MISSISSIPPI LEGISLATURE
2021 Regular Session
To: Accountability, Efficiency, Transparency; Appropriations
By: Senator(s) Thompson
AN ACT ENTITLED THE "MISSISSIPPI COASTAL MASTER PLAN ACT OF 2021" TO CREATE A PERMANENT PROCEDURE FOR CREATING AN ANNUAL MASTER PLAN FOR THE RESTORATION, CONSERVATION, STORM PROTECTION, HABITAT CONSTRUCTION AND RESTORATION, AND WATER QUALITY PROJECTS ON THE MISSISSIPPI GULF COAST EARMARKED FOR FUNDING UNDER THE FEDERAL GULF OF MEXICO ENERGY SECURITY ACT (GOMESA); TO DECLARE LEGISLATIVE FINDINGS AND THE PURPOSE OF THE ACT; TO CREATE A TECHNICAL ADVISORY BOARD (TAB) TO DEVELOP AND ANNUALLY REVISE AN INITIAL MASTER PLAN FOR ALL GOMESA PROJECTS TO BE SUBMITTED ANNUALLY TO THE STATE LEGISLATURE FOR APPROVAL AND FUNDING; TO PROVIDE FOR THE COMPOSITION OF THE TECHNICAL ADVISORY BOARD AND ITS ORGANIZATION; TO PRESCRIBE THE DUTIES AND RESPONSIBILITIES OF THE TECHNICAL ADVISORY BOARD AND THE PROCEDURES FOR FUNDING APPROVAL BY THE LEGISLATURE; TO REQUIRE STATE AND LOCAL AGENCIES TO COOPERATE WITH THE FUNCTIONS OF THE TECHNICAL ADVISORY BOARD; TO REQUIRE AN ANNUAL REPORT; TO CREATE A SPECIAL FUND IN THE STATE TREASURY FOR THE EXPENDITURE OF FUNDS FOR APPROVED PROJECTS; TO AMEND SECTIONS 49-15-305, 49-2-13 AND 29-15-7, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be entitled and may be referred to as the "Mississippi Coastal Master Plan Act of 2021."
SECTION 2. (1) The purpose of this act is to create a Master Plan for restoration, conservation, storm protection, habitat creation, and water quality projects on the Mississippi Gulf Coast. The proposed Master Plan shall establish priorities, goals, and expected results for these projects. The Master Plan will facilitate multi-year planning effort and provide coordination among state agencies and funding resources. The Master Plan will provide guidance to project applicants, state agencies, and other stakeholders. It is the intent of the Legislature that the Master Plan will be developed with input from the Mississippi Department of Marine Resources (DMR), the Mississippi Department of Environmental Quality (DEQ), and other public and nonpublic entities as prescribed in this act. It is further the intent of the Legislature that all future projects funded by GOMESA, the RESTORE Act, and other similar funding sources shall meet the goals and priorities of the Master Plan.
(2) The Legislature finds the Mississippi Department of Marine Resources (DMR) and the Mississippi Department of Environmental Quality (DEQ) currently receive monies from GOMESA and the RESTORE Act, respectively, that are earmarked to be spent on coastal restoration, conservation, habitat construction and water quality improvement projects.
(a) The Mississippi Department of Marine Resources (DMR) currently administers funds received from the Gulf of Mexico Energy Security Act (GOMESA) of 2006 which created a revenue-sharing model for oil- and gas-producing gulf states. Under the act, Alabama, Louisiana, Mississippi and Texas receive a portion of the revenue generated from oil and gas production offshore in the Gulf of Mexico. The act also directs a portion of revenue to the Land and Water Conservation Fund. GOMESA projects are required to fit into one (1) of five (5) categories:
(i) Projects and activities for the purposes of coastal protection, including conservation, coastal restoration, hurricane protection and infrastructure directly affected by coastal wetland losses;
(ii) Mitigation of damage to fish, wildlife or natural resources;
(iii) Implementation of a federally approved marine, coastal or conservation management plan;
(iv) Mitigation of the impact of activities through funding of onshore infrastructure projects; and
(v) Planning assistance and the administrative costs of complying with this section, not more than three percent (3%).
(b) Further, the Mississippi Department of Marine Resources (DMR) periodically receives and administers monies for coastal restoration and conservation projects from other federal and private nonprofit sources.
(c) The Mississippi Department of Environmental Quality (DEQ) currently administers funds received from the RESTORE Act, the Natural Resource Damage Assessment and Restoration (NRDA), and the National Fish and Wildlife Foundation (NFWF). In July 2012, Congress passed the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act (RESTORE Act) in response to the Deepwater Horizon oil spill. The RESTORE Act dedicates eighty percent (80%) of all administrative and civil penalties related to the Deepwater Horizon oil spill to a Gulf Coast Restoration Trust Fund and outlines a structure by which the funds can be utilized to restore and protect the natural resources, ecosystems, fisheries, marine and wildlife habitats, beaches, coastal wetlands, and economy of the Gulf Coast region.
(3) The Legislature further finds that there is:
(a) A need for comprehensive, tactical, strategic plan to address coastal conservation, restoration, water quality, habitat loss, or other issues in the Mississippi Sound and surrounding waterways;
(b) A need for formal collaboration between DMR, DEQ, or other state agencies and offices involved in coastal restoration and conservation projects; and
(c) A need for continuity and consistency in the design and awarding of GOMESA, RESTORE Act and other similar projects.
SECTION 3. (1) There is hereby created a Technical Advisory Board (TAB) to develop and annually revise an initial Master Plan for all future GOMESA projects, RESTORE ACT projects, and coastal restoration and conservation projects from other similar funding sources, and oversee implementation of the plan. Technical Advisory Board members shall include: (a) a Chairman knowledgeable with the subject matter of Mississippi coastal restoration appointed by the Governor; (b) a representative of the Department of Environmental Quality appointed by the Executive Director; (c) a representative of the Department of Marine Resources appointed by the Executive Director; (d) a representative appointed by the Secretary of State; (e) a representative of The University of Southern Mississippi appointed by the President of The University of Southern Mississippi; (f) a representative of Mississippi State University appointed by the President of Mississippi State University; (g) a representative from nonprofit environmental groups appointed by the Governor; a member of the House of Representatives appointed by the Speaker of the House and a member of the Mississippi Senate appointed by the Lieutenant Governor, who shall serve as nonvoting members.
(2) The Technical Advisory Board shall be administered within the Department of Marine Resources which shall provide meeting space and clerical support. Appointments to the Technical Advisory Board shall be made no later than sixty (60) days after the effective date of this act by the appointing authority. The Chairman of the Technical Advisory Board shall call the first meeting of the Technical Advisory Board no later than September 1, 2021, and the Technical Advisory Board shall organize for business and adopt rules for operation. Any member of the TAB who is not a public employee shall receive the per diem authorized by law and mileage for attending meetings and necessary business as authorized by the TAB to be paid from available GOMESA or RESTORE Act funds.
(3) The Technical Advisory Board shall develop a Mississippi Coastal Master Plan for all future coastal restoration and conservation projects.
(4) The Master Plan shall establish planning goals, a planning scope, identifying issues of concern, a process to develop the planning framework, including analyzing existing data and information, creating resiliency and water quality improvement strategies, and implementation of the Master Plan.
(5) The Master Plan shall incorporate short-term and long-term project-monitoring requirements and criteria parallel to the Master Plan goals and priorities to ensure projects are performing as intended.
(6) The Master Plan shall establish priorities and goals to guide project applicants and state agencies in project ranking, selection and award. The Master Plan may also provide guidance on specific projects that fit within the plan.
(7) The intent of the Legislature is to develop an adaptable plan that will accommodate changing coastal conditions and their impacts on the coastal environment and the infrastructure protected by the state's natural storm protection resources. The Master Plan will also create continuity among the funding sources available to state agencies for coastal restoration, conservation, habitat construction, and water quality improvement projects.
(8) Applicable to the Federal Gulf of Mexico Energy Security Act (GOMESA) program, the Technical Advisory Board shall establish criteria, rules and procedures for accepting, reviewing and granting or denying applications for assistance under the GOMESA Act. Applications must be submitted to the Technical Advisory Board not later than October 1 of each year, and the Technical Advisory Board shall review, evaluate and score all timely received applications not later than November 15 of the year. The Technical Advisory Board then shall annually present all of the applications to the Legislature not later than December 1 of the year along with its recommendations for funding.
(9) State agencies are responsible to ensure the projects submitted to and recommended by the Technical Advisory Board under the GOMESA program satisfy funding source requirements and the Master Plan.
(10) Applicable to the GOMESA program, projects recommended to the Legislature shall be subject to a final appropriation for project funding to ensure the goals and priorities of the Master Plan are met. The Legislature may either (a) accept the projects recommended by the Technical Advisory Board; (b) delete any projects recommended and submitted by the board; and/or (c) substitute a different project(s) for funding from the list of applications originally submitted provided that such project(s) satisfy funding source requirements and the Master Plan.
(11) The Technical Advisory Board shall prepare an annual report on the current state of identified areas of concern and status of monitoring efforts to evidence whether priorities and goals of the Master Plan are being met.
(12) The administration expenses of the Technical Advisory Board in carrying out its duties under this act shall not exceed one percent (1%) of the amount of the funds administered by the Technical Advisory Board under this act.
SECTION 4. From and after September 1, 2021, all funds received by or on behalf of the State of Mississippi through the federal Gulf of Mexico Energy Security Act (GOMESA) of 2006 shall be subject to appropriation pursuant to the provisions of the Mississippi Coastal Master Plan Act of 2021, and there is hereby created a separate fund in the State Treasury for programs to be expended pursuant to appropriation by the Legislature.
SECTION 5. Section 49-15-305, Mississippi Code of 1972, is amended as follows:
49-15-305. (1) The Governor shall appoint the Executive Director of the Department of Marine Resources, with the advice and consent of the Senate, who shall serve at the will and pleasure of the Governor. The executive director shall be knowledgeable and experienced in marine resources management.
(2) The executive director of the department shall have the following powers and duties:
(a) To supervise and direct all administrative, inspection and technical activities and personnel of the department;
(b) To employ qualified professional personnel in the subject matter or fields, and any other technical and clerical staff as may be required for the operation of the department;
(c) To coordinate all studies in the State of Mississippi concerned with the supply, development, use and conservation of marine resources;
(d) To prepare and deliver to the Legislature and the Governor on or before January 1 of each year, and at any other times as may be required by the Legislature or Governor, a full report of the work of the department, including a detailed statement of expenditures of the department and any recommendations the department may have;
(e) To enter into
cooperative agreements with any federal or state agency or subdivision thereof,
or any public or private institution located inside or outside the State of
Mississippi, or any person, corporation or association in connection with
studies and investigations pertaining to marine resources, provided the agreements
do not have a financial cost in excess of the amounts appropriated for the
purposes by the Legislature; * * *
(f) To carry out all
regulations and rules adopted by the department and enforce all licenses and
permits issued by the department * * *; and
(g) To carry out all responsibilities required of the Department of Marine Resources under the Mississippi Coastal Master Plan Act of 2021.
SECTION 6. Section 49-2-13, Mississippi Code of 1972, is amended as follows:
49-2-13. The executive director shall have the following powers and duties:
(a) To administer the policies of the commission within the authority granted by the commission;
(b) To supervise and direct all administrative and technical activities of the department;
(c) To organize the administrative units of the department in accordance with the plan adopted by the commission and, with commission approval, alter such organizational plan and reassign responsibilities as he may deem necessary to carry out the policies of the commission;
(d) To coordinate the activities of the various offices of the department;
(e) To employ, subject to the approval of the commission, qualified professional personnel in the subject matter or fields of each office, and such other technical and clerical staff as may be required for the operation of the department;
(f) To recommend to the commission such studies and investigations as he may deem appropriate, and to carry out the approved recommendations in conjunction with the various offices;
(g) To merge and coordinate functions and duties where possible to eliminate the possibility of two (2) separate organizational entities performing the same or similar functions, including, but not limited to, functions of audit, inspection, collection, personnel, motor vehicles, accounting, data processing, payroll and any other such administrative, procedural or enforcement function;
(h) To coordinate all studies in the State of Mississippi concerned with the supply, development, use and conservation of natural resources within the jurisdiction of the department;
(i) To prepare and deliver to the Legislature and the Governor on or before January 1 of each year, and at such other times as may be required by the Legislature or Governor, a full report of the work of the department and the offices thereof, including a detailed statement of expenditures of the department and any recommendations the commission may have;
(j) To issue, modify
or revoke any and all orders under authority granted by the commission which include,
but are not limited to those which (i) prohibit, control or abate discharges of
contaminants and wastes into the air and waters of the state; (ii) require the
construction of new disposal systems or air-cleaning devices or any parts
thereof, or the modification, extension or alteration of existing disposal
systems or air-cleaning devices or any parts thereof, or the adoption of other
remedial measures to prevent, control or abate air and water pollution or to
cause the proper management of solid wastes; (iii) impose penalties pursuant to
Section 17-17-29 and Section 49-17-43 which have been agreed upon with alleged
violators; and (iv) require compliance with the conditions of any permit issued
by the Permit Board created in Section 49-17-28 and all regulations of the
commission; * * *
(k) With the approval
of the commission, to enter into contracts, grants and cooperative agreements
with any federal or state agency or subdivision thereof, or any public or
private institution located inside or outside the State of Mississippi, or any
person, corporation or association in connection with carrying out the
provisions of this chapter, provided the agreements do not have a financial
cost in excess of the amounts appropriated for such purposes by the Legislature * * *; and
(l) To carry out all responsibilities required of the Mississippi Department of Environmental Quality under the Mississippi Coastal Master Plan Act of 2021.
SECTION 7. Section 29-15-7, Mississippi Code of 1972, is amended as follows:
29-15-7. (1) The Secretary of State, in cooperation with other state agencies, shall prepare a Preliminary Map of Public Trust Tidelands. The preliminary map shall depict the boundary as the current mean high water line where shoreline is undeveloped and in developed areas or where there have been encroachments, such maps shall depict the boundary as the determinable mean high water line nearest the effective date of the Coastal Wetlands Protection Act.
(2) The state recognizes that the boundary of the public trust tidelands is ambulatory and that the natural inland expansion of tide waters over land not previously subject to the ebb and flow of the tide increases the land subject to the public trust, while natural accretion, the gradual and imperceptible accumulation of land by natural causes, and natural reliction, the increase of land by permanent withdrawal or retrocession of tidal waters by natural causes, diminish the land subject to the public trust and increase the property owned by the contiguous upland owner. Likewise, the state recognizes the common law doctrine as it pertains to such tidelands, submerged lands and riparian and littoral rights and declares such to be the law of this state.
(3) The preliminary map shall be transmitted to each of the chancery clerks of the coastal counties, and each chancery clerk shall post such map in a public place in his office. The Secretary of State shall also cause to be published in a newspaper of general circulation within each coastal county a notice announcing that a copy of the Preliminary Map of Public Trust Tidelands is available for public inspection at the office of the chancery clerk of that county, and shall post a similar notice in at least three (3) public places in each coastal county in this state. The preliminary map shall also be open to public inspection at the Office of the Secretary of State.
(4) The Secretary of State shall allow sixty (60) days after publication of the preliminary map for submission of comments and/or additional documentation and may, at his discretion, revise the map accordingly. Within twenty (20) days of the completion of the period for submission of comments, the Secretary of State shall have incorporated any revisions to the Preliminary Map of Public Trust Tidelands and certify its final adoption. The certified map as finally adopted shall be published as provided hereinabove. The final certified map shall be duly recorded in the land records of the chancery clerks office in Hancock, Harrison and Jackson Counties. Upon recordation, the certified map shall be final to those properties not subject to the trust. The Secretary of State shall issue to all consenting property owners a certificate stating that the described property does not lie within the boundary of the public trust tidelands and is not subject to the trust. The Secretary of State shall duly file such certificates with the proper chancery clerks office for recordation. In addition, the certified map shall be placed in the Secretary of State's permanent register which shall be open to public inspection. Within one hundred twenty (120) days of final adoption of the certified map, the Secretary of State shall determine those property owners whose lands are subject of the public trust and are in violation of such trust. The Secretary of State shall notify all such owners by certified mail and shall include an explanation of the procedure available to the occupant to resolve any dispute with respect to this map. The notice shall also inform occupants that after three (3) years the boundary as set forth in the certified map shall become final unless the occupant has submitted a contrary claim to the office of the Secretary of State. Such property owner shall have six (6) months to negotiate and settle differences with the Secretary of State. The Secretary of State may allow extensions at his discretion. A boundary determination shall be final upon agreement of the Secretary of State and the owner and an instrument setting forth the boundary agreement shall be duly executed and recorded in the chancery court where the property is located. Any such boundary agreement shall be binding on the state and other parties thereto.
(5) If any dispute as to the location of the boundary of the public trust cannot be negotiated and settled between the affected property owners and the Secretary of State within six (6) months after notice by the state of its claim, either the state or a person claiming an interest in the property may apply to the chancery court of the county in which the property is located for a resolution of the dispute and a determination of the location of the boundary. All persons having an interest in the property subject to the dispute shall be made a party to such proceeding. In any such action, the state shall have the burden of proof by a preponderance of evidence that any such land is subject to the trust.
(6) Nothing in this section is intended to preclude any party from pursuing remedies otherwise available at law, including but not limited to those provided in Sections 11-17-1 et seq., except that if no action is taken by the occupant within three (3) years of receipt of notice as described above, the boundary as determined by the certified map shall become final.
(7) In addition to the duties charged to the Secretary of State under this section, he shall carry out all responsibilities required of the Office of the Secretary of State under the Mississippi Coastal Master Plan Act of 2021.
SECTION 8. This act shall take effect and be in force from and after July 1, 2021.