pond.

This is the location of Lots 541 and 542. On May 10, 2005, the council voted four to three (other members were absent or abstained) to approve construction of a single family home on these parcels.

Now called the Investco Case after the developer, it is among the worst decisions the council ever made.

“It was an obscenity to the environment,” says W. Michael Sullivan, the director of the state Department of Environmental Management, who sits on the council but was not a member when that decision was made.

 

CRMC staff biologists and engineers had urged the council to reject the application because 97 percent of the lot was a forested wetland. They said that about half of the property would have to be filled in, affecting wetlands leading to Westquage Pond. If DEM had had jurisdiction over this wetland, the application would have been rejected, but the CRMC rules were different.

Joseph DeAngelis, the former speaker of the Rhode Island House of Representatives, spoke on behalf of Thomas Santilli, president of Investco Corp. DeAngelis acknowledged that it was an unusual case, but that Santilli would minimize any loss of wetlands in building the house.

When he was asked how much he paid for the land, Santilli estimated it was between $10,000 and $19,000. If anyone had checked the land records they would have found that the price was $5,000.

Santilli, who is the brother of Narragansett Town Building Inspector Anthony Santilli, had also obtained all town permits. That seemed to encourage at least some of the four members who voted for the permit.

Gerald Zarrella, a council member and developer, said: “If a town is going to come in and let you pay taxes on a property, for us to take away that man’s use of that land, I am appalled that they would do that.”

The three other council members argued that there was no clear evidence to give a permit on land that was 97 percent wet.

Robert Ballou, chief of staff for the DEM and a council member at the time, said: “I am appalled that this application is before us, and I’m humiliated to be part of a group that appears to be ready to approve this.”

Added CRMC Vice Chairman Paul Le-mont: “This is an egregious abuse of everything I stand for in the CRMC.”

The uproar began immediately, and soon even those voting in favor decided they had made a mistake. “There was evidence that came out that was not presented at the hearing,” said Zarrella. This included the $5,000 purchase and speculation in news stories that the CRMC’s decision had significantly increased the value of the property. The CRMC rescinded it, changed its rules to prevent a similar case from even coming before the council and Santilli donated the land to the town.

There have been other cases.

The council held twenty-three conten-tious hearings on Block Island concerning an expansion proposal by Champlin’s Marina that was opposed by many islanders. After three years of wrangling, the CRMC finally decided in favor of a smaller plan. That might have been the end of it, but lawyers appealed the case and charged that CRMC chairman Tikoian had engaged in numerous “irregularities” in lobbying against the marina. Attorneys told Superior Court Judge Netti C. Vogel that Tikoian had improperly met with Governor Carcieri — who opposed the marina project — while Tikoian was still hearing the case and had a duty to remain neutral. Tikoian was also accused of trying to convince other council members to vote against the marina. Vogel was concerned enough to take the unusual step of scheduling hearings to look into these
“irregularities.”  The judge’s decision is expected this fall.

And there was this: In January 2006 the council, with very little fanfare, voted to make a technical change in its management plan for the South County shoreline. A few days later, a developer announced that the alteration would allow him to request permission from the CRMC to build 125 houses near the Charlestown coast. Some environmentalists and local residents charged that the CRMC had hidden the reason for making a change that only affected one developer. Council and staff members said the change was no different from those made by other governmental agencies involved in affordable housing. The issue was sent back to the staff and in August, a CRMC subcommittee recommended that the full council table the issue permanently.

After the state’s voters approved a separation of powers amendment to the constitution three years ago, legislators lost their appointments to the council, cutting it from sixteen to eleven. The council has struggled at times to even gather enough for a quorum.

 

In June, the Conservation Law Foundation (CLF) asked the state Ethics Commission to investigate what it called politically connected decisions by the CRMC. The CLF is concerned that Tikoian, the chairman, has a longtime business relationship with the former house speaker DeAngelis. Tikoian has recused himself more than eighty times during the last ten years, often involving cases brought by DeAngelis. “Such frequent recusals can itself be a violation of the Code of Ethics,” the CLF complained.

Tikoian says he only excuses himself because “I’m just very cautious. I do not even want to have an appearance of a conflict.”

How does he think council members have been performing recently?

“Not very well,” he replies. “The council is only as good as its members” and he feels too many have fallen into making personal attacks. (Tikoian and Zarrella have had some bitter clashes.)

For two years, the legislature has considered how to reform the CRMC. Cynthia Giles, the lawyer for CLF who filed a request for an investigation and is a fierce critic of the CRMC, believes that the council should be taken out of the business of issuing permits. She says the council could still set policy but that permits should be reviewed and issued by professionals, similar to how DEM issues many of its environmental permits.

That’s comparable to a plan approved once before. In 1989 then-Governor Edward DiPrete was so upset that the council was so antidevelopment that he asked, and the General Assembly agreed to merge the CRMC with DEM. The council’s permitting powers were to be handled by a professional DEM commissioner. It never occurred because DiPrete lost re-election, and the state was plunged into a banking crisis. Eventually the legislature quietly rescinded the law abolishing the CRMC.

Having a citizen-based board oversee coastal development was a concept favored by the original Natural Resources Group when it proposed the CRMC in 1969, says Daniel Varin, a former director of statewide planning and NRG member. “We just did not like the philosophy of one guy making all of the decisions,” he says.

 “We come up with ideas that the staff did not even consider,” says L. Neill Gray, a council member. “And there are times when we can mediate a situation.”

“There is a great value in the public perception of having a council make a decision as opposed to a nameless bureaucrat,” says DEM Director Sullivan. “The CRMC is a council of one’s peers.” He adds that there is also a higher degree of subjectivity that goes into ruling on permits on the coast as opposed to many of DEM permits.

This summer, the General Assembly decided for the third year not to tinker with the CRMC. Instead, it agreed to seek an advisory opinion from the courts on whether it can return legislative appointments to the council. In the meantime a controversial eleven-member council that many believe is dysfunctional will continue.

Among the proposals the group might consider is the P&W’s South Quay property in East Providence. The original permit granted in 1974 for a port terminal has been repeatedly extended and is now scheduled to expire in 2009.

P&W officials say they have no current plans for the forty-five acres. But East Providence city officials for years now have indicated they would like to see the site developed into a residential, office and research park. Even six years ago the city estimated such a development would cost $250 million and generate up to 3,000 jobs.

If that plan ever resurfaces, someone will have to decide whether it makes sense to build it on property that would quickly be threatened and underwater during a hurricane. The stakes are always high in dealing with Rhode Island’s coast.