Alabama Administrative Code › Title 220 - ALABAMA DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES › Chapter 220-4 - STATE LANDS DIVISION › Section 220-4-.17 - Shellfish Aquaculture Easements

Current through Register Vol. 42, No. 9, June 28, 2024
(1) For the purposes of this rule, "shellfish
			 aquaculture" shall mean the off-bottom cultivation and harvesting of shellfish
			 for commercial or research-oriented purposes. "Shellfish" for purposes of this
			 rule shall mean all native to Alabama species of oysters, clams, or mussels and
			 scallops.
(2) The purpose of this
			 rule is to provide for the granting of riparian and non-riparian easements for
			 shellfish aquaculture. For the purpose of this rule, "riparian easement" or
			 "riparian shellfish aquaculture easement" shall mean an easement for shellfish
			 aquaculture conducted by individuals with sufficient upland interest in
			 riparian uplands located within an associated riparian use area as defined in
			 Section 9-12-22,
Code of Ala.
			 1975
. "Non-riparian easement" or "non-riparian shellfish
			 aquaculture easement" shall mean an easement for the purpose of conducting
			 shellfish aquaculture by individuals not located within an associated riparian
			 use area as defined in Section
			 9-12-22,
Code of Ala.
			 1975
.
(3) The State of
			 Alabama, Department of Conservation and Natural Resources ("DCNR")'s
			 biological, marine safety and navigation assessments and any other assessments
			 or reports by other agencies with related statutory, management, or regulatory
			 authority may be considered in evaluating specific requests to use state-owned
			 submerged lands. Any such reports sent to the State Lands Division in a timely
			 manner may be considered.
(4)
			 Shellfish aquaculture activities shall not infringe upon any riparian rights
			 existing under law.
(5) Shellfish
			 aquaculture activities shall not unreasonably interfere with navigation. Any
			 area made the subject of a riparian shellfish aquaculture easement shall not be
			 closer than 100 feet from a marked navigation channel.
(6) All shellfish aquaculture easements on
			 state-owned submerged lands shall contain such terms, conditions and
			 restrictions as deemed necessary by DCNR to protect and manage such
			 lands.
(7) Shellfish aquaculture
			 activities on state-owned submerged lands shall be designed to minimize or
			 eliminate adverse impacts on fish and wildlife habitat.
(8) Easements under this rule shall prohibit
			 the cultivation of non-indigenous, or hybrids of non-indigenous, plants and
			 animals.
(9) Shellfish aquaculture
			 easements shall comply with the following:
(a)
			 A shellfish aquaculture easement is only to be used to conduct shellfish
			 aquaculture activities on state-owned submerged lands and the overlying water
			 column, or for such activities associated with an on-shore shellfish
			 aquaculture facility. Shellfish aquaculture docks shall be restricted to the
			 immediate use for allowable shellfish aquaculture activities. Docks used for
			 purposes not immediately associated with shellfish aquaculture activities shall
			 not be allowed except for private recreational use by upland riparian property
			 owners. Placement of such aquaculture related structures shall be in accordance
			 with the provisions of Rule
			 220-4-.09 but will be exempt from
			 fees associated with
			 220-4-.09.
(b) Shellfish aquaculture easements shall
			 contain provisions to ensure that the easement area is marked and that markers
			 are maintained for the term of the easement. Such marking shall be adequate to
			 inform the public of the activity and identify potential navigation and safety
			 hazards.
(c) The area associated
			 with shellfish aquaculture easements shall comply with the following:
1. For riparian shellfish aquaculture
			 easements a setback of 10 feet from the riparian lines of adjoining riparian
			 upland property owners' riparian use areas shall be required unless a letter of
			 concurrence from the adjoining upland riparian property owner waives the
			 setback requirement or the State Lands Division determines that a reduced or
			 increased setback is required to avoid impacts to existing natural resources,
			 reduce potential navigation hazards, or avoid potential infringement on an
			 adjoining upland riparian property owner's riparian use area as determined in
			 accordance with Section
			 9-12-22,
Code of Ala.
			 1975
;
2. A
			 non-riparian shellfish aquaculture easement shall not be approved when the
			 easement location is determined by DCNR to potentially infringe upon riparian
			 rights or riparian use area of an adjoining riparian upland property owner as
			 defined in Section
			 9-12-22,
Code of Ala.
			 1975
, unless the applicant obtains a letter of concurrence from
			 the adjoining riparian upland property owner;
3. For both riparian shellfish aquaculture
			 easements and non-riparian shellfish aquaculture easements, setbacks from other
			 activities, channels or structures may also be required, as determined
			 necessary, to ensure safety, facilitate enforcement capabilities and ensure
			 resource management; and
4. For
			 non-riparian shellfish aquaculture easements, an easement area larger than five
			 acres may not be approved; provided however, that exceptions to the five acre
			 maximum may be made at the discretion of the DCNR Commissioner based on review
			 of mitigating or extenuating circumstances and documentation supporting the
			 same.