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ACT No. 293
Regular Session, 2012
HOUSE BILL NO. 1190 (Substitute for House Bill No. 683 by Representative Dove)
BY REPRESENTATIVE DOVE
AN ACT1
To amend and reenact R.S. 49:214.34(A)(3) and to enact R.S. 41:1705(16) and R.S.2
56:431.2, relative to alternative oyster culture; to authorize the Department of3
Wildlife and Fisheries to issue permits for alternative oyster culture activities; to4
provide parameters for such permits; to provide relative to coastal use permits5
necessary for such activities; to provide relative to penalties; and to provide for6
related matters.7
Be it enacted by the Legislature of Louisiana:8
Section 1. R.S. 41:1705(16) is hereby enacted to read as follows:9
§1705. Application of Chapter; exemptions10
This Chapter shall not apply to:11
* * *12
(16) Alternative oyster culture permits legally issued by the Department of13
Wildlife and Fisheries pursuant to R.S. 56:431.2.14
Section 2. R.S. 49:214.34(A)(3) is hereby amended and reenacted to read as follows:15
§214.34. Activities not requiring a coastal use permit16
A. The following activities shall not require a coastal use permit.17
* * *18
(3) Agricultural, forestry, and aquaculture activities on lands consistently19
used in the past for such activities; however, alternative oyster culture activities20
permitted pursuant to R.S. 56:431.2 shall be subject to coastal use permit21
requirements unless, after June 30, 2015, the secretary determines that these uses are22
exempt from coastal use permit requirements.23
* * *24 ENROLLEDHB NO. 1190
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are additions. ENROLLEDHB NO. 1190
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Section 3. R.S. 56:431.2 is hereby enacted to read as follows:1
§431.2. Alternative oyster culture; permits2
A. Alternative Oyster Culture Permits.3
(1) The provisions of R.S. 3:559.1 through 559.13, R.S. 56:412, 431.1, and4
579.1 notwithstanding, the department is authorized to issue an alternative oyster5
culture permit (AOC permit) to a leaseholder holding a valid oyster lease of state6
water bottoms pursuant to R.S. 56:427 or 428. The area permitted for alternative7
oyster culture shall not extend beyond the boundaries of an existent lease. No AOC8
permit may be issued unless a reasonable investigation into the question of9
ownership is complete and, based on the findings, a determination is made that the10
state owns the water bottom to be covered by the permit. No AOC permit may be11
issued until the department has completed the suitability mapping required in12
Subsection C of this Section.13
(2) An AOC permit authorizes the permittee and, upon written authorization14
by the permittee, any person holding a valid oyster harvester license pursuant to R.S.15
56:303.6 and a valid commercial fisherman's license pursuant to R.S. 56:303, to16
engage in the alternative oyster culture activities specified by the department in the17
permit on the permitted area. The permittee may engage in such activities on the18
water bottoms, in the water column, and on the water surface above the water19
bottoms within the permitted area, to the extent specified by the department in the20
permit, and in accordance with the provisions of this Section.21
(3) The department may issue AOC permits in numbers, locations, sizes, and22
configurations specified by the department.23
(4) An AOC permit shall be transferrable only with and to the extent of any24
transfer of the lease, and only to the transferee of the lease; however, the permitted25
leaseholder may authorize any person holding a valid oyster harvester license26
pursuant to R.S. 56:303.6 and a valid commercial fisherman's license pursuant to27
R.S. 56:303 to engage in alternative oyster culture activities pursuant to the AOC28
permit. An AOC permit shall be valid for ten years or until termination of the lease,29
including any renewal thereof, to which the permit pertains, whichever occurs first.30 ENROLLEDHB NO. 1190
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If the lease is renewed pursuant to R.S. 56:428, the AOC permit shall continue in1
effect until expiration of the ten-year term.2
(5) The department shall promulgate, in accordance with the Administrative3
Procedure Act, rules and regulations to implement the provisions of this Section.4
B. Application and Permitting.5
(1) The application for an AOC permit shall be accompanied by an6
application fee of one hundred dollars. The fee for the permit shall be two dollars7
per year per acre permitted, not to exceed one thousand dollars per permit per year.8
(2) Based on the initial suitability mapping required by this Section, any9
update or revisions to the initial suitability mapping, any master plan or annual plan10
issued pursuant to R.S. 49:214.5.3, and any other information and data deemed11
relevant by the department, the department may grant an AOC permit for a different12
location, size, or configuration, and for different alternative oyster culture activity13
than what was requested in the application.14
(3) No AOC permit shall authorize alternative oyster culture activities in an15
area that is any of the following at the time the AOC permit is issued, and any permit16
that includes such areas is null and void, but only to the extent that it includes such17
areas:18
(a) Designated by the United States Army Corps of Engineers as a navigable19
channel or waterway or within fifteen hundred feet of the centerline of such channel20
or waterway.21
(b) Covered by a coastal use permit or drilling permit or within fifteen22
hundred feet of the outside of the exterior boundaries of an area covered by a coastal23
use permit or drilling permit.24
(c) Designated for dredging, direct placement of dredged or other materials,25
or other work or activities for the construction or maintenance of a project for26
integrated coastal protection or within fifteen hundred feet of the outside of the27
exterior boundaries of an area designated for such dredging, direct placement, or28
other work or activities.29 ENROLLEDHB NO. 1190
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(d) Located on water bottoms that are not claimed by the state, as determined1
by the state land office.2
(e) Otherwise determined by the department to be unsuitable or inappropriate3
for alternative oyster culture activities.4
(4) No coastal use or drilling permit holder or agent thereof shall be liable5
to any holder of an AOC permit, any person to whom such permit has been6
transferred, or any other person authorized by the AOC permit holder to engage in7
alternative oyster culture activities, for any damage to or loss of equipment or8
materials used in alternative oyster culture activities within the AOC permit area, or9
for any damage to or loss of any oysters being grown or cultivated within the AOC10
permit area as a consequence of alternative oyster culture activities, where both of11
the following are true:12
(a) The coastal use or drilling permit, or any modification to it, was issued13
prior to the time that the AOC permit was issued.14
(b) Such damage arises out of or results from the conduct of any activity15
authorized by or permitted under the coastal use or drilling permit, except to the16
extent that the damage or loss arises from violation of any state or federal17
environmental law or regulation or occurs outside the area of the coastal use permit18
or drilling permit.19
(5) The state of Louisiana, political subdivisions of the state, the United20
States, and any agency, agent, contractor, or employee thereof shall be held harmless21
from any claim arising as a result of operations by or for a permittee pursuant to an22
AOC permit, and the permittee shall indemnify the state of Louisiana, political23
subdivisions of the state, the United States, and any agency, agent, contractor, or24
employee thereof against any such claim. Prior to engaging in alternative oyster25
culture activities pursuant to an AOC permit, the permittee shall have obtained all26
other local, state, and federal permits necessary for such activity.27
(6) The department may specify or impose limitations regarding the28
equipment and materials authorized to be used for alternative oyster culture29
activities. All equipment and materials used for alternative oyster culture activities30 ENROLLEDHB NO. 1190
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shall, at a minimum, comply with United States Coast Guard regulations and1
requirements, and with all state and federal fishing laws and regulations. Any2
equipment and materials used for alternative oyster culture activities authorized3
pursuant to this Section may be transported or used in compliance with the4
provisions of this Section.5
(7) The department may specify or impose requirements for marking,6
lighting, or warning devices in relation to alternative oyster culture activities. All7
areas where such equipment or materials are present on state water bottoms shall be8
clearly marked. Marking, lighting, and warning devices for alternative oyster culture9
activities shall, at a minimum, comply with United States Coast Guard regulations10
and requirements, and with all state and federal fishing laws and regulations.11
(8) The department may impose requirements for the permittee to report12
information or data necessary or appropriate for the department to monitor the13
activities under the permit or to study such activities and their results.14
(9) The department may require a permittee to post a reasonable removal15
bond in amounts to be determined by the department.16
(10) Any AOC permit shall be terminable by the department and shall17
include language that provides for such termination upon significant or repeated18
violation of the permit or any applicable statutes, rules, or regulations by the19
permittee or anyone authorized by the permittee to engage in alternative oyster20
culture activities on the permitted area.21
(11) Permit violations shall be considered a class three violation punishable22
under the provisions of R.S. 56:33. Theft of or intentionally causing damage to23
properly permitted alternative oyster culture equipment or to oysters contained in24
such equipment shall be considered a class four violation punishable under the25
provisions of R.S. 56:34.26
C. Suitability mapping.27
(1) The department shall undertake and complete suitability mapping by28
December 31, 2012, such mapping intended to identify areas of potential conflict29
between alternative oyster culture activities and other existing or anticipated uses of30 ENROLLEDHB NO. 1190
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state waters and water bottoms, including but not limited to integrated coastal1
protection projects as defined in R.S. 49:214.2. The department shall complete this2
suitability mapping prior to promulgating any rules or regulations to implement the3
provisions of this Section and prior to issuing any AOC permits.4
(2) The department shall use the suitability mapping required by this Section5
to determine areas that are unsuitable or inappropriate for alternative oyster culture6
activities due to creation of unreasonable conflicts with other existing or anticipated7
uses of state waters and water bottoms. The department shall base all rules,8
regulations, and decisions regarding AOC permits on the initial suitability mapping,9
any update or revision to the initial suitability mapping, any master plan or annual10
plan issued pursuant to R.S. 49:214.5.3, and any other information and data deemed11
relevant by the department.12
D. Coastal protection, conservation, or restoration.13
(1) The state of Louisiana, political subdivisions of the state, the United14
States, and any agency, agent, contractor, or employee thereof shall be held harmless15
from any claims arising under or as a result of the issuance of any AOC permit in16
relation to diversions of fresh water or sediment, dredging or direct placement of17
dredged or other materials, any other actions taken for the purpose of integrated18
coastal protection, or adverse effects on water quality, including but not limited to19
increased sedimentation or eutrophication or fluctuations in salinity or pH. Any20
AOC permit granted to any individual or other entity shall include language which21
shall hold harmless from all such claims the state, political subdivisions of the state,22
the United States, and any agency, agent, contractor, or employee thereof.23
(2) All AOC permits shall be subordinate to the rights or responsibilities of24
the state, any political subdivision of the state, the United States, or any agency or25
agent thereof, to take any action in furtherance of integrated coastal protection. For26
purposes of this Section, "integrated coastal protection" shall have the same meaning27
as provided for by R.S. 49:214.2.28 ENROLLEDHB NO. 1190
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E. Definitions.1
(1) For purposes of this Section, "alternative oyster culture activity" means2
any on-bottom, off-bottom, or other means of cultivating or growing oysters other3
than directly on reefs or other water bottoms, including but not limited to the use of4
on-bottom cages or bags or floating, suspended, or otherwise off-bottom cages or5
bags, and includes the harvesting of oysters so grown or cultivated.6
(2) For purposes of this Section, equipment and materials used for alternative7
oyster culture activities are excluded from the definition of "fishing gear" provided8
in R.S. 56:8(57).9
Section 4. This Act shall become effective upon signature by the governor or, if not10
signed by the governor, upon expiration of the time for bills to become law without signature11
by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If12
vetoed by the governor and subsequently approved by the legislature, this Act shall become13
effective on the day following such approval.14
SPEAKER OF THE HOUSE OF REPRESENTATI VES
PRESIDENT OF THE SENATE
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED: