The proposed rule amendments will revise and update Rule 18-21, F.A.C., to implement statutory changes in Chapter 253, F.S., and establish forms of authorization for aquacultural activities including: aquaculture leases, aquaculture letters of ...  


  • RULE NO: RULE TITLE
    18-21.001: Intent
    18-21.002: Scope and Effective Date
    18-21.003: Definitions
    18-21.004: Management Policies, Standards, and Criteria
    18-21.005: Forms of Authorization
    18-21.0051: Delegation of Authority
    18-21.008: Applications for Lease
    18-21.011: Payments and Fees
    18-21.020: Aquacultural Activities
    18-21.021: Applications for Aquacultural Activities
    18-21.022: Payments and Fees for Aquacultural Activities
    18-21.900: Forms
    PURPOSE AND EFFECT: The proposed rule amendments will revise and update Rule 18-21, F.A.C., to implement statutory changes in Chapter 253, F.S., and establish forms of authorization for aquacultural activities including: aquaculture leases, aquaculture letters of consent and aquaculture management agreements. The effect of the proposed rule amendments will be to clarify DACS’ duties and functions related to managing aquacultural activities on sovereignty submerged lands.
    SUMMARY: The proposed rule amendments provide for the administrative and management responsibilities of the Board of Trustees of the Internal Improvement Trust Fund and the Department of Agriculture and Consumer Services regarding the use of sovereignty submerged lands for aquacultural purposes.
    SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: The agency has determined that this rule will not have an impact on small business. A SERC has not been prepared by the agency.
    Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
    SPECIFIC AUTHORITY: Art. X, Sec. 14, Fla. Const., 253.002, 253.03(7), (11), 253.73 FS.
    LAW IMPLEMENTED: 253.001, 253.002, 253.03, 253.04, 263.115, 253.12, 253.141, 253.47, 253.512, 253.52-.54, 253.61, 253.67-.75, 253.77, 597.010 FS.
    A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
    DATE AND TIME: Tuesday, April 28, 2009, 1:00 p.m.
    PLACE: Division of Aquaculture, Conference Room, 1203 Governor’s Square Blvd., 5th Floor, Tallahassee, FL 32301
    Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 7 days before the workshop/meeting by contacting: Mark E. Berrigan (850)488-5471. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
    THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Mark E. Berrigan, Chief of Aquaculture Development, 1203 Governor’s Square Blvd., 5th Floor, Tallahassee, FL 32301

    THE FULL TEXT OF THE PROPOSED RULE IS:

    18‑21.001 Intent.

    The intent and purpose of this rule is:

    (1) through (3) No change.

    (4) To manage and provide maximum protection for all sovereignty lands, especially those important to public drinking water supply, shellfish harvesting, aquaculture, public recreation, and fish and wildlife propagation and management;

    (5) through (6) No change.

    Rulemaking Specific Authority 253.03(7) FS., Art. X, Sec. 14, Fla. Const. Law Implemented 253.03, 253.12 FS. History–New 3‑27‑82, Formerly 16Q‑21.01, 16Q‑21.001, Amended________.

     

    18‑21.002 Scope and Effective Date.

    (1) These rules are to implement the administrative and management responsibilities of the Bboard, the Ddepartment of Environmental Protection and the Department of Agriculture and Consumer Services regarding sovereignty submerged lands. Responsibility for environmental permitting of activities and water quality protection on sovereignty and other lands is vested with the Department of Environmental Protection. The responsibility for managing aquacultural activities on sovereignty lands is vested with the Department of Agriculture and Consumer Services. These rules are considered cumulative. Therefore, a person planning an activity should consult other applicable department rules as well as the rules of the Department of Environmental Protection and the Department of Agriculture and Consumer Services regarding aquacultural activities.

    (2) through (5) No change.

    Rulemaking Specific Authority 253.03 (7), 253.73 FS. Law Implemented 253.002(1), 253.03, 253.12, 253.68, 253.77 FS. History–New 3‑27‑82, Amended 8‑1‑83, 9‑4‑84, Formerly 16Q‑2.02, 16Q‑21.002, Amended 12‑25‑86, 3‑15‑90,________.

     

    18‑21.003 Definitions.

    When used in these rules, the following definitions shall apply unless the context clearly indicates otherwise:

    (1) through (9) No change.

    (10) “Aquaculture” means the cultivation of aquatic organisms and associated activities, including, but not limited to grading, sorting, transporting, harvesting, holding, storing, growing and planting animal or plant life in an aquatic environment.

    (11) “Aquaculture Activities” means any activities related to the production of aquacultural products, including, but not limited to, producing, storing, handling, grading, sorting, transporting, harvesting, and aquacultural support docking.

    (11) through (15) renumbered (12) through (16) No change.

    (17) “DACS” means the Florida Department of Agriculture and Consumer Services for the purposes of aquaculture in Rules 18-21.020, 18-21.021, and 18-21.022, F.A.C.

    (18)(17) “Department” means the State of Florida Department of Environmental Protection (DEP), as administrator for the Bboard.

    (17) through (26) renumbered (19) through (28) No change.

    (27) “High-density lease area” means a contiguous tract of sovereignty submerged lands which allows for an array of multiple aquaculture leases configured to facilitate management and enforcement.

    (27) through (68) renumbered (28) through (69) No change.

    Rulemaking Specific Authority 253.03(7), 253.73 FS. Law Implemented 253.001, 253.03, 253.68, 253.77 FS. History–New 9‑26‑77, Formerly 16C‑12.01, 16Q‑17.01, Amended 3‑27‑82, 8‑1‑83, 2‑25‑85, Formerly 16Q‑21.03, 16Q‑21.003, Amended 12‑25‑86, 1‑25‑87, 3‑15‑90, 8‑18‑92, 3‑20‑94, 10‑15‑98, 8‑1‑01, 12‑11‑01, 10‑29‑03, 12‑16‑03, 3‑8‑04, 1‑1‑06, 4-14-08,________.

     

    18‑21.004 Management Policies, Standards, and Criteria.

    The following management policies, standards, and criteria shall be used in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty submerged lands, except activities associated with aquaculture. The management policies, standards, criteria, and fees for aquacultural activities conducted on or over sovereignty submerged lands are provided in Rules 18-21.020 through 18-21.022, F.A.C.

    (1) General Proprietary.

    (a) through (j) No change.

    (k) No application to use sovereignty, submerged land adjacent to or surrounding an unbridged, undeveloped coastal island or undeveloped coastal island segment may be approved by the Board of Trustees unless it meets the following criteria:

    1. through 3. No change.

    4. The proposed use is for the purpose of allowing access, for public purposes, to publicly owned uplands or submerged lands for recreation, research, conservation, mosquito control, aquaculture or restoration activities only, and is otherwise consistent with the provisions of Rule Chapter 18‑18, 18‑20, or 18‑21, F.A.C.

    (l) through (n) No change.

    (2) Resource Management.

    (a) through (l) No change.

    (m) Aquaculture policy, standards and criteria. The Board of Trustees hereby declares the following policies with regard to aquaculture authorizations leases issued pursuant to this rule.

    1. It shall be a policy of the State of Florida to foster aquaculture when the aquaculture activity is consistent with state resource management goals, proprietary interest, environmental protection and antidegradation goals. Further such aquaculture shall not displace existing leases, viable commercial or recreational harvesting areas open to the general public but create new areas for the purification or cultivation of marine resources.

    2. The Board will not grant consent for activities that would adversely affect existing aquaculture leases by degrading ambient water quality.

    3. The Board will oppose the issuance of any permit which would reasonably be expected to degrade water quality at an aquaculture lease site.

    4. The Board shall review the impact of the aquaculture rule amendment concerning the right of first refusal on the revenues generated by the program by January 1992.

    5. Aquaculture leases result in the exclusion of the general public from sovereign lands, for the benefit of the individual. Consequently, such leases should be issued only after careful review and upon such conditions that protect the public interest.

    6. An aquaculture lease shall contain provisions to ensure adequate marking of the leased area. Such marking shall be sufficient to prevent the aquaculture activity from constituting a nuisance, a hazard to navigation, or a safety hazard.

    7. A coordinated review process will be used by the Division of State Lands to ensure that the proposed sites are suitable for aquaculture activities.

    8. The area to be leased shall comply with the following standards and criteria:

    a. Riparian rights shall not be unreasonably infringed upon. When reviewing an application from a nonriparian applicant the Department shall consider water depth, location of navigation channels, distance from shore and the width of the waterbody. An aquaculture lease area for a nonriparian applicant can be approved greater than or equal to 100 feet waterward of mean or ordinary high water or greater than or equal to 100 feet waterward of existing structures on sovereignty lands only if the applicant obtains a letter of permission from the upland owner, a greater setback may be required to protect riparian rights.

    b. A setback 25 feet from the riparian lines of adjacent property owners shall be required.

    c. Setbacks from other activities, channels or structures shall also be required to ensure safety, facilitate enforcement abilities or ensure resource management.

    d. The leased area shall not be closer than 100 feet from a marked channel.

    e. The lease shall not be approved for a parcel larger than ten acres for oysters or five acres for clams unless the lease is a voluntary conversion. Exceptions to a ten acre maximum aquaculture lease area may be approved by the Board upon a recommendation from the Division of Marine Resources concerning the ability of the applicant to develop the lease.

    f. The relay or the culture of indigenous or hybridized plants or animals may be approved as an aquaculture activity.

    g. The activity shall not be contrary to the public interest or, if within aquatic preserves, that the activity be consistent with aquatic preserve management plans and rules as determined by the coordinated review required in subparagraph 18‑21.005(1)(c)2., F.A.C.

    h. A clam lease shall not be granted in areas where, at the time of inspection by the Division of Marine Resources, it would preempt public access to significant harvestable resources.

    i. An oyster lease shall not be granted in an area where it would preempt public access to significant harvestable resources.

     j. Experimental leases shall be limited to research institutions for noncommercial activities.

    k. No lease, other than an experimental lease, shall be issued for a parcel that is within a state park boundary.

    (n) through (o) No change.

    (3) through (6) No change.

    (7) General Conditions for Authorizations. All authorizations granted by rule or in writing under Rule 18-21.005, F.A.C., except those for aquaculture activities and geophysical testing, shall be subject to the general conditions as set forth in paragraphs (a) through (i) below. The general conditions shall be part of all authorizations under this chapter, shall be binding upon the grantee, and shall be enforceable under Chapter 253 or 258, Part II, F.S.

    (a) through (i) No change.

    (8) No change.

    Rulemaking Specific Authority 253.03(7), 253.73 FS. Law Implemented 253.001, 253.03, 253.141, 253.68, 253.72, 253.74, 253.75, 253.77 FS. History–New 3‑27‑82, Amended 8‑1‑83, Formerly 16Q‑21.04, 16Q‑21.004, Amended 12‑25‑86, 1‑25‑87, 3‑15‑90, 8‑18‑92, 10‑15‑98, 12‑11‑01, 10‑29‑03, 12‑16‑03, 3‑8‑04, 10‑27‑05, 4-14-08,________.

     

    18‑21.005 Forms of Authorization.

    (1) The appropriate form of authorization, for activities that meet the applicable rules and statutes of the Board, shall be determined based on consideration of all of the provisions of this rule section. It is the intent of the Board that the form of authorization shall grant the least amount of interest in the sovereignty submerged land necessary for the activity. The forms of authorization for aquacultural activities, which shall include aquaculture leases, aquaculture letters of consent, and aquaculture management agreements, are provided in subsection 18-21.020(2), F.A.C. For activities not specifically listed, the Board will consider the extent of interest needed and the nature of the proposed activity to determine which form of authorization is appropriate. Co‑located activities can be authorized, provided that the activities are compatible and the form of authorization for each activity is determined by the provisions of this rule section.

    (a) through (d) No change.

    (e) An aquaculture lease or an existing clam or oyster lease is required for the relay of shellfish from polluted waters for purification or the culture of plant and animal life within the bottom or water column of sovereignty lands which preempts the recreational or commercial use by the general public.

    1. The Division of State Lands shall coordinate, or require the applicant to provide the items incidental to, the review process and agenda preparation for applications to lease submerged lands which can include the water column for aquaculture in order to determine that proposed sites are suitable for aquaculture activities. State Lands shall also coordinate the agenda preparation for voluntary conversions of shellfish leases to aquaculture leases after the Division of Marine Resources has provided the results of a coordinated review for such conversions to State Lands.

    2. The review procedures to be followed for new applications and renewals include:

    a. A positive recommendation from the Division of Marine Resources concerning;

    (I) The desirability of the proposed aquaculture from a resource management perspective;

    (II) The size of area requested for lease being appropriate to the use;

    (III) The suitability of the site for leasing;

    (IV) Recommended special lease conditions; and

    (V) The ability of the applicant to perform the work.

    b. Department of Environmental Protection review of the application, when appropriate, to assess the effect of the proposal on water quality and habitat.

    c. The Army Corps of Engineers review and comment on the effect of the lease on navigation and boating safety.

    d. A recommendation by the Fish and Wildlife Conservation Commission for any application to conduct freshwater aquaculture, concerning impacts on natural resource management.

    e. The Division of Recreation and Parks has been given thirty days to comment on the consistency of the proposal with management goals and objectives if the application is within an aquatic preserve or a state park boundary.

    f. The county commission has been given thirty days to review the project application pursuant to Section 253.68, F.S.

    g. The municipality has been given thirty days to review the rule based on any applicable local plans and ordinances and to recommend, by resolution, that the Board approve or deny the application. No response shall be considered as no objection.

    (f) through (g) renumbered (e) through (f) No change.

    (2) No change.

    (3) Requests for sales, exchanges, leases, aquaculture leases, and easements on sovereignty submerged lands shall be processed in accordance with the notice and hearing requirements of Section 253.115, F.S., except easements that qualify for a general permit or a noticed general permit under Chapter 373, F.S., provided that the proposed activity is not of heightened public concern. When noticing is required under Section 253.115, F.S., the applicant shall provide a list of names and addresses from the latest county tax assessment roll, of all property owners within a 500-foot radius of the proposed lease or easement boundary in mailing label format. In lieu of the Board providing notice of application for lease or easement, an applicant may elect to send the notice, provided the notice is sent by certified mail, with the return-receipt card addressed to the Department or to DACS, as applicable.

    Rulemaking Specific Authority 253.03(7), 253.73 FS. Law Implemented 253.001, 253.68, 253.77 FS. History–New 9‑26‑77, Formerly 16C‑12.01, 16Q‑17.01, Amended 3‑27‑82, 8‑1‑83, Formerly 16Q‑21.05, 16Q‑21.005, Amended 1‑25‑87, 3‑15‑90, 10‑15‑98, 3‑8‑04,________.

     

    18‑21.0051 Delegation of Authority.

    (1) The purpose of this section is to delegate certain review and decision‑making authority of the Board, regarding the use of sovereignty submerged lands, to the Secretary of the Department of Environmental Protection, the Commissioner of Agriculture, and the Governing Boards of the Suwannee River Water Management District, the St. Johns River Water Management District, the Southwest Florida Water Management District, and the South Florida Water Management District, as applicable.

    (2) No change.

    (3) The Commissioner of Agriculture is delegated the authority to review and take final agency action on behalf of the Board on applications to use Board-owned submerged lands and water columns for any activity for which the Department of Agriculture and Consumer Services has responsibility pursuant to Sections 253.67-.75, F.S., and Section 597.010, F.S., except the Board shall retain authority to grant the following:

    (a) Establishing any areas for leasing, new leases, expanding existing lease areas, or changing the type of lease activity in existing leases; and

    (b) Authorizing aquacultural activities in a managed area, such as state parks, aquatic preserves, marine sanctuaries, or research reserves, when the Department of Environmental Protection has determined that the proposed aquaculture activity is inconsistent with the management goals and objectives of that area.

    (4)(3) The Secretary of the Department of Environmental Protection and the Governing Boards of the specified Water Management Districts and the Commissioner of Agriculture may further delegate review and decision making authority for of activities authorized under Rule 18‑21.002, F.A.C., to staff within their respective agencies.

    (5)(4) The delegations set forth in subsection (2) and (3) are not applicable to a specific application for a request to use sovereignty submerged lands under Chapter 253 or 258, F.S., where one (1) or more members of the Board, the Department of Environmental Protection, the Department of Agriculture and Consumer Services, or the appropriate water management district determines that such application is reasonably expected to result in a heightened public concern, because of its potential effect on the environment, natural resources, or controversial nature or location.

    Rulemaking Specific Authority 253.002, 253.73 FS. Law Implemented 253.002, 253.67-.75, 597.010 FS. History–New 10‑12‑95, Amended 10‑29‑03, 10‑27‑05,________.

     

    18‑21.008 Applications for Lease.

    Applications for the following categories of leases are found in this section: standard, extended term, aquaculture, and oil and gas. Special event leases are addressed in Rule 18‑21.0082, F.A.C.

    (1) through (2) No change.

    (3) Aquaculture Lease.

    (a) Applications for aquaculture leases shall include the following:

    1. Name, address and phone number of the applicant.

    2. Legal description and acreage of the parcel sought subsequent to final approval of the application but prior to issuance of the lease.

    3. Two prints of a survey subsequent to final approval of the application but prior to issuance of the lease of the parcel sought prepared, signed, and sealed by a person properly licensed by the Florida State Board of Land Surveyors when required by Chapter 472, F.S., or an agent of the federal government acceptable to the department. Preliminary site approval can be based upon marking off the general configuration of the parcel sought, including the acreage of the parcel and LORAN or latitude and longitude coordinates for the corners of the parcel identified on a USGS 7.5 minute topographic map or a navigation chart if a topographic map is not printed for the lease area.

    4. Description of the aquaculture activities to be conducted, including whether such activities are to be experimental or commercial, and an assessment of the current capability of the applicant to conduct such activities.

    5. Statement explaining why the lease is not contrary to the public interest, or within aquatic preserves, why the lease is in the public interest.

    6. Names and addresses, as shown on the latest county tax assessment roll, of each owner of property lying within 1,000 feet of the parcel sought, certified by the county property appraiser.

    7. Statement of the significant impact of the proposed use of the parcel sought on the ecology of the area.

    8. A $200 nonrefundable processing fee.

    9. A statement by all nonriparian applicants wishing to lease areas, not designated by the state, whether they wish to negotiate the fixed lease fee or to bid the lease for the first ten year lease term.

    10. Copies of comments received from the review of the application required by subparagraph 18‑21.005(1)(c)2., F.A.C.

    11. Proof of publication and notification required pursuant to Section 253.70, F.S.

    12. Experimental leases shall be limited to research institutions for noncommercial activities.

    (b) The Department may hold a public hearing in response to concerns raised in response to the public notice requirement prior to making any staff recommendation concerning the lease.

    (c) If staff determines that the application is complete and complies with the standards and criteria of the rule then they will agenda the application for approval to lease the parcel sought. The lease fee amount shall be determined by competitive bid or negotiation. The Department shall require the applicant to cause notice of such lease proposal to be published in a newspaper in the county in which the parcel is situated once a week for three consecutive weeks. If bidding is required, the bid amount, representing the first years lease fee shall be submitted prior to the advertised closing date and time. A copy of the notice shall also be sent to the county commission and the municipal government if applicable by certified mail prior to the appearance of the first newspaper notice. Such notice shall contain the following:

    1. Preliminary location description and acreage of parcel sought.

    2. Terms of the lease acceptable to the Board and a description of the aquaculture activity being proposed.

    3. Deadline, time, and date for the receipt of all bids.

    4. Address to which all bids shall be sent.

    5. The date, time, and place of the opening of bids.

    (d) A lease shall not be approved by the Board when a resolution of objection, adopted by a majority of the county commissioners of the county in which the parcel sought is situated, has been filed with the Department within 30 days of the date of first publication of the notice of lease.

    (e) Determination of the annual fixed rate lease fee for aquaculture leases shall be determined by negotiation or bidding.

    1. The use of negotiation or bidding shall be determined:

    a. By negotiation between the Department and the riparian upland owner when said owner is the applicant, pursuant to subparagraph 18‑21.004(2)(l)8., F.A.C., up to the ten acre maximum.

    b. By negotiation between the Department and nonriparian applicants for the first lease term when the applicant nominates the site.

    c. By competitive bid:

    (I) When the Department designates sites for lease,

    (II) After the first lease term for all nonriparian leases, or,

    (III) At the option of the nonriparian applicant when the applicant nominates a site.

    2. Any financial data determined to be necessary by the Department for the purposes of negotiations shall be supplied by the applicant upon the Department’s request.

    3. Competitive bids for aquaculture leases shall be written offers which shall include the advertised fee for the first lease year, the amount offered above such fee for said first year being a competitive bid. The consideration offered shall accompany the written offer and shall be returned to the unsuccessful bidders upon award of the lease, rejection of all bids, or the matching of the high bid by the existing leaseholder.

    4. The successful bidder shall reimburse the original applicant for his documented application and advertising fees.

    5. The successful bidder shall reimburse the prior leaseholder for the nondepreciated costs of physical improvement not including the aquatic resource value.

    (f) Each lease document shall as a minimum contain the following:

    1. The term of the lease which shall not exceed ten (10) years.

    2. The amount of fee per acre leased to be paid on or before January 1 each year which shall take the form of a fixed fee to be paid throughout the term of the lease.

    3. The disposition to be made of all improvements and animal and plant life upon the termination or cancellation of the lease.

    4. A statement that the lease may be assigned, transferred in any manner, in whole or in part, only after written approval by the Board. Failure of the lessee to obtain written approval may be grounds for revocation and cancellation of the lease.

    5. A list of approved harvesting techniques that can be used on the lease.

    (g) Failure to perform the aquaculture activities for which the lease was granted shall be grounds for cancellation of the lease and forfeiture to the State of Florida of all the work improvements, animal and plant life in and upon the parcel leased. In addition, a performance bond is required to ensure compliance with the standards of this rule and the specifications and conditions of the lease. The bond requirement shall be met by execution of a bond, an escrow account, or an acceptable letter of credit in favor of the Trustees. The amount of the bond should be based on the cost of removing the structures and restoring the site to predevelopment conditions for leases including the water column. A bond equal to the first year’s annual rental per acre shall be sufficient for bottom shellfish culture techniques.

    (h) The parcel leased shall be identified, well marked, and shall have, except when it will interfere with the development of the animal and plant life being cultivated by the lessee, reasonable public access for boating, swimming, and fishing. All limitations on the public use of the parcel leased as set forth in the lease shall be clearly posted in conspicuous places by the lessee. Each parcel leased shall be marked in compliance with the rules and regulations of the Department, U.S. Coast Guard, and the U.S. Army Corps of Engineers.

    (3)(4) No change.

    Rulemaking Specific Authority 253.03(7), 253.73 FS. Law Implemented 253.03, 253.04, 253.115, 253.12, 253.47, 253.512, 253.52‑.54, 253.61, 253.67-.75 FS. History–New 12‑20‑78, Formerly 16C‑12.14, 16Q‑17.14, Amended 3‑27‑82, 8‑1‑83, 2‑25‑85, 3‑19‑85, Formerly 16Q‑21.08, 16Q‑21.008, Amended 1‑25‑87, 10‑11‑98, 12‑11‑01, 3‑8‑04, 8‑10‑05,________.

     

    18‑21.011 Payments and Fees.

    (1) through (3) No change.

    (4) Aquaculture Leases.

    (a) The dollar amount of the fixed rate consideration for aquaculture leases shall be determined as follows:

    1. By negotiation between the Department and the riparian upland owner when said owner is the applicant.

    2. By negotiation between the Department and the nonriparian applicant for the first lease term when the applicant nominates the site.

    3. By competitive bid:

    a. When the Department designates sites for lease,

    b. After the first lease term for all nonriparian leases, or

    c. At the option of the nonriparian applicant when the applicant nominates a site.

    4. An appraisal may be required when deemed appropriate by the Department. The cost of such appraisal shall be borne by the applicant.

    5. Any production data determined to be necessary by the Department for the purposes of negotiation shall be supplied by the applicant upon the Department’s request.

    6. Fees for experimental aquaculture leases for public and nonprofit research institutions may be waived by the Board.

    (b) Bids for aquaculture leases shall be written offers with a cash consideration which shall be based on a lease fee per acre per year. The competitive bid submitted to the Department shall include the bid per acre times the number of acres in the lease area offered. The total cash consideration offered shall accompany the written offer and shall be returned to the unsuccessful bidders upon award of the lease, or upon the matching of the high bid by the existing leaseholder upon rejection of all bids. The successful bidder will be required to pay all costs of legal advertisement in connection with this lease sale. All bids must be in a sealed envelope marked SEALED BID – STATE AQUACULTURE LEASE – showing lease number and date of sale, and accompanied by certified or cashier’s check made payable to the Department of Environmental Protection, Bureau of State Lands Management, the full amount of the cash consideration offered as the bid.

    1. All applicants including the existing leaseholder must submit a bid to be eligible for a lease when bidding is required.

    a. The bid shall be received by the Department prior to the advertised closing date and time.

    b. The existing leaseholder shall have five days to match the high bid and renew the lease if outbid.

    c. When the existing leaseholder does not bid or does not exercise the right of first refusal the new lessee shall allow the prior leaseholder unencumbered access to the lease in order to harvest the aquaculture crop during the first year of the new lease.

    2. Each bidder shall include as part of the bid a certified statement as to any submerged land lease holdings which have been granted by the State. Such statement shall also include the lease number and legal description for all such leases issued.

    3. After the first year, the amount bid per acre shall be paid by the successful bidder on or before the first day of the month in which the lease was granted as a fee to be paid throughout the term of the lease.

    4. The annual lease fee shall not be less than a fixed rate of $15 per acre for a bottom lease and $30 per acre when the lease is to include the water column. The annual fee shall be fixed by bidding or negotiation and adjusted annually pursuant to subparagraph 18‑21.011(1)(b)6., F.A.C., to ensure the fixed rate is not reduced by inflation.

    5. Existing shellfish leaseholders may convert to an aquaculture lease if they wish to include the water column in the leased area. Converted leaseholders that are not riparian owners shall have the first right of refusal if they are outbid.

    6. When the water quality designation that is necessary for the particular activity is lost due to degradation of water quality the leaseholder shall have the option of:

    a. Returning the lease to the state,

    b. Conducting an aquaculture activity that is consistent with the change in water quality upon written approval by the Board or,

    c. Continuing to retain the lease.

    (4)(5) No change.

    Rulemaking Specific Authority 253.03(7), (11), 253.73 FS. Law Implemented 253.03, 253.71 FS. History–New 3‑27‑82, Amended 5‑18‑82, 8‑1‑83, 9‑5‑84, 10‑20‑85, Formerly 16Q‑21.11, 16Q‑21.011, Amended 1‑25‑87, 9‑6‑87, 3‑15‑90, 10‑11‑98, 10‑15‑98, 10‑29‑03, 3‑8‑04, 1‑1‑06, 4-14-08,________.

     

    18-21.020 Aquacultural Activities.

    (1) Intent – It is in the state’s economic, resource enhancement, and food production interest to promote aquacultural production of food and non-food aquatic species by facilitating the review and approval processes for authorizing the use of sovereignty submerged lands and water columns for aquacultural purposes. Aquaculture development should be fostered when the aquaculture activity is consistent with state resource management goals, proprietary interest, environmental protection, the state aquaculture plan, and the public interest, as expressed in Section 258.42, F.S.

    (2) Forms of authorization – For the purpose of Rules 18-21.020, 18-21.021 and 18-21.022, F.A.C., conducting aquacultural activities on sovereignty submerged lands and in  the water column shall be authorized by an aquaculture lease, an aquaculture letter of consent, or an aquaculture management agreement.

    (a) An aquaculture lease is required for all revenue-generating aquacultural activities conducted on or over sovereignty submerged lands, except those aquacultural activities associated with an aquaculture facility that qualifies for an aquaculture letter of consent pursuant to subsection 18-21.020(5), F.A.C., or an aquaculture management agreement pursuant to subsection 18-21.020(6), F.A.C.

    (b) A letter of consent shall be issued for aquaculture activities that meet the requirements of subsection 18-21.020(5) and Chapter 5L-3, F.A.C.

    (c) An aquaculture management agreement shall be issued for public and private entities to conduct certain aquacultural activities for educational, scientific, demonstration and experimental purposes when such activities meet the requirements of subsection 18-21.020(6), F.A.C., and education is the primary objective.

    (3) Aquaculture general standards and criteria – The following standards and criteria shall be used in determining whether to authorize, authorize with conditions or modifications, or deny all requests to conduct aquacultural activities on sovereignty submerged lands.

    (a) Aquacultural activities on sovereignty submerged lands or water columns shall be authorized only when the proposed activity has been determined to be a water dependent aquaculture activity and upon such conditions that protect the public interest.

    (b) DACS shall consider location of the site, water body, water depth, navigation and safety hazards, channels, distance from shore, presence of fish and wildlife habitat, presence of submerged resources, threatened and endangered species, presence of threatened and endangered species habitat, user conflicts, and resource management when reviewing a request for an aquaculture lease, an aquaculture letter of consent, or an aquaculture management agreement.

    (c) Aquacultural activities shall not prevent ingress and egress of vessels in marked channels, or in unmarked channels that provide the only means of passage.

    (d) All aquaculture leases, aquaculture letters of consent, or aquaculture management agreements for aquacultural activities on sovereignty submerged lands shall contain such terms, conditions and restrictions as deemed necessary by the Board to protect and manage sovereignty lands.

    (e) The management policies provided in paragraphs 18-21.004(1)(e), (g), (h), and (k), F.A.C., shall be applied when considering whether to authorize aquacultural activities on sovereignty submerged lands. However, paragraph 18-21.004(1)(k), F.A.C., shall not apply to applications for aquaculture activities which request the exclusive use of the water bottom for cultivation adjacent to unbridged, undeveloped coastal islands.

    (f) The management policies provided in paragraphs 18-21.004(2)(e), (f), (g), and (h), F.A.C., involving filling, shoreline stabilization, or severance of material shall be applied when considering whether to authorize aquacultural activities on sovereignty submerged lands.

    (g) Aquacultural activities on sovereignty submerged lands shall be designed to minimize or eliminate adverse impacts on fish and wildlife habitat, including: sea grasses, endangered and threatened species, wetland vegetation, and water quality.

    (h) Authorizations under this rule shall prohibit the cultivation of non-indigenous, or hybrids of non-indigenous, plants and animals.

    (i) Riparian rights shall be protected pursuant to subsection 18-21.004(3), F.A.C.

    (j) Authorization of aquacultural activities on sovereignty submerged lands, including aquatic preserves, shall be consistent with Chapters 18-18 and 18-20, F.A.C., and Section 258.42, F.S., when applicable.

    (k) Upon issuance of an aquaculture lease or an aquaculture management agreement, DACS shall send a copy of the document and accompanying survey to the Title and Land Records Section, Division of State Lands in the Department of Environmental Protection for filing in the permanent title records of the Board.

    (l) No authorization, other than a management agreement, shall be issued for a parcel within a state park boundary.

    (m) Aquacultural activities that are conducted in accordance with best management practices adopted under Chapter 5L-3, F.A.C., are exempt from the provisions of Rule 18-21.00401, F.A.C. Activities for which best management practices have not been adopted pursuant to Chapter 5L-3, F.A.C., and require a permit under Part IV of Chapter 373, F.S. shall be subject to concurrent review in accordance with Rule 18-21.00401, F.A.C., and provided that DACS and the Department of Environmental Protection shall issue a joint recommended consolidated intent. Application for an aquaculture authorization will be submitted to DACS and the joint application for an environmental resource permit shall be submitted to the Department of Environmental Protection as required.

    (n) Applications for aquaculture docks in the Florida Keys shall comply with the provisions in Rule 18-21.0041, F.A.C.

    (4) Specific standards and criteria for aquaculture leases. Leased areas shall comply with the following:

    (a) An aquaculture lease is only to be used to conduct aquacultural activities on sovereignty submerged lands and the overlying water column, or for activities associated with an on-shore aquaculture facility. Allowable aquaculture activities on an on-shore aquaculture facility or aquaculture dock include hatchery and nursery cultivation systems, intake and discharge pipes, pumps, loading and off-loading aquaculture products,  and the mooring of vessels used by aquaculture producers in planting, growing, harvesting, and transporting aquacultural products.

    (b) Aquaculture lease applications shall require coordinated review pursuant to Rule 18-21.021, F.A.C., to ensure that the proposed sites are suitable for aquacultural activities.

    (c) When the leased area is within an aquatic preserve, research reserve, marine sanctuary, or state park, the activity shall be compatible with the managed area’s management plan, or prevailing management policies when a management plan has not been developed, and consistent with Sections 258.42 and 373.406, F.S., as determined by the coordinated review required in subparagraph 18-21.021(1)(f)2., F.A.C.

    (d) DACS shall recommend that the Board create a high-density lease area when it receives ten or more individual lease applications in the same water body within a six month period to encourage regional aquacultural and economic development, facilitate resource management, reduce potential adverse environmental impacts, and reduce user conflicts.

    (e) Riparian rights shall not be infringed upon. An aquaculture lease area for a nonriparian applicant shall not be approved when the distance is less than or equal to 100 feet waterward of mean or ordinary high water or less than or equal to 100 feet waterward of existing structures and permitted activities on sovereignty lands, unless the applicant obtains a letter of concurrence from the upland riparian owner. The Board shall establish greater setbacks to protect riparian rights when upland uses, ingress and egress, or activities on or over sovereignty submerged lands would be limited by the proposed aquaculture activity.

    (f) Aquaculture leases shall contain provisions to ensure that the lease area is marked and that markers are maintained for the term of the lease. Such marking shall be adequate to inform the public of the activity and assist the leaseholder in identifying potential navigation and safety hazards.

    (g) The leased area in aquaculture leases shall comply with the following:

    1. A setback of 25 feet from the riparian lines of adjacent properties shall be required unless a letter of concurrence from the adjacent property owners waives the setback requirement.

    2. Setbacks from other activities, channels or structures shall also be required, as needed, to ensure safety, facilitate enforcement abilities and ensure resource management.

    3. The leased area shall not be approved for a parcel larger than ten acres for oysters or five acres for clams, unless the lease is a voluntary conversion of a shellfish lease issued under Section 597.010, F.S. The Board shall approve a larger lease size if it determines, based on the applicant’s business plan and ability to develop a larger parcel, that additional area can be supported by the applicant.

    (h) An aquaculture lease, an aquaculture management agreement, or a shellfish lease is required for the relay of shellfish from polluted waters for purification, unless a site is specifically designated by DACS for such purposes. Relaying activities on leased areas shall be conducted pursuant to subsection 597.010(19), F.S.

    (i) An aquaculture lease for culturing hard clams or oysters shall not be granted in areas where, at the time of inspection, DACS determines that the lease would preempt public access to harvestable resources of hard clams or oysters; harvestable resources shall be established as:

    1. More than five legal-size clams per square meter over more than fifty percent of the proposed lease area; or

    2. A natural oyster reef covering more than 100 square feet within the proposed lease area.

    (j) The Board shall impose additional standards and criteria for aquaculture leases when necessary to enhance resource management, as provided in subsection 18-21.004(2), F.A.C., and to protect riparian rights and public safety.

    (k) Aquaculture leases for docks shall be placed in sovereignty submerged lands designated as Resource Protection Area 3 when such areas are available and will not result in substantial reductions in proposed operations. Construction of docks and associated aquacultural operations on sovereignty submerged lands designated as Resource Protection Area 2 shall be authorized according to special conditions which minimize adverse environmental impacts. Construction of docks and associated aquacultural operations on sovereignty submerged lands designated as Resource Protection Area 1 shall be avoided, except under special circumstances as stated in this chapter. Docks shall not terminate in a Resource Protection Area 1 or 2, however main access docks will be allowed to pass through Resource Protection Areas 1 and 2 to reach an acceptable Resource Protection Area 3 when reasonable assurances are provided that such crossing will not generate significant adverse environmental impacts. Resource Protection Areas are defined in Rule 18-20.003, F.A.C. Special lease conditions shall be approved by the Board before a dock is authorized on an aquaculture lease located in a Resource Protection Area 1 or 2; the Board shall consider special circumstances such as: lack of practicable alternatives, compatibility with the aquatic preserve management plans, and compliance with special lease conditions.

    (5) Specific standards and criteria for an aquaculture letter of consent.

    (a) Use of sovereignty submerged lands for aquacultural activities associated with on-shore aquaculture facilities that are not included in an aquaculture lease, aquaculture dock lease, or state lands lease, and which are used by aquaculture producers in planting, growing, harvesting, and transporting aquacultural products, on or over sovereignty submerged lands, shall be authorized by a letter of consent. Such activities  include hatchery and nursery cultivation, intake and discharge pipes and pumps, areas in which loading and off-loading of aquacultural products occur, and mooring of not more than four vessels. To qualify for a letter of consent, such facilities must conform to the following criteria:

    1. Be constructed and operated, as appropriate, in compliance with Chapters 18-18, 18-20, 18-21, and 5L-3, F.A.C., and the applicable permits issued by the Department of Environmental Protection under Chapter 373, F.S.; and the applicant has obtained and maintains a valid aquaculture certification pursuant to Chapter 597, F.S.

    2. Occupy no more than 2,000 square feet of sovereignty submerged lands.

    3. Be constructed so as to result in minimal adverse impacts on fish and wildlife habitat.

    4. Follow the setback required in this section to protect riparian rights, unless the applicant obtains a letter of concurrence from the neighboring upland property owner.

    (b) No more than one letter of consent shall be authorized for a single individual, company or corporation for contiguous parcels, structures, or activities, if such action is determined to circumvent the requirements in this section.

    (c) Any use of sovereignty submerged lands for aquacultural activities that do not conform to these criteria shall obtain an aquaculture lease, a standard sovereignty submerged lands lease, or an easement, as appropriate under this chapter.

    (d) If an area subject to a consent of use is within an aquatic preserve, research reserve, marine sanctuary, or state park, the activity shall be compatible with the managed area’s management plan, or prevailing management policies when a management plan has not been developed, and consistent with Sections 258.42 and 373.406, F.S.

    (e) The Board shall approve changes to the specific standards and criteria for a letter of consent only if the Board determines that such changes are necessary to enhance resource management, as provided in subsection 18-21.004(2), F.A.C., and protect riparian rights and public safety.

    (6) Specific standards and criteria for an aquaculture management agreement – The use of sovereignty submerged lands authorized by an aquaculture management agreement shall comply with the following:

    (a) Be for educational, scientific, demonstration, and experimental activities related to aquaculture when commercial production is not the primary purpose.

    (b) Be limited to state agencies, local governments, educational institutions, or research institutions when the proposed aquacultural activity or use of sovereignty submerged lands is consistent with the public purposes of the applicant organization and is not an adjunct to a commercial endeavor. Public-private partnerships for demonstration and pilot scale aquaculture programs that provide general public benefit are also eligible to obtain aquaculture management agreements.

    (c) If within an aquatic preserve, research reserve, marine sanctuary, or state park, the activity shall be compatible with the managed area's management plan, or with applicable management policies when a management plan has not been developed, and consistent with Sections 258.42 and 373.406, F.S. Applications for aquaculture management agreements in managed areas shall be reviewed by the Department of Environmental Protection, as determined by the coordinated review required in paragraph 18-21.021(1)(f), F.A.C.

    (d) Riparian rights shall not be infringed upon.

    (e) The area subject to an aquaculture management agreement shall be marked, and the markers maintained for the term of the agreement. Such marking shall be adequate to inform the public of the activity and alert the public of potential navigation or safety hazards.

    (f) Establish setbacks from other activities or structures as required to ensure safety, facilitate enforcement abilities and ensure resource management.

    (g) Ensure that the cultivation of indigenous, or hybrids of indigenous, plants or animals is consistent with Chapter 597, F.S. Relaying activities shall be conducted pursuant to subsection 597.010(19), F.S.

    (h) Aquaculture management agreements must be approved by the Board.

    (7) Leaseholders possessing oyster and clam leases granted under provisions of former chapter 370, F. S., prior to 1985, shall convert to an aquaculture lease if they wish to include the water column in the leased area. Lease conversions shall be subject to the applicable provisions of Rules 18-21.020, 18-21.021, and 18-21.022, F.A.C., when the requested modification requires changing the proposed use or expanding the lateral extent of the existing lease area.

    (8) When the water quality designation, including the shellfish harvesting area designation, that is necessary for the particular activity is lost due to degradation of water quality, and water quality degradation is not due to the aquacultural activity, the leaseholder shall have the option of:

    (a) Canceling the lease;

    (b) Conducting an aquaculture activity that is consistent with the change in water quality with prior written approval of the Board; or

    (c) Retaining the lease.

    Rulemaking Authority 253.03(7), 253.73 FS. Law Implemented 253.002, 253.67-75, 253.77 FS. History–New_________.

     

    18-21.021 Applications for Aquacultural Activities.

    (1) Aquaculture lease application and review process.

    (a) An aquaculture lease to conduct aquacultural activities on sovereignty submerged lands or the overlying water column shall meet the criteria for an aquaculture lease in Rule 18-21.020, F.A.C.

    (b) Applications for aquaculture leases shall be obtained from and submitted to the Division of Aquaculture at the address listed in subsection 18-21.021(7), F.A.C. The Application for a State Owned Sovereignty Submerged Land Aquaculture Lease (DACS 15102, Rev. 02/09) is hereby adopted and incorporated by reference and may be obtained on the Internet at http://www.floridaaquaculture.com or by writing to the Division of Aquaculture at 1203 Governor’s Square Boulevard, Fifth Floor, Tallahassee, Florida 32301.

    (c) Applications for aquaculture leases shall include the following:

    1. Name, address and phone number of the applicant.

    2. Description of the aquaculture activities to be conducted, including whether such activities are to be experimental or commercial.

    3. A statement describing the applicant's capabilities to conduct the proposed activities.

    4. Location of the proposed activity including: county; section, township and range; water body; and a vicinity map.

    5. Satisfactory evidence of sufficient upland interest to the extent required by paragraph 18-21.004(3)(b), F.A.C.

    6. Names and addresses, as shown on the latest county tax assessment roll, of each owner of property lying within 500 feet of the parcel sought, prepared from current records of the county property appraiser.

    7. A statement describing the potential impacts of the proposed use on the ecology of the area, including sea grasses, fish habitat, threatened and endangered species, and other natural resources present on the parcel sought.

    8. A statement explaining why the lease is not contrary to the public interest, or within aquatic preserves, why the lease is in the public interest.

    9. An application fee as specified in Rule 18-21.022, F.A.C.

    10. A statement by applicants wishing to lease areas not designated by the state, whether they wish to negotiate the fixed lease fee or to bid the lease for the first ten-year lease term.

    11. Proof of publication and notification required pursuant to Section 253.70, F.S.

    (d) In addition to these requirements, applications for docks or other aquaculture-related structures connected to upland which require use of the water column shall include the following, as applicable:

    1. Satisfactory evidence of sufficient upland interest in the riparian upland property to the extent required by paragraph 18-21.004(3)(b), F.A.C.

    2. A detailed statement describing the proposed activities, including the project design and description of all operations.

    3. A detailed and dimensioned site plan drawing showing:

    a. The approximate mean or ordinary high water line;

    b. The location of wetland, shoreline and aquatic vegetation and other submerged resources, if existing;

    c. The location of any manatee protection zones;

    d. The location of the proposed structures and any existing structures;

    e. The location of intake and discharge pipelines, pumps, culture units, and tanks;

    f. The applicant’s upland parcel property lines and zoning restrictions;

    g. The names and addresses, as shown on the latest county tax assessment roll in mailing label form, of each owner of property lying within 500 feet of the parcel sought, prepared from current records of the county property appraiser; and

    h. The location of the nearest natural or artificial navigation channel.

    (e) When DACS identifies tracts of sovereignty submerged lands or water columns designated as high-density lease areas involving multiple lease parcels for aquacultural development, and there is no established priority for selecting qualified applicants, then DACS shall make recommendations to the Board and request consideration concerning the method to be used to select qualified applicants and to determine the amount of lease fees, in accordance with this section.

    (f) In the event that the lessee wishes to conduct activities on the aquaculture dock or other structures that are not directly related to the aquacultural activities identified in the lease agreement, the lessee shall seek separate authorization from the Board of Trustees through the Department of Environmental Protection pursuant to Chapter 18-21, F.A.C. If the activities are determined to be commercial and unrelated to aquaculture, the lessee shall seek authorization pursuant to paragraph 18-21.005(1)(d), F.A.C., for a commercial dock lease.

    (g) In the event that an environmental resource permit or a wetland resource permit under Part IV of Chapter 373, F.S., is required, DACS will require a copy of the permit or notice of intent to issue an environmental resource permit from the Department of Environmental Protection, in accordance with Rule 18-21.00401, F.A.C.

    (h) Applicants must obtain applicable federal permits for aquaculture activities in areas that are subject to federal jurisdiction.

    (i) Legal description and acreage of the parcel shall be submitted subsequent to final approval of the application but prior to issuance of the lease.

    (j) Two prints of a survey, which shall constitute the field survey, shall be submitted subsequent to final approval of the application but prior to issuance of the lease of the parcel sought; prepared, signed, and sealed by a person properly  licensed by the Florida Board of Professional Surveyors and Mappers when required by Chapter 472, F.S., or an agent of the federal government authorized to do such surveys under federal law. Preliminary site approval can be based upon marking off the general configuration of the parcel sought, including the acreage of the parcel, latitude and longitude coordinates for the corners of the parcel identified using a Global Position System on a topographic map or a navigation chart.

    (k) DACS shall coordinate the application review process for applications to lease sovereignty submerged lands for aquaculture, including those for use of the water column, in order to determine that proposed sites are suitable for aquaculture activities.

    (l) The review procedures to be followed for new applications and renewals include:

    1. Review by DACS to determine:

    a. That the proposed aquaculture activity is water dependent;

    b. That the proposed project and operation is directly related to aquaculture;

    c. The desirability of the proposed aquaculture from a resource management perspective;

    d. The presence of substantial harvestable wild clams or oysters on the proposed area;

    e. That the size of area requested for lease is appropriate to the use;

    f. The suitability of the site for leasing;

    g. The effect on public health, safety, welfare, or property of others; that the proposed construction or operations do not constitute a hazard to navigation or interfere with a riparian property owner's access to navigable water;

    h. That the proposed project will not adversely affect historical or archaeological resources;

    i. The need for special lease conditions that will ensure compliance with Chapters 253 and 258, F.S., and,

    j. The ability of the applicant to perform the work.

    2. Review by the Department of Environmental Protection to assess the effect of the proposed aquacultural activity on water quality and submerged resources and to comment on the consistency of the application with management goals and objectives for managed areas, including state parks, aquatic preserves, marine sanctuaries, or research reserves, as expressed in the management plan applicable to the managed area, or prevailing management practice. The review process for aquaculture leases located in aquatic preserves which include docks and aquaculture-related structures in the water column shall also include the following:

    a. An assessment of design and operational specifications that will be established to avoid or minimize adverse environmental impacts to marine habitat, threatened and endangered species habitat, adjacent wetlands, and water quality, including, but not limited to, designs and operations that minimize shading by increasing light transmittance, and that incorporate the installation and maintenance of appropriate manatee protection and resource information signs.

    b. A determination of the type of resource protection area, as defined in Rule 18-20.003, F.A.C., affected by the proposed project.

    3. Review by the Fish and Wildlife Conservation Commission to comment on the application relative to such factors as an assessment of the probable effect of the proposed lease on the conservation of fish or wildlife, threatened and endangered species, compliance with manatee protection plans, or other programs under the constitutional or statutory authority of the Commission.

    4. Review by the Department of State when there is evidence of or the likelihood of the existence of historical or archaeological resources on the proposed site.

    5. Review by the county commission of the county in which the lease is situated, pursuant to Section 253.68, F.S.

    6. Review by the Army Corps of Engineers to assess the effect of the proposed lease on navigation and boating safety.

    (m) After the coordinated review of the application, DACS shall compile the findings of the review and develop recommendations concerning the use of sovereignty submerged lands and water columns for consideration by the Board. Documents containing the comments received from the review required in this subsection shall become part of the application.

    (n) All requests for aquaculture leases on sovereignty submerged lands shall be processed in accordance with the notice and hearing requirements of Section 253.115, F.S. For purposes of notification of adjacent property owners, requests for revisions to existing leases that increase the preempted area or change the use (such as one that requires a different form of authorization or application of different rule criteria) will be treated as new applications under this chapter.

    (o) The Board shall require the applicant to cause notice of receipt of the lease application to be published in a newspaper of general circulation in the county in which the parcel is situated once a week for three consecutive weeks. A copy of the notice shall be sent to the county commission, and the municipal government if applicable, by certified mail prior to the appearance of the first newspaper notice. Such notice shall be made on the Notice of Aquaculture Lease Application (DACS 15118, Rev. 02/09) which is hereby adopted and incorporated by reference and may be obtained on the Internet at http://www.floridaaquaculture.com or by writing to the Division of Aquaculture at 1203 Governor’s Square Boulevard, Fifth Floor, Tallahassee, Florida, 32301. The application shall contain the following:

    1. Preliminary location description and acreage of parcel sought; and

    2. A description of the aquaculture activity being proposed.

    (p) DACS will hold a public hearing in response to heightened public concern prior to seeking consideration by the Board , if such concern is raised in response to the public notice.

    (q) If DACS determines that the application is complete and complies with the standards and criteria in Chapter 253, F.S., and this rule chapter, DACS shall initiate the agenda process to bring the application and recommendations before the Board for consideration at its next regularly scheduled public meeting. The application may be approved, approved with modifications, or denied. The lease fee shall be determined by the Board in accordance with the provisions in subsection 253.71(2), F.S.

    (r) DACS shall also coordinate the review process and agenda preparation for applications for voluntary conversions of shellfish leases to aquaculture leases.

    (s) All leases are renewable, modifiable, and assignable, subject to Board approval and compliance with the terms of subparagraph 18-21.008(1)(b)3., F.A.C. Requests to renew leases shall be made on the Affidavit to Renew an Aquaculture Lease (DACS 15127, Rev. 02/09). Applications to sublease shall be made on the Application for Sublease of Sovereignty Submerged Land Aquaculture Lease (DACS 15114, Rev. 02/09). Applications for transferring leases shall be made on Assignment and Assumption of Lease (DACS 15113, Rev. 02/09). The applications listed in this paragraph are hereby adopted and incorporated by reference and may be obtained on the Internet at http://www.floridaaquaculture.com or by writing to the Division of Aquaculture at 1203 Governor’s Square Boulevard, Fifth Floor, Tallahassee, Florida  32301.

    (2) Aquaculture lease authorization.

    (a) Each lease document shall as a minimum contain the following:

    1. The term of the lease which shall not exceed ten years.

    2. A provision stating that the lease shall be renewable for one automatic successive term upon agreement of both parties.

    3. The amount of fee per acre, or fraction thereof, leased, which shall take the form of a fixed annual fee to be paid throughout the term of the lease.

    4. A requirement that the leaseholder obtain and maintain a valid aquaculture certification issued by DACS. As a condition of the aquaculture certification the lessee shall comply with any special lease conditions, applicable best management practices for the specific aquacultural activity, and any permit issued pursuant to Chapter 373, F.S.

    5. A provision requiring the disposition of all improvements and aquaculture products upon the termination or cancellation of the lease.

    6. A statement that the lease may not be assigned, sublet or transferred in any manner, in whole or in part, without the prior written approval of the Board. Failure of the lessee to obtain prior written approval shall be grounds for revocation by the Board.

    7. A provision stating that failure of the lessee to comply with the terms and conditions of the lease shall be grounds for revocation of the lease.

    8. A description of approved culture and harvesting techniques that can be used on the lease.

    (b) The parcel leased shall be identified, well marked, and shall have, except when it will interfere with the development of the animal and plant life being cultivated by the lessee, reasonable public access for boating, swimming, and fishing. All limitations on the public use of the parcel leased, such as docking, mooring, anchoring, and other activities that would interfere with the approved aquacultural activity shall be set forth in the lease agreement and such restrictions shall be clearly posted in conspicuous places on site by the lessee. Each parcel leased shall be marked in compliance with the provisions of the lease agreement.

    (c) Failure to perform the aquaculture activities for which the aquaculture lease was granted or to comply with the terms and conditions of the lease agreement shall be grounds for revocation of the lease, a requirement for corrective action, or enforcement by DACS or the Board, in accordance with Section 253.04, F.S., Chapter 18-14, F.A.C., and the terms of the lease agreement. DACS shall notify the Department of Environmental Protection and the applicable water management district of any revocation, corrective action or enforcement related to a change in use which is not authorized in the lease agreement. Revocation of the lease may result in forfeiture to the State of Florida of all works, improvements, and aquaculture products in and upon the parcel leased.

    (3) Aquaculture letter of consent application and review process.

    (a) Aquaculture activities meeting the criteria specified in subsection 18-21.020(5), F.A.C., on or over sovereignty submerged lands shall be authorized by a letter of consent.

    (b) The applicant shall provide the items required in this subsection demonstrating that the proposed site meets the criteria established in subsection 18-21.020(5), F.A.C., and is suitable for the proposed aquacultural activities. Applications for a letter of consent shall include the following.

    1. Name, address and telephone number of applicant and applicant’s authorized agent, if applicable.

    2. Location and address of the proposed activity, using the most comprehensive information available, including: street, route, city, county; section, township and range; coordinates established with Global Positioning System, affected water body; and a vicinity map, preferably a reproduction of the appropriate portion of United States Geological Survey quadrangle map.

     3. Satisfactory evidence of sufficient upland interest in the riparian upland property to the extent required by paragraph 18-21.004(3)(b), F.A.C.

    4. A detailed statement describing the proposed activity.

    5. A detailed and dimensioned site plan drawing showing:

    a. The approximate mean or ordinary high water line;

    b. The location of the shoreline and aquatic vegetation and/or other submerged resources, if any;

    c. The location of the proposed structures and any existing structures;

    d. The location of intake and discharge pipelines, pumps, culture units, and tanks;

    e. The applicant’s upland parcel property lines and zoning restrictions; and

    f. The location of the nearest natural or artificial navigation channel.

    (c) Application for Sovereignty Submerged Land Aquaculture Letter of Consent (DACS 15138, Rev. 02/09), which is hereby adopted and incorporated by reference, shall be submitted to the Division of Aquaculture at the address listed in subsection 18-21.021(7), F.A.C. The application may be obtained on the Internet at http://www.floridaaquaculture.com or by writing to the Division of Aquaculture at 1203 Governor’s Square Boulevard, Fifth Floor, Tallahassee, Florida 32301.

    (d) Applications for letters of consent shall be reviewed by DACS to ensure that the proposed sites are suitable for the proposed aquacultural activity and meet the criteria in subsection 18-21.020(5), F.A.C.

    (4) Aquaculture letter of consent authorization.

    (a) If DACS determines that the proposed activity complies with subsection (3) above, has an Aquaculture Certificate, is in compliance with the best management practices adopted by rule for that activity, and meets the requirements of subsection 18-21.020(5), F.A.C. DACS shall issue a letter of consent.

    (b) Failure to perform the aquaculture activities for which the letter of consent was issued, failure to comply with the terms and conditions of the letter of consent, or conducting activities other than those approved in the letter of consent shall be grounds for action on the letter of consent, including revocation, a requirement for corrective action or enforcement by DACS or the Board in accordance with Section 253.04, F.S., Chapter 18-14, F.A.C., and the terms of the letter of consent.

    (5) Aquaculture management agreement applications and review process.

    (a) An aquaculture management agreement is required for the use of sovereignty submerged lands or the water column for educational, scientific, demonstration or experimental activities related to aquaculture.

    (b) Applicants for aquaculture management agreements shall provide the items required in this subsection and information demonstrating that the proposed activity complies with the criteria in subsection 18-21.020(6), F.A.C., and is suitable for aquacultural activities. Applications for an aquaculture management agreement shall include the following.

    1. Name, address and telephone number of applicant and applicant’s authorized agent, if applicable.

    2. Location of the proposed activity, including: county; section, township and range; water body; and a vicinity map.

    3. A detailed statement describing the proposed activity, including educational and scientific objectives.

    4. A detailed site plan drawing showing:

    a. Location of aquatic vegetation and fisheries habitat, if existing;

    b. Location of proposed structures and any existing structures; and

    c. Location of intake and discharge pipelines, pumps, culture units, and tanks.

    d. The appropriate application fee.

    (c) Satisfactory evidence of sufficient upland interest in the riparian upland property when the riparian property owner is the applicant.

    (d) Applications for aquaculture management agreements shall be submitted, using the Application for Sovereignty Submerged Lands Aquaculture Lease (DACS 15102, Rev. 02/09) listed in paragraph 18-21.021(1)(b), F.A.C., to the Division of Aquaculture at the address listed in subsection 18-21.021(7), F.A.C.

    (e) Applications for management agreements shall be reviewed by DACS to ensure that the proposed sites are suitable for the proposed aquacultural activity and that the activity complies with the criteria in subsection 18-21.020(6), F.A.C.

    (f) If DACS determines that the application is complete and complies with the standards and criteria of Rules 18-21.020, 18-21.021, and 18-21.022, F.A.C., copies of the application will be sent to the Department of Environmental Protection and the Fish and Wildlife Conservation Commission for their review and recommendations.

    (6) Aquaculture management agreement authorization.

    (a) The Board shall authorize management agreements that meet the requirements of paragraphs 18-21.021(5)(a) through (c), F.A.C.

    (b) The management agreement authorizes specific aquaculture activities on sovereignty submerged lands and water columns without conveying any interest in real property.

    (c) Authorization of an aquaculture management agreement shall require that qualified applicants comply with the standards and criteria in subsection 18-21.020(6), F.A.C.

    (d) The management agreement shall require the grantee obtain and maintain a valid aquaculture certification issued by DACS prior to the initiation of any activities authorized by the agreement. As a condition of the aquaculture certification, the grantee shall comply with special conditions, applicable best management practices, or with the condition of a permit issued pursuant to Chapter 373, F.S.

    (e) The management agreement shall include a provision requiring the disposition of all improvements and aquaculture products upon the termination or cancellation of the management agreement.

    (f) Failure to perform the aquaculture activities for which the management agreement was granted, failure to comply with the terms and conditions of the management agreement, or conducting activities other than those approved in the management agreement shall be grounds for action on the management agreement, including revocation, a requirement for corrective action, or enforcement by DACS or the Board, in accordance with Section 253.04, F.S., Chapter 18-14, F.A.C., and the terms of the aquaculture management agreement.

    (7) Applications for authorizations to use sovereignty submerged lands for aquacultural purposes shall be submitted to the Florida Department of Agriculture and Consumer Services, Division of Aquaculture, 1203 Governor’s Square Boulevard, Fifth Floor, Tallahassee, Florida 32301, Telephone: (850)488-5471.

    Rulemaking Authority 253.03(7) FS. Law Implemented 253.002, 253.04, 253.67-75, 253.77, 597.010 FS. History–New_______.

     

    18-21.022 Payments and Fees for Aquacultural Activities.

    (1) The application fee for an aquaculture lease is $200.00, and is non-refundable.

    (2) The fee for assignment, sublease or transfer of an aquaculture lease is $50.00.

    (3) The annual rental fees for aquaculture authorizations shall be the dollar amount of the fixed rate consideration as determined by the Board in accordance with subsection 253.71(2), F.S., but not less than $15.00 per acre, or fraction thereof, for a bottom lease and $30 per acre, or fraction thereof, when the lease includes the water column: bottom leases are considered to include six inches of the water column above the bottom.

    (4) The annual fee shall be revised March 1 of each year and increased or decreased based on the average change over time in the price paid by all urban consumers for a market basket of consumer goods and services. In determining the change, the Board will annually consult the Consumer Price Index figures established for the previous five years by the Bureau of Labor Statistics, computed as provided in the BLS Publication “Handbook of Methods,” Chapter 17, June 2007, and found on the BLS website at http://www.bls.gov/opub/homch17.pdf. There shall be a 10 percent cap on any annual increase.

    (5) An annual surcharge of $10.00 per acre, or any fraction of an acre, shall be levied on each aquaculture lease pursuant to paragraph 253.71(2)(a), F.S., and subsection 597.010(7), F.S.

    (6) Invoices will be sent to each leaseholder 60 days before the payment is due, stating the amount of the annual lease fee and surcharge. If the lease fee and surcharge are not received within sixty days of the payment date specified in the lease agreement, DACS shall revoke the lease.

    (7) Any financial or production data related to the proposed aquacultural activity necessary for purposes of negotiation shall be supplied by the applicant upon DACS’ request.

    (8) Fees for experimental aquacultural activities on aquaculture leases or aquaculture management agreement areas for state agencies, public, and nonprofit research institutions shall be waived by the Board upon proof of public or nonprofit status.

    Rulemaking Authority 253.03(7),(11), 253.73 FS. Law Implemented 253.002, 253.04, 253.67-.75, 253.77, 597.010 FS. History– New________.

     

    18‑21.900 Forms.

    Applications for activities, other than for aquaculture, on sovereignty submerged lands shall be made on the Joint Application for Environmental Resource Permit/Authorization to Use Sovereignty Submerged Lands/Federal Dredge and Fill Permit Form 62‑343.900(1), F.A.C., except in the area under the jurisdiction of the DEP Northwest Florida District Office, where application shall be made using the forms provided in subsection 62‑312.900(1), F.A.C. In both cases, the required forms shall be submitted together with the additional information required in Rules 18‑21.007-.010, F.A.C., as applicable. Other forms used by the Board are adopted and incorporated by reference in this section. The forms are listed by rule number, which also is the form number, and with the subject title and effective date. Copies of forms may be obtained on the Internet at http://www.dep.state.fl.us or by writing to the Department of Environmental Protection, Division of Water Resource Management, Bureau of Beaches and Wetland Resources, 2600 Blair Stone Road – MS 2500, Tallahassee, Florida 32399‑2400, or any local district or branch office of the Department or water management district.

    (1) through (2) No change.

    (3) The required forms used by the Board for aquacultural activities are adopted and incorporated by reference in this chapter and may be obtained on the Internet at http://www.floridaaquaculture.com or from the DACS by writing to the Division of Aquaculture, 1203 Governor’s Square Boulevard, Fifth Floor, Tallahassee, Florida 32301.

    Rulemaking Specific Authority 253.03(7), 253.73 FS. Law Implemented 253.03(11), 253.77, 597.010 FS. History–New 10‑15‑98, Amended 12‑11‑01,________.


    NAME OF PERSON ORIGINATING PROPOSED RULE: Sherman Wilhelm, Director, Division of Aquaculture
    NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Governor and Cabinet sitting as the Board of Trustees for the Internal Improvement Trust Fund
    DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 10, 2009
    DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: November 7, 2008

Document Information

Comments Open:
3/27/2009
Summary:
The proposed rule amendments provide for the administrative and management responsibilities of the Board of Trustees of the Internal Improvement Trust Fund and the Department of Agriculture and Consumer Services regarding the use of sovereignty submerged lands for aquacultural purposes.
Purpose:
The proposed rule amendments will revise and update Rule 18-21, F.A.C., to implement statutory changes in Chapter 253, F.S., and establish forms of authorization for aquacultural activities including: aquaculture leases, aquaculture letters of consent and aquaculture management agreements. The effect of the proposed rule amendments will be to clarify DACS’ duties and functions related to managing aquacultural activities on sovereignty submerged lands.
Rulemaking Authority:
Art. X, Sec. 14, Fla. Const., 253.002, 253.03(7), (11), 253.73 FS.
Law:
253.001, 253.002, 253.03, 253.04, 263.115, 253.12, 253.141, 253.47, 253.512, 253.52-.54, 253.61, 253.67-.75, 253.77, 597.010 FS.
Contact:
Mark E. Berrigan, Chief of Aquaculture Development, 1203 Governor’s Square Blvd., 5th Floor, Tallahassee, FL 32301
Related Rules: (12)
18-21.001. Intent
18-21.002. Scope and Effective Date
18-21.003. Definitions
18-21.004. Management Policies, Standards, and Criteria
18-21.005. Forms of Authorization
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