Bill Text: MS SB2648 | 2024 | Regular Session | Engrossed
Bill Title: Mississippi Department of Marine Resources; authorize oyster lease reconfiguration and make technical amendments.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Engrossed) 2024-04-16 - Conferees Named Anderson (122nd),McKnight,Fondren [SB2648 Detail]
Download: Mississippi-2024-SB2648-Engrossed.html
MISSISSIPPI LEGISLATURE
2024 Regular Session
To: Ports and Marine Resources
By: Senator(s) Thompson
Senate Bill 2648
(As Passed the Senate)
AN ACT TO AMEND SECTIONS 49-15-17, 49-15-27, 49-15-37, 49-15-38, 49-15-46 AND 49-15-47, MISSISSIPPI CODE OF 1972, TO PROVIDE TECHNICAL REVISIONS TO THE POWERS AND DUTIES OF THE MISSISSIPPI DEPARTMENT OF MARINE RESOURCES RELATING TO OYSTER CULTIVATION LEASES, THE SEAFOOD FUND, THE OYSTER PRODUCTION PRESERVE ACCOUNT AND THE COASTAL PRESERVE ACCOUNT; TO AUTHORIZE THE DEPARTMENT OF MARINE RESOURCES TO RECONFIGURE OYSTER LEASE AREAS AND TO REVISE PERMITTED AREAS AND TO PROVIDE PROTEST PROCEDURES BY OYSTER LEASE APPLICANTS; TO PRESCRIBE CRIMINAL PENALTIES FOR ANY PERSON VIOLATING THE PROVISIONS OF THE OYSTER BOTTOM LEASE PROGRAM; TO REPEAL SECTION 27-19-56.27, MISSISSIPPI CODE OF 1972, WHICH AUTHORIZES A SPECIAL LICENSE TAG FOR SUPPORTERS OF THE MISSISSIPPI SEAFOOD INDUSTRY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 49-15-17, Mississippi Code of 1972, is amended as follows:
49-15-17. (1) (a) All monies received or obtained by the department under the provisions of this chapter shall be paid over by the department to the State Treasurer and shall be deposited into the fund known as the "Seafood Fund." All revenues collected through the department, to include, but not limited to, commercial saltwater licenses and taxes, permits, fines and penalties, and confiscated catches, shall be deposited into the department operating account (Seafood Fund) and expended for the operation of the department, as authorized by the Legislature.
(b) There is established a special account to be known as the "Artificial Reef Program Account" within the Seafood Fund. Any funds received from any public or private source for the purpose of promoting, constructing, monitoring or maintaining artificial reefs in the marine waters of the state or in federal waters adjacent to the marine waters of the state shall be credited to the account. Any unexpended funds remaining in the account at the end of the fiscal year shall not lapse into the Seafood Fund, but shall remain in the account. The department may expend any funds in the account, subject to appropriation by the Legislature, to accomplish the purpose of the account.
(c) There is established a special account to be known as the "Coastal Preserve Account" within the Seafood Fund. Any funds received from any public or private source for the purpose of management, improvement and acquisition of coastal preserves in the state and money required to be deposited pursuant to Sections 27-19-56.10 and 27-19-56.27, shall be credited to the account. Any unexpended funds remaining in the account at the end of the fiscal year shall not lapse into the Seafood Fund, but shall remain in the account. The department may expend any funds in the account, subject to appropriation by the Legislature, for the management, improvement and acquisition of coastal preserves.
(d) There is established a special account to be known as the "Mississippi Seafood Marketing Program Account" within the Seafood Fund. Monies required to be deposited into the account under Section 27-19-56.27 and any funds received from any public or private source for the purpose of promoting the Mississippi seafood industry must be credited to the account. Any unexpended funds remaining in the account at the end of the fiscal year do not lapse into the Seafood Fund, but remain in the account. The department may expend any funds in the account, subject to appropriation by the Legislature, to accomplish the purposes of this account, including, but not limited to, providing funds for cobia stock enhancement programs.
(e) There is established
a special account to be known as the "Oyster Production Preserve Account"
within the Seafood Fund. Monies required to be deposited from oyster leasing and
licensing payments under Section * * * 49-15-27, sack fees, * * * and any funds received from any public or
private source for the purpose of oyster production and propagation in this state,
which includes plantings of oysters and cultch materials, shall be credited to the
account. Any unexpended funds remaining in the account at the end of the fiscal
year shall not lapse into the Seafood Fund, but shall remain in the account. The
department may expend any funds in the account, subject to specific appropriation
by the Legislature, for the management, improvement and acquisition of permittable
property for oyster production and propagation in the state, which includes plantings
of oysters and cultch materials. The Department of Marine Resources shall develop
an annual report to the Legislature which describes the annual expenditures from
this fund for the purpose of furthering oyster production and propagation in this
state to be included in the department's annual budget request to the Legislative
Budget Office and to be transmitted to the Chairmen of the Senate and House Committees
on Ports and Marine Resources.
(2) The fund shall be treated as a special trust fund and interest earned on the principal shall be credited to the fund.
(3) The department shall keep accurate reports of monies handled as a part of the permanent records of the department, and the State Treasurer shall furnish the department such forms as may be needed, and the department shall account for such forms in reports to the Treasurer.
SECTION 2. Section 49-15-27, Mississippi Code of 1972, is amended as follows:
49-15-27. The department is hereby granted full and complete authority to lease the bottoms within its jurisdiction upon the following terms and conditions:
(1) All areas within the department's jurisdiction, not designated state-owned reefs by this chapter, including natural reefs and all areas not within the boundaries of riparian property owners may be leased by the department.
(2) All individual lessees shall be residents of the State of Mississippi, or if a firm or corporation, such firm or corporation shall be organized under the laws of the State of Mississippi and owned by a resident of the State of Mississippi.
(3) No individual, corporation, partnership or association may lease less than one (1) acre nor more than two thousand five hundred (2,500) acres total; however, in the case of an individual there shall be counted towards such limitation any lands leased by a corporation, partnership or association in which such individual owns ten percent (10%) or less interest and, in the case of a corporation, partnership or association, there shall be counted toward such limitation any lands leased by an individual stockholder, partner or associate thereof who owns ten percent (10%) or less interest in such corporation, partnership or association.
(4) Individuals, firms or corporations desiring to lease bottoms shall make application to the department in writing, describing the area to be leased. Applications must include a plat showing the proposed lease area and description of cultch material type and amount to be deployed on the leased area.
(5) (a) Any person who qualifies
and who desires to lease a part of the bottom or bed of any of the waters of this
state as provided in this section shall present to the department a written application,
and pay an application fee in the amount of Fifty Dollars ($50.00). This application
shall contain the name and address of the applicant and a reasonably definite description
of the location and amount of land covered by water desired by the applicant. The
department has the authority to establish a system to determine qualifications of
applicants. Upon receipt of the application, the department shall * * *
determine the qualifications of the applicant. Applicants will be prioritized
based upon their demonstrated level of experience in oyster cultivation and their
financial stability. The department shall then order an examination
to determine whether the water bottoms applied for are leasable * * *. If the applicant is found to be qualified
and the area is found to be leasable, the department shall * * * determine the acreage upon
which the rent shall be fixed and enter into a lease with the applicant * * *, who shall pay the prorated annual rent in
advance for the remainder of the calendar year. If the applicant is not eligible
for a lease, the department shall issue a written notice declining the application
with specific reasons for same * * *. The
department has the authority to lease an area to an applicant that has no experience
in oyster cultivation as long as the applicant can demonstrate their financial stability
and the area applied for has not been requested by another applicant with demonstrated
experience. The department has the authority to reconfigure the lease areas from
that requested by the applicant in the manner that promotes maximum utilization
of the state's resources. In the event the area requested by the applicant has
to be reconfigured, the applicant has the right to refuse the reconfigured area
and withdraw their application and receive a refund of their application fee.
* * *
( * * *b) The department shall require that the
bottoms of water areas to be leased be as definable as possible, taking into consideration
such factors as the shape of the body of water, permitted areas, and the
condition of the bottom as to hardness or softness which would render it desirable
or undesirable for the purpose of oyster cultivation.
* * *
( * * *c) A lease applicant may withdraw a lease
application and receive a full refund from the department of all application fees,
by submitting a written request for withdrawal to the department within ninety (90)
days after the department * * * posts notice of the application on its website received the
application.
(6) Such leases shall be for an initial term of fifteen (15) years, with the lessee having the right of first renewal of the lease for an additional fifteen (15) years, and continue to renew at fifteen-year intervals, at the same ground rental rate so long as lessee actively cultivates and gathers oysters, and complies with the provisions of this chapter. No lease may be transferred without approval by the department of the transfer.
(7) The terms of every lease issued hereunder shall ensure the maximum cultivation and propagation of oysters. Throughout the term of every lease issued hereunder, each lessee shall add cultch and make other necessary efforts to ensure the maximum cultivation and propagation of oysters. The department shall promulgate regulations to set forth guidelines for lessees to follow to ensure the maximum cultivation and propagation of oysters under the lease. The lessee shall submit a written report with supporting documentation to the department of efforts to cultivate and propagate oysters for the previous year. If the department finds a lessee is not making efforts to cultivate and propagate oysters, and the lessee fails to take remedial steps to address same, such lease shall be subject to termination as provided for hereunder.
(8) The department shall fix a ground rental rate at Three Dollars ($3.00) per acre per year. The annual rental payments shall be due by December 31 for the next calendar year.
(9) Any lessee who pays the rent on or after the first day of January shall pay the rent due plus an additional ten percent (10%) penalty. The failure of the lessee to pay the rent punctually on or before the first of each March, ipso facto and without demand or putting in default, terminates and cancels the lease and forfeits to the department all the works, improvements, betterments, and oysters on the leased water bottom. The department may at once enter on the water bottom and take possession thereof. Such water bottom shall then be open for lease in accordance with subsections (5) through (8) of this section. Ten (10) days thereafter the department shall enter the termination, cancellation, and forfeiture on its books and give public notice thereof by publication in one (1) local paper in the county where the formerly leased water bottoms are located. On or before the first day of each February, the department shall issue a written notice of delinquency by certified mail to each lessee who has not yet paid the rent. The department shall also publish notice of such delinquency on its website.
(10) The department shall keep an accurate chart of the areas within its jurisdiction and shall mark on such chart those areas which are under lease. All leases shall be marked by appropriate poles, stakes or buoys of such material as will not injure watercraft, at the expense of the leaseholder. The department shall keep an accurate book, designated "Mississippi Oyster Farms" which shall contain copies of all leases. The department shall maintain a map of designated state-owned, leased areas, and areas available for lease on the department's website. If any lease be cancelled or expire, such fact shall be noted on the face of such lease. Lessees shall be "oyster farmers" for the purposes of any grants, aid, subsidies or other assistance from the federal government or other governmental or private agencies.
(11) All funds derived from leasing shall be paid into the Seafood Fund under Section 49-15-17, for use by the department to further oyster production in this state, which includes plantings of oysters and cultch materials.
(12) All leases made by the department under the authority of this section shall be subject to the paramount right of the state and any of its political subdivisions authorized by law, to promote and develop ports, harbors, channels, industrial or recreational projects, and all such leases shall contain a provision that in the event such authorized public body shall require the area so leased or any part thereof for such public purposes, that the lease shall be terminated on reasonable notice fixed by the department in such lease. On the termination of any lease, the lessees shall have the right to remove any oysters within the leased area within such time as may be fixed by the department and in accordance with such reasonable rules and regulations as the department may adopt.
Any person convicted of taking oysters from leased land or from waters that are not of a safe sanitary quality without a permit as provided in Section 49-15-37 shall, on the first offense, forfeit all equipment used, exclusive of any boat or boats; and be fined not to exceed Two Thousand Dollars ($2,000.00) or sentenced not to exceed one (1) year in the county jail, or both. Subsequent convictions shall be punishable by forfeiture of all equipment, including any boat or boats; and a fine not to exceed Five Thousand Dollars ($5,000.00) or not to exceed two (2) years in prison, or both such fine and imprisonment.
The department is enjoined to cooperate with the Jackson County Port Authority, the Harrison County Development Commission, the municipal port commission and other port and harbor agencies, so that oyster beds shall not be planted in close proximity to navigable channels. The department or lessee shall have no right of action as against any such public body for damages accruing to any natural reef or leased reef by any necessary improvement of such channel in the interest of shipping, commerce, navigation or other purpose authorized by law.
(13) A lessee has the exclusive use of the water bottoms leased and all oysters and cultch grown or placed thereon. However, this exclusive right is subordinate to the rights and responsibilities of the state, any political subdivision of the state, the United States, or any agency or agent thereof, to take action in furtherance of coastal protection, conservation or restoration.
(14) In order to protect the health and safety of the residents of the State of Mississippi, the terms and conditions relating to the leasing of bottoms provided in this section shall be fully applicable to any lease executed by the Mississippi Department of Marine Resources prior to April 17, 2023, and the department shall revise any lease issued prior to April 17, 2023, as necessary in order to comply with the provisions of this section.
SECTION 3. Section 49-15-37, Mississippi Code of 1972, is amended as follows:
49-15-37. The department may
employ boats, crews and laborers to cultivate the state-owned reefs of the state,
and dredge the oysters in the Mississippi Sound from places where they are too thick,
and spread them on reefs where they are too thin, and carry shells from the factories
and spread them in places where the oyster beds can be improved and enlarged. The
department may open state-owned reefs to the public for harvest. The department
may purchase other materials as may be equally suitable for the propagation of oysters.
The department in cultivating the reefs, transplanting and spreading oysters and
shells and other suitable materials, may expend any funds available for that purpose,
as provided by Section 49-15-17(1)(e). In taking seed oysters, care shall be used
to not injure or destroy the merchantable oysters on the reefs from which they are
taken. The seed oysters shall be tonged from the "conner" or seed reefs,
unless it is practicable and safe to dredge those oysters. The department may establish
new bedding grounds at those places within the boundaries of the state as it may
determine, on advice of the director, or on advice of technical governmental experts,
or competent aquatic biologists. On existing state-owned reefs in which oysters
exist and in waters not of a safe sanitary quality as determined by the department,
the department shall prohibit any person, firm or corporation from taking oysters
from those areas. The department shall from time to time remove the oysters from
the areas and relay or replant them in an approved area for a period of time under
Section 49-15-36 before they may be harvested. Any funds received from the sale
of the oysters shall be used in a like manner as those funds received under Section * * *
49-15-17(1)(e).
The department may issue permits to persons to remove oysters by dredging or otherwise from water bottoms which are not of a safe sanitary quality for oysters for human consumption. These areas may be designated as seed grounds, and permits to persons shall be issued only for the purpose of transplanting oysters to privately leased Mississippi territorial waters. The department may permit the transplanting of these seed oysters by a duly authorized public agency.
The department may, upon determining the water bottom from which oysters are to be removed is not of a safe, sanitary quality for oyster production for human consumption and has been unsafe for a period of at least one (1) year immediately preceding certification, and upon complying with the following requirements, permit the dredging of oysters from restricted public areas and relaying the oysters to private leased grounds in the State of Mississippi:
(a) Permittee must hold valid lease of oyster bedding grounds in the State of Mississippi;
(b) Permittee must be bonded in compliance with the permit system established by the department;
(c) Permittee must fulfill all permit requirements as established by the department;
(d) Permittee shall not move oysters from one restricted area to another restricted area;
(e) Permittee shall move oysters only to an area leased by the department; and
(f) Permittee shall not move oysters from the restricted area without the presence of an employee of the department at all times, from the dredging of the oysters from the restricted areas to their deposit on private leased grounds or to an onshore, molluscan depuration facility.
Harvesting of oysters shall be permitted only during daylight hours and with the most efficient gear possible consistent with conservation requirements of not damaging the reefs. This shall include permission to use two (2) dredges per boat on restricted areas and on private leased grounds.
Any person obtaining a permit to remove oysters from seed grounds shall post a penal bond of One Hundred Dollars ($100.00) per leased acre with the department to be forfeited upon any violation of this section. The bond may be approved by the director of the department if the director finds the bond to be secured by sufficient property or sureties.
The department shall regulate the amount and time of taking of oysters from seed areas and shall supervise the removal, planting and harvesting of oysters from the areas. The time set for the taking of oysters from restricted seed areas for relaying or replanting and the time set for the taking of oysters from private leased grounds shall be separated by not less than a period of time determined under Section 49-15-36 during which neither activity may be allowed.
SECTION 4. Section 49-15-38, Mississippi Code of 1972, is amended as follows:
49-15-38. (1) (a) Unless otherwise permitted by the department, no oysters shall be taken from state-owned reefs unless culled, and all oysters less than three (3) inches from end to end, and all dead shells, shall be replaced, scattered and broadcast immediately on the reefs from which they are taken. It is unlawful for any captain or person in charge of any vessel, or any canner, packer, commission man, dealer or other person to purchase, sell or to have in that person's possession or under that person's control any oysters off the state-owned reefs or private bedding grounds not culled according to this section, or any oysters under the legal size. A ten percent (10%) tolerance shall be allowed in relation to any culling.
(b) The department may authorize the culling of oysters of a lesser measure. That authorization shall be in response to special circumstances or extreme natural conditions affecting the habitat, including, but not limited to, flooding. The department may establish checkpoints in any area within its jurisdiction to conduct inspections, collect fees and issue tags in the enforcement of this chapter and regulations adopted by the commission.
(2) The department shall acquire and replant shells, seed oysters and other materials, when funding is available, for the purpose of growing oysters.
(3) Any person, firm or corporation
failing or refusing to pay the shell retention fee required under Section 49-15-46
to the department when called for by the department, is guilty of a misdemeanor
and, upon conviction, shall be fined not more than One Hundred Dollars ($100.00)
for each * * * sack of shells for which they fail
or refuse to tender the shell retention fee. In addition to the fine, the violator
shall pay the reasonable value of the oyster shells and shall be ineligible to be
licensed for any activity set forth in this chapter for a period of two (2) years
from the date of conviction.
(4) The planting of oyster shells as provided under this chapter shall be under the direction and supervision of the executive director of the department.
SECTION 5. Section 49-15-46, Mississippi Code of 1972, is amended as follows:
49-15-46. (1) Each vessel used to catch, take, carry or transport oysters from the reefs of the State of Mississippi, or engaged in transporting any oysters in any of the waters within the territorial jurisdiction of the State of Mississippi, for commercial use, shall annually, before beginning operations, be licensed by the department and pay the following license fee:
(a) Fifty Dollars ($50.00) on each in-state vessel or boat used for tonging oysters or gathering oysters by hand;
(b) One Hundred Dollars ($100.00) on each in-state vessel or boat used for dredging oysters;
(c) One Hundred Dollars ($100.00) on each out-of-state vessel or boat used for tonging oysters or gathering oysters by hand, or the license fee charged by the out-of-state licensing entity to Mississippi vessels or boats for tonging or gathering oysters, whichever is greater; or
(d) Two Hundred Dollars ($200.00) on each out-of-state vessel or boat used for dredging oysters, or the license fee charged by the out-of-state licensing entity to Mississippi vessels or boats for dredging oysters, whichever is greater.
(2) Each molluscan shellfish aquaculture operation shall annually, before beginning operations, be licensed by the department and pay the following license fee:
(a) Fifty Dollars ($50.00) on each resident molluscan shellfish aquaculture operation; or
(b) One Hundred Dollars ($100.00) on each nonresident molluscan shellfish aquaculture operation.
(3) The department may authorize the transfer of a vessel license to a different vessel provided that the owner of both vessels is the same titled owner.
(4) All oysters harvested in the State of Mississippi shall be tagged. Tags shall be issued by the department and shall bear the catcher's name, the date and origin of the catch, the shell stock dealer's name and permit number. The department shall number all tags issued and shall maintain a record of those tags. The department, in its discretion, may adopt any regulations regarding the tagging of oysters and other shellfish.
(5) Each person catching or taking oysters from the waters of the State of Mississippi for personal use shall obtain a permit from the department and pay an annual recreational oyster permit fee of Ten Dollars ($10.00). Oysters caught under a recreational permit shall not be offered for sale. The limits on the allowable catch of oysters for recreational purposes shall be three (3) sacks per week. The department shall issue tags of a distinguishing color to designate recreationally harvested oysters, which shall be tagged on the same day of harvest in the manner prescribed in subsection (4) of this section for commercially harvested oysters or by regulation of the department.
(6) The department shall assess and collect a shell retention fee for the shells taken from waters within the territorial jurisdiction of the State of Mississippi as follows:
(a) Commercial and recreational harvesters - Fifteen Cents (15¢) per sack paid to the department on the day of harvest;
(b) Initial oyster processor, dealer or factory first purchasing the oysters - Fifteen Cents (15¢) per sack paid to the department no later than the tenth day of the month following the purchase, on forms submitted by the department;
(c) Commercial harvesters transporting their catch out of the state - Fifty Cents (50¢) per sack paid to the department on the day of harvest, in addition to the fees paid in paragraph (a) of this subsection; and
(d) Commercial harvesters not selling their oysters to a Mississippi dealer - Fifteen Cents (15¢) per sack paid to the department on the day of harvest, in addition to fees paid in paragraph (a) of this subsection.
Funds received from the shell
retention fee shall be paid into * * * the Oyster Production Preserve Account within the
Seafood Fund pursuant to Section 49-15-17(1)(e) for use by the department to
further oyster production in this state, which includes plantings of oysters and/or
cultch materials.
(7) During open seasons, oysters may be taken only by hands, tongs and dredges.
(8) Vessels licensed under Section 49-15-46 may keep in whole, for personal consumption up to thirty-six (36) blue crabs (portunidae family), per day. This exemption for personal consumption does not apply to fish or crabs that are otherwise illegal to possess or catch.
SECTION 6. Section 49-15-47, Mississippi Code of 1972, is amended as follows:
49-15-47. (1) It is unlawful for any person, firm or corporation to discharge solid or human waste from any vessel while the vessel is used to harvest or transport oysters in the marine waters of the state.
(2) Each vessel used to harvest or transport oysters is required to have an approved functional marine sanitation device (MSD), portable toilet or other sewage disposal receptacle designed to contain human sewage. The approved marine sanitation device (MSD), portable toilet or other sewage disposal receptacle shall:
(a) Be used only for the purpose intended.
(b) Be secured while on board and located to prevent contamination of shell stock by spillage or leakage.
(c) Be emptied only into an approved sewage disposal system.
(d) Be cleaned before being returned to the vessel.
(e) Not be cleaned with equipment used for washing or processing food.
(3) The use of other receptacles for sewage disposal may be approved by the department if the receptacles are:
(a) Constructed of impervious, cleanable materials and have tight-fitting lids; and
(b) Meet the requirements listed in subsection (2).
(4) * * * Any person, firm or corporation violating
the provisions of this chapter, shall, on conviction, be fined not less than Five
Thousand Dollars ($5,000.00), and the license of the convicted party shall be revoked
for one (1) year. For conviction of a second offense, the fine shall be not less
than Ten Thousand Dollars ($10,000.00), and the license of the convicted party shall
be revoked for two (2) years. For a conviction of a third offense, the fine shall
be not less than One Hundred Thousand Dollars ($100,000.00), and the license of
the convicted party shall be permanently revoked.
(5) Upon issuance of a citation for a violation of this section, the vessel shall be removed from the oyster reef and any oysters on board the vessel shall be confiscated and disposed of by the department. The vessel shall not be permitted to harvest from any state-owned or private reefs until the vessel is properly equipped as determined by an inspection by the department.
SECTION 7. Section 27-19-56.27, Mississippi Code of 1972, which provides for a special license tag for supporters of the Mississippi seafood industry, is repealed.
SECTION 8. This act shall take effect and be in force from and after July 1, 2024.
