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Regular Session, 2011
HOUSE BILL NO. 423
BY REPRESENTATIVES HOWARD AND SMI LEY
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
WATERWAYS/RIVERS: Provides relative to acquisition of property for wetlands
mitigation associated with the Comite River Diversion Project
AN ACT1
To amend and reenact R.S. 49:214.6.3(B)(5), relative to wetlands mitigation; to authorize2
the acquisition of property for wetlands mitigation associated with the Comite River3
Diversion Project, Amite River and Tributaries, Louisiana project under certain4
conditions; and to provide for related matters.5
Be it enacted by the Legislature of Louisiana:6
Section 1. R.S. 49:214.6.3(B)(5) is hereby amended and reenacted to read as7
follows:8
ยง214.6.3. Functions and responsibilities; hurricane protection and flood control9
* * *10
B. Office of Coastal Protection and Restoration duties and responsibilities11
regarding hurricane protection and flood control:12
* * *13
(5)(a) No funds of the state nor of any political subdivision or political14
corporation of the state shall be used nor provided to the United States or any of its15
agencies, by contract, agreement, a required contribution of a project cost-share or16
otherwise, for the expropriation of property Property acquired by the state or any17
political subdivision or political corporation of the state or the United States or any18
of its agencies, by contract, agreement, required project cost-share, or otherwise, for19
the purpose of compensatory mitigation of wetlands or other natural habitat, as20 HLS 11RS-718 ENGROSSED
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authorized or required by state or federal law, to offset, compensate, or replace actual1
or anticipated damages to or loss of wetlands or other natural habitat caused by the2
Comite River Diversion Project, Amite River and Tributaries, Louisiana, shall be3
subject to a conservation servitude under the provisions of R.S. 9:1271 et seq.4
Persons from whom property is acquired for such mitigation purposes shall be5
allowed to avail themselves of the applicable provisions of R.S. 31:149 and R.S.6
9:2795, for the sale of property, or any right or servitude thereof, made pursuant to7
this Paragraph. However, any mineral rights reserved under R.S. 31:149 shall except8
and exclude any and all rights to use the surface of the above-described property for9
any purpose including the right to enter upon or over the surface of said property for10
the purpose of exploration, development, production, or removal of minerals and11
shall be subject to the condition that no exploration, development, production, or12
removal of minerals of any kind may be conducted upon the property or in a manner13
that may impact or interfere with the use of the property for mitigation purposes.14
However, the provisions of this Paragraph shall not apply where such funds are to15
be used to obtain property voluntarily offered for compensatory mitigation purposes,16
including but not limited to mitigation banking.17
(b) When land is acquired from any person for mitigation associated with the18
Comite River Diversion Project, Amite River and Tributaries, Louisiana, such19
acquisition shall be only the minimum real property interest in said property that is20
necessary to support or fulfill the mitigation requirements of the project or project21
agreements, or that which is necessary to comply with any applicable state or federal22
statutes, laws, rules, or regulations. However, whether or not full ownership,23
excluding any reservations of mineral rights permitted under this Paragraph, is24
acquired for such mitigation purposes, the acquiring authority shall grant to any25
property owner from whom only a portion of his property has been acquired for such26
purpose, authority to traverse such formerly owned property in order to gain access27
to the Comite River. Such servitude of passage shall be limited to property owners28 HLS 11RS-718 ENGROSSED
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who transfer a portion of their property for mitigation purposes. Such servitude of1
passage shall be heritable and subject to transfer.2
(c) If it is necessary to acquire the mitigation land in full ownership,3
excluding any reservation of mineral rights permitted under this Paragraph, a4
conservation servitude shall be imposed on such land for the purpose of retaining or5
protecting fish and wildlife mitigation lands, ecosystems, restorations, and other6
environmental purposes, unless it is determined by the state agency or other authority7
acting as the nonfederal sponsor of the Comite River Diversion Project, Amite River8
and Tributaries, Louisiana that the imposition of such conservation servitude would9
interfere with the mitigation requirements of the project, project agreements, or10
applicable state or federal, laws, rules, or regulations. Further, any conservation11
servitude established under this Paragraph shall grant and be subject to the servitude12
of passage provided for in Subparagraph (b) of this Paragraph, and shall be subject13
to a permanent easement, servitude, right-of-way, or right-of-use as necessary to14
facilitate the principal purpose of acquisition of the property, including but not15
limited to the operation, maintenance, repair, replacement, restoration, and16
rehabilitation of the mitigation area by the state or any of its political subdivisions,17
or the federal government pursuant to state or federal law.18
(d) No funds of the state nor of any political subdivision or political19
corporation of the state shall be used nor provided to the United States or any of its20
agencies, by contract, agreement, a required contribution of a project cost-share or21
otherwise, for the expropriation of property for the purpose of compensatory22
mitigation of wetlands or other natural habitat, as authorized or required by state or23
federal law, to offset, compensate, or replace actual or anticipated damages to or loss24
of wetlands or other natural habitat caused by the Comite River Diversion Project,25
Amite River and Tributaries, Louisiana unless the use of such expropriation is26
specifically approved in writing by the state agency or other authority acting as the27
nonfederal sponsor of the Comite River Diversion Project, Amite River and28 HLS 11RS-718 ENGROSSED
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Tributaries, Louisiana and there has been a determination by such agency or1
authority that the following conditions exist:2
(i) Expropriation proceedings are necessary for the purpose of providing3
clear title to the property to be acquired.4
(ii) When the acquiring authority can not amicably acquire the property from5
an otherwise willing seller because the property owner has rejected an offer of at6
least the amount of the highest appraisal obtained on behalf of the acquiring7
authority, and use of the expropriation process is necessary to obtain a judicial8
determination of the just compensation to be paid for the property to be expropriated.9
(e) The provisions of this Paragraph shall not apply in cases where property10
is acquired through a mitigation bank for purposes of compensatory mitigation.11
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
Howard HB No. 423
Abstract: Provides relative to acquisition of property for wetlands mitigation associated
with the Comite River Diversion Project.
Present law prohibits funds of the state nor of any political subdivision or political
corporation of the state being used nor provided to the U.S. or any of its agencies, by
contract, agreement, a required contribution of a project cost-share, or otherwise, for the
expropriation of property for the purpose of wetlands mitigation in association with the
Comite River Diversion Project.
Proposed law provides that if property is acquired for compensatory wetlands mitigation in
association with the Comite River Diversion Project, such acquisition shall be subject to a
conservation servitude. Provides that the person from whom the property is acquired can
avail themselves of state laws relative to preservation of mineral rights and conservation
easements but prohibits retention of the right to use the surface of such property for
exploration, development, production, or removal of minerals of any kind.
Proposed law provides that acquisition of property shall be only the minimum real property
interest necessary to fulfill the wetlands mitigation requirement of the existing project
agreement with the Corps of Engineers. Further provides a heritable and transferable
servitude of passage over the property acquired.
Proposed law provides that if acquisition in full ownership, excluding mineral rights, is
necessary, a conservation servitude shall be imposed on the land unless it is determined by
the state or local sponsor of the project that such conservation servitude would interfere with
the project or applicable state or federal laws. HLS 11RS-718 ENGROSSED
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are additions.
Proposed law prohibits use of state or political subdivision funds for the expropriation of
property for wetlands mitigation unless such expropriation is specifically approved in
writing by the state or local sponsor following a determination that: (1) expropriation is
necessary to clear title or (2) when the acquiring authority cannot amicably acquire the
property from an otherwise willing seller because the owner has rejected an offer of the
amount of the highest appraisal, and the expropriation process is necessary to obtain a
judicial determination of just compensation.
Proposed law further provides that these provisions are not applicable to property acquired
through a mitigation bank.
(Amends R.S. 49:214.6.3(B)(5))
Summary of Amendments Adopted by House
Committee Amendments Proposed by House Committee on Natural Resources and
Environment to the original bill.
1. Provided that the person from whom the property is acquired can avail
themselves of state laws relative to preservation of mineral rights and
conservation easements but prohibits retention of the right to use the surface of
such property for exploration, development, production, or removal of minerals
of any kind.
2. Provided a heritable and transferable servitude of passage over the property
acquired.
3. Provided that if acquisition in full ownership, excluding mineral rights, is
necessary, a conservation servitude shall be imposed on the land unless it is
determined by the state or local sponsor of the project the such conservation
servitude would interfere with the project or applicable state or federal laws.
4. Prohibited use of state or political subdivision funds for the expropriation of
property for wetlands mitigation unless such expropriation is specifically
approved in writing by the state or local sponsor following a determination that:
(1) expropriation is necessary to clear title or (2) when the acquiring authority
cannot amicably acquire the property from an otherwise willing seller because
the owner has rejected an offer of the amount of the highest appraisal, and the
expropriation process is necessary to obtain a judicial determination of just
compensation.