Current through Register Vol. 50, No. 9, September 20, 2024
A. When
appropriate, the secretary shall determine and delineate the potential impact
area of a project and in making such decision may consult with the government
agency or any public or private entity responsible for the project.
B. When the secretary determines that an
existing oyster lease identified in records provided and maintained by DWF may,
in whole or in part, be located within the direct impact area of a project, the
secretary may conduct an oyster resource survey.
C. The secretary shall notify the leaseholder
in writing at least 15 days prior to the oyster resource survey of the
potentially affected acreage or potentially affected lease. The notification
shall, at a minimum, include the following:
1.
a brief description of the coastal protection, conservation, or restoration
project, and a plat or map depicting the project and potentially affected lease
or potentially affected acreage;
2.
a copy of these regulations,
R.S.
56:424, and
R.S.
56:432.1;
3. the date and time of the oyster resource
survey;
4. the name of and contact
information for the person conducting the oyster resource survey;
5. a statement that the leaseholder or his
designee may accompany the person conducting the oyster resource
survey;
6. a statement that the
state may acquire the potentially affected lease or potentially affected
acreage to be surveyed or sampled, and if so, that the leaseholder will be
compensated for any acquired lease or portion thereof in accordance with
R.S.
56:432.1 and this Subchapter;
7. the name of and contact information for a
person at the department to direct all inquiries regarding the project and the
potentially affected lease or potentially affected acreage;
8. a statement that the leaseholder may
provide to the department, through the contact person listed in the notice, any
reasonably confirmable data or other information relevant to a determination of
the compensation for any potentially affected lease or potentially affected
acreage, within 60 days after the actual date of the oyster resource survey
conducted pursuant to this Subchapter. Failure to provide such data or
information within the specified time period may preclude consideration of such
data by the secretary, the department, the person conducting the oyster
resource survey, or the appraiser appointed thereby;
9. a statement that if the person conducting
the oyster resource survey is unable to conduct the survey on the date provided
in the notice, that such person will provide notice to the leaseholder of the
new survey date and time by appropriate and reasonable means;
10. a statement that the oyster resource
survey is to be conducted in the manner set forth under
§307. E of this
Subchapter; and
11. a statement
that the department, the state of Louisiana, political subdivisions of the
state, the United States, or any agency, agent, contractor, or employee of any
of these entities is not subject to any obligation, responsibility, or
liability in relation to or resulting from any surveying or sampling of any
oyster lease, information provided to any leaseholder in relation to any
surveying or sampling of any oyster lease, the timing of any acquisition of any
part of any lease by the state pursuant to
R.S.
56:432.1, the lack of acquisition of any part
of any lease except as provided by
R.S.
56:432.1, or any report pursuant to
R.S.
56:432.2 or otherwise.
D. Any written notification from the
secretary or the department to the leaseholder of a potentially affected lease
or potentially affected acreage in accordance with this section shall be deemed
legally sufficient if sent by certified United States mail, postage pre-paid,
return receipt requested, or hand delivered, to the last address furnished to
DWF by the leaseholder on the date of issuance of notice.
E. Oyster Resource Survey Procedures and
Protocol
1. The intent of the oyster resource
survey is to obtain information that may include but is not limited to oyster
density (via square meter samples), oyster condition, bottom condition, bottom
type, oyster standing crop, oyster physiology, oyster mortality, water depth,
water temperature, water salinity, and assessment of oyster reef community
organisms.
2. Assessment Procedure
a. Should the secretary elect to obtain an
oyster resource survey of a potentially affected lease or potentially affected
acreage, he may select the person(s) to conduct the oyster resource survey
considering all relevant criteria, including but not limited to prior
experience, prior performance, demonstrated expert knowledge in the field of
oyster biology, and the ability to perform concurrent task orders while
maintaining high quality work. The person(s) so selected shall be contracted
with by the department pursuant to
R.S.
39:1481, et seq., or other applicable public
contract law, and shall have the following minimum qualifications:
i. a college degree in biological science, or
prior acceptance by a Louisiana federal or state court as an expert witness in
the field of oyster biology or oyster ecology; and
ii. five years of professional experience
conducting oyster lease surveys and standing oyster crop analyses.
b. Samples should be taken at a
minimum within the area of a potentially affected lease delineated by the
secretary as the potential impact area of the project for which the oyster
resource survey is being conducted.
c. A written assessment of the results of the
oyster resource survey shall be prepared.
d. Oyster resource survey methods and
procedures used should be stated and identified in the written
assessment.
e. Information and data
from the oyster resource survey should be compiled, analyzed, and presented in
tables, charts, and in a written format along with scale maps indicating the
location of the oyster leases in relation to the proposed project, location of
sample sites, number and size of both live and dead oysters, oyster size
frequency distribution, mortality rates per group, and photographs of oyster
samples.
f. An original copy of the
written assessment shall be provided to and retained by the department, which
may use it in accordance with the appraisal and valuation procedures set forth
in these regulations. A copy will be provided to the leaseholder upon written
request by the leaseholder to the department.
AUTHORITY NOTE:
Promulgated in accordance with
R.S.
49:213.1, et seq.,
R.S.
56:424, and
R.S.
56:432.1.
