Section 597.010, Florida Statutes 2001
597.010 Shellfish regulation; leases.--
(1) LEASE, APPLICATION FORM.--When any qualified person desires to lease a part of the bottom, water column, or bed of any of the water of this state for the purpose of growing oysters or clams, as provided for in this section, he or she shall present to the department a written application pursuant to s. 253.69.
(2) LANDS TO BE LEASED.--The lands leased shall be as compact as possible, taking into consideration the shape of the body of water and the condition of the bottom as to hardness, or soft mud or sand, or other conditions that would render the bottoms desirable or undesirable for the purpose of oyster or clam cultivation.
(3) SURVEYS, PLATS, AND MAPS OF REEFS.--The department shall accept, adopt, and use official reports, surveys, and maps of oyster, clam, or other shellfish grounds made under the direction of any authority of the United States as prima facie evidence of the natural oyster and clam reefs and beds, for the purpose and intent of this chapter. The department may also make surveys of any natural oyster or clam reefs or beds when it deems such surveys necessary and where such surveys are made pursuant to an application for a lease, the cost thereof may be charged to the applicant as a part of the cost of his or her application.
(4) EXECUTION OF LEASES; LESSEE TO STAKE OFF BOUNDARIES; PENALTY FOR FAILURE TO COMPLY WITH REGULATIONS.--When a survey of the lands to be leased has been completed pursuant to s. 253.69 and filed with the department, and the cost thereof paid by the applicant, the department may execute in duplicate a lease of the water bottoms to the applicant. One duplicate, with a plat or map of the water bottoms so leased, shall be delivered to the applicant, and the other, with a plat or map of the bottom so leased, shall be retained by the department and registered in a lease book which shall be kept exclusively for that purpose by the department; thereafter the lessees shall enjoy the exclusive use of the lands and all oysters and clams, shell, and cultch grown or placed thereon shall be the exclusive property of such lessee as long as he or she shall comply with the provisions of this chapter and chapter 253. The department shall require the lessee to stake off and mark the water bottoms leased, by such ranges, monuments, stakes, buoys, etc., so placed and made as not to interfere with the navigation, as it may deem necessary to locate the same to the end that the location and limits of the lands embraced in such lease be easily and accurately found and fixed, and such lessee shall keep the same in good condition during the open and closed oyster or clam season. All leases shall be marked according to the standards set forth in s. 253.72. The department may stipulate in each individual lease contract the types, shape, depth, size, and height of marker or corner posts. Failure on the part of the lessee to comply with the orders of the department to this effect within the time fixed by it, and to keep the markers, etc., in good condition during the open and closed oyster or clam season, shall subject such lessee to a fine not exceeding $100 for each and every such offense.
(5) LEASES IN PERPETUITY; RENT.--
(a) All leases issued previously under the provisions of s. 370.16 shall be enforced under the authority of this chapter, notwithstanding any other law to the contrary, and shall continue in perpetuity under such restrictions as stated in the lease agreement. The annual rental fee charged for all leases shall consist of the minimum rate of $15 per acre, or any fraction of an acre, per year and shall be adjusted on January 1, 1995, and every 5 years thereafter, based on the 5-year average change in the Consumer Price Index. Rent shall be paid in advance of January 1 of each year or in the case of a new lease at the time of signing, regardless of who holds the lease.
(b) All fees collected under this subsection and subsection (6) shall be deposited in the General Inspection Trust Fund and shall be used for shellfish aquaculture activities.
(6) FORFEITURE FOR NONPAYMENT.--All leases shall stipulate that failure to timely pay the rent on or before January 1 of each year shall cause the department, at its discretion, to terminate and cancel the lease after the department has given the lessee 30 days' written notice of the nonpayment. If after receiving the notice the lessee chooses to keep the lease, the lessee shall pay the rental fee plus a $50 late fee within the 30-day period. After the 30-day notice has expired, the department may take possession of the lease and all improvements, assets, clams, and oysters thereon.
(7) SURCHARGE FOR IMPROVEMENT OR REHABILITATION.--A surcharge of $10 per acre, or any fraction of an acre, per annum shall be levied upon each lease, other than a perpetual lease granted pursuant to chapter 370 prior to 1985, and deposited into the General Inspection Trust Fund. The purpose of the surcharge is to provide a mechanism to have financial resources immediately available for improvement of lease areas and for cleanup and rehabilitation of abandoned or vacated lease sites. The department is authorized to adopt rules necessary to carry out the provisions of this subsection.
(a) Moneys in the fund that are not needed currently for cleanup and rehabilitation of abandoned or vacated lease sites shall be deposited with the Treasurer to the credit of the fund and may be invested in such manner as is provided for by statute. Interest received on such investment shall be credited to the fund.
(b) Funds within the General Inspection Trust Fund from receipts from the surcharge established in this section shall be disbursed for the following purposes and no others:
1. Administrative expenses, personnel expenses, and equipment costs of the department related to the improvement of lease areas, the cleanup and rehabilitation of abandoned or vacated aquaculture lease sites, and the enforcement of provisions of this section.
2. All costs involved in the improvement of lease areas and the cleanup and rehabilitation of abandoned or vacated lease sites.
3. All costs and damages which are the proximate results of lease abandonment or vacation.
4. Reward payments made pursuant to s. 597.0045.
The department shall recover to the use of the fund from the person or persons abandoning or vacating the lease, jointly and severally, all sums owed or expended from the fund.
(8) CULTIVATION REQUIREMENTS.--
(a) Effective cultivation shall consist of the growing of the oysters or clams in a density suitable for commercial harvesting over the amount of bottom prescribed by law. This commercial density shall be accomplished by the planting of seed oysters, shell, and cultch of various descriptions. The department may stipulate in each individual lease contract the types, shape, depth, size, and height of cultch materials on lease bottoms according to the individual shape, depth, location, and type of bottom of the proposed lease. Each lessee leasing lands under the provisions of this section or s. 253.71 shall begin, within 1 year after the date of such lease, bona fide cultivation of the same, and shall, by the end of the second year after the commencement of such lease, have placed under cultivation at least one-half of the leased area and shall each year thereafter place in cultivation at least one-fourth of the leased area until the whole, suitable for bedding of oysters or clams, shall have been put in cultivation. The cultivation requirements for perpetuity leases granted pursuant to chapter 370 prior to 1985 under previously existing law shall comply with the conditions stated in the lease agreement, and the lessee or grantee is authorized to plant the leased or granted submerged land in both oysters and clams.
(b) These stipulations apply to all leases granted after the effective date of this section. All leases existing prior to the effective date of this section will operate under the law that was in effect when the leases were granted.
(c) When evidence is gathered by the department and such evidence conclusively shows a lack of effective cultivation, the department may revoke leases and return the bottoms in question to the public domain.
(d) The department has the authority to adopt rules pertaining to the water column over shellfish leases. All cultch materials in place 6 months after the formal adoption and publication of rules establishing standards for cultch materials on shellfish leases that do not comply with such rules may be declared a nuisance by the department. The department has the authority to direct the lessee to remove such cultch in violation of this section. The department may cancel a lease upon the refusal by the lessee violating such rules to remove unlawful cultch materials, and all improvements, cultch, marketable oysters, and shell shall become the property of the state. The department has the authority to retain, dispose of, or remove such materials in the best interest of the state.
(9) LEASES TRANSFERABLE, ETC.--The leases in chapters 253 and 370 shall be inheritable and transferable, in whole or in part, and shall also be subject to mortgage, pledge, or hypothecation and shall be subject to seizure and sale for debts as any other property, rights, and credits in this state, and this provision shall also apply to all buildings, betterments, and improvements thereon. Leases granted under this section cannot be transferred, by sale or barter, in whole or in part, without the written, express approval of the department, and such a transferee shall pay a $50 transfer fee before department approval may be given. Leases inherited or transferred will be valid only upon receipt of the transfer fee and approval by the department. The department shall keep proper indexes so that all original leases and all subsequent changes and transfers can be easily and accurately ascertained.
(10) CANCELLATION OF LEASES TO NATURAL REEFS OR BEDS.--Any person, within 6 months after the execution of any lease, may file a petition with the department for the purpose of determining whether a natural oyster or clam reef or bed having an area of not less than 100 square yards existed within the leased area on the date of the lease, with sufficient natural or maternal oysters or clams thereon (not including coon oysters) to have constituted a stratum sufficient to have been resorted to by the public generally for the purpose of gathering the same to sell for a livelihood. The petition shall be in writing addressed to the department, verified under oath, stating the location and approximate area of the natural reef or bed and the claim or interest of the petitioner therein and requesting the cancellation of the lease to the natural reef or bed. A petition may not be considered unless it is accompanied by a deposit of $500 to defray the expense of the department's investigation of the matter. Upon receipt of such petition, the department shall cause an investigation to be made into the truth of the allegations of the petition, and, if found untrue, the $500 deposit shall be retained by the department to defray the expense of the investigation, but should the allegations of the petition be found true and the leased premises to contain a natural oyster or clam reef or bed, as described in this subsection, the $500 deposit shall be returned to the petitioner and the costs and expenses of the investigation taxed against the lessee and the lease canceled to the extent of the natural reef or bed and the same shall be marked with buoys and stakes and notices placed thereon showing the same to be a public reef or bed, the cost of the markers and notices to be taxed against the lessee.
(11) WHEN NATURAL REEFS OR BEDS MAY BE INCLUDED IN LEASE.--
(a) When an application for a submerged land lease for cultivating shellfish is filed, and when a resource survey of such lands identifies natural oyster or clam reefs or beds, the department shall determine if such reefs and beds are to be included in the leased area. The department, if it deems it to be in the best interest of the state, may include such natural reefs or beds in a lease. In those cases where a natural area is included in a lease, the department shall fix a reasonable value on the same, to be paid by the applicant for lease of such submerged land. No natural reefs shall be included in any shellfish or aquaculture lease granted in Franklin County.
(b) The department shall determine and settle all disputes as to boundaries between lessees. The department shall, in all cases, determine whether a particular submerged land area contains a natural reef or bed or whether it is suitable for raising oysters or clams.
(12) FRANKLIN COUNTY LEASES.--On and after the effective date of this section, the only leases available in Franklin County shall be those issued pursuant to ss. 253.67-253.75; chapter 370 leases shall no longer be available. The department shall require in the lease agreement such restrictions as it deems necessary to protect the environment, the existing leaseholders, and public fishery.
(13) TRESPASS ON LEASED BEDS; PROTECTION OF LEASE AREAS.--
(a) Any person who willfully takes oysters, shells, cultch, or clams bedded or planted by a licensee under this chapter, or grantee under the provisions of heretofore existing laws, or riparian owner who may have heretofore planted the same on his or her riparian bottoms, or any oysters or clams deposited by anyone making up a cargo for market, or who willfully carries or attempts to carry away the same without permission of the owner thereof, or who willfully or knowingly removes, breaks off, destroys, or otherwise injures or alters any stakes, bounds, monuments, buoys, notices, or other designations of any natural oyster or clam reefs or beds or private bedding or propagating grounds, or who willfully injures, destroys, or removes any other protection around any oyster or clam reefs or beds, or who willfully moves any bedding ground stakes, buoys, marks, or designations placed by the department, commits a violation of this section.
(b) Harvesting shellfish is prohibited within a distance of 25 feet outside lawfully marked lease boundaries or within setback and access corridors within specifically designated high-density aquaculture lease areas and aquaculture use zones.
(14) SHELLFISH DEVELOPMENT.--
(a) The department shall improve, enlarge, and protect the natural oyster and clam reefs and beds of this state to the extent it may deem advisable and the means at its disposal will permit.
(b) The Fish and Wildlife Conservation Commission shall, to the same extent, assist in protecting shellfish aquaculture products produced on leased or granted reefs and beds.
(c) The department, in cooperation with the commission, shall provide the Legislature with recommendations as needed for the development and the proper protection of the rights of the state and private holders therein with respect to the oyster and clam business.
(15) SPECIAL ACTIVITY LICENSES.--The department is authorized to issue special activity licenses, in accordance with s. 597.020, to permit the harvest or cultivation of oysters, clams, mussels, and crabs.
(16) STAKING OFF WATER BOTTOMS OR BEDDING OYSTERS WITHOUT OBTAINING LEASE.--Any person staking off the water bottoms of this state, or bedding oysters on the bottoms of the waters of this state, without previously leasing same as required by law commits a violation of this section, and shall acquire no rights by reason of such staking off. This provision does not apply to grants heretofore made under the provisions of any heretofore existing laws or to artificial beds made heretofore by a riparian owner or his or her grantees on the owner's riparian bottoms.
(17) SHELLFISH HARVESTING SEASONS; SPECIAL PROVISIONS RELATING TO APALACHICOLA BAY.--
(a) The Fish and Wildlife Conservation Commission shall by rule set the noncultured shellfish harvesting seasons in Apalachicola Bay.
(b) If the commission changes the harvesting seasons by rule as set forth in this subsection, for 3 years after the new rule takes effect, the commission, in cooperation with the department, shall monitor the impacts of the new harvesting schedule on the bay and on local shellfish harvesters to determine whether the new harvesting schedule should be discontinued, retained, or modified. In monitoring the new schedule and in preparing its report, the following information shall be considered:
1. Whether the bay benefits ecologically from the new harvesting schedule.
2. Whether the new harvesting schedule enhances the enforcement of shellfish harvesting laws in the bay.
3. Whether the new harvesting schedule enhances natural shellfish production, oyster relay and planting programs, and shell planting programs in the bay.
4. Whether the new harvesting schedule has more than a short-term adverse economic impact, if any, on local shellfish harvesters.
(18) REMOVING OYSTERS, CLAMS, OR MUSSELS FROM NATURAL REEFS; LICENSES, ETC.; PENALTY.--
(a) It is unlawful to use a dredge or any means or implement other than hand tongs in removing oysters from the natural or artificial state reefs or beds. This restriction shall apply to all areas of Apalachicola Bay for all shellfish harvesting, excluding private grounds leased or granted by the state prior to July 1, 1989, if the lease or grant specifically authorizes the use of implements other than hand tongs for harvesting. Except in Apalachicola Bay, upon the payment of $25 annually, for each vessel or boat using a dredge or machinery in the gathering of clams or mussels, a special activity license may be issued by the Fish and Wildlife Conservation Commission pursuant to subsection (15) or s. 370.06 for such use to such person.
(b) Approval by the department to harvest shellfish by dredge or other mechanical means from privately held shellfish leases or grants in Apalachicola Bay shall include, but not be limited to, the following conditions:
1. The use of any mechanical harvesting device other than ordinary hand tongs for taking shellfish for any purpose from public shellfish beds in Apalachicola Bay shall be unlawful.
2. The possession of any mechanical harvesting device on the waters of Apalachicola Bay from 5 p.m. until sunrise shall be unlawful.
3. Leaseholders or grantees shall notify the department no less than 48 hours prior to each day's use of a dredge or scrape in order for the department to notify the Fish and Wildlife Conservation Commission that a mechanical harvesting device will be deployed.
4. Only two dredges or scrapes per lease or grant may be possessed or operated at any time.
5. Each vessel used for the transport or deployment of a dredge or scrape shall prominently display the lease or grant number or numbers, in numerals which are at least 12 inches high and 6 inches wide, in such a manner that the lease or grant number or numbers are readily identifiable from both the air and the water.
Any violation of this paragraph or of any other statutes, rules, or conditions referenced in the lease agreement shall be considered a violation of the license and shall result in revocation of the lease or a denial of use or future use of a mechanical harvesting device.
(c) Oysters may be harvested from natural or public or private leased or granted grounds by common hand tongs or by hand, by scuba diving, free diving, leaning from vessels, or wading. In Apalachicola Bay, this provision shall apply to all shellfish.
(19) FISHING FOR RELAYING OR TRANSPLANTING PURPOSES.--
(a) The department shall designate areas for the taking of oysters and clams to be planted on leases, grants, and public areas. Oysters, clams, and mussels may be taken for relaying or transplanting at any time during the year so long as, in the opinion of the department, the public health will not be endangered. The amount of oysters, clams, and mussels to be obtained for relaying or transplanting, the area relayed or transplanted to, and relaying or transplanting time periods shall be established in each case by the department.
(b) Application for a special activity license issued pursuant to subsection (15) for obtaining oysters, clams, or mussels for relaying from closed public shellfish harvesting areas to open areas or certified controlled purification plants or for transplanting sublegal-sized oysters, clams, or mussels must be made to the department. In return, the department may assign an area and a period of time for the oysters, clams, or mussels to be relayed or transplanted to be taken. All relaying and transplanting operations shall take place under the direction of the department.
(c) Relayed oysters, clams, or mussels shall not be subsequently harvested for any reason without written permission or public notice from the department.
(20) OYSTER AND CLAM REHABILITATION.--The board of county commissioners of the several counties may appropriate and expend such sums as it may deem proper for the purpose of planting or transplanting oysters, clams, oyster shell, clam shell, or cultch or to perform such other acts for the enhancement of the oyster and clam industries of the state, out of any sum in the county treasury not otherwise appropriated.
(21) DREDGING OF DEAD SHELLS PROHIBITED.--The dredging of dead shell deposits is prohibited in the state.
(22) COOPERATION WITH UNITED STATES FISH AND WILDLIFE SERVICE.--The department shall cooperate with the United States Fish and Wildlife Service, under existing federal laws, rules, and regulations, and is authorized to accept donations, grants, and matching funds from the Federal Government in order to carry out its oyster resource and development responsibilities. The department is further authorized to accept any and all donations including funds, oysters, or oyster shells.
(23) OYSTER AND CLAM SHELLS PROPERTY OF DEPARTMENT.--
(a) Except for oysters used directly in the half-shell trade, 50 percent of all shells from oysters and clams shucked commercially in the state shall be and remain the property of the department when such shells are needed and required for rehabilitation projects and planting operations, in cooperation with the Fish and Wildlife Conservation Commission, when sufficient resources and facilities exist for handling and planting such shell, and when the collection and handling of such shell is practicable and useful, except that bona fide holders of leases and grants may retain 75 percent of such shell as they produce for aquacultural purposes. Storage, transportation, and planting of shells so retained by lessees and grantees shall be carried out under the conditions of the lease agreement or with the written approval of the department and shall be subject to such reasonable time limits as the department may fix. In the event of an accumulation of an excess of shells, the department is authorized to sell shells only to private growers for use in oyster or clam cultivation on bona fide leases and grants. No profit shall accrue to the department in these transactions, and shells are to be sold for the estimated moneys spent by the department to gather and stockpile the shells. Planting of shells obtained from the department by purchase shall be subject to the conditions set forth in the lease agreement or in the written approval as issued by the department. Any shells not claimed and used by private oyster cultivators 10 years after shells are gathered and stockpiled may be sold at auction to the highest bidder for any private use.
(b) Whenever the department determines that it is unfeasible to collect oyster or clam shells, the shells become the property of the producer.
(c) Whenever oyster or clam shells are owned by the department and it is not useful or feasible to use them in the rehabilitation projects, and when no leaseholder has exercised his or her option to acquire them, the department may sell such shells for the highest price obtainable. The shells thus sold may be used in any manner and for any purpose at the discretion of the purchaser.
(d) Moneys derived from the sale of shell shall be deposited in the General Inspection Trust Fund for shellfish programs.
(e) The department may publish notice, in a newspaper serving the county, of its intention to collect the oyster and clam shells and shall notify, by certified mail, each shucking establishment from which shells are to be collected. The notice shall contain the period of time the department intends to collect the shells in that county and the collection purpose.
(24) OYSTER CULTURE.--The department, in cooperation with the Fish and Wildlife Conservation Commission and the Department of Environmental Protection, shall protect all clam beds, oyster beds, shellfish grounds, and oyster reefs from damage or destruction resulting from improper cultivation, propagation, planting, or harvesting and control the pollution of the waters over or surrounding beds, grounds, or reefs, and to this end the Department of Health is authorized and directed to lend its cooperation to the department, to make available its laboratory testing facilities and apparatus.
(25) REQUIREMENTS FOR OYSTER OR CLAM VESSELS.--
(a) All vessels used for the harvesting, gathering, or transporting of oysters or clams for commercial purposes shall be constructed and maintained to prevent contamination or deterioration of shellfish. To this end, all such vessels shall be provided with false bottoms and bulkheads fore and aft to prevent onboard shellfish from coming in contact with any bilge water. No dogs or other animals shall be allowed at any time on vessels used to harvest or transport shellfish. A violation of any provision of this subsection shall result in at least the revocation of the violator's license.
(b) For the purpose of this subsection, "harvesting, gathering, or transporting of oysters or clams for commercial purposes" means to harvest, gather, or transport oysters or clams with the intent to sell and shall apply to a quantity of two or more bags of oysters per vessel or more than one 5-gallon bucket of unshucked hard clams per person or more than two 5-gallon buckets of unshucked hard clams per vessel.
History.--s. 31, ch. 2000-364.