§ 113-202.1. Water column leases for aquaculture.
§ 113‑202.1. Watercolumn leases for aquaculture.
(a) To increase theproductivity of leases for shellfish culture issued under G.S. 113‑202,the Secretary may amend shellfish cultivation leases to authorize use of thewater column superjacent to the leased bottom under the terms of this sectionwhen he determines the public interest will benefit from amendment of theleases. Leases with water column amendments must produce shellfish incommercial quantities at four times the minimum production rate of leasesissued under G.S. 113‑202, or any higher quantity required by the MarineFisheries Commission through duly adopted rules.
(b) Suitable areas forthe authorization of water column use shall meet the following minimumstandards:
(1) Aquaculture use ofthe leased area must not significantly impair navigation;
(2) The leased area mustnot be within a navigation channel marked or maintained by a state or federalagency;
(3) The leased area mustnot be within an area traditionally used and available for fishing or huntingactivities incompatible with the activities proposed by the leaseholder, suchas trawling or seining;
(4) Aquaculture use ofthe leased area must not significantly interfere with the exercise of riparianrights by adjacent property owners including access to navigation channels frompiers or other means of access; and
(5) Any additionalstandards, established by the Commission in duly adopted rules, to protect thepublic interest in coastal fishing waters.
(c) The Secretary shallnot amend shellfish cultivation leases to authorize use of the water columnunless:
(1) The leaseholdersubmits an application, accompanied by a nonrefundable application fee of onehundred dollars ($100.00), which conforms to the standards for leaseapplications in G.S. 113‑202(d) and the duly adopted rules of theCommission;
(2) The proposedamendment has been noticed consistent with G.S. 113‑202(f);
(3) Public hearings havebeen conducted consistent with G.S. 113‑202(g);
(4) The aspects of theproposals which require use and dedication of the water column have beendocumented and are recognized by the Secretary as commercially feasible formsof aquaculture which will enhance shellfish production on the leased area;
(5) It is not feasibleto undertake the aquaculture activity outside of coastal fishing waters; and
(6) The authorized watercolumn use has the least disruptive effect on other public trust uses of thewaters of any available technology to produce the shellfish identified in theproposal.
(d) Amendments of shellfishcultivation leases to authorize use of the water column are issued for a periodof five years or the remainder of the term of the lease, whichever is shorter.The annual rental for a new or renewal water column amendment is one hundreddollars ($100.00) an acre. If a water column amendment is issued for less thana 12‑month period, the rental shall be prorated based on the number ofmonths remaining in the year. The annual rental for an amendment is payable atthe beginning of the year. The rental is in addition to that required in G.S.113‑202.
(e) Amendments ofshellfish cultivation leases to authorize use of the water column are subjectto termination in accordance with the procedures established in G.S. 113‑202for the termination of shellfish cultivation leases. Additionally, suchamendments may be terminated for unauthorized or unlawful interference with theexercise of public trust rights by the leaseholder, agents and employees of theleaseholder.
(f) Amendments ofshellfish cultivation leases to authorize use of the water column are nottransferrable except when the Secretary approves the transfer after publicnotice and hearing consistent with subsection (c) of this section.
(g) After public noticeand hearing consistent with subsection (c) of this section, the Secretary mayrenew an amendment, in whole or in part, when the leaseholder has producedcommercial quantities of shellfish and has otherwise complied with the rules ofthe Commission. Renewals may be denied or reduced in scope when the publicinterest so requires. Appeal of renewal decisions shall be conducted inaccordance with G.S. 113‑202(p). Renewals are subject to the lease termsand rates established in subsection (d) of this section.
(h) The procedures andrequirements of G.S. 113‑202 shall apply to proposed amendments oramendments of shellfish cultivation leases considered under this section exceptmore specific provisions of this section control conflicts between the twosections.
(i) To the extentrequired by demonstration or research aquaculture development projects, theSecretary may amend existing leases and issue leases that authorize use of thebottom and the water column. Demonstration or research aquaculture developmentprojects may be authorized for two years with no more than one renewal and whenthe project is proposed or formally sponsored by an educational institutionwhich conducts research or demonstration of aquaculture. Production ofshellfish with a sales value in excess of one thousand dollars ($1,000) per acreper year shall constitute commercial production. Demonstration or researchaquaculture development projects shall be exempt for the rental rate insubsection (d) of this section unless commercial production occurs as a resultof the project. (1989,c. 423, s. 1; 1989 (Reg. Sess., 1990), c. 1004, s. 4; c. 1024, s. 22; 1993, c.322, s. 1; c. 466, s. 2; 2004‑150, s. 5.)