MARINE AQUACULTURE DEVELOPMENT ACT.

Printer-friendly: Click to view
View NCGA Bill Details2017-2018 Session
Senate Bill 410 (Public) Filed Tuesday, March 28, 2017
AN ACT TO ESTABLISH A PROGRAM FOR THE LEASING OF PUBLIC BOTTOM AND SUPERJACENT WATER COLUMN FOR MARINE AQUACULTURE, TO REQUIRE THE DIVISION OF MARINE FISHERIES OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY TO REQUEST THE ISSUANCE OF FEDERAL RULES TO ALLOW MARINE AQUACULTURE IN FEDERAL WATERS OFF THE COAST OF THE STATE, AND TO ESTABLISH ADDITIONAL TRANSPARENCY REQUIREMENTS FOR MEMBERS OF THE MARINE FISHERIES COMMISSION.
Intro. by Cook, Sanderson, Tillman.

Status: Ch. SL 2017-190 (Senate Action) (Jul 27 2017)

SOG comments (4):

Identical Bill

Identical to H 524 filed on 3/29/17.

Long title change

Senate committee substitute to the 1st edition changed the long title. Original long title was AN ACT TO CREATE A PROGRAM FOR THE PERMITTING OF MARINE AQUACULTURE ACTIVITIES AND TO REQUIRE THE DIVISION OF MARINE FISHERIES OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY TO REQUEST THE ISSUANCE OF FEDERAL RULES TO ALLOW MARINE AQUACULTURE IN FEDERAL WATERS OFF THE COAST OF THE STATE.

Long Title Change

Senate committee substitute to the 2nd edition makes changes to the long title. The original title is as follows:

AN ACT TO CREATE A PROGRAM FOR THE PERMITTING OF MARINE AQUACULTURE ACTIVITIES AND TO REQUIRE THE DIVISION OF MARINE FISHERIES OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY TO REQUEST THE ISSUANCE OF FEDERAL RULES TO ALLOW MARINE AQUACULTURE IN FEDERAL WATERS OFF THE COAST OF THE STATE AND BY IMPOSING ADDITIONAL TRANSPARENCY REQUIREMENTS ON THE MEMBERS OF THE MARINE FISHERIES COMMISSION.

 

Long title change

Senate amendment to the 3rd edition changed the long title. Previous long title was AN ACT TO ESTABLISH A PROGRAM FOR THE LEASING OF PUBLIC BOTTOM AND SUPERJACENT WATER COLUMN FOR MAINER AQUACULTURE, TO REQUIRE THE DIVISION OF MARINE FISHERIES OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY TO REQUEST THE ISSUANCE OF FEDERAL RULES TO ALLOW MARINE AQUACULTURE IN FEDERAL WATERS OFF THE COAST OF THE STATE, AND TO ESTABLISH ADDITIONAL TRANSPARENCY REQUIREMENTS FOR MEMBERS OF THE MARINE FISHERIES COMMISSION.

Bill History:

S 410/S.L. 2017-190

Bill Summaries:

  • Summary date: Jul 28 2017 - View Summary

    AN ACT TO ESTABLISH A PROGRAM FOR THE LEASING OF PUBLIC BOTTOM AND SUPERJACENT WATER COLUMN FOR MARINE AQUACULTURE, TO REQUIRE THE DIVISION OF MARINE FISHERIES OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY TO REQUEST THE ISSUANCE OF FEDERAL RULES TO ALLOW MARINE AQUACULTURE IN FEDERAL WATERS OFF THE COAST OF THE STATE, AND TO ESTABLISH ADDITIONAL TRANSPARENCY REQUIREMENTS FOR MEMBERS OF THE MARINE FISHERIES COMMISSION. Enacted July 27, 2017. Section 1 is effective October 1, 2017. The remainder is effective July 27, 2017.


  • Summary date: Jun 22 2017 - View Summary

    House amendment makes the following change to the 5th edition.

    Amends the authorization of the Division of Water Resources and the State Property Office to negotiate with federal agencies, to direct them to seek to have the State assume responsibility for acquiring the easements sites as currently described between the South Carolina border (was, Beaufort Inlet) and the Virginia border.

    Makes conforming changes to GS 143-215.73F(b).


  • Summary date: Jun 20 2017 - View Summary

    House committee substitute makes the following changes to the 4th edition.

    Adds a new section to the act to authorize the Division of Coastal Management of the Department of Environmental Quality and the State Property Office to negotiate an agreement with appropriate federal agencies for the State to assume responsibility for acquiring dredged material easement sites for maintenance dredging of the Atlantic Intracoastal Waterway between the Beaufort Inlet and Virginia border in exchange for a reduction in size and possible change in location of the current dredged material disposal easement sites. Sets out additional requirements for the agreement.

    Amends GS 143-215.73F(b) to allow funds in the Shallow Draft Navigation Channel Dredging and Aquatic Weed Fund to also be used to provide funding for siting and acquisition of dredge disposal easement sites associated with the maintenance of the Atlantic Intracoastal Waterway north of Beaufort Inlet and south of the Virginia border under a Memorandum of Agreement between the State and federal government.


  • Summary date: Jun 8 2017 - View Summary

    Senate amendment #1 makes the following changes to the 3rd edition.

    Makes a technical correction to the act's long title.

    Modifies the minimum standards that must be met for areas to be suitable for marine aquaculture leases under proposed GS 113-217(a), deleting the general language requiring the areas to meet any additional standards, established by the Marine Fisheries Commission in duly adopted rules, to protect the public interest in coastal fishing waters. Makes conforming changes to subsection (e). Amends subsection (j), providing that initial marine aquaculture leases expire at noon on the first day of July following the twentieth (was, tenth) anniversary of granting the lease, and that renewal leases are issued for a period of 20 (was, 10) years from the time of the expiration of the previous lease.

    Adds a new section, directing the Marine Fisheries Commission (Commission) and the Division of Marine Fisheries of the Department of Environmental Quality to implement the Importation of Marine and Estuarine Organisms Rule (15A NCAC 03I .0104/Introduce, Transfer or Hold Imported Marine and Estuarine Organisms) by exempting the use of American eels imported from Virginia or South Carolina in an aquaculture operation from the permitting requirements of the Rule. Requires the Commission to adopt a rule to amend the Importation of Marine and Estuarine Organisms Rule consistent with and substantively identical to this implementation directive as described. Provides that rules adopted pursuant to this provision are not subject to Part 3 of Article 2A of GS Chapter 150B, and that these rules are effective as provided in GS 150B-21.3(b1) as though 10 or more written objections had been received as provided in GS 150B-21.3(b2). Establishes that this section expires when permanent rules adopted as required by the section become effective.


  • Summary date: May 24 2017 - View Summary

    Senate committee substitute makes the following changes to the 2nd edition.

    Amends the long title.

    Amends the title of proposed GS Chapter 113, Article 16B, to read Marine Aquaculture. Recodifies proposed Article to be GS Chapter 113, Article 16A.

    Enacts new GS 113-215 (Definitions), defining marine aquaculture, marine aquaculture lease, and marine aquatic species. Recodifies proposed GS 113-215 (Legislative findings and declaration of policy) is recodified as GS 113-216.

    Deletes proposed GS 113-217 (Lease of superadjacent water column for marine aquaculture). Recodifies proposed GS 113-216 (New leases for marine aquaculture) as GS 113-217. Amends GS 113-217 as follows. Amends the Secretary's authority under this statute to grant marine aquaculture leases, deleting the text specifying that the leases are of the public bottom, and the text requiring the leases be granted to persons residing in North Carolina. Rephrases the purpose of the authority as promoting marine aquaculture (was, marine aquaculture operations). Amends the minimum standards for determining suitable areas for marine aquaculture, adding five additional standards, including that aquaculture use of the leased area must not significantly impair navigation. Prohibits a person, corporate entity, or single family unit from acquiring and holding by lease, lease renewal, or purchase more than 1,500 acres under marine aquaculture leases. Prohibits individual leases from exceeding 100 acres. Clarifies that the area proposed to be leased (was, the area of bottom applied for under this statute must be as compact as possible. Raises the rental for initial and renewed leases from $10 per acre per year to $210 per acre per year. Deletes the requirement that the Secretary initiate proceedings to terminate a lease transferred to a non-State resident. Amends the list of occurrences requiring the Secretary to initiate proceedings to terminate the lease to delete two occurrences, including substantial breach of compliance with the provisions of proposed GS Chapter 113, Article 16A, or of other listed terms and requirements. Clarifies that the area thrown open to the public for use upon final termination of a leasehold is the leased area (was, the bottom in question). Requires the former leaseholder to remove all abandoned markers denominating the area of the leasehold (was, denominating the area of the leasehold as a private bottom). Makes organizational and conforming changes.

    Makes a technical change to proposed GS 113-218 (Protection of private marine aquaculture rights), deleting a caption.

    Amends GS 143B-289.54. Provides that routine electronic communication sent from Division of Marine Fisheries staff to all Marine Fisheries Commission members is not considered an official meeting. Provides that proposed subsection (m), regarding transparency, does not limit or eliminate any privilege existing at common law or under statute.


  • Summary date: Apr 21 2017 - View Summary

    Senate committee substitute makes the following changes to the 1st edition.

    Deletes proposed GS Chapter 113, Article 16A (Marine Aquaculture).

    Amends proposed GS 113-216 (New leases for marine aquaculture) to delete the requirement that a person obtain a Marine Aquaculture Propagation and Production Facility License for the Secretary of Environmental Quality (Secretary) to grant that person a marine aquaculture lease for the public bottom. Amends the standards for determining areas suitable for marine aquaculture by requiring the leased area to not contain a natural commercially significant shellfish bed (currently, may not contain a natural shellfish bed), and requiring the marine aquaculture to not unreasonably interfere with lawful utilization of other resources or the rights of riparian owners (currently, must be compatible with lawful utilization, and may not impinge on rights of riparian owners), and adds a new requirement that the marine aquaculture operation would not unreasonably interfere with public access and use of waters of the state, taking into account the potential economic impact of the operation. Deletes the prohibition on the Secretary granting new leases in areas heavily used for recreational purposes. Directs the Secretary to enter into a memoranda of agreement with the US Army Corps of Engineers or other agency to provide appropriate standards and markings for marine aquaculture structures to avoid impairment of navigation. Deletes the requirement that the Secretary's investigation of the bottom proposed to be leased consider the terms of the Marine Aquaculture Propagation and Production Facility License issued by the Department of Agriculture and Consumer Services. Requires the Secretary to notify the applicant of an intended action on a lease application within 60 days (currently, within a reasonable time). Amends the list of circumstances requiring the secretary to commence termination of a lease to exclude suspension of marine aquaculture activities as part of a disease control or biosecurity plan from the types of failure to utilize the leasehold that would result in a termination.

    Amends proposed GS 113-217 (Lease of superjacent water column for marine aquaculture). Amends the standards for determining suitable areas for water column use to require significant levels of fishing or hunting activities for those activities to disqualify the water column from lease (currently, does not specify the amount of activity that disqualifies the water column from lease).

    Enacts new GS 113-218 (Protection of private marine aquaculture rights). Prohibits persons who are not the holder of a lease under GS Chapter 113, Article 16B, from taking or attempting to take marine species being produced under the license and associated lease from any privately leased, franchised, or deeded marine aquaculture operation without authorization of the holder and with actual knowledge that it is a leased area. Creates a presumption of actual knowledge in circumstances where the area is posted and identified, as specified. Violation is a Class A1 misdemeanor, with a fine of up to $5,000. Provides requirements for the contents of a written authorization.

    Amends GS 143B-289.54 (regarding the Marine Fisheries Commission). Directs the Commission to establish official email accounts for all Commission members, to be used for Commission communication, communications to and from which are considered public records. Provides that electronic communications among a majority of the Commission is considered on official meeting. Failure to comply is subject to investigation by the State Ethics Commission as unethical conduct, and removal as misfeasance.

    Amends the act's title.


  • Summary date: Mar 28 2017 - View Summary

    Enacts Article 16A to GS Chapter 113, Marine Aquaculture, directing the Marine Fisheries Commission to designate by rule the species of fish, crustaceans, and shellfish that can by produced and sold under a Marine Aquaculture Propagation and Production Facility License pursuant to new Article 16A. In designating the species, the Board is to consider: (1) the potential domestic and export market for the species, (2) the potential for genetic contamination of or undesired interbreeding with wild stocks of species if the species is not native to State waters or is a genetically engineered variant of a native species, and (3) whether public access and use of waters of the State would be unduly impacted by the private licensing of public submerged lands and the superjacent water column necessary to support propagation or production facilities for the species when compared to the potential economic impact of those facilities. Defines marine aquaculture as the propagation and rearing of aquatic species in controlled or selected environments, including but not limited to ocean ranching, marine hatcheries, and other deep water fish farming operations in the coastal and ocean waters of the State, and to the extent not inconsistent with federal law, to the limits of the US exclusive economic zone, as the term is defined in 16 USC 1801, et seq. (the Magnuson-Stevens Fishery Conservation and Management Act). Defines marine aquatic species to mean any species of finfish, mollusk, crustacean, or other aquatic invertebrate, amphibian, reptile, or aquatic plant, and including but not limited to fish and fishes as defined in GS 113-129(7) found exclusively or for part of its life cycle in coastal fishing waters.

    Authorizes the Marine Fisheries Commission (Commission) to, by rule, authorize and license the operation of fish hatcheries and production facilities for species of fish designated as specified above. Directs the Commission to (1) consult with the National Marine Fisheries Service regarding appropriate measures to protect wild stocks from disease and genetic contamination and (2) enter into memoranda of agreement with the US Army Corps of Engineers and any other appropriate State and federal regulatory agencies regarding appropriate standards and markings for marine aquaculture structures to avoid impairment of navigation. States that marine aquaculture facilities that require the use of public bottom lands underlying waters of the State or the superjacent water column also require a lease pursuant to Article 16B of GS Chapter 113, as enacted below. Defines marine aquaculture facility to mean any land, structure, or other appurtenance that is used for aquaculture, including but not limited to any laboratory, hatchery, rearing pond, raceway, pen, incubator, or other equipment used in aquaculture. 

    Allows the Commission to prescribe standards of operation, qualifications of operators, and the conditions under which fish can by commercially reared, transported, possessed, bought, and sold. Establishes that Marine Aquaculture Propagation and Production Facility Licenses issued by the Department of Environmental Quality are valid for five years.

    Makes it a Class A1 misdemeanor punishable by a fine not to exceed $5,000 for any person, other than the holder of a Marine Aquaculture Propagation and Production Facility License and associated lease under Article 16B of GS Chapter 113, to take or attempt to take marine species being produced under the license and associated lease from any privately leased, franchised, or deeded marine aquaculture operation without written authorization of the holder and with actual knowledge it is a marine aquaculture leased area. Establishes that actual knowledge is presumed when the marine species are taken or attempted to be taken either (1) from within the confines of posted boundaries of the areas as identified by sign, whether the whole or any part of the area is posted or (2) when the area has been regularly posted and identified and the person knew the area to be the subject of private marine aquaculture rights. Provides that a written authorization must include the lease number or deed reference, the name and address of the authorized person, the date of issuance, the date of expiration, and it must be signed by the holder of the marine aquaculture rights. Requires the identification signs to include the lease number or deed reference and the name of the lease or deed holder. 

    Provides that the definitions set forth in GS 113-128 and GS 113-129 also apply to new Article 16A.

    Enacts new Article 16B, Leasing of Bottom Land and Waters of the State for Marine Aquaculture, in GS Chapter 113. States General Assembly findings and declares that it is the policy of the state to encourage the development of private, commercial marine aquaculture in ways that are compatible with other public uses of marine and estuarine resources.

    New GS 113-216 allows the Secretary of Environmental Quality (Secretary) to grant marine aquaculture leases for the public bottom to state residents who have obtained a Marine Aquaculture Propagation and Production Facility License when the Secretary determines that the public interest will benefit from issuance of the lease. Sets out five minimum standards that must be met for an area to be suitable for marine aquaculture, including that the leased area not contain a natural shellfish bed and that the operation of a marine aquaculture operation in the leased area will not impinge upon the rights of riparian owners. Allows the Secretary to delete any part of an area proposed for a lease or condition a lease to protect the public interest; also prohibits the Secretary from granting a new lease in an area heavily used for recreational purposes. Sets out requirements to be met when applying for a lease, including that the application include a map or diagram, that must meet specified conditions, of the area proposed to be leased. Applicants must also pay a $200 filing fee. Sets out requirements to be met by the area of bottom applied for. Requires the Secretary to conduct a public hearing when the Secretary intends to approve an application; sets out notification requirements. After consideration of the public comment received and any additional investigations the Secretary orders to evaluate the comments, the Secretary is required to notify the applicant in person or by certified or registered mail of the decision on the lease application; the Secretary must also notify persons who submitted comments at the public hearing and requested notice of the decision. Allows an applicant who is dissatisfied with the Secretary's decision or another person aggrieved by the decision to commence a contested case by filing a petition under GS 150B‑23 within 20 days after receiving notice of the Secretary's decision. Specifies that initial leases begin upon the issuance of the lease by the Secretary and expire at noon on the first day of July following the 10th anniversary of the granting of the lease and renewal leases are issued for 10 years from the time of expiration of the previous lease. Applicants for a renewal of a lease must pay a $100 filing fee. Sets the price of the rental for initial leases at $10 per acre, per year. Rental must be paid annually in advance prior to the first day of April each year. Provides that leaseholds granted under new Article 16B are to be treated as if they were real property and are subject to all laws relating to taxation, sale, devise, inheritance, gift, seizure and sale under execution or other legal process, and the like. Leases properly acknowledged and probated are eligible for recordation in the same manner as instruments conveying an estate in real property. Provides the procedure for when ownership is transferred, with the lease terminated when it is transferred to a nonresident. Specifies seven occurrences upon which the Secretary must commence action to terminate the leasehold. Allows the Secretary to discontinue termination procedures when the leaseholder takes steps within 30 days to remedy the situation. Allows the leaseholder to initiate a contested case when the termination is not discontinued. Sets out additional requirements to be met when terminating a lease. Requires the Secretary to mail to all leaseholders a notice of the annual rental due and include forms for determining the amount of harvest gathered and gathering other pertinent information related to the utilization of the leasehold in the best interests of the aquaculture industry of the state. The form must be completed and returned by the leaseholder with the payment of the leaseholder's rental; it is a Class 1 misdemeanor for any leaseholder or the leaseholder's agent executing such forms to knowingly make a false statement.

    New GS 113-217 allows the Secretary to include in marine aquaculture leases issued under GS 113‑216 provisions to allow the use of the water column superjacent to the leased bottom when the Secretary determines the public interest will benefit from inclusion of water column provisions. Sets out six standards that must be met by areas where water column use is allowed, including that aquaculture use of the leased area does not significantly impair navigation, and that the leased area is not within an area traditionally used and available for fishing or hunting activities incompatible with the activities proposed by the leaseholder. 

    Effective October 1, 2017.

    Requires the Division of Marine Fisheries of the Department of Environmental Quality to: (1) request that the Mid‑Atlantic and South Atlantic Fishery Management Councils develop a Fishery Management Plan for regulating offshore aquaculture in federal waters offshore from the North Carolina coast and (2) petition the National Oceanic and Atmospheric Administration to initiate rule‑making proceedings to implement a comprehensive regulatory program for managing the development of an environmentally sound and economically sustainable aquaculture fishery in federal waters offshore from the North Carolina coast. Requires an interim report to the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources no later than February 1, 2018, and a final report on or before May 1, 2018, that includes the request and petition.