GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2015
S 2
SENATE BILL 573
Agriculture/Environment/Natural Resources Committee Substitute Adopted 5/20/15
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Short Title: Strengthen Oyster Industry. |
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Sponsors: |
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Referred to: |
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March 30, 2015
A BILL TO BE ENTITLED
AN ACT to encourage and promote the aquaculture and oyster cultivation industries.
The General Assembly of North Carolina enacts:
PART I. CREATE SHELLFISH PLANNING AND PROMOTION ENTITY WITHIN NC ECONOMIC DEVELOPMENT PARTNERSHIP
SECTION 1.1. G.S. 143B‑431.01 reads as rewritten:
"§ 143B‑431.01. Department of Commerce – contracting of functions.
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(d) Limitations. – Prior to contracting with a North Carolina nonprofit corporation pursuant to this section and in order for the North Carolina nonprofit corporation to receive State funds, the following conditions shall be met:
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(2) The nonprofit corporation adheres to the following governance provisions related to its governing board:
a. The board shall be composed of 17 voting members as follows: eight members and the chair appointed by the Governor, four members appointed by the Speaker of the House of Representatives, and four members appointed by the President Pro Tempore of the Senate. The Governor, the Speaker of the House of Representatives, and the President Pro Tempore of the Senate shall each use best efforts to select members so as to reflect the diversity of the State's geography. The Speaker of the House and the President Pro Tempore shall each select their appointed members so that one‑fourth come from a development tier one area, one‑fourth come from a development tier two area, and no two members come from the same Collaboration for Prosperity Zone. The Governor shall select appointed members so that two‑ninths come from a development tier one area, two‑ninths come from a development tier two area, and no more than two members come from the same Collaboration for Prosperity Zone. The Governor shall use best efforts to ensure that each member appointed by the Governor has expertise in one or more of the following areas:
1. Agribusiness, as recommended by the Commissioner of Agriculture.
1a. Shellfish or other aquaculture.
2. Financial services.
3. Information technology.
4. Biotechnology or life sciences.
5. Energy.
6. Manufacturing.
7. Military or defense.
8. Tourism, as recommended by the North Carolina Travel and Tourism Coalition.
9. Tourism, as recommended by the North Carolina Travel Industry Association.
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(e) Mandatory Contract Terms. – Any contract entered into under this section must include all of the following:
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(17) A provision requiring the nonprofit corporation to create an entity within the corporation responsible for developing a strategic plan to further economic development of and otherwise providing continuing assistance to the shellfish and other aquaculture industries in the State.
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SECTION 1.2. The Department of Commerce shall take all necessary steps to ensure the contract required under G.S. 143B‑431.01(e) is amended to comply with the requirements of Section 1.1 of this act.
PART II. REGULATORY REFORM FOR SHELLFISH CULTIVATION LEASES
SECTION 2.1. G.S. 113‑201.1(5) reads as rewritten:
"(5) "Water column" means the vertical
extent of water, including the surface thereof, above a designated area
of submerged bottom land."
SECTION 2.2. G.S. 113‑202 reads as rewritten:
"§ 113‑202. New and renewal leases for shellfish cultivation; termination of leases issued prior to January 1, 1966.
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(i) After a lease application is approved by the
Secretary, the applicant shall submit to the Secretary a survey of the area
approved for leasing and information sufficient to define the bounds
of the area approved for leasing with markers in accordance with the rules of
the Commission. The survey information shall conform to standards
prescribed by the Secretary concerning accuracy of survey and the amount
of detail to be shown. When an acceptable survey information is
submitted, the boundaries are marked and all fees and rents due in advance are
paid, the Secretary shall execute the lease on forms approved by the Attorney
General. The Secretary is authorized, with the approval of the lessee, to amend
an existing lease by reducing the area under lease or by combining contiguous
leases without increasing the total area leased. The information required by
this subsection may be based on coordinate information produced using a device
equipped to receive global positioning system data.
(j) Initial leases begin upon the issuance of the
lease by the Secretary and expire at noon on the first day of July following
the fifth tenth anniversary of the granting of the lease. Renewal
leases are issued for a period of five 10 years from the time of
expiration of the previous lease. At the time of making application for renewal
of a lease, the applicant must pay a filing fee of one hundred dollars
($100.00). The rental for initial leases is one dollar ($1.00) per acre for all
leases entered into before July 1, 1965, and for all other leases until noon on
the first day of July following the first anniversary of the lease. Thereafter,
for initial leases entered into after July 1, 1965, and from the beginning for
renewals of leases entered into after that date, the rental is ten dollars
($10.00) per acre per year. fifty dollars ($50.00). The rental for
initial leases is fifty cents ($0.50) per acre until the first day of July
following the first anniversary of the lease, and five dollars ($5.00) per acre
thereafter. Rental must be paid annually in advance prior to the first day
of April each year. Upon initial granting of a lease, the pro rata amount for
the portion of the year left until the first day of July must be paid in
advance at the rate of one dollar ($1.00) five dollars ($5.00) per
acre per year; then, on or before the first day of April next, the lessee must
pay the rental for the next full year.year at the rate specified in
this subsection.
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(r) A lease under this section shall include the right to place devices or equipment related to the cultivation or harvesting of marine resources on or within 18 inches of the leased bottom. Devices or equipment not resting on the bottom or extending more than 18 inches above the bottom will require a water column lease under G.S. 113‑202.1."
SECTION 2.3. G.S. 113‑202.1 reads as rewritten:
"§ 113‑202.1. Water column leases for aquaculture.
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(c) The Secretary shall not amend shellfish
cultivation leases to authorize use uses of the water column involving
devices or equipment not resting on the bottom or that extend more than 18
inches above the bottom unless:
(1) The leaseholder submits an application, accompanied
by a nonrefundable application fee of one hundred dollars ($100.00), fifty
dollars ($50.00), which conforms to the standards for lease applications in
G.S. 113‑202(d) and the duly adopted rules of the Commission;
(2) The proposed amendment has been noticed consistent with G.S. 113‑202(f);
(3) Public hearings have been conducted consistent with G.S. 113‑202(g);
(4) The aspects of the proposals which require use and dedication of the water column have been documented and are recognized by the Secretary as commercially feasible forms of aquaculture which will enhance shellfish production on the leased area;
(5) It is not feasible to undertake the aquaculture activity outside of coastal fishing waters; and
(6) The authorized water column use has the least disruptive effect on other public trust uses of the waters of any available technology to produce the shellfish identified in the proposal.
(d) Amendments of shellfish cultivation leases to
authorize use of the water column are issued for a period of five years or the
remainder of the term of the lease, whichever is shorter. The annual rental for
a new or renewal water column amendment is one hundred dollars ($100.00) fifty
dollars ($50.00) an acre. If a water column amendment is issued for less
than a 12‑month period, the rental shall be prorated based on the number
of months remaining in the year. The annual rental for an amendment is payable
at the beginning of the year. The rental is in addition to that required in G.S. 113‑202.
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SECTION 2.4. Sections 2.1, 2.2, and 2.3 of this act are effective July 1, 2015, and apply to applications for shellfish lease applications received by the Department of Environment and Natural Resources on or after that date.
PART III. DEVELOP PROPOSAL TO END CORE SOUND SHELLFISH LEASING MORATORIUM
SECTION 3. The Division of Marine Fisheries of the Department of Environment and Natural Resources shall, in consultation with representatives of the commercial fishing industry, representatives of the shellfish aquaculture industry, and relevant federal agencies, create a proposal to open to shellfish cultivation leasing certain areas of Core Sound that are currently subject to a moratorium on shellfish leasing. The Division will report regarding the plan no later than May 1, 2016, to the Joint Legislative Commission on Governmental Operations.
PART IV. AMEND SENATOR JEAN PRESTON MARINE SHELLFISH SANCTUARY LEGISLATION
SECTION 4. Section 44 of S.L. 2014‑120 reads as rewritten:
"SENATOR JEAN PRESTON MARINE SHELLFISH OYSTER SANCTUARY
PROGRAM
"SECTION 44.(a) It is the intent of the General
Assembly to establish a marine shellfish sanctuary in the Pamlico Sound to
be named in honor of former Senator Jean Preston, to be called the "Senator
Jean Preston Marine Shellfish Sanctuary."to enhance shellfish
habitat within the Albemarle and Pamlico Sounds and their tributaries to
benefit fisheries, water quality, and the economy. This will be achieved
through the establishment of a network of oyster sanctuaries, harvestable
enhancement sites, and coordinated support for the development of shellfish
aquaculture. The network of oyster
sanctuaries is to be named in honor of Senator Jean Preston and will be called
the "Senator Jean Preston Oyster Sanctuary Network."
"SECTION 44.(b) The Division of Marine Fisheries
of the Department of Environment and Natural Resources shall designate an
area of appropriate acreage within the Pamlico Sound as a recommendation to the
Environmental Review Commission for establishment of the "Senator Jean
Preston Marine Shellfish Sanctuary" and create a plan for managing the
sanctuary that includes develop a plan to construct and manage
additional oyster habitat. The new sanctuaries, along with selected existing
oyster sanctuaries, will be included in the Senator Jean Preston Oyster
Sanctuary Network. The plan will include the following components:
(1) Location and delineation of the sanctuary. – oyster
sanctuaries. – The plan should include a location locations for
the sanctuary sanctuary network components that minimizes minimize
the impact on commercial trawling. In addition, the sanctuary should be
gridded into areas leased to private parties for restoration and harvest and
areas operated and maintained by the State for restoration that are not open
for harvest. The leased and unleased areas should be arranged in a pattern
where leased squares are surrounded on four sides by unleased squares.The location of sanctuaries shall take into
account connectivity to existing oyster sanctuaries and proposed oyster
enhancement sites. New oyster sanctuaries shall be designed to provide hook‑and‑line
fishing while allowing the development of complex fish habitat and brood‑stock
oysters that will enhance recruitment in the surrounding reefs. The plan should
outline a 10‑year development project to accomplish the expansion.
(2) Administration. – The plan should include
the prices to be charged for the leased portions of the sanctuary, including an
administration fee to be retained by the Division to support the leasing and
monitoring program. The plan shall also provide that the balance of lease
payments collected by the Division be transferred to the General Fund with a
recommendation that some or all of the proceeds be used for the support of the
State's special education programs in memory of Senator Jean Preston.
(3) Enhancement of oyster habitat restoration. – The General Assembly finds that the lack of a reliable State‑based supply of oyster seed and inadequate funding for cultch planting are limitations to the expansion of oyster harvesting and the restoration of wild oyster habitat in North Carolina. Therefore, the plan should include the following:
a. Provisions and recommendations to facilitate the availability of oyster seed produced in North Carolina for wild oyster habitat restoration projects as well as oyster aquaculture and to reduce potential negative impacts from importation of nonnative oyster seed.
b. Plans, where feasible, for public‑private partnerships for State‑based production of viable oyster seed through the creation of one or more production hatcheries and recommendations for increased support of the existing research hatchery at UNC‑Wilmington.
c. Plans and cost estimates for an expansion of cultch planting in suitable areas of the State's coastal waters in order to expand areas suitable for development of wild oyster habitat.
(4) Economic relief. – The plan should consider a waiver of application fees and yearly rental fees for new shellfish leases for an established period of time to further promote and support shellfish aquaculture in North Carolina. The new leasing fee waiver program should include measures to discourage speculation and target persons with a genuine interest in starting a shellfish aquaculture business, such as a requirement that the lease be nontransferable for a five‑year period.
(5) Outreach. – The plan should include outreach and education that promotes, whenever possible, public‑private partnerships utilizing the Sea Grant College Program, local colleges, and other nongovernmental organizations to (i) encourage shellfish aquaculture and provide technical assistance to broaden cost‑effective technologies available to leaseholders; (ii) encourage best management practices to leaseholders; and (iii) inform fishermen and the public on the benefits provided by the Senator Jean Preston Oyster Sanctuary Network.
(6) Monitoring. – The plan should include a monitoring plan designed to (i) determine the success of oyster reef construction and (ii) evaluate the cost benefit of the oyster sanctuary network and harvestable enhancement sites.
(3)(7) Funding. – The plan should include a
request for appropriations sufficient to provide funds for the construction
of appropriate bottom habitat and shellfish seeding and for Division staff
necessary to conduct oyster restoration and monitoring activities. The plan
should provide that, whenever possible, construction and shellfish seeding be
carried out by contract with private entities.for Division staff to
expand oyster restoration and monitoring activities for 10 years. The plan
should provide that, whenever possible, public‑private partnerships are
employed to meet the construction, seeding, and outreach requirements of the
plan.
(4) Commercial fisherman relief. – To promote
the diversification of commercial fishing opportunities, the plan should
include a program to award free or discounted leases under this section to
commercial fishermen who (i) have held one or more commercial fishing licenses
continually for a period of 10 or more years and (ii) receive at least fifty
percent (50%) of their income from commercial fishing with those licenses.
(5)(8) Recommendations. – The plan should shall
include recommendations for statutory or regulatory changes needed to
expedite the expansion of shellfish restoration and harvesting in order to
improve water quality, restore ecological habitats, provide enhanced
recreational and commercial fishing opportunities, and expand the coastal
economy.
(9) No Funding for sanctuaries in closed areas. – The plan shall provide that no funding or other resources shall be available in water bodies where a moratorium or other legal prohibition on shellfish leasing under Article 16 of Chapter 113 of the General Statutes is currently in effect. This subdivision does not apply to leasing moratoria imposed because the area is closed to shellfish harvesting or recommended for closure by the State Health Director due to pollution.
"SECTION 44.(c) No later than December
1, 2014, and quarterly thereafter until submission of a final plan to the
Environmental Review Commission, the Department of Environment and Natural
Resources shall report to the Environmental Review Commission regarding its
implementation of this section and its recommended plan."
PART V. SIMPLIFY OYSTER RESTORATION PROJECT PERMITTING
SECTION 5.(a) The Division of Marine Fisheries and Division of Coastal Management of the Department of Environment and Natural Resources shall, in consultation with representatives of nongovernmental conservation organizations working on oyster restoration, create a new permitting process specifically designed for oyster restoration projects that would apply to oyster restoration projects instead of a major development permit under G.S. 113A‑118. The Department will submit its report, including recommended legislation, to the Environmental Review Commission no later than May 1, 2016.
SECTION 5.(b) Until the effective date of the revised permanent rule that the Coastal Resources Commission is required to adopt pursuant to Section 5(d) of this act, the Commission and the Department of Environment and Natural Resources shall implement 15A NCAC 03O .0503(g) (Scientific or Educational Activity Permit) as provided in Section 5(c) of this act.
SECTION 5.(c) Notwithstanding 15A NCAC 03O .0503(g) (Scientific or Educational Activity Permit), the Division of Marine Fisheries may issue a scientific or educational activity permit for approved activities conducted by or under the direction of a nongovernmental conservation organization in addition to a scientific or educational institution. For purposes of this section, a nongovernmental conservation organization is defined as an organization whose primary mission is the conservation of natural resources.
SECTION 5.(d) The Environmental Management Commission shall adopt rules to amend 15A NCAC 03O .0503(g) and any other cross‑referenced rules consistent with Section 5(c) of this act. Notwithstanding G.S. 150B‑19(4), the rule adopted by the Commission pursuant to this subsection shall be substantively identical to the provisions of Section 5(c) of this act. Rules adopted pursuant to this subsection are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this subsection shall become effective as provided in G.S. 150B‑21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B‑21.3(b2).
SECTION 5.(e) This section is effective when it becomes law. Section 5(c) of this act expires on the date that rules adopted pursuant to Section 5(d) of this act become effective.
PART VI. SCFL EXEMPTION FOR EMPLOYEES OF LEASEHOLDER
SECTION 6. G.S. 113‑169.2 reads as rewritten:
"§ 113‑169.2. Shellfish license for North Carolina residents without a SCFL.
(a) License or Endorsement Necessary to Take or Sell Shellfish Taken by Hand Methods. – It is unlawful for an individual to take shellfish from the public or private grounds of the State as part of a commercial fishing operation by hand methods without holding either a shellfish license or a shellfish endorsement of a SCFL. A North Carolina resident who seeks only to take shellfish by hand methods and sell such shellfish shall be eligible to obtain a shellfish license without holding a SCFL. The shellfish license authorizes the licensee to sell shellfish.
(a1) License Necessary to Take or Sell Shellfish Taken
by Mechanical Means. – Subject to With the exceptions set forth in subsection
(i) of this section, an individual who takes shellfish from the public or
private grounds of the State by mechanical means must obtain an SCFL under the
provisions of G.S. 113‑168.2.
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(i) Taking Shellfish Without a License for Personal Use.Use
or as Employee of Certain License Holders. – Shellfish may be taken without
a license for under the following circumstances:
(1) For personal use in quantities established by rules of the Marine Fisheries Commission.
(2) When the taking is from an area leased for the cultivation of shellfish under Article 16 of this Chapter by a person who is an employee of a leaseholder holding a valid SCFL issued under the provisions of G.S. 113‑168.2."
PART VII. EFFECTIVE DATE
SECTION 7. Except as otherwise noted, the remainder of this act is effective when it becomes law.