Current through Register Vol. 43, No. 02, November 27, 2024
(1) For the purposes of this rule, "shellfish
aquaculture" shall mean the off-bottom cultivation and harvesting of shellfish
for commercial or research-oriented purposes. "Shellfish" for purposes of this
rule shall mean all native to Alabama species of oysters, clams, or mussels and
scallops.
(2) The purpose of this
rule is to provide for the granting of riparian and non-riparian easements for
shellfish aquaculture. For the purpose of this rule, "riparian easement" or
"riparian shellfish aquaculture easement" shall mean an easement for shellfish
aquaculture conducted by individuals with sufficient upland interest in
riparian uplands located within an associated riparian use area as defined in
Section 9-12-22, Code of Ala.
1975. "Non-riparian easement" or "non-riparian shellfish
aquaculture easement" shall mean an easement for the purpose of conducting
shellfish aquaculture by individuals not located within an associated riparian
use area as defined in Section
9-12-22, Code of Ala.
1975.
(3) The State of
Alabama, Department of Conservation and Natural Resources ("DCNR")'s
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 State Lands Division in a timely
manner may be considered.
(4)
Shellfish aquaculture activities shall not infringe upon any riparian rights
existing under law.
(5) Shellfish
aquaculture activities shall not unreasonably interfere with navigation. Any
area made the subject of a riparian shellfish aquaculture easement shall not be
closer than 100 feet from a marked navigation channel.
(6) All shellfish aquaculture easements on
state-owned submerged lands shall contain such terms, conditions and
restrictions as deemed necessary by DCNR to protect and manage such
lands.
(7) Shellfish aquaculture
activities on state-owned submerged lands shall be designed to minimize or
eliminate adverse impacts on fish and wildlife habitat.
(8) Easements under this rule shall prohibit
the cultivation of non-indigenous, or hybrids of non-indigenous, plants and
animals.
(9) Shellfish aquaculture
easements shall comply with the following:
(a)
A shellfish aquaculture easement is only to be used to conduct shellfish
aquaculture activities on state-owned submerged lands and the overlying water
column, or for such activities associated with an on-shore shellfish
aquaculture facility. Shellfish aquaculture docks shall be restricted to the
immediate use for allowable shellfish aquaculture activities. Docks used for
purposes not immediately associated with shellfish aquaculture activities shall
not be allowed except for private recreational use by upland riparian property
owners. Placement of such aquaculture related structures shall be in accordance
with the provisions of Rule
220-4-.09 but will be exempt from
fees associated with
220-4-.09.
(b) Shellfish aquaculture easements shall
contain provisions to ensure that the easement area is marked and that markers
are maintained for the term of the easement. Such marking shall be adequate to
inform the public of the activity and identify potential navigation and safety
hazards.
(c) The area associated
with shellfish aquaculture easements shall comply with the following:
1. For riparian shellfish aquaculture
easements a setback of 10 feet from the riparian lines of adjoining riparian
upland property owners' riparian use areas shall be required unless a letter of
concurrence from the adjoining upland riparian property owner waives the
setback requirement or the State Lands Division determines that a reduced or
increased setback is required to avoid impacts to existing natural resources,
reduce potential navigation hazards, or avoid potential infringement on an
adjoining upland riparian property owner's riparian use area as determined in
accordance with Section
9-12-22,
Code of Ala.
1975;
2. A
non-riparian shellfish aquaculture easement shall not be approved when the
easement location is determined by DCNR to potentially infringe upon riparian
rights or riparian use area of an adjoining riparian upland property owner as
defined in Section
9-12-22,
Code of Ala.
1975, unless the applicant obtains a letter of concurrence from
the adjoining riparian upland property owner;
3. For both riparian shellfish aquaculture
easements and non-riparian shellfish aquaculture easements, setbacks from other
activities, channels or structures may also be required, as determined
necessary, to ensure safety, facilitate enforcement capabilities and ensure
resource management; and
4. For
non-riparian shellfish aquaculture easements, an easement area larger than five
acres may not be approved; provided however, that exceptions to the five acre
maximum may be made at the discretion of the DCNR Commissioner based on review
of mitigating or extenuating circumstances and documentation supporting the
same.
(10)
Shellfish aquaculture easement application and review process.
(a) Applications for shellfish aquaculture
easements shall include the following:
1.
Name, address and phone number of the applicant;
2. Description of the shellfish aquaculture
activities to be conducted, including gear type, expected density of shellfish
to be cultivated and whether such activities are to be research oriented or
commercial;
3. A statement
describing the applicant's capabilities to conduct the proposed
activities;
4. Location of the
proposed activity including: county; section, township and range; water body;
and a vicinity map;
5. In the case
of riparian easements, satisfactory evidence of sufficient upland
interest;
6. Names and addresses,
as shown on the latest county tax assessment roll, of each owner of property
adjoining the parcel sought, prepared from current records of the county
property appraiser;
7. A statement
describing the potential impacts of the proposed use on the ecology of the
area, including fish and wildlife habitat; and
8. A statement explaining why the easement is
in the public interest, or at a minimum, not contrary to the public
interest.
(b) In
addition, applications for easements that include docks or other
aquaculture-related structures connected to upland which require use of the
water column shall include the following, as applicable:
1. A detailed statement describing the
proposed activities, including the project design and description of all
operations.
2. A detailed and
dimensioned site plan drawing showing:
(i) The
approximate mean or ordinary high water line;
(ii) The location of wetland, shoreline and
aquatic vegetation and other submerged resources;
(iii) The location of the proposed structures
and any existing structures;
(iv)
The location of intake and discharge pipelines, pumps, culture units, and
tanks;
(v) The applicant's upland
parcel property lines and zoning restrictions; and
(vi) The location of the nearest natural or
artificial navigation channel.
(c) Two prints of a survey of the easement
area, including GPS coordinates of area corners, which shall constitute the
field survey, and the accompanying legal description and acreage, shall be
submitted subsequent to final approval of the application but prior to issuance
of the easement of the parcel sought; prepared, signed, and sealed by a person
properly licensed by the State of Alabama as a professional land surveyor, or
an agent of the federal government authorized to do such surveys under federal
law. Preliminary site approval can be based upon marking off the general
configuration of the parcel sought, including the acreage of the parcel,
latitude and longitude coordinates for the corners of the parcel identified
using a Global Position System on a topographic map or a navigation
chart.
(d) Original applications
and renewals shall be reviewed by DCNR to determine the following:
1. That the proposed shellfish aquaculture
activity is water dependent;
2.
That the proposed project and operation is directly related to shellfish
aquaculture;
3. Whether, in the
case of proposed non-riparian easements or riparian easements associated with
other state-owned riparian rights, a competitive market exists for the easement
such that it is required to be competitively bid pursuant to the provisions of
Sections 9-15-70, et seq., of the
Code of Ala. 1975;
4. The impact of the proposed shellfish
aquaculture easement on natural resources, as determined by DCNR;
5. Whether the proposed aquaculture activity
adversely affects a public shellfish reef;
6. That the size of area requested for
easement is appropriate to the use;
7. The suitability of the site for the
granting of an easement;
8. The
effect on public health, safety, welfare, or property of others; that the
proposed construction or operations do not constitute a hazard to navigation,
as determined by the State of Alabama, Department of Conservation and Natural
Resources, Marine Police Division, or their successor agency, or interfere with
a riparian property owner's access to navigable water; and
9. The need for special easement
conditions.
(11) Shellfish aquaculture easements.
(a) Each shellfish aquaculture easement
document shall at a minimum contain the following:
1. The term of the easement, which shall not
exceed five years with the right to renew for an additional five years upon
mutual agreement, or upon such renewal provisions as provided for in a
competitively bid easement for non-riparian easements and riparian easements
associated with state-owned riparian rights, if applicable;
2. The amount of fee per acre, or fraction
thereof, for the easement, which shall take the form of a fixed annual fee to
be paid throughout the term of the easement and any renewal thereof, subject to
annual adjustment based on the Consumer Price Index as otherwise provided
herein;
3. A requirement that the
easement holder shall comply with any special easement conditions and
applicable best management practices, if any, for the specific shellfish
aquacultural activity;
4. A
provision regarding the removal or other treatment within 120 days of all
improvements and disposition of any aquaculture products upon the termination
or cancellation of the easement, subject to the approval of DCNR;
5. A statement that the easement may not be
assigned sublet or transferred in any manner, in whole or in part, without the
prior written approval of the DCNR Commissioner. Failure of the easement holder
to obtain prior written approval shall be grounds for revocation by
DCNR;
6. A provision stating that
failure of the easement holder to comply with the terms and conditions of the
easement shall be grounds for revocation of the easement; and
7. that can be used on the easement
area.
(b) The easement
area shall be defined by corner and intermediate markers as approved by the
State Lands Division. Each corner shall be clearly marked and defined with the
easement holder's name and easement number clearly attached. There shall also
be established intermediate markers between the corners, the distance between
which shall not exceed 600 feet extending from each corner of the easement area
to the adjacent corner, and also, if applicable, from the outside corner every
600 feet to the high water mark on the associated beach, bank, or marsh
edge.
(c) The obtaining of all
required permits and approvals from Federal, state, and local governmental
agencies, shall be a prerequisite for the issuance by DCNR of a written Notice
to Proceed under the easement. No activities pursuant to any easement shall
commence prior to issuance of the Notice to Proceed.
(d) The easement parcel shall not
significantly restrict public access for boating, swimming, and
fishing.
(12)
Consideration for Shellfish Aquaculture Easements.
(a) Annual consideration for the granting of
riparian shellfish aquaculture easements shall be as follows: The annual fees
shall be the dollar amount of the fixed rate consideration as determined by
DCNR, but not less than $250 per acre or fraction thereof. The annual fee shall
be revised March 1 of each year and increased, if required, on the basis of
fluctuations of the Consumer Price Index for All Urban Consumers (CPI-U), South
Urban, as published by U.S. Department of Labor, Bureau of Labor Statistics.
For riparian shellfish aquaculture easements, following execution of an
easement, the prorated amount of the first installment of annual consideration
shall be due and payable at such time as the easement holder submits a written
request to the State Lands Division for issuance of the Notice to Proceed. The
prorated amount of the first installment of annual consideration shall be
calculated from the effective date of the easement through the last day of the
February following the request for the Notice to Proceed. Annual consideration
for each subsequent year shall thereafter be due each March 1st for the
remainder of the easement term.
(b)
Annual consideration for the granting of non-riparian shellfish aquaculture
easements or riparian easements associated with other state-owned riparian
rights, shall be as follows: The annual fees shall be the dollar amount of the
fixed rate consideration as determined by DCNR, subject to the applicable
provisions of Sections
9-15-70, et seq., of the
Code of Ala. 1975, but not less than $250 per acre or
fraction thereof. Proposed non-riparian shellfish aquaculture easements or
riparian easements associated with other state-owned riparian rights, that are
over an area where a competitive market exists for the granting of such
easements, as determined by DCNR, shall be competitively bid pursuant to the
provisions of Sections
9-15-70, et seq., of the
Code of Ala. 1975, which process shall determine the
annual consideration, but not less than $250 per acre, or fraction thereof. The
annual fee shall be revised March 1 of each year and increased, if required, on
the basis of fluctuations of the Consumer Price Index for All Urban Consumers
(CPI-U), South Urban, as published by U.S. Department of Labor, Bureau of Labor
Statistics. Payment shall be issued to "State of Alabama, Department of
Conservation and Natural Resources, State Lands Division". For non-riparian
shellfish aquaculture easements and riparian easements associated with other
state-owned riparian rights, the prorated amount of the first installment of
annual consideration shall be due and payable at execution of an easement by
the easement holder. The prorated amount of the first installment of annual
consideration shall be calculated from the effective date of the easement
through the last day of February. Annual consideration for each subsequent year
shall thereafter be due each March 1st for the remainder of the easement
term.
(c) Public agencies and
institutions engaging in shellfish aquaculture activities which are determined
by the DCNR Commissioner to be primarily for a public purpose may be exempted
from the payment of the otherwise applicable annual consideration
amounts.
Author: N. Gunter Guy
Statutory Authority:
Code of Ala.
1975, §§
9-2-7,
9-2-8,
9-2-12.
PENALTY: As provided by
law.