North Carolina § 113-202 - New and renewal leases for shellfish cultivation; termination of leases issued prior to January 1, 1966.

§ 113-202. New and renewal leases for shellfish cultivation; termination of leases issued prior to January 1, 1966.

To increase the use of suitable areas underlying coastal fishing waters for the production of shellfish, the Secretary may grant shellfish cultivation leases to persons who reside in North Carolina under the terms of this section when the Secretary determines, in accordance with his duty to conserve the marine and estuarine resources of the State, that the public interest will benefit from issuance of the lease. Suitable areas for the production of shellfish shall meet the following minimum standards: The area leased must be suitable for the cultivation and harvesting of shellfish in commercial quantities. Except as provided under subsection (n) of this section, the area leased must not contain a natural shellfish bed. Cultivation of shellfish in the leased area will be compatible with lawful utilization by the public of other marine and estuarine resources. Other public uses which may be considered include, but are not limited to, navigation, fishing and recreation. Cultivation of shellfish in the leased area will not impinge upon the rights of riparian owners. The area leased must not include an area designated for inclusion in the Department's Shellfish Management Program. The area leased must not include an area which the State Health Director has recommended be closed to shellfish harvest by reason of pollution. The Secretary may delete any part of an area proposed for lease or may condition a lease to protect the public interest with respect to the factors enumerated in subsection (a) of this section. The Secretary may not grant a new lease in an area heavily used for recreational purposes. Except as prohibited by federal law, the Secretary shall not exclude any area from leasing solely on the basis that the area contains submerged aquatic vegetation and shall make specific findings based on the standards set forth in subsection (a) of this section prior to reaching a decision not to grant or renew a lease for shellfish cultivation for any area containing submerged aquatic vegetation. No person, including a corporate entity, or single family unit may acquire and hold by lease, lease renewal, or purchase more than 50 acres of public bottoms under shellfish cultivation leases. For purposes of this subsection, the number of acres of leases held by a person includes acres held by a corporation in which the person holds an interest. The Marine Fisheries Commission may adopt rules to require the submission of information necessary to ensure compliance with this subsection. Any person desiring to apply for a lease must make written application to the Secretary on forms prepared by the Department containing such information as deemed necessary to determine the desirability of granting or not granting the lease requested. Except in the case of renewal leases, the application must be accompanied by a map or diagram made at the expense of the applicant, showing the area proposed to be leased. The map or diagram must conform to standards prescribed by the Secretary concerning accuracy of map or diagram and the amount of detail that must be shown. If on the basis of the application information and map or diagram the Secretary deems that granting the lease would benefit the shellfish culture of North Carolina, the Secretary, in the case of initial lease applications, must order an investigation of the bottom proposed to be leased. The investigation is to be made by the Secretary or his authorized agent to determine whether the area proposed to be leased is consistent with the standards in subsection (a) of this section and any other applicable standards under this Article and the rules of the Marine Fisheries Commission. In the event the Secretary finds the application inconsistent with the applicable standards, the Secretary shall deny the application or propose that a conditional lease be issued that is consistent with the applicable standards. In the event the Secretary authorizes amendment of the application, the applicant must furnish a new map or diagram meeting requisite standards showing the area proposed to be leased under the amended application. At the time of making application for an initial lease, the applicant must pay a filing fee of two hundred dollars ($200.00). The area of bottom applied for in the case of an initial lease or amended initial lease must be as compact as possible, taking into consideration the shape of the body of water, the consistency of the bottom, and the desirability of separating the boundaries of a leasehold by a sufficient distance from any known natural shellfish bed to prevent the likelihood of disputes arising between the leaseholder and members of the public taking shellfish from the natural bed. Within a reasonable time after receipt of an application that complies with subsection (d), the Secretary shall notify the applicant of the intended action on the lease application. If the intended action is approval of the application as submitted or approval with a modification to which the applicant agrees, the Secretary shall conduct a public hearing in the county where the proposed leasehold lies. The Secretary must publish at least two notices of the intention to lease in a newspaper of general circulation in the county in which the proposed leasehold lies. The first publication must precede the public hearing by more than 20 days; the second publication must follow the first by seven to 11 days. The notice of intention to lease must contain a sufficient description of the area of the proposed leasehold that its boundaries may be established with reasonable ease and certainty and must also contain the date, hour and place of the hearing. After consideration of the public comment received and any additional investigations the Secretary orders to evaluate the comments, the Secretary shall notify the applicant in person or by certified or registered mail of the decision on the lease application. The Secretary shall also notify persons who submitted comments at the public hearing and requested notice of the lease decision. An applicant who is dissatisfied with the Secretary's decision may commence a contested case by filing a petition under G.S. 150B-23 within 30 days after receiving notice of the Secretary's decision. In the event the Secretary's decision is a modification to which the applicant agrees, the lease applicant must furnish an amended map or diagram before the lease can be issued by the Secretary. A person other than the applicant who is aggrieved by the Secretary's decision may file a petition for a contested case hearing only if the Shellfish Cultivation Lease Review Committee established pursuant to G.S. 143B-289.57(f) determines that a hearing is appropriate. A request for a determination of the appropriateness of a contested case hearing shall be made in writing and received by the Review Committee within 30 days after the disputed decision is made. A determination of the appropriateness of a contested case shall be made by the Review Committee within 90 days after a request for a determination is received and shall be based on whether the person seeking to commence a contested case: Has alleged that the decision is contrary to a statute or rule. Is directly affected by the decision. Has alleged facts or made legal arguments that demonstrate that the request for the hearing is not frivolous. Repealed by Session Laws 1993, c. 466, s. 1. After a lease application is approved by the Secretary, the applicant shall submit to the Secretary information sufficient to define the bounds of the area approved for leasing with markers in accordance with the rules of the Commission. The information shall conform to standards prescribed by the Secretary concerning accuracy and the amount of detail to be shown. When 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. Initial leases begin upon the issuance of the lease by the Secretary and expire at noon on the first day of July following the tenth anniversary of the granting of the lease. Renewal leases are issued for a period of 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 until noon on the first day of July following the first anniversary of the lease. Thereafter, for initial leases and from the beginning for renewals of leases entered into after that date, the rental is ten dollars ($10.00) per acre per year. Rental must be paid annually in advance prior to the first day of July 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) per acre per year; then, on or before the first day of July next, the lessee must pay the rental for the next full year. Except as restricted by this Subchapter, leaseholds granted under this section 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. Within 30 days after transfer of beneficial ownership of all or any portion of or interest in a leasehold to another, the new owner must notify the Secretary of such fact. Such transfer is not valid until notice is furnished the Secretary. In the event such transferee is a nonresident, the Secretary must initiate proceedings to terminate the lease. Upon receipt of notice by the Secretary of any of the following occurrences, he must commence action to terminate the leasehold: Failure to pay the annual rent in advance. Failure to file information required by the Secretary upon annual remittance of rental or filing false information on the form required to accompany the annual remittance of rental. Failure by new owner to report a transfer of beneficial ownership of all or any portion of or interest in the leasehold. Failure to mark the boundaries in the leasehold and to keep them marked as required in the rules of the Marine Fisheries Commission. Failure to utilize the leasehold on a continuing basis for the commercial production of shellfish. Transfer of all or part of the beneficial ownership of a leasehold to a nonresident. Substantial breach of compliance with the provisions of this Article or of rules of the Marine Fisheries Commission governing use of the leasehold. Failure to comply with the training requirements established by the Marine Fisheries Commission pursuant to G.S. 113-201(c). The Marine Fisheries Commission is authorized to make rules defining commercial production of shellfish, based upon the productive potential of particular areas climatic or biological conditions at particular areas or particular times, availability of seed shellfish, availability for purchase by lessees of shells or other material to which oyster spat may attach, and the like. Commercial production may be defined in terms of planting effort made as well as in terms of quantities of shellfish harvested. Provided, however, that if a lessee has made a diligent effort to effectively and efficiently manage his lease according to accepted standards and practices in such management, and because of reasons beyond his control, such as acts of God, such lessee has not and cannot meet the requirements set out by the Marine Fisheries Commission under the provisions of this subsection, his leasehold shall not be terminated under subdivision (5) of subsection (l) of this section. In the event the leaseholder takes steps within 30 days to remedy the situation upon which the notice of intention to terminate was based and the Secretary is satisfied that continuation of the lease is in the best interests of the shellfish culture of the State, the Secretary may discontinue termination procedures. Where there is no discontinuance of termination procedures, the leaseholder may initiate a contested case by filing a petition under G.S. 150B-23 within 30 days of receipt of notice of intention to terminate. Where the leaseholder does not initiate a contested case, or the final decision upholds termination, the Secretary must send a final letter of termination to the leaseholder. The final letter of termination may not be mailed sooner than 30 days after receipt by the leaseholder of the Secretary's notice of intention to terminate, or of the final agency decision, as appropriate. The lease is terminated effective at midnight on the day the final notice of termination is served on the leaseholder. The final notice of termination may not be issued pending hearing of a contested case initiated by the leaseholder. Upon final termination of any leasehold, the Secretary may do any of the following: Make the bottom available for a new lease application for a period of 18 months. Designate the bottom as a Shellfish Aquaculture Enterprise Area. Make the bottom open to the public for use in accordance with laws and rules governing use of public grounds generally. Every year between January 1 and February 15 the Secretary must mail to all leaseholders a notice of the annual rental due and include forms designed by him for determining the amount of shellfish or shells planted on the leasehold during the preceding calendar year, and the amount of harvest gathered. Such forms may contain other pertinent questions relating to the utilization of the leasehold in the best interests of the shellfish culture of the State, and must be executed and returned by the leaseholder with the payment of his rental. Any leaseholder or his agent executing such forms for him who knowingly makes a false statement on such forms is guilty of a Class 1 misdemeanor. All leases and renewal leases granted after the effective date of this Article are made subject to this Article and to reasonable amendment of governing statutes, rules of the Marine Fisheries Commission, and requirements imposed by the Secretary or his agents in regulating the use of the leasehold or in processing applications of rentals. This includes such statutory increase in rentals as may be necessitated by changing conditions and refusal to renew lease after expiration, in the discretion of the Secretary. No increase in rentals, however, may be given retroactive effect. Repealed by Session Laws 1983, c. 621, s. 16. 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. The Secretary may establish Shellfish Aquaculture Enterprise Areas for bottom leasing pursuant to this subsection. The Secretary may establish one or more Shellfish Aquaculture Enterprise Areas that comply with the requirements of this section, including the notice, public hearing, and public comment requirements; any other State requirements for shellfish leasing; and any applicable federal requirements. Leases issued in a Shellfish Aquaculture Enterprise Area shall be nontransferable and shall revert to the State upon relinquishment or termination. The Marine Fisheries Commission may adopt any rules necessary to implement this subsection. If the Review Committee determines that a contested case is appropriate, the petition for a contested case shall be filed within 30 days after the Review Committee makes its determination. A determination that a person may not commence a contested case is a final agency decision and is subject to judicial review under Article 4 of Chapter 150B of the General Statutes. If, on judicial review, the court determines that the Review Committee erred in determining that a contested case would not be appropriate, the court shall remand the matter for a contested case hearing under G.S. 150B-23 and final decision on the permit pursuant to G.S. 113A-122. Decisions in such cases shall be rendered pursuant to those rules, regulations, and other applicable laws in effect at the time of the commencement of the contested case. The applicant or another person aggrieved by a final decision under this section may appeal the decision to the superior court of the county where the proposed lease or any part thereof is located, pursuant to the provisions of Chapter 150B of the General Statutes. Service of any notice required in this subsection may be accomplished by certified mail, return receipt requested; personal service by any law-enforcement officer; or upon the failure of these two methods, publication. Service by publication shall be accomplished by publishing such notices in a newspaper of general circulation within the county where the lease is located for at least once a week for three successive weeks. The format for notice by publication shall be approved by the Attorney General. Within 30 days of final termination of the leasehold, the former leaseholder shall remove all abandoned gear and markers denominating the area of the leasehold as a private bottom. The State may, after 10 days' notice to the owner of the abandoned gear and markers thereof, remove the abandoned structure and have the area cleaned up. The cost of such removal and cleanup shall be payable by the owner of the abandoned gear and markers and the State may bring suit to recover the costs thereof. The General Assembly declares it to be contrary to public policy to the oyster and clam bottoms which were leased prior to January 1, 1966, and which are not being used to produce oysters and clams in commercial quantities to continue to be held by private individuals, thus depriving the public of a resource which belongs to all the people of the State. Therefore, when the Secretary determines, after due notice to the lessee, and after opportunity for the lessee to be heard, that oysters or clams are not being produced in commercial quantities, due to the lessee's failure to make diligent effort to produce oysters and clams in commercial quantities, the Secretary may decline to renew, at the end of the current term, any oyster or clam bottom lease which was executed prior to January 1, 1966. The lessee may appeal the denial of the Secretary to renew the lease by initiating a contested case pursuant to G.S. 150B-23. In such contested cases, the burden of proof, by the greater weight of the evidence, shall be on the lessee. History (1893, c. 287, s. 1; Rev., s. 2371; 1909, c. 871, ss. 1-9; 1919, c. 333, s. 6; C.S., ss. 1902-1911; Ex. Sess. 1921, c. 46, s. 1; 1933, c. 346; 1953, cc. 842, 1139; 1963, c. 1260, ss. 1-3; 1965, c. 957, s. 2; 1967, c. 24, s. 16; c. 88; c. 876, s. 1; 1971, c. 447; 1973, c. 476, s. 128; c. 1262, ss. 28, 86; 1983, c. 601, ss. 1-3; c. 621, ss. 4-16; 1985, c. 275, ss. 1-3; 1987, c. 641, s. 16; c. 773, s. 11; c. 827, s. 98; 1989, c. 423, s. 2; c. 727, s. 99; 1991 (Reg. Sess., 1992), c. 788, s. 2; 1993, c. 466, s. 1; c. 539, s. 840; 1994, Ex. Sess., c. 24, s. 14(c); 2004-150, ss. 2, 3, 4; 2009-433, ss. 4, 5; 2011-398, s. 35; 2015-241, ss. 14.10(a), (b), 14.10C(b); 2015-263, s. 11(a); 2016-94, s. 14.11(a); 2019-37, ss. 1(b), 4(a), (b), 6(b).) Local Modification. - Brunswick: 1967, c. 876, s. 2; Carteret (Moratorium as to Portsmouth Island, Core Banks): 1995, c. 547, s. 1; Carteret (Moratorium as to Core Sound): 1995 (Reg. Sess., 1996), c. 547, s. 3; c. 633, s. 1(b); 1996, 2nd Ex. Sess., c. 18, s. 27.33; 1997-256, s. 12; 1997-347, s. 8; 1997-400, s. 6.14; 1997-401, s. 8; 1998-23, s. 15; 1998-56; 1999-209, s. 1; 2001-213, s. 4; 2002-15, s. 1; 2003-64, s. 1(a)-(d). Moratorium on Shellfish Leasing in the New Hanover County Area - Session Laws 2019-37, s. 7, provides: "Notwithstanding G.S. 113-202 and G.S. 113-202.1, a moratorium on new shellfish cultivation leases and new water column leases for aquaculture shall be imposed for all those waters enclosed by a line beginning at 34 ø 13.10221' N -77 ø 48.79544' W on the mainland side near Wrightsville Beach Bridge; running southeasterly to a point at 34 ø 12.51584' N -77 ø 47.81847' W on Wrightsville Beach; following the shoreline southwesterly to a point at 34 ø 11.121' N -77 ø 48.848' W at Masonboro Inlet; running southwesterly to a point at 34 ø 10.927' N -77 ø 48.771' W at Masonboro Inlet; continuing southwesterly to a point at 34 ø 05.04108' N -77 ø 52.08324' W near IWW marker #159 continuing running southwesterly to a point at 34 ø 03.64140' N -77 ø 53.41338' W on the mainland adjacent to the eastern mouth of Snow's Cut; running northeasterly along the shoreline to the point of beginning. The moratorium shall expire July 1, 2021. For purposes of this section, a new shellfish cultivation lease or water column lease shall include applications for either type of lease received by the Secretary, but not granted as of July 1, 2019." Moratorium on Shellfish Leasing in Bogue Sound - Session Laws 2019-37, s. 8, provides: "Notwithstanding G.S. 113-202 and G.S. 113-202.1, a moratorium on new shellfish cultivation leases and new water column leases for aquaculture shall be imposed for all those waters enclosed by a line beginning at 34 ø 43.24641' N -76 ø 41.68436' W; running easterly following the Highway 70 High Rise Bridge to a point at 34 ø 43.27819' N -76 ø 41.22259' W; running southerly to a point 34 ø 42.375275' N -76 ø 40.80078' W on the southern tip of Radio Island; running southerly to a point 34 ø 41.98273' N -76 ø 40.81929' W; following the shoreline westerly to the Emerald Isle Bridge at a point 34 ø 40.05410' N -77 ø 03.80531' W; running northwesterly following the bridge to a point 34 ø 40.77658' N -77 ø 04.02674' W on the mainland near the Emerald Isle High Rise Bridge; running easterly following the shoreline to the point of beginning. The moratorium shall expire July 1, 2021. For purposes of this section, a new shellfish cultivation lease or water column lease shall include applications for either type of lease received by the Secretary, but not granted as of July 1, 2019." Editor's Note. - Session Laws 1983, c. 601, which amended this section, in s. 4, provides that the act shall be reconsidered on or before July 1, 1989, and every six years thereafter, by the Joint Legislative Commission on Governmental Operations. Session Laws 2016-94, s. 14.11(d)-(g), as amended by Session Laws 2017-57, s. 13.13(a), provides: "(d) The North Carolina Policy Collaboratory at the University of North Carolina at Chapel Hill shall convene a stakeholder working group to study and advance efforts to ecologically restore and achieve economic stability of the shellfish industry, including (i) how best to spend financial resources to counter declining native oyster populations and shellfish habitats; (ii) the use of appropriate oyster species to accomplish oyster restoration; (iii) means of combating oyster disease and managing harvesting practices to balance the needs of the industry and promote long-term viability and health of oyster habitat and substrate; (iv) economically and scientifically sound mariculture methods to improve oyster stock and populations; (v) long-term, dedicated options for funding sources and water quality improvements; (vi) means to increase oyster production for both population growth and harvest, including the use of triploid oyster species; (vii) options that expand private shellfish hatchery capacity in the State; (viii) options for promoting the use of cultch planting to enhance and increase oyster habitat and population; (ix) other resources that might be leveraged to enhance reform efforts; and (x) any other issue the Collaboratory deems relevant. "(e) In the conduct of the study required by subsection (d) of this section, the Collaboratory shall convene and consult with a stakeholders group that may consist of representatives from appropriate State and federal agencies; academic institutions; nongovernmental organizations; representatives of any industry working in, or benefitting from, shellfish mariculture; and any other individuals or groups deemed by the Collaboratory as being relevant to the overall success of the study. Nothing in this subsection is intended to require a particular process or level of procedural formality for the stakeholders group." "(f) The University of North Carolina at Chapel Hill shall report the results of its study, including any recommendations and suggested legislation needed to implement the recommendations, to the Fiscal Research Division, the Environmental Review Commission, and the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources no later than December 31, 2018. "(g) Notwithstanding any other provision of law, funds provided to the Division of Marine Fisheries of the Department of Environmental Quality for contracting with the University of North Carolina at Wilmington to develop oyster brood stock to provide seed for aquaculture shall be transferred to, and not through a contractual arrangement with, the University of North Carolina at Wilmington for that purpose. No indirect facilities and administrative costs shall be charged by the University against the funds transferred by this subsection." Session Laws 2016-94, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2016.'" Session Laws 2016-94, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2016-2017 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2016-2017 fiscal year." Session Laws 2016-94, s. 39.7, is a severability clause. Session Laws 2017-57, s. 13.13(b)-(d), as amended by Session Laws 2017-197, s. 4.1, provides: "(b) In addition to the study required by Section 14.11(d) of S.L. 2016-94, as amended by subsection (a) of this section, the North Carolina Policy Collaboratory shall also prepare and deliver a Shellfish Mariculture Plan by December 31, 2018. Except as otherwise prohibited by State or federal law, all State entities shall provide all information, resources, and support deemed relevant by the Collaboratory for the creation of the Shellfish Mariculture Plan. The plan shall be submitted to the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources, the chairs of the House of Representatives Appropriations Committee on Agriculture and Natural and Economic Resources, the chairs of the Senate Appropriations Committee on Agriculture, Natural, and Economic Resources, and the Fiscal Research Division and shall consider the following: "(1) A summary of available and relevant information on shellfish mariculture. "(2) An analysis of existing programs, policies, rules, and laws that govern or affect shellfish mariculture operations within the State, including an examination of workforce training and marketing programs that could facilitate the growth of shellfish mariculture within the State. "(3) A summary of shellfish mariculture plans from other states and countries, including a comparison of how these entities (i) promote and manage shellfish mariculture, (ii) reduce barriers to entry for potential participants in shellfish mariculture, and (iii) offer incentives to encourage entry into shellfish mariculture. "(4) Analysis of siting strategies that reduce potential user conflicts impeding the siting of shellfish mariculture operations and that protect riparian property owners and the public trust uses of estuarine waters for navigation, fishing, and recreation. "(5) Evaluation and consideration of enforcement mechanisms necessary to protect shellfish mariculture operations from theft and degradation and to ensure that shellfish mariculture operations make productive and fair use of public trust coastal waters dedicated to these operations. "(6) Opportunities for local traditional fishermen to effectively compete for shellfish mariculture sites in public waters and participate in enterprises in or near their own communities. "(7) Examination of environmental policies that protect or enhance shellfish mariculture operations. "(8) Consideration of the most appropriate substrate for cultch planting, with consideration of regional differences in bottom conditions within the State that may require different substrates to maximize shellfish sustainability. "(9) Strategies to mitigate or eliminate shellfish pests such as DMX, Dermo, and boring sponges. "(10) Any other issues deemed relevant by the Collaboratory to grow and support shellfish mariculture within the State. "(c) The University of North Carolina at Chapel Hill shall not charge indirect facilities and administrative costs against the funding for the studies required by this section. "(d) The North Carolina Policy Collaboratory, in consultation with the Economic Development Partnership of North Carolina, the Department of Commerce, and the Department of Natural and Cultural Resources, and any other stakeholders the Partnership deems relevant, including the North Carolina Tourism Advisory Board, the North Carolina Restaurant and Lodging Association, the North Carolina Shellfish Growers Association, and the North Carolina Fisheries Association, shall develop conceptual plans and recommendations for economic development related to promotion of the State's shellfish harvesting heritage. The plans and recommendations shall include the creation of a North Carolina Oyster Trail and a North Carolina Oyster Festival. Plan development shall be congruent with the ongoing work of the North Carolina Policy Collaboratory and its stakeholder group as described in this section and shall include recommendations of locations, oversight, governmental support, cost, and timing of when such initiatives should be launched in the future, including, but not limited to, achieving production and acreage benchmarks, in addition to any other information deemed relevant for inclusion. The Collaboratory's recommendations shall be provided no later than December 31, 2018, to the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources, the chairs of the House of Representatives Appropriations Committee on Agriculture and Natural and Economic Resources, the chairs of the Senate Appropriations Committee on Agriculture, Natural, and Economic Resources, and the Fiscal Research Division. This study, as it may be subsequently amended after submission, shall be included as an appendix to the Shellfish Mariculture Plan required by subsection (b) of this section." 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. 1(d), provides: "The Division of Marine Fisheries of the Department of Environmental Quality shall identify areas in waters that are under a moratorium for shellfish leasing that could potentially be established as Shellfish Aquaculture Enterprise Areas. The Division shall report its findings to the General Assembly no later than April 1, 2020." 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." Session Laws 2019-37, s. 4(c), made the amendment to subsections (a) and (n) of this section by Session Laws 2019-37, ss. 4(a) and (b), effective July 1, 2019, and applicable to leases terminated on or after that date. Session Laws 2019-37, s. 6(c), made the amendment to subsection (g) of this section by Session Laws 2019-37, s. 6(b), effective July 1, 2019, and applicable to decisions of the Secretary made on or after that date. Session Laws 2019-37, s. 13(a), is a severability clause. Effect of Amendments. - Session Laws 2004-150, ss. 2, 3 and 4, inserted the subsection (d1) designation; in subsection (d1), inserted "of this section" after "subsection (a)" and substituted "two hundred dollars ($200.00)" for "one hundred dollars ($100.00)" in the last sentence; and in subsection (j), substituted "July" for "April" in the first, fourth and last sentences, deleted "effective" following "ten years" in the second sentence, substituted "one hundred dollars ($100.00)" for "fifty dollars ($50.00)" in the third sentence, and substituted "said" for "that" and "ten dollars ($10.00)" for "five dollars ($5.00)" in the fifth sentence, added subdivision ( l )(8); inserted the subsection ( l 1) designation; and in the last sentence of subsection ( l 1), deleted "of this paragraph" preceding "of this subsection" and substituted "subsection ( l ) of this section" for "this subsection" at the end of the sentence. For effective dates, see Editor's note. Session Laws 2009-433, ss. 4 and 5, effective August 7, 2009, in subsection (c), added the last two sentences; and, in subsection (j), substituted "fifth anniversary" for "tenth anniversary" in the first sentence, and substituted "five years" for "10 years" in the second sentence. Session Laws 2011-398, s. 35, effective January 1, 2012, and applicable to contested cases commenced on or after that date, deleted the former last sentence in subsection (g), which read: "The Secretary shall make the final agency decision in a contested case"; and in the first paragraph of subsection (m), deleted the former third sentence, which read: "The Secretary shall make the final agency decision of all lease terminations," and in the third and fourth sentences, deleted "Secretary's" preceding "final decision" and "final agency decision," respectively. Session Laws 2015-241, s. 14.10(a), (b), effective July 1, 2015, in subsection (i), substituted "information sufficient to" for "a survey of the area approved for leasing and" in the first sentence, substituted "information" for "survey" and deleted "of survey" following "accuracy" in the second sentence, substituted "information" for "an acceptable survey" in the third sentence; and added the last sentence; in subsection (j), substituted "tenth" for "fifth" in the first sentence, substituted "10" for "five" in the second sentence, deleted "for all leases entered into before July 1, 1965, and for all other leases" following "per acre" in the fourth sentence, and substituted "leases" for "leases entered into after July 1, 1965" in the fifth sentence. For applicability, see editor's note. Session Laws 2015-241, s. 14.10C(b), effective July 1, 2015, added subsection (r). Session Laws 2015-263, s. 11(a), effective October 1, 2015, added the last sentence of subsection (b). For applicability, see editor's note. Session Laws 2016-94, s. 14.11(a), effective July 1, 2016, substituted "July" for "April" in the next-to-last and last sentences in subsection (j). Session Laws 2019-37, s. 1(b), effective July 1, 2019, added subsection (s). Session Laws 2019-37, ss. 4(a) and (b), substituted "Except as provided under subsection (n) of this section, the" for "The" at the beginning of subdivision (a)(2); rewrote subsection (n), which formerly read: "Upon final termination of any leasehold, the bottom in question is thrown open to the public for use in accordance with laws and rules governing use of public grounds generally"; added subdivisions (n)(1) through (n)(3); three times in the ending paragraph of subsection (n), added "gear and"; substituted "Except as provided under subsection (n) of this section, the" for "The" at the beginning of subdivision (a)(2). For effective date and applicability, see editor's note. Session Laws 2019-37, s. 6(b) in subsection (g), deleted "or another person aggrieved by the decision" preceding "may commence" in the third sentence, substituted "30 days" for "20 days", and added the last three sentences in subsection (g); added subdivisions (g)(1) through (g)(3); and added the last two undesignated paragraphs of subsection (g). For effective date and applicability, see editor's note. Legal Periodicals. - For a note on estuarine pollution, see 49 N.C.L. Rev. 921 (1971). For article, "The Pearl in the Oyster: The Public Trust Doctrine in North Carolina," see 12 Campbell L. Rev. 23 (1989). For article, "North Carolina Oceanfront Property and Public Waters and Beaches: The Rights of Littoral Owners in the Twenty-First Century," see 83 N.C. L. Rev. 1427 (2005).