Current through Register Vol. 39, No. 6, September 16, 2024
(a) All areas of the public bottom underlying
Coastal Fishing Waters shall meet the following standards and requirements, in
addition to the standards in
G.S.
113-202, in order to be deemed suitable for
leasing for shellfish aquaculture purposes:
(1) the proposed shellfish lease area shall
not contain a "natural shellfish bed," as defined in
G.S.
113-201.1, or have 10 bushels or more of
shellfish per acre;
(2) the
proposed shellfish lease area shall not be closer than 250 feet from a
developed shoreline or a water-dependent shore-based structure, except no
minimum setback is required when the area to be leased borders the applicant's
property, the property of "riparian owners" as defined in
G.S.
113-201.1 who have consented in a notarized
statement, or is in an area bordered by undeveloped shoreline. For the purposes
of this Rule, a water-dependent shore-based structure shall include docks,
wharves, boat ramps, bridges, bulkheads, and groins;
(3) the proposed shellfish lease area shall
not be closer than 250 feet to an existing lease;
(4) the proposed shellfish lease area, either
alone or when considered cumulatively with existing leases in the area, shall
not interfere with navigation or with existing, traditional uses of the area;
and
(5) the proposed shellfish
lease area shall not be less than one-half acre and shall not exceed 10
acres.
(b) To be
suitable for leasing for shellfish aquaculture purposes, shellfish water column
leases superjacent to a shellfish bottom lease shall meet the standards in
G.S.
113-202.1 and shellfish water column leases
superjacent to franchises recognized pursuant to
G.S.
113-206 shall meet the standards in
G.S.
113-202.2.
(c) Franchises recognized pursuant to
G.S.
113-206 and shellfish bottom leases shall be
terminated unless they meet the following requirements, in addition to the
standards in and as allowed by
G.S.
113-202:
(1)
they produce and market 10 bushels of shellfish per acre per year;
and
(2) they are planted with 25
bushels of seed shellfish per acre per year or 50 bushels of cultch per acre
per year, or a combination of cultch and seed shellfish where the percentage of
required cultch planted and the percentage of required seed shellfish planted
totals at least 100 percent.
(d) Shellfish water column leases shall be
terminated unless they meet the following requirements, in addition to the
standards in and as allowed by
G.S.
113-202.1 and
G.S.
113-202.2:
(1) they produce and market 40 bushels of
shellfish per acre per year; or
(2)
the underlying bottom is planted with 100 bushels of cultch or seed shellfish
per acre per year.
(e)
The following standards shall be applied to determine compliance with
Paragraphs (c) and (d) of this Rule:
(1) Only
shellfish marketed, planted, or produced as defined in
15A NCAC
03I .0101 as the fishing activities
"shellfish marketing from leases and franchises," "shellfish planting effort on
leases and franchises," or "shellfish production on leases and franchises"
shall be included in the shellfish lease and franchise reports required by Rule
.0207 of this Section.
(2) If more
than one shellfish lease or franchise is used in the production of shellfish,
one of the leases or franchises used in the production of the shellfish shall
be designated as the producing lease or franchise for those shellfish. Each
bushel of shellfish shall be produced by only one shellfish lease or franchise.
Shellfish transplanted between shellfish leases or franchises shall be credited
as planting effort on only one lease or franchise.
(3) Production and marketing information and
planting effort information shall be compiled and averaged separately to assess
compliance with the requirements of this Rule. The shellfish lease or franchise
shall meet both the production requirement and the planting effort requirement
within the dates set forth in
G.S.
113-202.1 and
G.S.
113-202.2 to be deemed in compliance for
shellfish bottom leases. The shellfish lease or franchise shall meet either the
production requirement or the planting effort requirement within the dates set
forth in G.S. 113-202.1 and
G.S.
113-202.2 to be deemed in compliance for
shellfish water column leases.
(4)
All bushel measurements shall be in standard U.S. bushels.
(5) In determining production and marketing
averages and planting effort averages for information not reported in bushel
measurements, the following conversion factors shall be used:
(A) 300 oysters, 400 clams, or 400 scallops
equal one bushel; and
(B) 40 pounds
of scallop shell, 60 pounds of oyster shell, 75 pounds of clam shell, or 90
pounds of fossil stone equal one bushel.
(6) Production and marketing rate averages
shall be computed irrespective of transfer of the shellfish lease or franchise.
The production and marketing rates shall be averaged for the following
situations using the time periods described:
(A) for an initial shellfish bottom lease or
franchise, over the consecutive full calendar years remaining on the bottom
lease or franchise contract after December 31 following the second anniversary
of the initial bottom lease or franchise;
(B) for a renewal shellfish bottom lease or
franchise, over the consecutive full calendar years beginning January 1 of the
final year of the previous bottom lease or franchise term and ending December
31 of the final year of the current bottom lease or franchise
contract;
(C) for a shellfish water
column lease, over the first five-year period for an initial water column lease
and over the most recent five-year period thereafter for a renewal water column
lease; or
(D) for a shellfish
bottom lease or franchise issued an extension period under Rule .0208 of this
Section, over the most recent five-year period.
(7) In the event that a portion of an
existing shellfish lease or franchise is obtained by a new lease or franchise
holder, the production history for the portion obtained shall be a percentage
of the originating lease or franchise production equal to the percentage of the
area of lease or franchise site obtained to the area of the originating lease
or franchise.
(f)
Persons holding five or more acres under all shellfish bottom leases and
franchises combined shall meet the requirements established in Paragraph (c) of
this Rule before submitting an application for additional shellfish lease
acreage to the Division of Marine Fisheries.
Authority
G.S.
113-134;
113-182;
113-201;
113-202;
113-202.1;
113-202.2;
113-206;
143B-289.52;
Eff.
January 1, 1991;
Amended Eff. May 1, 1997; March 1, 1995; March 1,
1994; September 1, 1991;
Temporary Amendment Eff. October 1,
2001;
Amended Eff. May 1, 2017; October 1, 2008; April 1,
2003;
Readopted Eff. August 23,
2022.
