Fla. Admin. Code Ann. R. 18-21.020 - Aquacultural Activities

(1) Intent - It is in the state's economic, resource enhancement, and food production interest to promote aquacultural production of food and non-food aquatic species by facilitating the review and approval processes for authorizing the use of sovereignty submerged lands and water columns for aquacultural purposes. Aquaculture development should be fostered when the aquaculture activity is consistent with state resource management goals, proprietary interest, environmental protection, the state aquaculture plan, and the public interest, as expressed in Section 258.42, F.S.

(2) Forms of authorization - For the purpose of Rules 18-21.020, 18-21.021 and 18-21.022, F.A.C., conducting aquacultural activities on sovereignty submerged lands and in the water column shall be authorized by an aquaculture lease, an aquaculture letter of consent, or an aquaculture management agreement.

(a) An aquaculture lease is required for all revenue-generating aquacultural activities conducted on or over sovereignty submerged lands, except those aquacultural activities associated with an aquaculture facility that qualifies for an aquaculture letter of consent pursuant to subsection 18-21.020(5), F.A.C., or an aquaculture management agreement pursuant to subsection 18-21.020(6), F.A.C.

(b) A letter of consent shall be issued for aquaculture activities that meet the requirements of subsection 18-21.020(5), and Chapter 5L-3, F.A.C.

(c) An aquaculture management agreement shall be issued for public and private entities to conduct certain aquacultural activities for educational, scientific, demonstration, Aquaculture Restoration, and experimental purposes when such activities meet the requirements of subsection 18-21.020(6), F.A.C., and education or Aquaculture Restoration is the primary objective.

(3) Aquaculture general standards and criteria - The following standards and criteria shall be used in determining whether to authorize, authorize with conditions or modifications, or deny all requests to conduct aquacultural activities on sovereignty submerged lands.

(a) Aquacultural activities on sovereignty submerged lands or water columns shall be authorized only when the proposed activity has been determined to be a water dependent aquaculture activity and upon such conditions that protect the public interest.

(b) DACS shall consider location of the site, water body, water depth, navigation and safety hazards, channels, distance from shore, presence of fish and wildlife habitat, presence of submerged resources, threatened and endangered species, presence of threatened and endangered species habitat, user conflicts, and resource management when reviewing a request for an aquaculture lease, an aquaculture letter of consent, or an aquaculture management agreement.

(c) Aquacultural activities shall not prevent ingress and egress of vessels in marked or unmarked channels.

(d) All aquaculture leases, aquaculture letters of consent, or aquaculture management agreements for aquacultural activities on sovereignty submerged lands shall contain such terms, conditions and restrictions as deemed necessary by the Board to protect and manage sovereignty lands.

(e) The management policies provided in paragraphs 18-21.004(1)(e), (g), (h) and (k), F.A.C., shall be applied when considering whether to authorize aquacultural activities on sovereignty submerged lands. However, paragraph 18-21.004(1)(k), F.A.C., shall not apply to applications for aquaculture activities which request the exclusive use of the water bottom for cultivation adjacent to unbridged, undeveloped coastal islands.

(f) The management policies provided in paragraphs 18-21.004(2)(e), (f), (g) and (h), F.A.C., involving filling, shoreline stabilization, or severance of material shall be applied when considering whether to authorize aquacultural activities on sovereignty submerged lands.

(g) Aquacultural activities on sovereignty submerged lands shall be designed to minimize or eliminate adverse impacts on fish and wildlife habitat, including: sea grasses, endangered and threatened species, wetland vegetation, and water quality.

(h) Authorizations under this rule shall prohibit the cultivation of non-indigenous, or hybrids of non-indigenous, plants and animals.

(i) Riparian rights shall be protected pursuant to subsection 18-21.004(3), F.A.C.

(j) Authorization of aquacultural activities on sovereignty submerged lands, including aquatic preserves, shall be consistent with Chapters 18-18 and 18-20, F.A.C., and Section 258.42, F.S., when applicable.

(k) Upon issuance of an aquaculture lease or an aquaculture management agreement, DACS shall send a copy of the document and accompanying survey to the Title and Land Records Section, Division of State Lands in the Department of Environmental Protection for filing in the permanent title records of the Board.

(l) No authorization, other than a management agreement, shall be issued for a parcel within a state park boundary.

(m) Aquacultural activities that are conducted in accordance with best management practices adopted under Chapter 5L-3, F.A.C., are exempt from the provisions of Rule 18-21.00401, F.A.C. Activities for which best management practices have not been adopted pursuant to Chapter 5L-3, F.A.C., and require a permit under Part IV of Chapter 373, F.S. shall be subject to concurrent review in accordance with Rule 18-21.00401, F.A.C., and provided that DACS and the Department of Environmental Protection shall issue a joint recommended consolidated intent. Application for an aquaculture authorization will be submitted to DACS and the joint application for an environmental resource permit shall be submitted to the Department of Environmental Protection as required.

(n) Applications for aquaculture docks in the Florida Keys shall comply with the provisions in Rule 18-21.0041, F.A.C.

(o) Applications for aquaculture docks shall include a description of proposed aquacultural activities and activity-specific structures to be placed on the dock. Structures must be directly related to specific aquaculture activities and shall be limited to roofs and shade cloth to protect culture systems from sunlight and other adverse climatic conditions and depredation; chain link and similar fences to prevent depredation, prevent public access, and provide security and safety; raceways and culture systems that contain animals during hatchery and nursery operations. Solid enclosures of any kind are prohibited.

(4) Specific standards and criteria for aquaculture leases. Leased areas shall comply with the following:

(a) An aquaculture lease is only to be used to conduct aquacultural activities on sovereignty submerged lands and the overlying water column, or for activities associated with an on-shore aquaculture facility. Allowable aquaculture activities on an on-shore aquaculture facility or aquaculture dock include hatchery and nursery cultivation systems, intake and discharge pipes, pumps, loading and off-loading aquaculture products, and the mooring of vessels used by aquaculture producers in planting, growing, harvesting, and transporting aquacultural products.

(b) Aquaculture lease applications shall require coordinated review pursuant to Rule 18-21.021, F.A.C., to ensure that the proposed sites are suitable for aquacultural activities.

(c) When the leased area is within an aquatic preserve, research reserve, marine sanctuary, or state park, the activity shall be compatible with the managed area's management plan, or prevailing management policies when a management plan has not been developed, and consistent with Sections 258.42 and 373.406, F.S., as determined by the coordinated review required in paragraph 18-21.021(1)(f), F.A.C.

(d) DACS shall recommend that the Board create an aquaculture use zone when it receives ten or more individual lease applications in the same water body within a six month period to encourage regional aquacultural and economic development, facilitate resource management, reduce potential adverse environmental impacts, and reduce user conflicts.

(e) Riparian rights shall not be infringed upon. An aquaculture lease area for a nonriparian applicant shall not be approved when the distance is less than or equal to 100 feet waterward of mean or ordinary high water or less than or equal to 100 feet waterward of existing structures and permitted activities on sovereignty lands, unless the applicant obtains a letter of concurrence from the upland riparian owner. The Board shall establish greater setbacks to protect riparian rights when upland uses, ingress and egress, or activities on or over sovereignty submerged lands would be limited by the proposed aquaculture activity.

(f) Aquaculture leases shall contain provisions to ensure that the lease area is marked and that markers are maintained for the term of the lease. Such marking shall be adequate to inform the public of the activity and assist the leaseholder in identifying potential navigation and safety hazards.

(g) The leased area in aquaculture leases shall comply with the following:

1. A setback of 25 feet from the riparian lines of adjacent properties shall be required unless a letter of concurrence from the adjacent property owners waives the setback requirement.

2. Setbacks from other activities, channels or structures shall also be required, as needed, to ensure safety, facilitate enforcement abilities and ensure resource management.

3. The leased area shall not be approved for a parcel larger than ten acres for oysters or five acres for clams, unless the lease is a voluntary conversion of a shellfish lease issued under Section 597.010, F.S. The Board shall approve a larger lease size if it determines, based on the applicant's business plan and ability to develop a larger parcel, that additional area can be supported by the applicant.

(h) An aquaculture lease, an aquaculture management agreement, or a shellfish lease is required for the relay of shellfish from polluted waters for purification, unless a site is specifically designated by DACS for such purposes. Relaying activities on leased areas shall be conducted pursuant to Section 597.010(18), F.S.

(i) An aquaculture lease for culturing shellfish shall not be granted in areas where, at the time of inspection, DACS determines that the lease would preempt public access to harvestable resources of shellfish; harvestable resources shall be established as:

1. More than five legal-size clams per square meter over more than fifty percent of the proposed lease area; or

2. A natural oyster reef covering more than 100 square feet within the proposed lease area.

(j) The Board shall impose additional standards and criteria for aquaculture leases when necessary to enhance resource management, as provided in subsection 18-21.004(2), F.A.C., and to protect riparian rights and public safety.

(k) Aquaculture leases for docks shall be placed on sovereignty submerged lands designated as Resource Protection Area 3 when such areas are available and will not result in substantial reductions in proposed operations. Construction of docks and associated aquacultural operations on sovereignty submerged lands designated as Resource Protection Area 2 shall be authorized according to special conditions which minimize adverse environmental impacts. Construction of docks and associated aquacultural operations on sovereignty submerged lands designated as Resource Protection Area 1 shall be avoided, except under special circumstances as stated in this chapter. Docks shall not terminate in a Resource Protection Area 1 or 2, however main access docks will be allowed to pass through Resource Protection Areas 1 and 2 to reach an acceptable Resource Protection Area 3 when reasonable assurances are provided that such crossing will not generate significant adverse environmental impacts. Resource Protection Areas are defined in Rule 18-20.003, F.A.C. Special lease conditions shall be approved by the Board before a dock is authorized on an aquaculture lease located in a Resource Protection Area 1 or 2; the Board shall consider special circumstances such as: lack of practicable alternatives, compatibility with the aquatic preserve management plans, and compliance with special lease conditions.

(5) Specific standards and criteria for an aquaculture letter of consent.

(a) Use of sovereignty submerged lands for aquacultural activities associated with on-shore aquaculture facilities that are not included in an aquaculture lease, aquaculture dock lease, or state lands lease, and which are used by aquaculture producers in planting, growing, harvesting, and transporting aquacultural products, on or over sovereignty submerged lands, shall be authorized by a letter of consent. Such activities include hatchery and nursery cultivation, intake and discharge pipes and pumps, areas in which loading and off-loading of aquacultural products occur, and mooring of not more than four vessels. To qualify for a letter of consent, such facilities must conform to the following criteria:

1. Be constructed and operated, as appropriate, in compliance with Chapters 18-18, 18-20, 18-21 and 5L-3, F.A.C., and the applicable permits issued by the Department of Environmental Protection under Chapter 373, F.S.; and the applicant has obtained and maintains a valid aquaculture certification pursuant to Chapter 597, F.S.

2. Occupy no more than 2,000 square feet of sovereignty submerged lands.

3. Be constructed so as to result in minimal adverse impacts on fish and wildlife habitat.

4. Follow the setback required in this section to protect riparian rights, unless the applicant obtains a letter of concurrence from the neighboring upland property owner.

(b) No more than one letter of consent shall be authorized for a single individual, company or corporation for contiguous parcels, structures, or activities, if such action is determined to circumvent the requirements in this section.

(c) Any use of sovereignty submerged lands for aquacultural activities that do not conform to these criteria shall obtain an aquaculture lease, a standard sovereignty submerged lands lease, or an easement, as appropriate under this chapter.

(d) If an area subject to a consent of use is within an aquatic preserve, research reserve, marine sanctuary, or state park, the activity shall be compatible with the managed area's management plan, or prevailing management policies when a management plan has not been developed, and consistent with Sections 258.42 and 373.406, F.S.

(e) The Board shall approve changes to the specific standards and criteria for a letter of consent only if the Board determines that such changes are necessary to enhance resource management, as provided in subsection 18-21.004(2), F.A.C., and protect riparian rights and public safety.

(6) Specific standards and criteria for an aquaculture management agreement - The use of sovereignty submerged lands authorized by an aquaculture management agreement shall comply with the following:

(a) Be for educational, scientific, demonstration, experimental, and restoration activities related to aquaculture when commercial production is not the primary purpose.

(b) Be limited to state agencies, local governments, educational institutions, research institutions, or Restoration Organizations when the proposed aquacultural activity or use of sovereignty submerged lands is consistent with the public purposes of the applicant organization. Public-private partnerships for demonstration and pilot scale aquaculture programs that provide general public benefit are also eligible to obtain aquaculture management agreements.

(c) If within an aquatic preserve, research reserve, marine sanctuary, or state park, the activity shall be compatible with the managed area's management plan, or with applicable management policies when a management plan has not been developed, and consistent with Sections 258.42 and 373.406, F.S. Applications for aquaculture management agreements in managed areas shall be reviewed by the Department of Environmental Protection, as determined by the coordinated review required in paragraph 18-21.021(1)(f), F.A.C.

(d) Riparian rights shall not be infringed upon.

(e) The area subject to an aquaculture management agreement shall be marked, and the markers maintained for the term of the agreement. Such marking shall be adequate to inform the public of the activity and alert the public of potential navigation or safety hazards. Aquaculture management agreements for restoration activities that are limited to the submerged bottom lands and the six inches above are exempt from the marking requirements of this paragraph.

(f) Establish setbacks from other activities or structures as required to ensure safety, facilitate enforcement abilities and ensure resource management.

(g) Ensure that the cultivation of indigenous, or hybrids of indigenous, plants or animals is consistent with Chapter 597, F.S. Relaying activities shall be conducted pursuant to Section 597.010(18), F.S.

(h) Aquaculture management agreements must be approved by the Board and shall be approved when the application conforms to the standards and criteria provided in subsection 18-21.020(3) and paragraphs 18-21.020(6)(a) -(g), F.A.C.

(7) Leaseholders possessing oyster and clam leases granted under provisions of former chapter 370, F.S., prior to 1985, shall convert to an aquaculture lease if they wish to include the water column in the leased area. Lease conversions shall be subject to the applicable provisions of Rules 18-21.020, 18-21.021 and 18-21.022, F.A.C., when the requested modification requires changing the proposed use or expanding the lateral extent of the existing lease area.

(8) When the water quality designation, including the shellfish harvesting area designation, that is necessary for the particular activity is lost due to degradation of water quality, and water quality degradation is not due to the aquacultural activity, the leaseholder shall have the option of:

(a) Cancelling the lease;

(b) Conducting an aquaculture activity that is consistent with the change in water quality with prior written approval of the Board; or

(c) Retaining the lease.

Notes

Fla. Admin. Code Ann. R. 18-21.020

Rulemaking Authority 253.03(7), 253.73 FS. Law Implemented 253.002, 253.67-.75, 253.77 FS.

New 9-1-09, Amended by Florida Register Volume 45, Number 044, March 5, 2019 effective 3/21/2019, Amended by Florida Register Volume 47, Number 101, May 25, 2021 effective 6/10/2021.