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Regular Session, 2012
HOUSE BILL NO. 1190 (Substitute for House Bill No. 683 by Representative Dove)
BY REPRESENTATIVE DOVE
FISHING/OYSTERS: Provides relative to alternative oyster culture
AN ACT1
To amend and reenact 49:214.34(A)(3) and to enact R.S. 41:1705(16) and R.S. 56:431.2,2
relative to alternative oyster culture; to authorize the Department of Wildlife and3
Fisheries to issue permits for alternative oyster culture activities; to provide4
parameters for such permits; to provide relative to coastal use permits necessary for5
such activities; to provide relative to penalties; and to provide for related matters.6
Be it enacted by the Legislature of Louisiana:7
Section 1. R.S. 41:1705(16) is hereby enacted to read as follows:8
§1705. Application of Chapter; exemptions9
This Chapter shall not apply to:10
* * *11
(16) Alternative oyster culture permits legally issued by the Department of12
Wildlife and Fisheries pursuant to R.S. 56:431.2.13
Section 2. R.S. 49:214.34(A)(3) is hereby amended and reenacted to read as follows:14
§214.34. Activities not requiring a coastal use permit15
A. The following activities shall not require a coastal use permit.16
* * *17
(3) Agricultural, forestry, and aquaculture activities on lands consistently18
used in the past for such activities; however, alternative oyster culture activities19
permitted pursuant to R.S. 56:431.2 shall be subject to coastal use permit20 HLS 12RS-2119 REENGROSSED
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requirements unless, after June 30, 2015, the secretary determines that these uses are1
exempt from coastal use permit requirements.2
* * *3
Section 3. R.S. 56:431.2 is hereby enacted to read as follows:4
§431.2. Alternative oyster culture; permits5
A. Alternative Oyster Culture Permits.6
(1) The provisions of R.S. 3:559.1 through 559.13, R.S. 56:412, 431.1, and7
579.1 notwithstanding, the department is authorized to issue an alternative oyster8
culture permit (AOC permit) to a leaseholder holding a valid oyster lease of state9
water bottoms pursuant to R.S. 56:427 or 428. The area permitted for alternative10
oyster culture shall not extend beyond the boundaries of an existent lease. No AOC11
permit may be issued unless a reasonable investigation into the question of12
ownership is complete and, based on the findings, a determination is made that the13
state owns the water bottom to be covered by the permit. No AOC permit may be14
issued until the department has completed the suitability mapping required in15
Subsection C of this Section.16
(2) An AOC permit authorizes the permittee and, upon written authorization17
by the permittee, any person holding a valid oyster harvester license pursuant to R.S.18
56:303.6 and a valid commercial fisherman's license pursuant to R.S. 56:303, to19
engage in the alternative oyster culture activities specified by the department in the20
permit on the permitted area. The permittee may engage in such activities on the21
water bottoms, in the water column, and on the water surface above the water22
bottoms within the permitted area, to the extent specified by the department in the23
permit, and in accordance with the provisions of this Section.24
(3) The department may issue AOC permits in numbers, locations, sizes, and25
configurations specified by the department.26
(4) An AOC permit shall be transferrable only with and to the extent of any27
transfer of the lease, and only to the transferee of the lease; however, the permitted28
leaseholder may authorize any person holding a valid oyster harvester license29 HLS 12RS-2119 REENGROSSED
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pursuant to R.S. 56:303.6 and a valid commercial fisherman's license pursuant to1
R.S. 56:303 to engage in alternative oyster culture activities pursuant to the AOC2
permit. An AOC permit shall be valid for ten years or until termination of the lease,3
including any renewal thereof, to which the permit pertains, whichever occurs first.4
If the lease is renewed pursuant to R.S. 56:428, the AOC permit shall continue in5
effect until expiration of the ten-year term.6
(5) The department shall promulgate, in accordance with the Administrative7
Procedure Act, rules and regulations to implement the provisions of this Section.8
B. Application and Permitting.9
(1) The application for an AOC permit shall be accompanied by an10
application fee of one hundred dollars. The fee for the permit shall be two dollars11
per year per acre permitted, not to exceed one thousand dollars per permit per year.12
(2) Based on the initial suitability mapping required by this Section, any13
update or revisions to the initial suitability mapping, any master plan or annual plan14
issued pursuant to R.S. 49:214.5.3, and any other information and data deemed15
relevant by the department, the department may grant an AOC permit for a different16
location, size, or configuration, and for different alternative oyster culture activity17
than what was requested in the application.18
(3) No AOC permit shall authorize alternative oyster culture activities in an19
area that is any of the following at the time the AOC permit is issued, and any permit20
that includes such areas is null and void, but only to the extent that it includes such21
areas:22
(a) Designated by the United States Army Corps of Engineers as a navigable23
channel or waterway or within fifteen hundred feet of the centerline of such channel24
or waterway.25
(b) Covered by a coastal use permit or drilling permit or within fifteen26
hundred feet of the outside of the exterior boundaries of an area covered by a coastal27
use permit or drilling permit.28 HLS 12RS-2119 REENGROSSED
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(c) Designated for dredging, direct placement of dredged or other materials,1
or other work or activities for the construction or maintenance of a project for2
integrated coastal protection or within fifteen hundred feet of the outside of the3
exterior boundaries of an area designated for such dredging, direct placement, or4
other work or activities.5
(d) Located on water bottoms that are not claimed by the state, as determined6
by the state land office.7
(e) Otherwise determined by the department to be unsuitable or inappropriate8
for alternative oyster culture activities.9
(4) No coastal use or drilling permit holder or agent thereof shall be liable10
to any holder of an AOC permit, any person to whom such permit has been11
transferred, or any other person authorized by the AOC permit holder to engage in12
alternative oyster culture activities, for any damage to or loss of equipment or13
materials used in alternative oyster culture activities within the AOC permit area, or14
for any damage to or loss of any oysters being grown or cultivated within the AOC15
permit area as a consequence of alternative oyster culture activities, where both of16
the following are true:17
(a) The coastal use or drilling permit, or any modification to it, was issued18
prior to the time that the AOC permit was issued.19
(b) Such damage arises out of or results from the conduct of any activity20
authorized by or permitted under the coastal use or drilling permit, except to the21
extent that the damage or loss arises from violation of any state or federal22
environmental law or regulation or occurs outside the area of the coastal use permit23
or drilling permit.24
(5) The state of Louisiana, political subdivisions of the state, the United25
States, and any agency, agent, contractor, or employee thereof shall be held free and26
harmless from any claim arising as a result of operations by or for a permittee27
pursuant to an AOC permit, and the permittee shall indemnify the state of Louisiana,28
political subdivisions of the state, the United States, and any agency, agent,29 HLS 12RS-2119 REENGROSSED
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contractor, or employee thereof against any such claim. Prior to engaging in1
alternative oyster culture activities pursuant to an AOC permit, the permittee shall2
have obtained all other local, state, and federal permits necessary for such activity.3
(6) The department may specify or impose limitations regarding the4
equipment and materials authorized to be used for alternative oyster culture5
activities. All equipment and materials used for alternative oyster culture activities6
shall, at a minimum, comply with United States Coast Guard regulations and7
requirements, and with all state and federal fishing laws and regulations. Any8
equipment and materials used for alternative oyster culture activities authorized9
pursuant to this Section may be transported or used in compliance with the10
provisions of this Section.11
(7) The department may specify or impose requirements for marking,12
lighting, or warning devices in relation to alternative oyster culture activities. All13
areas where such equipment or materials are present on state water bottoms shall be14
clearly marked. Marking, lighting, and warning devices for alternative oyster culture15
activities shall, at a minimum, comply with United States Coast Guard regulations16
and requirements, and with all state and federal fishing laws and regulations.17
(8) The department may impose requirements for the permittee to report18
information or data necessary or appropriate for the department to monitor the19
activities under the permit or to study such activities and their results.20
(9) The department may require a permittee to post a reasonable removal21
bond in amounts to be determined by the department.22
(10) Any AOC permit shall be terminable by the department and shall23
include language that provides for such termination upon significant or repeated24
violation of the permit or any applicable statutes, rules, or regulations by the25
permittee or anyone authorized by the permittee to engage in alternative oyster26
culture activities on the permitted area.27
(11) Permit violations shall be considered a class three violation punishable28
under the provisions of R.S. 56:33. Theft of or intentionally causing damage to29 HLS 12RS-2119 REENGROSSED
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properly permitted alternative oyster culture equipment or to oysters contained in1
such equipment shall be considered a class four violation punishable under the2
provisions of R.S. 56:34.3
C. Suitability mapping.4
(1) The department shall undertake and complete suitability mapping by5
December 31, 2012, such mapping intended to identify areas of potential conflict6
between alternative oyster culture activities and other existing or anticipated uses of7
state waters and water bottoms, including but not limited to integrated coastal8
protection projects as defined in R.S. 49:214.2. The department shall complete this9
suitability mapping prior to promulgating any rules or regulations to implement the10
provisions of this Section and prior to issuing any AOC permits.11
(2) The department shall use the suitability mapping required by this Section12
to determine areas that are unsuitable or inappropriate for alternative oyster culture13
activities due to creation of unreasonable conflicts with other existing or anticipated14
uses of state waters and water bottoms. The department shall base all rules,15
regulations, and decisions regarding AOC permits on the initial suitability mapping,16
any update or revision to the initial suitability mapping, any master plan or annual17
plan issued pursuant to R.S. 49:214.5.3, and any other information and data deemed18
relevant by the department.19
D. Coastal protection, conservation, or restoration.20
(1) The state of Louisiana, political subdivisions of the state, the United21
States, and any agency, agent, contractor, or employee thereof shall be held free and22
harmless from any claims arising under or as a result of the issuance of any AOC23
permit in relation to diversions of fresh water or sediment, dredging or direct24
placement of dredged or other materials, any other actions taken for the purpose of25
integrated coastal protection, or adverse effects on water quality, including but not26
limited to increased sedimentation or eutrophication or fluctuations in salinity or pH;27
Any AOC permit granted to any individual or other entity shall include language28 HLS 12RS-2119 REENGROSSED
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which shall hold harmless from all such claims the state, political subdivisions of the1
state, the United States, and any agency, agent, contractor, or employee thereof.2
(2) All AOC permits shall be subordinate to the rights or responsibilities of3
the state, any political subdivision of the state, the United States, or any agency or4
agent thereof, to take any action in furtherance of integrated coastal protection. For5
purposes of this Section, "integrated coastal protection" shall have the same meaning6
as provided for by R.S. 49:214.2.7
E. Definitions.8
(1) For purposes of this Section, "alternative oyster culture activity" means9
any on-bottom, off-bottom, or other means of cultivating or growing oysters other10
than directly on reefs or other water bottoms, including but not limited to the use of11
on-bottom cages or bags or floating, suspended, or otherwise off-bottom cages or12
bags, and includes the harvesting of oysters so grown or cultivated.13
(2) For purposes of this Section, equipment and materials used for alternative14
oyster culture activities are excluded from the definition of "fishing gear" provided15
in R.S. 56:8(57).16
Section 4. This Act shall become effective upon signature by the governor or, if not17
signed by the governor, upon expiration of the time for bills to become law without signature18
by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If19
vetoed by the governor and subsequently approved by the legislature, this Act shall become20
effective on the day following such approval.21
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)]
Dove HB No. 1190
Abstract: Authorizes alternative oyster culture activities.
Proposed law:
Authorizes the Dept. of Wildlife and Fisheries to issue an alternative oyster culture permit
(AOC permit) authorizing alternative oyster culture activities within the confines of an
existing oyster lease on a state water bottom. The permit may only be issued to a leaseholder HLS 12RS-2119 REENGROSSED
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and, upon written authorization from the leaseholder, to a person who holds a commercial
fishing license and oyster harvester license. The alternative oyster culture activities can be
conducted on the leased water bottom, or in the water column or on the surface of the water
above the lease. The permit is for 10 years or until the end of the water bottom lease,
whichever occurs first, and is transferrable only with and to the extent that a lease is
transferrable.
Provides for a $100 application fee and an annual fee of $2 per acre per year for the area
permitted, not to exceed $1,000 per year. Authorizes the department to issue the permit for
locations and activities not requested in the permit. Prohibits the issuance of a permit in
areas designated by the U.S. Army Corps of Engineers as a navigable channel or waterway
or within 1,500 feet of the centerline of such channel or waterway; already covered by a
coastal use or drilling permit or within 1,500 feet of the outside of the exterior boundaries
of an area covered by such permit; designated as a part of an integrated coastal protection
project or within 1,500 feet of the outside of the exterior boundaries of such project, located
on water bottoms not claimed by the state; or otherwise determined by the department to be
an area inappropriate for alternative oyster culture activities.
Provides that any AOC permit issued in any of the above listed areas is null and void.
Provides that no coastal use or drilling permit holder shall be liable to any holder of an AOC
permit for any damage to equipment or materials or oysters involved in alternative oyster
culture activities if the coastal use or drilling permit, or any modification to the permit, was
issued prior to the time the AOC permit was issued and if such damage occurs from the
conduct of any activity authorized by the coastal use or drilling permit, except to the extent
that the damage arises from violation of any state or federal law.
Authorizes the department to specify permissible equipment and materials, and requires that
all equipment and materials comply with U.S. Coast Guard regulations and all state and
federal fishing laws.
Authorizes the department to require submission of data to the department. Authorizes the
department to require liability insurance and reasonable removal bond. Authorizes the
department to terminate the permit upon repeated violations of the permit.
Requires the department, prior to the issuance of any alternative oyster culture permit, to
undertake by Dec. 31, 2012, suitability mapping to identify areas where the potential for user
conflict would make alternative oyster culture activities inappropriate. Requires the
suitability mapping to be complete prior to the issuance of rules for the AOC permits.
Indemnifies the state, political subdivisions of the state, the federal government, or any
agency, agent, contractor, or employee of any of these from damage resultant from
alternative oyster culture activities and from damage to alternative oyster culture activities
arising from integrated coastal protection activities.
Provides that all AOC permits shall be subordinate to the rights and responsibilities of the
state, any political subdivision of the state, the federal government, or any agency or agent
thereof.
Effective upon signature of governor or lapse of time for gubernatorial action.
(Amends R.S. 49:214.34(A)(3); Adds R.S. 41:1705(16) and R.S. 56:431.2)