§ 113-202.2. Water column leases for aquaculture for perpetual franchises. - North Carolina Statutes

§ 113‑202.2.  Watercolumn leases for aquaculture for perpetual franchises.

(a)        To increase the productivity of shellfish grants andperpetual franchises for shellfish culture recognized under G.S. 113‑206,the Secretary may lease the water column superjacent to such grants orperpetual franchises (hereinafter "perpetual franchises") under theterms of this section when it determines the public interest will benefit fromthe lease.  Perpetual franchises with water column leases must produce shellfishin commercial quantities at four times the minimum production rate of leasesissued under G.S. 113‑202, or any higher quantity required by the MarineFisheries Commission by rule.

(b)        Suitable areas for the authorization of water column useshall meet the following minimum standards:

(1)        Aquaculture use of the leased water column area must notsignificantly impair navigation;

(2)        The leased water column area must not be within a navigationchannel marked or maintained by a State or federal agency;

(3)        The leased water column area must not be within an areatraditionally used and available for fishing or hunting activities incompatiblewith the activities proposed by the perpetual franchise holder, such astrawling or seining;

(4)        Aquaculture use of the leased water column area must notsignificantly interfere with the exercise of riparian rights by adjacentproperty owners including access to navigation channels from piers or othermeans of access;

(5)        The leased water column area may not exceed 10 acres forgrants or perpetual franchises recognized pursuant to G.S. 113‑206;

(6)        The leased water column area must not extend more than one‑thirdof the distance across any body of water or into the channel third of any bodyof water for grants or perpetual franchises recognized pursuant to G.S. 113‑206;and

(7)        Any additional rules to protect the public interest incoastal fishing waters adopted by the Commission.

(c)        The Secretary shall not lease the water column superjacentto oyster or other shellfish grants or perpetual franchises unless:

(1)        The perpetual franchise holder submits an application,accompanied by a nonrefundable application fee of one hundred dollars($100.00), which conforms to the standards for lease applications in G.S. 113‑202(d)and rules adopted by the Commission;

(2)        Notice of the proposed lease has been given consistent withG.S. 113‑202(f);

(3)        Public hearings have been conducted consistent with G.S. 113‑202(g);

(4)        The aspects of the proposals which require use anddedication of the water column have been documented and are recognized by theSecretary as commercially feasible forms of aquaculture which will enhanceshellfish production;

(5)        It is not feasible to undertake the aquaculture activityoutside of coastal fishing waters; and

(6)        The authorized water column use has the least disruptiveeffect on other public trust uses of the waters of any available technology toproduce the shellfish identified in the proposal.

(d)        Water column leases to perpetual franchises shall be issuedfor a period of five years and may be renewed pursuant to subsection (g) ofthis section.  The rental for an initial water column lease issued under thissection is the same as the rental set in G.S. 113‑202.1 for an initialwater column amendment issued under that section, and the rental for a renewedwater column lease issued under this section is the same as the rental set inG.S. 113‑202.1 for a renewed water column amendment issued under thatsection.

(e)        Water column leases to perpetual franchises may be terminatedfor unauthorized or unlawful interference with the exercise of public trustrights by the leaseholder or his agents or employees.

(f)         Water column leases to perpetual franchises are nottransferrable except when the Secretary approves the transfer after publicnotice and hearing consistent with G.S. 113‑202(f) and (g).

(g)        After public notice and hearing consistent with G.S. 113‑202(f)and (g), the Secretary may renew a water column lease, in whole or in part, ifthe leaseholder has produced commercial quantities of shellfish and hasotherwise complied with this section and the rules of the Commission.  Renewalsmay be denied or reduced in scope when the public interest so requires.  Appealof renewal decisions shall be conducted in accordance with G.S. 113‑202(p). Renewals are subject to the lease terms and rates set out in subsection (d) ofthis section.

(h)        The procedures and requirements of G.S. 113‑202 shallapply to proposed water column leases or water column leases to perpetualfranchises considered under this section except that more specific provisionsof this section control conflicts between the two sections.

(i)         Demonstration or research aquaculture development projectsmay be authorized for two years with no more than one renewal and when theproject is proposed or formally sponsored by an educational institution whichconducts aquaculture research or demonstration projects.  Production ofshellfish with a sales value in excess of one thousand dollars ($1,000) peracre per year shall constitute commercial production.  Demonstration orresearch aquaculture development projects shall be exempt from the rental ratein subsection (d) of this section unless commercial production occurs as aresult of the project. (1989 (Reg. Sess., 1990), c. 958, s. 1; 1993, c. 322, s. 2, c. 466, s.3.)