Current through Register Vol. 43, No. 02, November 27, 2024
(1)
Purpose.
(a) To aid in fulfilling the duties
and responsibilities of the Commissioner of the Alabama Department of
Conservation and Natural Resources (Department) for the administration,
management and control of State Owned Submerged Lands;
(b) To manage State Owned Submerged Lands so
that the public may continue to enjoy traditional uses including, but not
limited to, public recreation, navigation, fishing and swimming;
(c) To manage State Owned Submerged Lands,
important for fish, shellfish and wildlife propagation and conservation;
and,
(d) To insure that all public
and private activities on State Owned Submerged Lands which generate revenues,
exclude or preempt traditional public uses and/or which sever materials from
State Owned Submerged Lands provide just compensation for such
privileges.
(2) Intent
of Rules and Severability.
(a) These rules are
to implement the administrative and management responsibilities of the
Department regarding State Owned Submerged Lands. Responsibility for
environmental permitting of activities and water quality protection on State
Owned Submerged and other lands is vested with the Alabama Department of
Environmental Management. These rules are considered cumulative.
(b) These rules shall not affect previous
actions of the Commissioner concerning structures or the prior issuance of any
easement, lease or any disclaimer concerning State Owned Submerged Lands. Fee
arrangements in existing leases and easements shall not be subject to the fees
of this rule until expiration of the current term unless otherwise specified in
the lease or Easement. Renewals will be done under the fee schedule in place at
the time of the renewal.
(c) Any
structures that are substantially modified, altered or rebuilt, and any
expansion of an existing activity shall be subject to the provisions of this
Rule. Substantially modified, altered or rebuilt for purposes of this paragraph
shall mean more than 50% of the existing structure or any modification or
alteration of the existing pilings.
(d) Any structures constructed after 2003
shall be subject to the provisions of this Rule.
(e) It is declared to be the intent of the
Commissioner that if any section, subsection, sentence, clause, phrase, or
provision of this rule is held invalid or unconstitutional, such invalidation
or unconstitutionality shall not be construed as to render invalid or
unconstitutional the remaining provisions of this rule.
(f) The Commissioner may grant a waiver from
any portion of this rule when the implementation of said portion of the rule
may result in an unreasonable infringement upon the Riparian Rights of an
upland riparian owner, or the proposed activity is determined to have a de
minimis impact on natural resources under the jurisdiction of the
Department.
(3)
Definitions. When used in these rules, the following definitions shall apply
unless the context clearly indicates otherwise:
(a) "Artificial Erosion" means the slow and
imperceptible loss or washing away of sand, sediment, or other material from
property caused by man-made projects and operations.
(b) "Avulsion" means the sudden loss of or
addition to land by the action of water or the sudden or perceptible change in
the bed of a water bottom or the course of a stream.
(c) "Consent of Use" means a nonpossessory
interest in State Owned Submerged Lands created by an approval which allows the
applicant the right to erect specific structures or conduct specific activities
on said lands.
(d) "Commercial
Facility" means any facility with monthly cash producing potential related to
structures or improvements placed upon State Owned Submerged Lands associated
with collection of usage fees from parties not possessing a real property or
leasehold interest in the adjacent upland parcel including, but not limited to,
Marinas, restaurants and retail operations constructed over State Owned
Submerged Lands.
(e) "Commissioner"
means the Commissioner of the Alabama Department of Conservation and Natural
Resources.
(f) "Department" means
the Alabama Department of Conservation and Natural Resources.
(g) "Division" means the State Lands Division
of the Alabama Department of Conservation and Natural Resources.
(h) "Dock" means a fixed or floating
structure, including moorings, used for the purpose of berthing buoyant
vessels.
(i) "Easement" means a
non-possessory interest in State Owned Submerged Lands created by a grant or
agreement which confers upon the applicant the limited right, liberty, and
privilege to use said lands for a specific purpose and for a specific
time.
(j) "Marginal Docks" means a
fixed or floating structure placed immediately contiguous and parallel to an
established seawall, bulkhead or revetment.
(k) "Marina" means a watercraft harbor
complex offering amenities including, but not limited to, recreational
(including charter) watercraft mooring, docking, fueling, or storage.
(l) "Ownership Oriented Facility" means Dock
or other structures or improvements where the use of the Dock or other
structures or improvements requires some real property or leasehold interest in
one or more residential units on the adjacent upland parcel and such use does
not include operations or activities described for a Commercial
Facility.
(m) "Preempted Area"
means the area of State Owned Submerged Lands from which the traditional public
uses have been or would be excluded to any extent by an activity. The area may
include, but is not limited to, the State Owned Submerged Lands occupied by
Docks and other structures or improvements, the area between the Docks and
other structures or improvements and out to any mooring pilings, and the area
between the Docks and other structures or improvements and the
shoreline.
(n) "Riparian Rights"
means those rights incident to lands bordering upon navigable waters, as
recognized by the courts and common law.
(o) "Satisfactory Evidence of Sufficient
Upland Interest" shall be demonstrated by documentation, such as a warranty
deed; a certificate of title issued by a clerk of the court; a lease; an
Easement; or condominium, homeowners or similar association documents that
clearly demonstrate that the holder has control and interest in the riparian
uplands adjacent to the project area and the Riparian Rights necessary to
conduct the proposed activity. Other forms of documentation shall be accepted
if they clearly demonstrate that the holder has control and interest in the
riparian uplands adjacent to the project area and the Riparian Rights necessary
to conduct the proposed activity.
(p) "State Owned Submerged Lands" means those
lands including but not limited to, tidal lands, sand bars, shallow banks, and
lands waterward of the ordinary low water line beneath navigable non-tidal
streams or the mean high tide line beneath tidally-influenced waters, to which
the State of Alabama acquired title on December 14, 1819, by virtue of
statehood, or thereafter and which have not been heretofore conveyed or
alienated.
(q) "Water Dependent
Activity" means an activity which can only be conducted on, in, over, or
adjacent to water areas because the activity requires direct access to the
water body or State Owned Submerged Lands for transportation, recreation,
energy production or transmission, or source of water, and where the use of the
water or State Owned Submerged Lands is an integral part of the
activity.
(4)
Management Policies, Standards and Criteria. The
following management policies, standards, and criteria shall be used in
determining whether to approve, approve with conditions or modifications, or
deny all requests for activities on State Owned Submerged Lands.
(a) General Proprietary.
1. For approval, all activities on State
Owned Submerged Lands must be not be contrary to the public interest.
2. All leases, Easements, permits, or other
forms of approval for State Owned Submerged Land activities shall contain such
terms, conditions, or restrictions as deemed necessary to protect and manage
State Owned Submerged Lands.
3.
When Satisfactory Evidence of Sufficient Upland Interest is not fee simple
title, the term of the State Owned Submerged Lands authorization will in no
case exceed the remaining term of the Sufficient Upland Interest unless the fee
simple title holder agrees to become a co-holder of the State Owned Submerged
Lands authorization.
4.
Compensation shall be required to be paid to the Division for leases and
Easements which generate revenues, monies or profits for the user or that limit
or preempt general public use. Compensation shall also be required to be paid
to the Division for Dredge Permits issued in relation to activities severing
materials from State Owned Submerged Lands whether subsequently placed below
mean high tide line or above mean high tide line State or other governmental
agencies may be excepted from this requirement at the discretion of the
Commissioner.
5. Activities on
State Owned Submerged Lands shall be limited to Water Dependent activities
only. Public projects which are primarily intended to provide access to and use
of the waterfront may be permitted to contain minor uses which are not water
dependent if:
(i) Located in areas along
seawalls or other nonnatural shorelines;
(ii) The nonwater dependent uses are
incidental to the basic purpose of the project, and constitute only minor
nearshore encroachments on State Owned Submerged Lands.
6. Boathouses with living quarters, or other
such residential structures, shall be prohibited on State Owned Submerged
Lands.
(b) Resource
Management.
1. All State Owned Submerged Lands
shall be subject to navigation priority and shall be managed primarily for the
maintenance of essentially natural conditions, propagation of fish and
wildlife, and traditional recreational uses such as fishing, boating, and
swimming. Compatible secondary purposes and uses which will not detract from or
interfere with the primary purpose may be allowed.
2. Activities which would result in
significant adverse impacts to State Owned Submerged Lands and associated
resources shall not be approved unless there is no reasonable alternative and
adequate mitigation is proposed and accomplished.
3. The Department biological, marine safety
and navigation assessments and any other assessments or reports by other
agencies with related statutory, management, or regulatory authority may be
considered in evaluating specific requests to use State Owned Submerged Lands.
Any such reports sent to the Division in a timely manner shall be
considered.
4. Activities shall be
designed to minimize or eliminate any cutting, removal, or destruction of
wetland vegetation on State Owned Submerged Lands.
5. Reclamation activities on State Owned
Submerged Lands shall be approved only if Avulsion or Artificial Erosion is
affirmatively demonstrated by the upland riparian property owner. In reviewing
a request for approval of a proposed reclamation project, the Department may
consider information including data and imagery from a period of five (5) years
prior to submission of such a request by the upland riparian property owner.
The placement of fill material below the ordinary low water line of non-tidal
streams or the mean high tide line of tidal water not associated with an
approved reclamation project or the implementation of a shoreline restoration
project compliant with paragraph (7) below shall not be approved.
6. To the maximum extent possible, shoreline
stabilization should be accomplished by the establishment of appropriate native
wetland vegetation. Rip-rap materials, pervious interlocking brick systems,
filter mats, wave attenuation units and other similar stabilization methods
should be utilized in lieu of vertical seawalls wherever feasible.
7. Shoreline restoration, including the use
of "living shorelines" techniques for shoreline stabilization, may be permitted
upon such terms and conditions as the Commissioner acting through the Division
may require. Such techniques may include, but are not limited to, the planting
of native vegetation, the placement of wave attenuation structures, the
placement of fill materials, and/or other techniques. Fill material placed
and/or sediments accreted below the ordinary low water line of non-tidal
streams or the mean high tide line of tidal water through the implementation of
shoreline restoration shall not be construed as reclamation nor cause a change
in the title to State Owned Submerged Lands.
8. Severance of materials is any separation
of material from State Owned Submerged Lands whether subsequently placed above
mean high tide line (or ordinary low water line) or below mean high tide line
(or ordinary low water line) and shall be approved only if the proposed
dredging is the minimum amount necessary to accomplish the stated purpose and
is designed to minimize the need for maintenance dredging.
9. Severance of materials for the primary
purpose of providing upland fill shall not be approved unless the activity is
determined by the Commissioner to be in the public interest.
10. Activities on State Owned Submerged Lands
shall be designed to minimize or eliminate adverse impacts on fish and wildlife
habitat. Special attention and consideration shall be given to endangered and
threatened species habitat.
11. To
the maximum extent feasible, all beach compatible dredge materials taken from
the tidal coastal system shall be placed on beaches or within the nearshore
sand system.
12. A minimum setback
of 10 feet from the riparian lines of adjacent property owners shall be
required except as otherwise provided herein, Division may require submission
of a survey to ensure compliance with the provision. The costs of the survey
will be the responsibility of the riparian owner.
13. Setbacks from other activities, channels,
structures, or natural resources may also be required to ensure safety,
facilitate enforcement abilities or ensure resource management. Submission of a
survey may be required to ensure compliance with this provision, as determined
by Division. The costs of the survey will be the responsibility of the riparian
owner.
14. Any area made the
subject of a riparian Easement shall not be closer than 100 feet from a marked
navigation channel.
15. The
activity shall not be contrary to the public interest or, if within the
boundary of a National Estuarine Research Reserve, that the activity must be
consistent with Reserve guidelines established by the Commissioner.
16. Submission of a survey may be required to
ensure compliance with this Rule, as determined by Division. The costs of the
survey will be the responsibility of the riparian owner.
17. A binding determination of riparian
boundaries can only be made by agreements of the affected parties or by a final
adjudication of a court of competent jurisdiction. Accordingly, acceptance of a
survey and/or issuance of a lease or Easement shall not in and of itself
prevent the Department from requiring the removal or the relocation of any
structure which may later be determined to encroach upon or interfere with
adjacent upland owners' Riparian Rights or otherwise not be in compliance with
this Rule.
(c) Riparian
Rights and Setbacks.
1. None of the provisions
of this rule shall be implemented in a manner that would unreasonably infringe
upon the traditional, common law riparian rights of upland property owners
adjacent to State Owned Submerged Lands.
2. Satisfactory Evidence of Sufficient Upland
Interest is required for activities on State Owned Submerged Lands, riparian to
uplands, unless otherwise specified in this chapter. Satisfactory Evidence of
Sufficient Upland Interest is not required for activities on State Owned
Submerged Lands that are not riparian to uplands, or when a governmental entity
conducts restoration and enhancement activities, provided that such activities
do not unreasonably infringe on Riparian Rights.
3. All structures and other activities must
be designed and conducted in a manner that will not unreasonably restrict or
infringe upon the Riparian Rights of adjacent upland riparian owners.
Submission of a survey may be required to ensure compliance with this Rule, as
determined by Division. The costs of the survey will be the responsibility of
the riparian owner.
4. Except as
provided herein, all structures and improvements and activities such as mooring
pilings, breakwaters, jetties and groins must be set back a minimum of 10 feet
inside the applicant's Riparian Rights lines. Exceptions to the setbacks
include: Ownership Oriented Facilities or single-family residential Docks or
piers where such structures are shared by two adjacent parcels; utility lines;
bulkheads, seawalls, riprap or such additional structures as determined by the
Division to be connected to the shoreline protection structures; structures and
activities previously authorized by the Department; structures and activities
built or occurring prior to any requirement for Department authorization; when
a letter of concurrence is obtained from the affected adjacent upland riparian
owner; or when the Department determines that locating any portion of the
structure or activity within the setback area is necessary to avoid or minimize
adverse impacts to natural resources.
(d) Standards and Criteria for Placement of
Structures or Improvements on State Owned Submerged Lands.
1. Structures or improvements placed upon
State Owned Submerged Lands shall conform to the following specific guidelines,
design standards and criteria:
(i) The area of
State Owned Submerged Lands made subject to a riparian Easement shall not
exceed the square footage amounting to 200 times the riparian waterfront
footage along the affected waterbody of the applicant.
(iii) Structures or improvements shall extend
no more than 25 percent of the width of the waterbody at that particular
location.
(iv) Structures or
improvements shall not extend within 100 feet of a federal navigation project
channel.
(v) Within the standards
set forth above, the design of structures or improvements may be further
restricted by the Department in recognition of obstructions to navigation,
marine safety considerations, riparian setback constraints, local land use
regulations, and natural resource considerations such as potential impacts to
endangered species and shellfish resources.
(e) Forms of Approval for Placement of
Structures or Improvements on State Owned Submerged Lands.
1. Request to Impact State Owned Submerged
Lands (RTI) application must be completed for any of the activities listed in
paragraphs 2., 3., and 4. below. There is a $100 application fee for RTI
applications.
2. Consent of Use
may be granted as to the following activities:
(i) Docks, piers, boathouses, and/or
improvements serving a single family residential parcel where the Preempted
Area is less than 5,000 sq. ft. or similar structure(s) shared by two adjacent
single family residential parcels where the Preempted Area is less than 5,000
sq. ft.
(ii) Docks, piers,
boathouses, and/or improvements serving an Ownership Oriented Facility where
the Preempted Area is less than 5,000 sq. ft. or similar structure(s) shared by
Ownership Oriented Facilities on two adjacent parcels where the Preempted Area
is less than 5,000 sq. ft.
(iii)
Marginal Docks and mooring pilings along an existing seawall, bulkhead or
revetment.
(iv) Replacement of
bulkheads or seawalls at or within two feet waterward of the mean high tide
line for tidally-influenced waters or at the ordinary low water line for
non-tidal streams. New construction of bulkheads or seawalls requires the
location of the structure at or landward of the mean high tide line for tidal
waters and at or landward of the ordinary low water line for non-tidal streams
or water bodies.
(v) Placement of
riprap at or within ten feet waterward of the mean high tide line in
tidally-influenced waters.
(vi)
Reclamation projects as approved in writing by the Department. All final
reclamation documents, including but not limited to a survey, are to be
recorded in the applicable county by the riparian owner.
3. Riparian Easement covering the Preempted
Area is required for the following structures, improvements and/or activities:
(i) Structures, improvements or other such
activities not granted a Consent of Use under these rules.
(ii) All revenue generating/income related
activities.
4. Dredge
Permit is required for the severance of materials from State Owned Submerged
Lands as provided below.
5. A
Shellfish Aquaculture Easement is required for the off-bottom cultivation and
harvesting of shellfish as provided in Ala. Admin. r.
220-4-.17.
6. To obtain one of the forms listed above,
contact the Division at 251-621-1216 or via email at
Submerged.Lands@dcnr.alabama.gov.
(5)
Payments and
Fees. Fees for riparian Easements relating to structures,
improvements, and other activities not granted a Consent of Use shall be as
follows:
(a) Fee Formula
1. The annual fee for riparian Easements
shall be either the lease rental value of the Preempted Area of State Owned
Submerged Lands on a per square foot basis as determined by the Division
appraisal ("Preempted Area Fee"), or the minimum annual fee, whichever is
greater.
2. For new riparian
Easements, the initial annual fee shall be calculated on a prorated basis from
the effective date of the new Easement to the last day of the following
February.
3. The Easement grantee
shall provide upon request by the Division at the time of application or
thereafter any and all information in a certified form needed to calculate the
Easement fee specified above, including, but not limited to, the total square
footage of the Easement area, any structures proposed to be placed on the
Easement area, and, if applicable, the total number, length and configuration
of wet slips.
(b)
Appraisal-Based Fees, Minimum Annual Fees and Other Payments
1. Appraisal-Based Fees.
(i) The Preempted Area Fee shall be
calculated annually on a per square foot basis according to the geographic Zone
as reflected on the Zone Map and further designated by the Easement holder
qualifying as a Commercial Facility or an Ownership Oriented Facility. The
Preempted Area Fee effective as of July 15, 2022, is a follows:
Zone 1
Commercial Facility - $0.42 per sq. ft.
Ownership Oriented Facility - $0.28 per sq ft.
Zone 2
Commercial Facility - $0.30 per sq. ft.
Ownership Oriented Facility - $0.20 per sq. ft
Zone 3
Commercial Facility - $0.17 per sq. ft.
Ownership Oriented Facility - $0.11 per sq. ft.
Zone 4
Commercial Facility - $0.13 sq. ft. Ownership Oriented
Facility - $0.08 sq. ft.
To obtain a copy of the Zone Map, contact the Division at
251-621-1216 or via email at Submerged.Lands@dcnr.alabama.gov.
The Preempted Area Fee shall be revised on March 1 of each year
thereafter on the basis of fluctuations of the Consumer Price Index for All
Urban Consumers (CPI-U), South Urban, All Items, as published by U.S.
Department of Labor, Bureau of Labor Statistics.
2. Minimum Annual Fees.
(i) There shall be a minimum annual fee of
$775 effective as of July 15, 2022. The minimum annual fee shall be revised
annually on March 1 as specified in (5)(b)1.(i) above.
(c) Late Payments. There shall be
a late payment assessment for Easement fees or other charges due under this
rule which are not paid within 30 days after the due date. This assessment
shall be computed at the rate of 10 percent per annum, calculated on a daily
basis for every day the payment is late.
(6) Dredge Permit Payments and Fees. Fees for
Dredge Permits relating to severance of materials from State Owned Submerged
Lands shall be as follows:
(a) Fee Formula
1. The fee for Dredge Permits shall be either
the valuation of the dredged materials as determined on a per cubic yard basis
by Division appraisal ("Per Unit Fee"), or the minimum fee, whichever is
greater.
(b) Fees and
Other Payments
1. Payment of the Per Unit Fee
or minimum fee, whichever is greater, shall be due prior to issuance of the
Dredge Permit.
2. The Per Unit Fee
shall be calculated according to the cubic yards of material to be severed and
further designated by the placement of the severed materials. The calculation
will be delineated based on the volume of materials stored above the mean high
tide line and/or below the mean high tide line. The Per Unit Fee effective as
of July 15, 2022, is as follows.
First 10,000 cubic yards:
$1.25 per cubic yard of material stored below the mean high
tide line
$2.25 per cubic yard of material stored above the mean high
tide line
10,001 to 29,999 cubic yards:
$0.75 per cubic yard of material stored below the mean high
tide line
$1.25 per cubic yard of material stored above the mean high
tide line
30,000 cubic yards or more:
$0.25 per cubic yard of material stored below the mean high
tide line
$0.75 per cubic yard of material stored above the mean high
tide line
The Per Unit Fee shall be revised on March 1 of each year
thereafter on the basis of fluctuations of the Consumer Price Index for All
Urban Consumers (CPI-U), South Urban, All Items, as published by the U.S.
Department of Labor, Bureau of Labor Statistics.
3. There shall be a minimum fee of $500
effective as of July 15, 2022. The minimum fee shall be revised annually on
March 1 as specified in (6)(b)2. above.