Bill 590

                    Current Status

Bill Number:               590
Ratification Number:       256
Act Number:                168
Introducing Body:          Senate
Subject:                        Leases of shellfish bottoms

(A168, R256, S590)

AN ACT TO AMEND ARTICLE 5 OF CHAPTER 17 OF TITLE 50, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO LEASES OF SHELLFISH BOTTOMS, SO AS TO PROVIDE THAT THE ARTICLE SHALL APPLY TO SHELLFISH GENERALLY; TO DEFINE COMMERCIAL PURPOSES, STATE RESIDENT, COMMISSION, AND DIVISION; TO PROVIDE FOR THE USE OF INTERTIDAL AND SUBTIDAL BOTTOMS FOR MARICULTURE IN ADDITION TO SHELLFISH CULTURE; TO REDUCE THE AMOUNT OF ACREAGE WHICH MAY BE GRANTED BY PERMIT FROM ONE THOUSAND ACRES TO FIVE HUNDRED ACRES; TO LIMIT THE PERMIT TERM TO FIVE YEARS; TO ALLOW PERMITS FOR SHELLFISH CULTURE USE BY STATE RESIDENTS FOR PURPOSES OTHER THAN COMMERCIAL USE; TO ALLOW FOR CLOSURE OF SHELLFISH GROUNDS AND FOR MITIGATION OR COMPENSATION FOR THE LOSS OF PUBLIC SHELLFISH RESOURCES; TO REQUIRE THE MAKING OF PERMIT MAPS AND PLATS SHOWING SHELLFISH AREAS; TO PROVIDE THAT EACH PERMITTEE SHALL PLANT SPECIFIED NUMBERS OF BUSHELS OF OYSTERS; TO PROVIDE FOR GATHERING OF SHELLFISH FOR REPLANTING; TO REQUIRE APPROVAL OF THE DIVISION FOR A TRANSFER OF A PERMIT; TO PROVIDE FOR THE GATHERING FOR PERSONAL USE OF OYSTERS AND CLAMS; TO PROHIBIT THE HARVESTING OF SHELLFISH FOR COMMERCIAL PURPOSES WITHOUT AN INDIVIDUAL HARVESTING PERMIT; TO REGULATE THE USE OF MECHANICAL DEVICES FOR SHELLFISH HARVESTING; TO ESTABLISH TIMES WHEN IT IS UNLAWFUL TO HARVEST SHELLFISH; TO PROVIDE PENALTIES; TO DEFINE MARICULTURE; TO ESTABLISH THE STANDARD MEASURE FOR THE HARVESTING, SELLING, AND MARKETING OF SHELLFISH; TO REGULATE WHOLESALE SHELLFISH DEALERS; TO ESTABLISH AREAS IN WHICH IT IS UNLAWFUL TO HARVEST SHELLFISH IN GAME ZONE NO. 9; TO ESTABLISH THAT THE DIVISION OF MARINE RESOURCES HAS JURISDICTION OVER ALL NATURAL SHELL DEPOSITS ON STATE-OWNED BOTTOMS AND CERTAIN DEPOSITS LYING ABOVE THE MAIN HIGH-WATER MARK AND MAY REGULATE THE USE OF THE DEPOSITS; AND TO AMEND THE 1976 CODE BY ADDING SECTION 50-17-503, SO AS TO PROVIDE AN ANNUAL FEE FOR PERSONS WHO HARVEST SHELLFISH FOR COMMERCIAL PURPOSES FROM STATE BOTTOMS NOT UNDER PERMIT FOR SHELLFISH CULTURE OR MARICULTURE AS PROVIDED IN SECTION 50-17-710 AND TO PROVIDE FOR THE USE OF THE PROCEEDS OF THE FEE; AND TO REPEAL ARTICLE 9 OF CHAPTER 17 OF TITLE 50 OF THE 1976 CODE RELATING TO SHELLFISH.

The General Assembly intends for this act to provide increased recreational opportunities for the citizens of this State and increased opportunity for participation in the commercial harvesting of shellfish.

The General Assembly further intends that the compensation and mitigation provisions in Section 50-17-720 of this act are not meant to and shall not facilitate the permitting process for coastal development but instead are to provide additional safeguards for the preservation and conservation of the state's shellfish resources.

Be it enacted by the General Assembly of the State of South Carolina:

Shellfish

SECTION 1. Article 5 of Chapter 17 of Title 50 of the 1976 Code is amended to read:

"ARTICLE 5

Shellfish

Section 50-17-705. As used in this article:

(1) 'Commercial purposes' means being engaged in the commercial fisheries industry with the intent to derive a livelihood or a substantial portion of livelihood from the industry.

(2) 'State resident' has the same meaning as provided in Section 50-9-30 added to the Code as Section 28-18 of the 1962 Code by Act 742 of 1976.

(3) 'Commission' means the South Carolina Wildlife and Marine Resources Commission.

(4) 'Division' means the Division of Marine Resources.

Section 50-17-710. a. The Division may grant permits to any state resident of the exclusive portions of the intertidal and subtidal bottoms owned or controlled by the State, for the purpose of shellfish culture or mariculture for commercial purposes, not exceeding an aggregate of five hundred acres to any firm or individual. For any shellfish culture purpose other than for commercial use, the Division may issue permits for as many as two acres, but no more, to any state resident at the annual fee provided in Section 50-17-760.

b. Each permit issued under this section must be for a term of five years and any permit may be renewed at the option of the Division for an additional term of five years at the yearly rate provided in Section 50-17-760.

Section 50-17-720. a. In the event that the State authorizes any activity or use requiring the permanent closure of shellfish grounds the portion of a permitted area which falls within the closed area may be removed from the permit acreage agreement by the Commission. If a portion of the acreage is removed, the permit acreage agreement and annual fee must be adjusted on the annual renewal date as prescribed in Section 50-17-770.

b. In the event a state or federal permit is issued over the objections of the Wildlife and Marine Resources Department, or for a project of overriding public need, and if the permitted project causes the closure of any shellfish grounds or renders any bottoms unsuitable for the purpose of shellfish propagation, the Department may require the permittee to mitigate or compensate or both for the loss of such public shellfish resource.

The compensation must be remitted to the Division and placed in a special fund for shellfish management.

Compensation and mitigation under authority of this section may not be considered as factors in justifying the issuance of any such permit and this section may not be interpreted as authorizing the closure of any shellfish grounds or authorizing the rendering of any bottoms unsuitable for shellfish propagation.

In the event an unauthorized action results in a closure of shellfishing waters or renders them temporarily or permanently unsuitable for the purpose of shellfish propagation, the party responsible for the action may be required by the department to mitigate the loss of the resource and to compensate for damages which result from the loss of the shellfish resource.

c. The terms of the mitigation or compensation authorized by subsection (b) and the amount of the award of damages must be determined in the first instance by the Commission. Its determination shall constitute final decision for the purpose of subsection (a) of Section 8 of Part II of Act 176 of 1977 and the affected party may seek judicial review, pursuant to the decision.

Section 50-17-730. Any person desiring to acquire permit rights to any bottom, as provided in Section 50-17-710, shall apply upon forms prescribed by the Division. The nonrefundable sum of twenty-five dollars shall accompany the application for each permit. The application shall include the location and boundaries of the area desired to be used. If the area is subject to a permit, the Division shall determine the acreage of shellfish bottoms and acreage capable of producing shellfish and shall have a permit map or plat made, in accordance with the Division specifications showing the perimeter boundaries of the area and the bottoms to be used for shellfish culture in the area. No other permit for shellfish culture on the bottoms delineated within a plat or permit map may be made during the term of the permit. Provided, the Division has the authority to issue permits for mariculture, as defined in Section 50-17-860, within the perimeter boundaries of an existing permit if it is determined by the Division that the mariculture operation will not interfere with the harvesting and cultivation of shellfish by the permittee. If any additional area suitable for cultivation of shellfish is found within the perimeter boundaries of the permit area, prior to the renewal of the permit or at the time of application for a new permit, the original permittee shall have first opportunity to acquire permit rights to the area capable of producing shellfish. The annual permit fee must be based upon the number of acres capable of producing shellfish within the boundaries of the entire permit area.

Section 50-17-740. Upon approval of the application and plat by the Director of the Division, the applicant shall publish in a newspaper in which legal advertisements by the sheriff are published in the county wherein the territory applied for is located, a notice to all persons of the application for permit rights to the bottoms for the culture of shellfish, giving the name of the applicant and a sufficient description of the bottoms applied for to enable them to be located. The advertisement must be published once a week for three weeks prior to the granting of a shellfish culture permit.

Section 50-17-750. Should an application be made by a person who was the holder of the lease or permit on the bottoms for the term immediately preceding the term for which application is made, preference must be given to that applicant, if he has complied with all of the cultivation and planting requirements of this article. Section 50-17-760. Each permittee shall pay for a permit under Section 50-17-710 an annual fee of five dollars an acre for the acreage of bottoms delineated on the permit map or plat lying below the mean high-water mark.

Section 50-17-770. The annual fee for shellfish permits must be prorated from the first of the month following the issuance of the permit to January first next. Thereafter, all annual fees must be payable yearly in advance. On January first the Director of the Division shall render a bill to each permittee showing the amount owed. If the annual fee is not paid by February first, the Division shall add a late payment penalty of ten percent of the total originally due and shall send a final notice advising the permittee that if he fails to pay the fee and the late payment fee before March first, the Division shall declare the permit revoked for noncompliance.

Section 50-17-780. Each permittee shall plant one hundred and twenty-five bushels of shell, cultch, or seed oysters annually for each acre of bottoms which is producing or capable of producing shellfish included in his permit issued under Section 50-17-710. All shell must be planted between May first and August thirty-first, except that raw shuck houses may replant green shell from current operations if the shell is replanted within three days after gathering. All shell and seed planting may be under supervision of the Division of Marine Resources, which may require up to five percent of the total quota of shell or seed oysters of any permittee to be planted on state shellfish bottoms not under permit but within a twenty-mile radius of the permittee's place of business. Shell or seed oysters planted by a permittee on those bottoms must be credited to the permittee's annual quota in the amount equal to two times that of the number of bushels actually planted. The Division may, at its discretion, provide incentives to permittees for improved or innovative management and cultivation techniques in the form of additional planting credits or planting variances. If a permittee does not plant the required quota of shell or seed oysters on the permit area, the permit must be revoked by the Division or the acreage of shellfish reduced based upon the percentage of the quota planted. In the event a permittee believes that a permit area or portion of it does not require planting during a given year for reasons of sound management, he may apply in writing to the Division for a variance in his annual quota. The Division may then conduct an inspection of the permit area or portion of it to determine whether the requested variance may be granted, and notify the permittee of its decision. The decision of the Division in those matters is legally binding. For the purpose of shell planting, a U.S. bushel is the standard measurement. One cubic yard of shell for planting is considered as twenty-one and seven-tenths U. S. bushels.

The provisions of this section do not apply to mariculture operations as defined under Section 50-17-860. The division is authorized to specify the terms and conditions on any permit issued for the purpose of shellfish mariculture.

Section 50-17-790. Persons granted permits for shellfish cultivation may gather shellfish for replanting from the bottoms of the State which may be designated from time to time by the Division for such purpose. The permittee shall advise the Director ten days before moving the seed.

Section 50-17-800. In addition to the requirements of this article, the Division may specify other permit terms and conditions that it considers appropriate. One year after the date of the permit issued under Section 50-17-710 and each year thereafter during the life of the permit, if the permittee has not met the terms and conditions of the permit or the legal requirements of this Article, the Division may after notice, revoke the permit. Prior to the reissuance of any permit in the area, consideration must be given to the designation of all or part of the area as state shellfish grounds for public use.

Section 50-17-810. No permit issued under Section 50-17-710 may be transferred without the approval of the Division endorsed on it to be effective or to act as a release of the original permittee from the terms of the permit.

Section 50-17-820. Any person may gather for personal use not more than two U. S. bushels of oysters or one-half of one U. S. bushel of clams, or both, in any one day from state bottoms designated for public shellfishing. When bottoms are under permit by the State for shellfish cultivation as provided in Section 50-17-710, written permission for the gathering of shellfish must be obtained from the permit holder. This written permission must be on the person of the harvester when he is gathering shellfish from the area. Any person violating the provisions of this section must, upon conviction, be punished as provided in Section 50-17-130, and any shellfish in the possession of any person cited for a violation of this section may be seized and returned to the bottoms in the area harvested.

Section 50-17-830. Owners of riparian property may gather shellfish for personal use in the amounts specified in Section 50-17-820 from bottoms adjoining their property without a license, if written permission for the purpose is obtained from the Division.

Section 50-17-840. It is unlawful for any person to take or harvest shellfish for commercial purposes from state-owned bottoms

without an individual harvesting permit issued by the Division. A permit is also required for harvesting shellfish from any bottoms of the State by mechanically operated devices including dredges, hydraulic escalators, patent tongs, and mechanical oyster harvesters. The harvesting permits shall include provisions specifying the areas, times, types of equipment, species to be harvested, catch reporting requirements, and other conditions that the Division determines necessary. The Division may limit the number of harvesting permits in accordance with sound fishery management practices.

Any person issued any permit under this section shall harvest shellfish, whether for commercial or personal use, only from the areas of state bottoms specified on the permit.

The harvesting permits required by this section are in addition to the shellfish culture permits provided for under Section 50-17-710.

It is unlawful for any person to harvest shellfish between one-half hour after official sunset and one-half hour before official sunrise. In the case of bottoms under permits issued in accordance with Section 50-17-710, harvesting of shellfish during the period specified is lawful with the written permission of the Division.

Any person violating the provisions of this section or failing to abide by the provisions of a permit issued under this Section is guilty of a misdemeanor and, upon conviction, must be fined not less than one hundred dollars nor more than two hundred dollars or imprisoned for not more than thirty days. In addition, any person found guilty of a violation of any of the conditions or requirements of a permit issued under this section, or convicted of a violation of applicable conservation laws or regulations, shall have the permit issued to him suspended for the next thirty open season days following the date of conviction. Any boat, motor, and fishing equipment used by a person engaged in the taking of shellfish without a permit as required by this section, or during the period which his permit has been suspended, must be seized, and upon conviction, sold, or redeemed as provided for in Section 50-17-1615.

Section 50-17-850. It is unlawful for any person to remove, take, or harvest any shellfish, as defined in Section 50-17-20, from the coastal waters and bottoms of the State from May fifteenth to September fifteenth, inclusive. The Commission, acting upon the advice of the Division, has the authority to open or close any area of state waters or bottoms for the removal, taking, or harvesting of shellfish for specified periods at any time during the year when biological and other conditions warrant the action. Nothing in this act may be construed to alter the authority of the Department of Health and Environmental Control to open and close shellfish grounds for public health reasons.

Nothing in this section shall prevent the removal of shellfish for the purpose of replanting under permit granted by the Division. Possession of live oysters or clams during the closed season is prima facie evidence of a violation of the provisions of this section. Clams and oysters may be imported during the closed season in this State from other states where the taking and possession of the shellfish is lawful. Each shipment or load of imported shellfish must be properly marked and identified to verify compliance with the provisions of this section. Any person violating the provisions of this section is guilty of a misdemeanor and upon conviction must be punished as provided in Section 50-17-130.

Section 50-17-860. As used in this section, 'mariculture' means the controlled cultivation in confinement of marine and estuarine organisms.

The Division may grant permission to persons engaged in mariculture operations to harvest, have in possession, and sell shellfish at any time during the year.

Section 50-17-870. The Division shall maintain and keep open areas where licensed bona fide residents of this State may gather, for personal use, not more than two bushels of oysters in any one day. The areas must be designated upon the approval of a majority of the county legislative delegation. The open areas must be located preferably at or near public landings. The Division shall clearly mark and identify the open areas so that the public may readily recognize them as open areas. The Division is responsible for the maintenance of the signs. Any person violating the provisions of this section must, upon conviction, be punished as provided in Section 50-17-130.

Section 50-17-880. The standard measure for the harvesting, selling, and marketing of shellfish in South Carolina is the U. S. bushel, equal to 2150.42 cubic inches.

Section 50-17-890. It is unlawful for any wholesale shellfish dealer licensed under Section 50-17-450 to purchase shellfish from any person other than a properly licensed and permitted commercial fisherman or another properly licensed and approved seafood dealer. He shall maintain a record of all shellfish purchases which shall include the name and address of the seller, the area where harvested, the type of shellfish purchased, the date of purchase and the commercial shellfisherman's license number of the seller. The record must be available for inspection upon proper identification by any lawfully constituted law enforcement officer, conservation officer, or authorized management personnel of the Division. Any person violating the provisions of this section is guilty of a misdemeanor and upon conviction must be fined not less than five hundred dollars nor more than one thousand dollars or imprisoned for not more than ninety days, or both.

Section 50-17-900. It is unlawful to commercially harvest shellfish in Game Zone No. 9 between Butler Inlet (Pawley's Inlet) and Midway Inlet in Georgetown County. Any person violating the provisions of this section is guilty of a misdemeanor and upon conviction must be fined not less than fifty dollars nor more than two hundred dollars or imprisoned not more than thirty days.

Section 50-17-910. The Division has jurisdiction over all natural shell deposits, including those of oysters, clams, and other molluscans occurring upon or within state-owned bottoms. In addition, the Division has jurisdiction over all shell deposits lying above the mean high-water mark if the deposits have been created by processes of natural accretion upon state-owned lands or bottoms. The Coastal Council permit requirements for alteration of critical areas apply to the removal of all shell deposits within a critical area.

The Division may grant permits to any person to remove shell from natural deposits for use in shellfish cultivation and mariculture. The permits must be issued for a term not to exceed three years and shall specify conditions the Division may require, including areas from which shell may be harvested, dates and schedules of harvesting, types of equipment which may be used and reporting requirements. Prior to granting permission to remove, the Division shall analyze the potential for increased erosion in the area of the shell which is removed. Permission may be granted only when no significant erosion potential is foreseen. If permission is granted and the removal does cause significant erosion in the area, the person granted permission shall restore the area to its original condition or as close to its original condition as possible under the circumstances.

The Division shall specify a fixed price for each unit of shell removed. Payments for shell removed must be made by the permit holder on or before the tenth day of each month for the preceding month.

All monies derived from the sale of shell under this section must be deposited in a special fund to be used for the management and improvement of shellfish bottoms utilized solely for the purpose of recreational harvest by the public and the bottoms may not be permitted for commercial operations for a period of not less than ten years.

The Division shall promulgate regulations it determines are necessary to carry out the provisions of this section.

Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, punished as provided in Section 50-17-130. In addition, any permits issued for the removal of shell must be revoked by the Division."

Repeal

SECTION 2. Article 9 of Chapter 17 of Title 50 of the 1976 Code is repealed.

Fee

SECTION 3. The 1976 Code is amended by adding:

"Section 50-17-503. An annual license fee of twenty-five dollars and fifty cents is required of any person who harvests shellfish for commercial purposes from state bottoms not under permit for shellfish culture or mariculture as provided in Section 50-17-710. Fifty cents of this fee may be retained by the issuing agent and the balance must be remitted to the Division.

All funds derived from the sale of licenses under this section must be deposited in a special fund to support the public shellfish program of the Division."

Time effective

SECTION 4. This act shall take effect May 1, 1986.