Fla. Admin. Code Ann. R. 18-21.021 - Applications for Aquacultural Activities

(1) Aquaculture lease application and review process.
(a) An aquaculture lease to conduct aquacultural activities on sovereignty submerged lands or the overlying water column shall meet the criteria for an aquaculture lease in Rule 18-21.020, F.A.C.
(b) The Application for a State Owned Sovereignty Submerged Land Aquaculture Lease (FDACS 15102, Rev. 09/20) is hereby adopted and incorporated by reference and may be obtained on the Internet at http://www.flrules.org/Gateway/reference.asp?No=Ref-13090, or by writing to the Division of Aquaculture at 600 S. Calhoun Street, Suite 217, Tallahassee, Florida 32399.
(c) Applications for aquaculture leases shall include the following:
1. Name, address and phone number of the applicant.
2. Description of the aquaculture activities to be conducted, including whether such activities are to be experimental or commercial.
3. A statement describing the applicant's capabilities to conduct the proposed activities.
4. Location of the proposed activity including: county; section, township and range; water body; and a vicinity map.
5. Satisfactory evidence of sufficient upland interest to the extent required by paragraph 18-21.004(3)(b), F.A.C.
6. Names and addresses, as shown on the latest county tax assessment roll, of each owner of property lying within 500 feet of the parcel sought, prepared from current records of the county property appraiser.
7. A statement describing the potential impacts of the proposed use on the ecology of the area, including sea grasses, fish habitat, threatened and endangered species, and other natural resources present on the parcel sought.
8. A statement explaining why the lease is not contrary to the public interest, or within aquatic preserves, why the lease is in the public interest.
9. An application fee as specified in Rule 18-21.022, F.A.C.
10. Proof of publication and notification required pursuant to Section 253.70, F.S.
(d) In addition to these requirements, applications for docks or other aquaculture-related structures connected to upland which require use of the water column shall include the following, as applicable:
1. Satisfactory evidence of sufficient upland interest in the riparian upland property to the extent required by paragraph 18-21.004(3)(b), F.A.C.
2. A detailed statement describing the proposed activities, including the project design and description of all operations.
3. A detailed and dimensioned site plan drawing showing:
a. The approximate mean or ordinary high water line;
b. The location of wetland, shoreline and aquatic vegetation and other submerged resources, if existing;
c. The location of any manatee protection zones;
d. The location of the proposed structures and any existing structures;
e. The location of intake and discharge pipelines, pumps, culture units, and tanks;
f. The applicant's upland parcel property lines and zoning restrictions;
g. The names and addresses, as shown on the latest county tax assessment roll in mailing label form, of each owner of property lying within 500 feet of the parcel sought, prepared from current records of the county property appraiser; and
h. The location of the nearest natural or artificial navigation channel.
(e) When DACS identifies tracts of sovereignty submerged lands or water columns designated as aquaculture use zones involving multiple lease parcels for aquacultural development, and there is no established priority for selecting qualified applicants, then DACS shall make recommendations to the Board and request consideration concerning the method to be used to select qualified applicants and to determine the amount of lease fees, in accordance with this section.
(f) In the event that the lessee wishes to conduct activities on the aquaculture dock or other structures that are not directly related to the aquacultural activities identified in the lease agreement, the lessee shall request authorization from the Board of Trustees through the Department of Environmental Protection pursuant to Rules 18-21.004, 18-21.005 and 18-21.008, F.A.C. Such authorizations shall require the structures to be modified or removed if necessary to comply with the requirements of those rule sections. If the activities are determined to be commercial and unrelated to aquaculture, the lessee shall seek authorization pursuant to paragraph 18-21.005(1)(d), F.A.C., for a commercial dock lease.
(g) In the event that an environmental resource permit or a wetland resource permit under Part IV of Chapter 373, F.S., is required, DACS will require a copy of the permit or notice of intent to issue an environmental resource permit from the Department of Environmental Protection, in accordance with Rule 18-21.00401, F.A.C.
(h) Applicants must obtain applicable federal permits for aquaculture activities in areas that are subject to federal jurisdiction.
(i) Legal description and acreage of the parcel shall be submitted subsequent to final approval of the application but prior to issuance of the lease.
(j) Two prints of a survey, which shall constitute the field survey, shall be submitted subsequent to final approval of the application but prior to issuance of the lease of the parcel sought; prepared, signed, and sealed by a person properly licensed by the Florida Board of Professional Surveyors and Mappers when required by Chapter 472, F.S., or an agent of the federal government authorized to do such surveys under federal law. Preliminary site approval can be based upon marking off the general configuration of the parcel sought, including the acreage of the parcel, latitude and longitude coordinates for the corners of the parcel identified using a Global Position System on a topographic map or a navigation chart.
(k) DACS shall coordinate the application review process for applications to lease sovereignty submerged lands for aquaculture, including those for use of the water column, in order to determine that proposed sites are suitable for aquaculture activities.
(l) The review procedures to be followed for new applications include:
1. Review by DACS to determine:
a. That the proposed aquaculture activity is water dependent;
b. That the proposed project and operation is directly related to aquaculture;
c. The desirability of the proposed aquaculture from a resource management perspective;
d. The presence of substantial harvestable wild clams or oysters on the proposed area;
e. That the size of area requested for lease is appropriate to the use;
f. The suitability of the site for leasing;
g. The effect on public health, safety, welfare, or property of others; that the proposed construction or operations do not constitute a hazard to navigation or interfere with a riparian property owner's access to navigable water;
h. That the proposed project will not adversely affect historical or archaeological resources;
i. The need for special lease conditions that will ensure compliance with Chapters 253 and 258, F.S., and,
j. The ability of the applicant to perform the work.
2. Review by the Department of Environmental Protection to assess the effect of the proposed aquacultural activity on water quality and submerged resources and to comment on the consistency of the application with management goals and objectives for managed areas, including state parks, aquatic preserves, marine sanctuaries, or research reserves, as expressed in the management plan applicable to the managed area, or prevailing management practice. The review process for aquaculture leases located in aquatic preserves which include docks and aquaculture-related structures in the water column shall also include the following:
a. An assessment of design and operational specifications that will be established to avoid or minimize adverse environmental impacts to marine habitat, threatened and endangered species habitat, adjacent wetlands, and water quality, including, but not limited to, designs and operations that minimize shading by increasing light transmittance, and that incorporate the installation and maintenance of appropriate manatee protection and resource information signs.
b. A determination of the type of resource protection area, as defined in Rule 18-20.003, F.A.C., affected by the proposed project.
3. Review by the Fish and Wildlife Conservation Commission to comment on the application relative to such factors as an assessment of the probable effect of the proposed lease on the conservation of fish or wildlife, threatened and endangered species, compliance with manatee protection plans, or other programs under the constitutional or statutory authority of the Commission.
4. Review by the Department of State when there is evidence of or the likelihood of the existence of historical or archaeological resources on the proposed site.
5. Review by the county commission of the county in which the lease is situated, pursuant to Section 253.68, F.S.
6. Review by the Army Corps of Engineers to assess the effect of the proposed lease on navigation and boating safety.
(m) After the coordinated review of the application, DACS shall compile the findings of the review and develop recommendations concerning the use of sovereignty submerged lands and water columns for consideration by the Board. Documents containing the comments received from the review required in this subsection shall become part of the application.
(n) All requests for aquaculture leases on sovereignty submerged lands shall be processed in accordance with the notice and hearing requirements of Section 253.115, F.S. For purposes of notification of adjacent property owners, requests for revisions to existing leases that increase the preempted area or change the use (such as one that requires a different form of authorization or application of different rule criteria) will be treated as new applications under this chapter.
(o) The Board shall require the applicant to cause notice of receipt of the lease application to be published in a newspaper of general circulation in the county in which the parcel is situated once a week for three consecutive weeks. Such notice shall be made on the Notice of Aquaculture Lease Application (FDACS 15118, Rev. 05/17) which is hereby adopted and incorporated by reference and may be obtained on the Internet at http://www.flrules.org/Gateway/reference.asp?No=Ref-10254 or by writing to the Division of Aquaculture at 600 S. Calhoun Street, Suite 217, Tallahassee, Florida 32399. The application shall contain the following:
1. Preliminary location description and acreage of parcel sought; and
2. A description of the aquaculture activity being proposed.
(p) DACS will hold a public hearing in response to heightened public concern prior to seeking consideration by the Board, if such concern is raised in response to the public notice.
(q) If DACS determines that the application is complete and complies with the standards and criteria in Chapter 253, F.S., and this rule chapter, DACS shall initiate the agenda process to bring the application and recommendations before the Board for consideration at its next regularly scheduled public meeting. The application may be approved, approved with modifications, or denied. The lease fee shall be determined by the Board in accordance with the provisions in Section 253.71(2), F.S.
(r) DACS shall also coordinate the review process and agenda preparation for applications for voluntary conversions of shellfish leases to aquaculture leases.
(s) All leases are renewable, modifiable, and assignable, subject to:
1. Approval by the Board under this rule; and
2. Compliance with the statutes and rules of the Board in effect at the time of lease renewal, modification or assignment that apply to or affect sovereignty submerged lands.
(t) Termination of the lease, corrective action, or enforcement under Section 253.04, F.S. or Chapter 18-14, F.A.C., shall result for the following, and no application to renew, modify, or assign the lease shall be approved unless all such non-compliance is corrected:
1. Non-compliance with any material term or condition of the lease to be renewed, modified or assigned or of any other current or prior lease between the applicant and the Board;
2. Evidence of the applicant's previous trespass, damage, or depredation to sovereign submerged land or the products thereof caused by the facility or use; or
3. Failure to pay any fees or fines assessed under Rule 18-21.022 or Chapter 18-14, F.A.C., for such leases.
(u) Requests to renew leases shall be made on the Application to Renew an Aquaculture Lease Shellfish (FDACS 15160, Rev. 06/16) or Application to Renew an Aquaculture Lease Live Rock (FDACS 15412, Rev. 06/17). Applications to sublease shall be made on the Application for Sublease of Sovereignty Submerged Land Aquaculture Lease (FDACS 15114, Rev. 08/16/09). Applications for transferring leases shall be made on Assignment and Assumption of Lease (FDACS 15113, Rev. 04/14). The applications listed in this paragraph are hereby adopted and incorporated by reference and may be obtained on the Internet at http://www.flrules.org/Gateway/reference.asp?No=Ref-10255, http://www.flrules.org/Gateway/reference.asp?No=Ref-10260 and http://www.flrules.org/Gateway/reference.asp?No=Ref-10261, or by writing to the Division of Aquaculture at 600 S. Calhoun Street, Suite 217, Tallahassee, Florida 32399.
(2) Aquaculture lease authorization.
(a) Each lease document shall at a minimum contain the following:
1. The term of the lease, which shall not exceed ten years.
2. A provision stating that the lease shall be renewable for one automatic successive term upon agreement of both parties.
3. The amount of fee per acre, or fraction thereof, leased, which shall take the form of a fixed annual fee to be paid throughout the term of the lease.
4. A requirement that the leaseholder obtain and maintain a valid Aquaculture Certification of Registration issued by DACS. As a condition of the Aquaculture Certification of Registration the lessee shall comply with any special lease conditions, applicable best management practices for the specific aquacultural activity, and any permit issued pursuant to Chapter 373, F.S.
5. A provision requiring the disposition of all improvements and aquaculture products upon the termination or cancellation of the lease.
6. A statement that the lease may not be assigned, sublet or transferred in any manner, in whole or in part, without the prior written approval of the Board. Failure of the lessee to obtain prior written approval shall be grounds for revocation by the Board.
7. A provision stating that failure of the lessee to comply with the terms and conditions of the lease shall be grounds for revocation of the lease.
8. A description of approved culture and harvesting techniques that can be used on the lease.
(b) The parcel leased shall be identified, well marked, and shall have, except when it will interfere with the development of the animal and plant life being cultivated by the lessee, reasonable public access for boating, swimming, and fishing. All limitations on the public use of the parcel leased, such as docking, mooring, anchoring, and other activities that would interfere with the approved aquacultural activity shall be set forth in the lease agreement and such restrictions shall be clearly posted in conspicuous places on site by the lessee. Each parcel leased shall be marked in compliance with the provisions of the lease agreement.
(c) Violation of the lease agreement shall be grounds for enforcement by DACS or the Board, in accordance with Chapter 18-14, paragraph 18-21.008(1)(b) and Chapter 5L-3, F.A.C., and the terms of the lease agreement. DACS shall notify the Department of Environmental Protection and the applicable water management district of any revocation, corrective action or enforcement related to a change in use which is not authorized in the lease agreement. Failure of the lessee to pay rental fees pursuant to Section 253.71(2)(b), F.S., or perform effective cultivation pursuant to Section 253.71(4) F.S., shall constitute grounds for cancellation of the lease and forfeiture to the state of all works, improvements, and animal and plant life in and upon the leased land and water column.
(3) Aquaculture letter of consent application and review process.
(a) Aquaculture activities meeting the criteria specified in subsection 18-21.020(5), F.A.C., on or over sovereignty submerged lands shall be authorized by a letter of consent.
(b) The applicant shall provide the items required in this subsection demonstrating that the proposed site meets the criteria established in subsection 18-21.020(5), F.A.C., and is suitable for the proposed aquacultural activities. Applications for a letter of consent shall include the following.
1. Name, address and telephone number of applicant and applicant's authorized agent, if applicable.
2. Location and address of the proposed activity, using the most comprehensive information available, including: street, route, city, county; section, township and range; coordinates established with Global Positioning System, affected water body; and a vicinity map, preferably a reproduction of the appropriate portion of United States Geological Survey quadrangle map.
3. Satisfactory evidence of sufficient upland interest in the riparian upland property to the extent required by paragraph 18-21.004(3)(b), F.A.C..
4. A detailed statement describing the proposed activity.
5. A detailed and dimensioned site plan drawing showing:
a. The approximate mean or ordinary high water line;
b. The location of the shoreline and aquatic vegetation and/or other submerged resources, if any;
c. The location of the proposed structures and any existing structures;
d. The location of intake and discharge pipelines, pumps, culture units, and tanks;
e. The applicant's upland parcel property lines and zoning restrictions; and
f. The location of the nearest natural or artificial navigation channel.
(c) The Application for Sovereignty Submerged Land Aquaculture Letter of Consent (FDACS 15138, Rev. 09/14) is hereby adopted and incorporated by reference, and may be obtained on the Internet at http://www.flrules.org/Gateway/reference.asp?No=Ref-10262 or by writing to the Division of Aquaculture at 600 S. Calhoun Street, Suite 217, Tallahassee, Florida 32399.
(d) Applications for letters of consent shall be reviewed by DACS to ensure that the proposed sites are suitable for the proposed aquacultural activity and meet the criteria in subsection 18-21.020(5), F.A.C.
(4) Aquaculture letter of consent authorization.
(a) If DACS determines that the proposed activity complies with subsection (3) above, has an Aquaculture Certificate of Registration, is in compliance with the best management practices adopted by rule for that activity, and meets the requirements of subsection 18-21.020(5), F.A.C. DACS shall issue a letter of consent.
(b) Failure to perform the aquaculture activities for which the letter of consent was issued, failure to comply with the terms and conditions of the letter of consent, or conducting activities other than those approved in the letter of consent shall be grounds for action on the letter of consent, including revocation, a requirement for corrective action or enforcement by DACS or the Board in accordance with Section 253.04, F.S. and Chapter 18-14, F.A.C., and the terms of the letter of consent.
(5) Aquaculture management agreement applications and review process.
(a) An aquaculture management agreement is required for the use of sovereignty submerged lands or the water column for educational, scientific, demonstration, Aquaculture Restoration, or experimental activities related to aquaculture.
(b) Applicants for aquaculture management agreements shall provide the items required in this subsection and information demonstrating that the proposed activity complies with the criteria in subsection 18-21.020(6), F.A.C., and is suitable for aquacultural activities. Applications for an aquaculture management agreement shall include the following.
1. Name, address and telephone number of applicant and applicant's authorized agent, if applicable.
2. Location of the proposed activity, including: county; section, township and range; water body; and a vicinity map.
3. A detailed statement describing the proposed activity, including educational, Aquaculture Restoration, and scientific objectives.
4. A detailed site plan drawing showing:
a. Location of aquatic vegetation and fisheries habitat, if existing;
b. Location of proposed structures and any existing structures; and
c. Location of intake and discharge pipelines, pumps, culture units, and tanks.
d. The appropriate application fee.
(c) Satisfactory evidence of sufficient upland interest in the riparian upland property when the riparian property owner is the applicant.
(d) Applications for aquaculture management agreements shall be submitted, using the Application for Sovereignty Submerged Lands Aquaculture Lease (FDACS 15102, Rev. 08/16).
(e) Applications for management agreements shall be reviewed by DACS to ensure that the proposed sites are suitable for the proposed aquacultural activity and that the activity complies with the criteria in subsection 18-21.020(6), F.A.C.
(f) If DACS determines that the application is complete and complies with the standards and criteria of Rules 18-21.020, 18-21.021 and 18-21.022, F.A.C., copies of the application will be sent to the Department of Environmental Protection and the Fish and Wildlife Conservation Commission for their review and recommendations.
(6) Aquaculture management agreement authorization.
(a) The Board shall authorize management agreements that meet the requirements of paragraphs 18-21.021(5)(a) through (c), F.A.C.
(b) The management agreement authorizes specific aquaculture activities on sovereignty submerged lands and water columns without conveying any interest in real property.
(c) Authorization of an aquaculture management agreement shall require that qualified applicants comply with the standards and criteria in subsection 18-21.020(6), F.A.C.
(d) The management agreement shall require the grantee obtain and maintain a valid Aquaculture Certification of Registration issued by DACS prior to the initiation of any activities authorized by the agreement. As a condition of the Aquaculture Certification of Registration, the grantee shall comply with special conditions, applicable best management practices, or with the condition of a permit issued pursuant to Chapter 373, F.S.
(e) The management agreement shall include a provision requiring the disposition of all improvements and aquaculture products upon the termination or cancellation of the management agreement. Aquaculture management agreements for the exclusive purpose of Aquaculture Restoration are exempt from the requirement to dispose aquaculture products upon the termination or cancellation of the management agreement.
(f) Failure to perform the aquaculture activities for which the management agreement was granted, failure to comply with the terms and conditions of the management agreement, or conducting activities other than those approved in the management agreement shall be grounds for action on the management agreement, including revocation, a requirement for corrective action, or enforcement by DACS or the Board, in accordance with Section 253.04, F.S. and Chapter 18-14, F.A.C., and the terms of the aquaculture management agreement.
(7) Applications for authorizations to use sovereignty submerged lands for aquacultural purposes shall be submitted to the Florida Department of Agriculture and Consumer Services, Division of Aquaculture, 600 S. Calhoun Street, Suite 217, Tallahassee, Florida 32399, Telephone: (850)617-7600.

Notes

Fla. Admin. Code Ann. R. 18-21.021

Rulemaking Authority 253.03(7) FS. Law Implemented 253.002, 253.04, 253.67-.75, 253.77, 373.427(2)(a), 597.010 FS.

New 9-1-09, Amended by Florida Register Volume 45, Number 123, June 25, 2019 effective 7/10/2019, Amended by Florida Register Volume 47, Number 101, May 25, 2021 effective 6/10/2021.

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