North Carolina § 113-201 - Legislative findings and declaration of policy; authority of Marine Fisheries Commission.

§ 113-201. Legislative findings and declaration of policy; authority of Marine Fisheries Commission.

The General Assembly finds that shellfish cultivation provides increased seafood production and long-term economic and employment opportunities. The General Assembly also finds that shellfish cultivation provides increased ecological benefits to the estuarine environment by promoting natural water filtration and increased fishery habitats. The General Assembly declares that it is the policy of the State to encourage the development of private, commercial shellfish cultivation in ways that are compatible with other public uses of marine and estuarine resources such as navigation, fishing, and recreation. The Marine Fisheries Commission is empowered to make rules and take all steps necessary to develop and improve the cultivation, harvesting, and marketing of shellfish in North Carolina both from public grounds and private beds. In order to assure the public that some waters will remain open and free from shellfish cultivation activities, the Marine Fisheries Commission may limit the number of acres in any area that may be granted as shellfish cultivation leases. The Marine Fisheries Commission shall adopt rules to establish training requirements for persons applying for new shellfish cultivation leases and for persons acquiring shellfish cultivation leases by lawful transfer. These training requirements shall be designed to encourage the productive use of shellfish cultivation leases. Training requirements established pursuant to this subsection shall not apply to either: An applicant who applies for a new shellfish cultivation lease if, at the time of the application, the applicant holds one or more shellfish cultivation leases and all of the leases meet the shellfish production requirements established by the Marine Fisheries Commission. A person who receives a shellfish cultivation lease by lawful transfer if, at the time of the transfer, the person holds one or more shellfish cultivation leases and all of the leases meet the shellfish production requirements established by the Marine Fisheries Commission. History (1921, c. 132, s. 1; C.S., s. 1959(a); 1965, c. 957, s. 2; 1973, c. 1262, s. 28; 1983, c. 621, s. 2; 1987, c. 827, s. 98; 2004-150, s. 1; 2009-433, s. 3.) Pamlico Sound Shellfish Aquaculture Pilot Project. - Session Laws 2019-37, s. 2, provides: "Notwithstanding any other provision of law, the Secretary of Environmental Quality may grant up to three shellfish cultivation leases or water column leases in Pamlico Sound as provided in the pilot project established by this section. Under the pilot project, each lease may be up to 50 acres in size; each lease must be separated from any other lease and from the shoreline by at least 250 yards; and no person, including a corporate entity, or single family unit, may hold more than 100 acres of leases. The Division of Marine Fisheries of the Department of Environmental Quality shall, to the extent practicable, grant leases in different geographic areas of Pamlico Sound. The Division shall study the advantages and disadvantages associated with leasing such areas within Pamlico Sound. In conducting this study, the Division shall consult with shellfish growers, nearby riparian owners, and other users of the public bottoms and waters. The Division shall submit an interim report of its findings, including any recommendations, to the General Assembly no later than January 1, 2025, and a final report of its findings, including any recommendations, to the General Assembly no later than January 1, 2030. In its final report, the Division shall include a recommendation on whether the pilot project should be terminated, be made permanent, or be expanded. This section shall terminate July 1, 2030, and any leases granted pursuant to this section shall terminate no later than July 1, 2031." Production and Planting Requirements for Shellfish Leases. - Session Laws 2019-37, s. 3(a)-(e), provides: "(a) Definitions. - For purposes of this section and its implementation: "(1) 'Extensive shellfish culture' means shellfish grown on the bottom without the use of cages, racks, bags, or floats. "(2) 'Intensive shellfish culture' means shellfish grown on the bottom or in the water column using cages, racks, bags, or floats. "(3) 'Shellfish Production and Planting Requirements Rule' means 15A NCAC 03O.0201 (Standards and Requirements for Shellfish Bottom Leases and Franchises and Water Column Leases) for purposes of this section and its implementation. "(b) Shellfish Production and Planting Requirements Rule. - Until the effective date of the revised permanent rule that the Marine Fisheries Commission is required to adopt pursuant to subsection (d) of this section, the Commission shall implement the Shellfish Production Requirements Rule as provided in subsection (c) of this section. "(c) Implementation. - Shellfish leases shall be terminated unless they comply with the following requirements: "(1) Franchises recognized pursuant to G.S. 113-206 and shellfish bottom leases shall be terminated unless: "a. They produce a minimum of 20 bushels of shellfish per acre averaged over the previous three-year period beginning in year five of the lease; or "b. For intensive culture bottom operations, the holder of the lease provides evidence of purchasing a minimum of 23,000 shellfish seed per acre annually and for extensive culture bottom operations, the holder of the lease plants a minimum of 15,000 shellfish seed per acre per year. "(2) Water column leases shall be terminated unless: "a. They produce a minimum of 50 bushels of shellfish per acre averaged over the previous three-year period beginning in year five of the lease; or "b. The holder of the lease provides evidence of purchasing a minimum of 23,000 shellfish seed per acre annually. "(d) Additional Rule-Making Authority. - The Commission shall adopt a rule to amend the Shellfish Production Requirements Rule consistent with subsection (c) of this section. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of subsection (c) of this section. Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1), as though 10 or more written objections had been received as provided in G.S. 150B-21.3(b2). "(e) Applicability and Sunset. - This section and rules adopted pursuant to this section apply to all new and renewal shellfish leases granted after July 1, 2019. This section expires when permanent rules adopted as required by subsection (d) of this section become effective." Study How to Reduce User Conflict Related to Shellfish Cultivation Leases; Adoption of Rules. - Session Laws 2019-37, s. 9, provides: "The Division of Marine Fisheries and the Marine Fisheries Commission shall study how to reduce user conflict related to shellfish cultivation leases. The Division and Commission shall complete this study no later than January 1, 2020, and shall adopt rules and reform internal operating procedures consistent with the findings of the study no later than March 1, 2021." Study of Shellfish Loan Program. - Session Laws 2019-37, s. 11, provides: "The North Carolina Coastal Federation (Federation) shall study a low-interest loan program to provide start-up and expansion capital to shellfish growers in waters of the State. As part of its study, the Federation shall investigate and recommend optimal loan terms, a recommended administrative structure for the program, and limitations on loan amounts and on uses of loaned funds necessary to maximize public economic benefits and target funding support where need is greatest. The Federation may use administrative funds provided to it under S.L. 2018-5 for the study. The Federation shall submit its report, including funding needs and any legislative proposals, to the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources and the Fiscal Research Division no later than March 15, 2020." Study Crop Insurance For Shellfish Aquaculture. - Session Laws 2019-37, s. 12, provides: "The Department of Agriculture and Consumer Services shall study crop insurance and other risk of loss mitigation and protection programs available to persons engaging in shellfish aquaculture in North Carolina. The Department shall include all of the following in its study: "(1) An overview and assessment of currently available State or federal programs, including programs offered in other states, and identification of gaps or shortfalls in the coverage provided by those programs. "(2) The identification of options for insurance or other risk protection programs subsidized or underwritten by the State, including an analysis of feasibility, cost, and whether the option would provide sufficient spread of risk to be an actuarially sound investment of public funds. "(3) If the Department finds that no program limited to this State is actuarially sound, an assessment of legal, practical, or political barriers to a federal or multistate crop insurance or other risk mitigation program for shellfish aquaculture." The Department shall submit its report, including recommendations for required funding and any legislative changes needed, to the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources and the Fiscal Research Division no later than November 1, 2020. Editor's Note. - Session Laws 2014-120, s. 44(a)-(c), as amended by Session Laws 2015-241, s. 14.9, provides: "(a) It is the intent of the General Assembly to enhance shellfish habitats 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 shall be called the 'Senator Jean Preston Oyster Sanctuary Network'. "(b) The Division of Marine Fisheries of the Department of Environment and Natural Resources [now Department of Environmental Quality] shall develop a plan to construct and manage additional oyster habitats. The new sanctuaries, along with selected existing oyster sanctuaries, shall be included in the Senator Jean Preston Oyster Sanctuary Network. The plan shall include the following components: "(1) Location and delineation of oyster sanctuaries. - The plan should include locations for sanctuary network components that minimize the impact on commercial trawling. 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 habitats 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) Repealed by Session Laws 2015-241, s. 14.9, effective July 1, 2015. "(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 non-native 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. "(7) Funding. - The plan should include a request for appropriations sufficient 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. "(8) Recommendations. - The plan 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. "(c) No later than March 1, 2016, the Department of Environment and Natural Resources shall report to the Chairs of the House of Representatives Appropriations Committee on Agriculture and Natural and Economic Resources, the Senate Appropriations Committee on Natural and Economic Resources, and the Fiscal Research Division regarding its implementation of this section and its recommended plan." Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'" Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium." Session Laws 2015-241, s. 33.6, is a severability clause. Session Laws 2017-57, s. 13.12, provides: "The Division of Marine Fisheries and the University of North Carolina at Wilmington shall annually report no later than March 1 to the chairs of the Senate and the House of Representatives appropriations committees with jurisdiction over natural and economic resources and the Fiscal Research Division regarding the funding for oyster research and restoration activities provided by this act. The report shall include details regarding the use of the funds, including activities completed and additional personnel supported by the funds." For prior similar provisions, see Session Laws 2015-241, s. 14.29A. Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'" Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium." Session Laws 2017-57, s. 39.6, is a severability clause. Session Laws 2019-37, s. 13(a), is a severability clause. Session Laws 2020-63, s. 6(a)-(d), provides: "(a) Notwithstanding Section 2 of Chapter 876 of the 1967 Session Laws or any other provision of law to the contrary, the Secretary of Environmental Quality may grant shellfish cultivation leases or water column leases in Brunswick County as provided in the pilot program established by this section. In granting leases under the pilot program, the Division of Marine Fisheries of the Department of Environmental Quality shall comply with the requirements in Article 16 of Chapter 113 of the General Statutes and regulations adopted thereunder. "(b) The Secretary of Environmental Quality shall grant shellfish cultivation leases or water column leases authorized by subsection (a) of this section only in the waters enclosed by a line beginning at a 1" PVC pipe located just south of the Atlantic Intracoastal Waterway channel and with NC Grid coordinates (NAD 83) of North=59,477.97' and East=2,190,370.42' and also located South 2 ø 12'36" East, a distance of 765.76 feet from a flag pole across the Atlantic Intracoastal Waterway channel and being near the edge of the parking area of the Inlet View restaurant; this flag pole being located South 56 ø 01'46" East, a distance of 524.45 feet from United States Coast and Geodetic Survey Monument M161, having NC Grid Coordinates North 60,536.21' and East 2,189,905.94'. Thence leaving the beginning corner and running South 62 ø 48'39" East, 745.22 feet to a 1" PVC pipe; thence running South 57 ø 14'01" West, 766.57 feet to a 1" PVC pipe; thence running North 23 ø 07'28" West, 420.73 feet to a 1" PVC pipe; thence running South 70 ø 24'32" West, 742.96 feet to a 1" PVC pipe; thence running North 26 ø 51'08" West, 241.36 feet to a 1" PVC pipe; thence running North 67 ø 10'44" East, 1037.11 feet to the point of beginning. "(c) The Division of Marine Fisheries shall study the advantages and disadvantages associated with leases authorized by this section. In conducting this study, the Division shall consult with shellfish growers, nearby riparian owners, and other users of the public bottoms and waters. The Division shall submit an interim report of its findings, including any recommendations, to the General Assembly no later than January 1, 2027, and a final report of its findings, including any recommendations, to the General Assembly no later than January 1, 2032. In its final report, the Division shall include a recommendation on whether the pilot program should be terminated, be made permanent, or be expanded. "(d) This section becomes effective July 1, 2020, and shall expire July 1, 2032. Any leases granted pursuant to this section shall terminate no later than July 1, 2033.” Effect of Amendments. - Session Laws 2004-150, s. 1, effective August 2, 2004, added "Legislative findings and declaration of policy;" at the beginning of the section heading; inserted the subsection (b) designation; and added subsections (a) and (c). Session Laws 2009-433, s. 3, effective August 7, 2009, in subsection (b), added the last sentence; in subsection (c), inserted "and for persons acquiring shellfish cultivation leases by lawful transfer," and added the subdivision (c)(1) designator; added subdivision (c)(2); and made a related change. Legal Periodicals. - For article, "The Evolution of Modern North Carolina Environmental and Conservation Policy Legislation," see 29 Campbell L. Rev. 535 (2007).