House Bill 1262

AN ACT TO AMEND SECTION 49-15-27, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE COMMISSION ON MARINE RESOURCES, WITH THE APPROVAL OF THE EXECUTIVE DIRECTOR OF THE DEPARTMENT OF MARINE RESOURCES, SHALL HAVE THE AUTHORITY TO RE-DESIGNATE NATURAL/PUBLIC REEFS AND ESTABLISH A REGULATORY PROGRAM FOR THE PURPOSE OF PRIVATE LEASES; TO PROVIDE THAT AT NO TIME SHALL THE COMMISSION RE-DESIGNATE ALL NATURAL/PUBLIC REEFS; TO BRING FORWARD SECTIONS 49-15-37 AND 49-15-40, MISSISSIPPI CODE OF 1972, FOR THE PURPOSE OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 49-15-27, Mississippi Code of 1972, is amended as follows:

49-15-27. The commission is hereby granted full and complete authority to lease the bottoms within its jurisdiction upon the following terms and conditions:

(1) (a) All areas within the commission's jurisdiction, not designated tonging reefs by this chapter, or hereinafter designated tonging reefs by the commission; all areas not designated natural reefs by the commission, and all areas not within the boundaries of riparian property owners may be leased by the commission.

(b) The commission, with the approval of the Executive Director of the Department of Marine Resources, shall have the authority to re-designate natural/public reefs and establish a regulatory program for the purpose of private leases, but at no time shall the commission re-designate all natural/public reefs.

(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.

(3) No individual, corporation, partnership or association may lease less than five (5) acres nor more than five hundred (500) acres; however, in the case of an individual there shall not 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 not 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 commission in writing, describing the area to be leased.

(5) The commission shall consider bottom leasing applications in the order in which each is filed and may award, within sixty (60) days, a lease to the area described in the application upon payment of the rent in advance.

(6) Such leases shall be for a term of five (5) years, with the right of lessee to renew the lease for an additional five (5) years, and continue to renew at five-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 commission of the transfer.

(7) The commission shall fix a ground rental at not less than Five Dollars ($5.00) per acre.

(8) The commission 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 commission shall keep an accurate book, designated "Mississippi Oyster Farms" which shall contain copies of all leases. 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.

(9) All funds derived from leasing shall be paid into the Seafood Fund under Section 49-15-17, for use by the commission to further oyster production in this state, which includes plantings of oysters and cultch materials.

(10) All leases made by the commission 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 commission 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 commission and in accordance with such reasonable rules and regulations as the commission 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 commission 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 commission 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.

SECTION 2. Section 49-15-37, Mississippi Code of 1972, is brought forward as follows:

49-15-37. By order of the commission, the director, under the direction and control of the commission, shall employ boats, crews and laborers and shall cultivate the public reefs of the state, and shall dredge the oysters in the Mississippi Sound from places where they are too thick, and shall spread them on reefs where they are too thin, and shall carry shells from the factories and spread them in places where the oyster beds can be improved and enlarged. 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. 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 commission may, by orders spread on its minutes, 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 public reefs in which oysters exist and in waters not of a safe sanitary quality as determined by the department, the commission shall prohibit any person, firm or corporation from taking oysters from those areas. The commission 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. The commission may transport the oysters to an onshore, molluscan depuration facility for the purpose of proving depuration technology and for other experimental purposes. In connection with the testing of onshore, molluscan depuration technology, the commission may sell or dispose of the relaid oysters in a manner consistent with all applicable state and federal laws and regulations. Any funds received from the sale of the oysters shall be used in a like manner as those funds received under Section 49-15-38.

If the commission finds that onshore, molluscan depuration technology proves to be successful, the commission may issue permits to private enterprise which may locate depuration facilities in Hancock, Harrison and Jackson Counties. The commission shall promulgate rules and regulations for the taking of oysters from reefs for transport to an onshore, molluscan depuration facility and for the operation of the facilities. Each depuration facility operated by private enterprise shall return oyster shells to the oyster reefs for replanting under the proper supervision of the department and under Section 49-15-38.

The commission 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 even though those areas may have been reserved for tonging only in Section 49-15-39. These areas shall 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 commission may permit the transplanting of these seed oysters by a duly authorized public agency.

The commission may, upon certification of the department that 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 commission;

(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 commission after April 13, 1977; 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 commission 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 commission 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.

The commission shall regulate the taking of oysters from restricted seed areas and the subsequent depuration of the oysters to protect public health, while at the same time fostering the utilization of the state's oyster resources. The regulations shall include the setting of the period of depuration for the oysters by the use of appropriate techniques and provide for an employee of the department to be present when the oysters are taken from restricted seed areas, and transported, held and deposited on private lease grounds. Any person, firm, corporation or private lease holder engaged in the depuration of oysters shall pay to the department an amount equal to the regular compensation of the employee of the department for the time the employee actually spends performing the duties, not to exceed Two Hundred Dollars ($200.00) per twenty-four-hour period.

Only persons who have been residents of Mississippi for at least five (5) years shall be eligible to obtain permits for removal of oysters from seed grounds.

The commission shall designate certain reefs in the state as public reefs and shall remove oysters from water bottoms which are not of a safe, sanitary quality for oyster production for human consumption and shall transport the oysters to the public reefs.

SECTION 3. Section 49-15-40, Mississippi Code of 1972, is brought forward as follows:

49-15-40. (1) The commission may support projects in the nature of digging or constructing canals or ditches to bring additional water to existing oyster reefs or beds in need of that water, or for the purpose of creating or establishing new oyster reefs or beds. All reefs created or established under this section shall be public reefs. The commission may expend any monies as it deems necessary and expedient to participate in the digging of those canals. The commission may also enter into interstate or intrastate efforts to support these projects and may seek and utilize aid from all federal, state and local sources in this endeavor. To aid in the construction of any canals or ditches, the commission may exercise the right of eminent domain in the manner provided by law.

(2) The commission may construct, operate and maintain onshore, molluscan facilities using any federal or special funds, other than general funds, for the purpose of testing and proving technology relating to oysters and other shellfish. In connection with the construction, operation and maintenance of the facilities, the commission may contract with any persons it deems necessary for the operation, testing, maintenance and evaluation of the facilities, subject to the approval of the State Personnel Board. The commission may locate the facilities on any available public properties, subject to the approval of the governing body of that jurisdiction and all other applicable state laws. Once the technology has been tested and proven, the commission may conduct any other tests and experiments with oysters or other shellfish as may be necessary to enhance production or quality of shellfish.

(3) The commission may lease to political subdivisions of the State of Mississippi up to one thousand (1,000) acres of water bottoms for development of oyster reefs and those political subdivisions may permit residents of the State of Mississippi to harvest oysters from the reefs. The political subdivision may charge and receive a fee for each sack of oysters harvested. The commission shall consider and approve the application of a political subdivision after determining that (a) no conflicts exist with sites requested in applications filed before the application of the political subdivision; (b) a fair and reasonable rental payment has been set; and (c) the lease will insure the maximum culture and propagation of oysters.

SECTION 4. This act shall take effect and be in force from and after July 1, 2019.