H 4529 General Bill, By Ceips, Scarborough, Witherspoon, R. Brown, Altman, 
Clemmons, Hagood and Herbkersman
 A BILL TO AMEND ARTICLE 9, CHAPTER 5, TITLE 50, CODE OF LAWS OF SOUTH
 CAROLINA, 1976, RELATING TO SHELLFISH AND COMMERCIAL SHELLFISH CULTURE AND
 MARICULTURE PERMITS, SO AS TO CLARIFY THAT ONLY STATE RESIDENTS MAY BE ISSUED
 SUCH SHELLFISH PERMITS AND TO PROVIDE THAT A "STATE RESIDENT" FOR THIS PURPOSE
 MEANS AN INDIVIDUAL WHO IS A LEGAL RESIDENT OF SOUTH CAROLINA OR AN ENTITY THE
 MAJORITY STOCKHOLDER, PARTNER, OR PRINCIPAL OF WHICH IS A LEGAL RESIDENT OF
 SOUTH CAROLINA.

   01/26/06  House  Introduced and read first time HJ-28
   01/26/06  House  Referred to Committee on Agriculture, Natural
                     Resources and Environmental Affairs HJ-29

TO AMEND ARTICLE 9, CHAPTER 5, TITLE 50, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO SHELLFISH AND COMMERCIAL SHELLFISH CULTURE AND MARICULTURE PERMITS, SO AS TO CLARIFY THAT ONLY STATE RESIDENTS MAY BE ISSUED SUCH SHELLFISH PERMITS AND TO PROVIDE THAT A "STATE RESIDENT" FOR THIS PURPOSE MEANS AN INDIVIDUAL WHO IS A LEGAL RESIDENT OF SOUTH CAROLINA OR AN ENTITY THE MAJORITY STOCKHOLDER, PARTNER, OR PRINCIPAL OF WHICH IS A LEGAL RESIDENT OF SOUTH CAROLINA.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Article 9, Chapter 5, Title 50 of the 1976 Code is amended to read:

Section 50-5-900.    (A)    The department may grant permits to any state resident for the exclusive use of portions of the intertidal or subtidal state-bottoms or waters for commercial shellfish culture or mariculture not to exceed an aggregate of five hundred acres of bottoms or an aggregate of one hundred surface acres of waters to any entity. In exercising its discretion the department may consider applicants' previous performance and compliance with natural resources laws.

(B)    Each permit is valid for five years and may be renewed for additional terms.

(C)    For purposes of this article, 'state resident' means an individual who is a legal resident of South Carolina or an entity the majority stockholder, partner, or principal of which is a legal resident of South Carolina.

Section 50-5-905.    (A)    A person or entity state resident desiring to acquire a Shellfish Culture Permit or a Shellfish Mariculture Permit for any bottoms or waters must make written application to the department on a form provided by the department. A nonrefundable sum of twenty-five dollars must accompany the application for each permit. If the proposed area is available for shellfish culture or mariculture, the department shall determine:

(1)    the acreage of waters or shellfish bottoms; and

(2)    the acreage capable of producing shellfish.

(B)    No other Shellfish Culture Permit may be granted for the bottoms delineated within an existing Shellfish Culture Permit area. However, within the perimeter boundary of an existing Shellfish Culture Permit, the department may grant permits for mariculture for waters or bottoms not then under culture permit.

Section 50-5-910.    (A)    An applicant for Shellfish Culture Permits and Shellfish Mariculture Permits must:

(1)    satisfy the department that the applicant has sufficient shellfish culture experience and will directly manage and supervise the cultivation of the permit area applied for, or will employ a qualified individual as manager within three months following the date that the permit becomes effective;

(2)    own and employ or provide assurance that the applicant is capable of acquiring the necessary equipment and personnel to effectively harvest and manage the area in question; and

(3)    hold or be qualified to obtain all state and federal approvals required for use of the bottoms or waters for which application is made.

(B)    In cases where two or more individuals who are equally qualified apply for a permit for the same bottoms or waters, the granting of the permit may be determined by lottery. The order in which applications are received shall have no bearing on the granting of a permit.

(C)    Persons and entities State residents granted Shellfish Culture Permits and Shellfish Mariculture Permits must submit a sworn statement stating the permittee has a wholesale seafood dealer's license, a molluscan shellfish license, and a shellfish facility certified by the South Carolina Department of Health and Environmental Control or that all shellfish harvested for sale shall be handled through a licensed wholesale seafood dealer having a molluscan shellfish license and a Department of Health and Environmental Control approved facility.

Section 50-5-915.    (A)    In reviewing applications for Shellfish Culture Permits and Shellfish Mariculture Permits, the department must:

(1)    review applications for permits and consider each applicant's qualifications, and may conduct personal interviews;

(2)    consider contested permit applications, permit revisions, variances, or revocations; and

(3)    consider the allocation of shellfish bottoms and waters for public or private use.

(B)    Permits may be conditioned by the department to include requirements related to:

(1)    shellfish production and reporting;

(2)    mariculture structures and operations;

(3)    guarantee of public rights of access and nonconflicting uses of permitted areas;

(4)    planting variances;

(5)    bonding and escrow;

(6)    the department being held harmless from any claims or damages resulting from the permitted operations;

(7)    correction of any environmental degradation which may result from the permitted activity; and

(8)    revocation for failure to comply with permit performance conditions.

(C)    Revocation of Shellfish Culture Permits and Shellfish Mariculture Permits may be delegated by the department director to the deputy director for Marine Resources.

Section 50-5-920.    (A)    If this State authorizes any activity or use which requires closure of shellfish bottoms or waters, the portion of permitted bottoms or waters which falls within the closed area may be removed from the permit acreage, and the permit acreage agreement and annual fee adjusted on the annual renewal date.

(B)    If any activity or use is permitted:

(1)    over the objections of the department; or

(2)    for a project of overriding public need;

and if the activity or use causes shellfish bottoms or waters to be unsuitable for the purposes of shellfish propagation or diminishes the productivity of any shellfish bottoms or waters, the agency which allowed the activity, upon recommendation by the department, must require mitigation for the loss of the resource. Mitigation must not be considered as a factor to justify adverse impacts, and this section must not be interpreted as authorizing any adverse impact on shellfish bottoms or waters.

(C)    If an unauthorized action results in an adverse impact on shellfish bottoms or waters, the responsible party may be required by the department to mitigate for the loss of the resource and to compensate the department's shellfish permittee.

(D)    Where shellfish grounds have been adversely impacted or closed by previous state authorization and there is additional adverse impact authorized by a state agency, the proponent (permittee) of the additional activity or use must mitigate the additional adverse impact. All such mitigation must benefit the resource.

(E)    Mitigation of adverse impacts on shellfish bottoms and waters must be determined by the department. The determination constitutes a final agency decision for the purposes of the Administrative Procedures Act.

Section 50-5-925.    Upon conditional approval by the department of the shellfish culture or mariculture application and map, the applicant must publish a notice in a form satisfactory to the department advising all interested persons that the applicant has applied for a Shellfish Culture Permit or Shellfish Mariculture Permit and provide a specific description of the bottoms or waters. The notice must be published once a week for three consecutive weeks in a newspaper of general circulation in the county of the proposed permit.

Section 50-5-930.    If a person state resident granted a Shellfish Culture Permit or a Shellfish Mariculture Permit reapplies for the same bottoms or waters in the next ensuing term, the department must give preference to that applicant if the applicant has complied with all requirements of this article and his permit.

Section 50-5-935.    Each person state resident granted a Shellfish Culture Permit or a Shellfish Mariculture Permit must pay an annual fee of five dollars an acre for the bottoms on which he has been granted shellfishing rights, or five dollars an acre of water surface determined at mean high water delineated on the permit map, or both, when waters above permitted bottoms are also permitted. In the case of bottoms, the annual permit fee must be based on the number of bottom acres producing or capable of producing shellfish. The annual fee for shellfish permits must be prorated from the first of the month following the issuance of the permit to February 1 next. Thereafter, all annual fees are payable in advance. On February 1, the department must invoice each permittee. If the annual fee is not paid by March 1, the department must add a late penalty of ten percent. If the department does not receive the fee and any penalty on or before April 1, the permit is void.

Section 50-5-940.    (A)    Each Shellfish Culture permittee must plant fifty bushels of shell, seed oysters, seed clams, or other approved culch, or equivalent as determined by the department, annually for each acre of bottoms in his permit. All culch planting must be done between May 1 and August 31, inclusive, except permittees may replant green oyster shell from current operations if the shell is replanted within three days after gathering. Seed oysters and seed clams may be planted at any time of the year. All planting must be done only after notice to and with the approval of the department.

(B)    The department may allow credit for planting on shellfish bottoms not under permit. If the plantings are previously approved by the department, credit must be given toward the permittee's annual quota in an amount equal to two times that of the number of bushels actually planted.

(C)    The department may provide incentives to permittees for improved or innovative management and cultivation techniques in the form of additional planting credits or planting variances.

(D)    If a permittee does not plant the required quota of approved culch or seed, his permit must be revoked or the permitted acreage reduced based upon the percentage of quota actually planted. In the event a permittee believes a permitted area, or a portion thereof, does not require planting for reasons of sound management, he must apply in writing to the department for a variance in his annual quota. The decision as to whether or not the bottoms must be planted or a variance given is within the discretion of the department. One cubic yard of approved culch is considered as twenty-one and seven-tenths bushels.

(E)    The provisions of this section do not apply to Shellfish Mariculture Permits.

Section 50-5-945.    Shellfish Culture permittees may acquire a permit to take shellfish for replanting from state bottoms designated by the department for that purpose. The permittee must make application to the department ten days before removing shellfish.

Section 50-5-950.    In addition to the requirements of this article, the department may specify other permit terms and conditions. The department may require a written agreement between or among permittees holding bottoms or waters within a specified perimeter boundary. If the permittee violates any terms or conditions of the permit or a written agreement, the department may revoke or suspend the permit.

Section 50-5-955.    (A)    The Department of Natural Resources may designate and shall maintain Public Shellfish Grounds where persons holding or exempted from holding a marine recreational fishing stamp as required by Article 19 of this chapter may gather shellfish solely for personal use not to exceed the personal limits specified in this article. The open areas must be located preferably at or near public landings. The Department of Natural Resources may not designate an area located within one thousand feet of highland property capable of development as a Public Shellfish Ground. Areas designated before January 1, 1996, are exempt from the siting provision of this section and retain their designation until such designation is removed by the department.

(B)    No area currently containing a structure permitted by the Department of Health and Environmental Control or its successor agency may be designated pursuant to this section. The Department of Health and Environmental Control or its successor agency may not issue a permit for utilization of a critical area designated as a Public Shellfish Ground.

(C)    A person taking shellfish from a Public Shellfish Ground for commercial purposes or selling or attempting to sell shellfish taken from a Public Shellfish Ground is guilty of a misdemeanor and, upon conviction, must be fined not less than one hundred dollars nor more than five hundred dollars or imprisoned for not more than thirty days.

Section 50-5-960.    (A)    The following provisions apply to the taking and possessing of shellfish from bottoms designated by the department for recreational shellfish harvest by persons not permitted to harvest shellfish for commercial purposes:

(1)    there is a personal limit of not more than two bushels of oysters or one-half bushel of clams, or both, in any one day;

(2)    no person may harvest shellfish recreationally on more than two calendar days per any seven-day period; and

(3)    regardless of the number of persons, there is a maximum possession limit of three personal limits per boat or vehicle or boat and vehicle combination.

(B)    No person other than a person state resident holding the required commercial license and permit may have in possession more than the daily limit provided in this article while on the waters of this State or the adjoining lands, provided that this prohibition does not apply to persons possessing or transporting properly tagged shellfish received from a licensed and certified wholesale seafood dealer.

(C)    A person who violates this section is guilty of a misdemeanor and, upon conviction, must be fined not less than twenty-five dollars nor more than two hundred dollars or imprisoned for not more than thirty days.

Section 50-5-965.    (A)    A person who takes shellfish from bottoms or waters designated for commercial harvest must possess an individual harvesting permit granted by the department if the person:

(1)    harvests or possesses quantities greater than those provided in this article for personal use; or

(2)    harvests for commercial purposes.

(B)    The department may limit the number of areas not under Shellfish Culture Permit or Shellfish Mariculture Permit on which an individual may be permitted to harvest.

(C)    When bottoms or waters are under permit for shellfish culture or mariculture, permittees may allow persons to harvest shellfish from bottoms and waters permitted to him. In addition to the permit required in subsection (A), harvesters must possess written approval from the Shellfish Culture permittee or Shellfish Mariculture permittee in a form approved by the department. Culture and Mariculture permittees must provide approved harvesters with the written permission and must maintain accurate record of harvesters' names, addresses, and, if available, telephone numbers.

(D)    It is unlawful for a person to take or attempt to take shellfish in quantities greater than those for personal use provided in this article from any state-owned bottoms or waters without having in his possession a valid individual commercial harvesting permit granted to him.

(E)    It is unlawful for any person to take or attempt to take shellfish from state-owned bottoms or waters under permit for shellfish culture or mariculture without a valid individual harvester permit granted to him by the department.

(F)    A person who violates this section is guilty of a misdemeanor and, upon conviction, must be fined not less than two hundred dollars nor more than five hundred dollars or imprisoned not more than thirty days.

(G)    In order to obtain an individual harvester permit a person must be a licensed commercial saltwater fisherman and hold all other appropriate valid commercial licenses.

Section 50-5-970.    It is unlawful to take or attempt to take shellfish from any bottoms or waters of this State for any purpose by mechanically operated devices, including dredges, hydraulic escalators, patent tongs, hoists, cranes, and mechanical shellfish harvesters without obtaining a mechanical harvest permit from the department. A person taking or attempting to take shellfish by mechanically operated devices without an appropriate, valid mechanical harvesting permit is guilty of a misdemeanor and, upon conviction, must be fined not less than one thousand dollars nor more than two thousand five hundred dollars or imprisoned for not more than thirty days and must have his saltwater privileges suspended for twelve months. Any commercial equipment or vessel used in violating this section and any shellfish in possession at the time of a violation is contraband.

Section 50-5-975.    (A)    A person state resident permitted to harvest shellfish from state-owned bottoms for commercial purposes must harvest, whether for commercial or personal use, from only the areas of state bottoms specified on the permit. A person who violates this subsection is guilty of a misdemeanor and, upon conviction, must be fined not less than fifty dollars nor more than five hundred dollars or imprisoned for not more than thirty days.

(B)    Following voluntary surrender of a commercial shellfish harvest permit by a commercial saltwater fisherman, the department must not reissue a commercial shellfish harvest permit to the person during the remainder of the license year.

Section 50-5-980.    It is unlawful for a person, without approval of the department, to erect or maintain any sign over or on any state shellfish bottoms or waters. However, a Culture or Mariculture Permit holder may erect signs approved by the department to designate areas under permit. This section in no way affects placement by an authorized public agency of signs for aid to navigation, public health, public safety, and geographic designation. A person who violates this section is guilty of a misdemeanor and, upon conviction, must be fined not less than two hundred dollars nor more than five hundred dollars or imprisoned for not more than thirty days.

Section 50-5-985.    (A)    The department annually may set the season for taking shellfish between September 16 of any year through May 15 of the following year, inclusive. It is unlawful for a person to take or attempt to take any shellfish from shellfish grounds during the closed season. A person who violates the provision provisions of this subsection for a commercial purpose is guilty of a misdemeanor and, upon conviction, must be fined not less than two hundred dollars nor more than five hundred dollars or imprisoned for not more than thirty days and must have his saltwater privileges suspended for twelve months. A person who violates this section for a noncommercial purpose is guilty of a misdemeanor and, upon conviction, must be fined not less than one hundred dollars nor more than five hundred dollars or imprisoned for not more than thirty days.

(B)    It is unlawful to take or attempt to take shellfish from any grounds closed by the department or any other authorized government agency. A person who violates the provision provisions of this subsection for a commercial purpose is guilty of a misdemeanor and, upon conviction, must be fined not less than two hundred dollars nor more than one thousand dollars or imprisoned for not more than thirty days and must have his saltwater privileges suspended for twelve months. A person who violates the provisions of this subsection for a noncommercial purpose is guilty of a misdemeanor and, upon conviction, must be fined not less than two hundred dollars nor more than one thousand dollars or imprisoned for not more than thirty days.

(C)    The department has the authority to open or close any area for the taking of shellfish for any specified period at any time during the year when biological or other conditions warrant.

(D)    Nothing in this section prevents the department from permitting the taking of shellfish for the purposes of replanting or propagation.

(E)    Shellfish imported into this State during the closed season must bear written evidence, such as a bill of lading or other official document from the State of removal, which verifies that the shellfish were lawfully taken from that state. A person who violates this subsection is guilty of a misdemeanor and, upon conviction, must be fined not less than two hundred dollars nor more than one thousand dollars.

(F)    It is unlawful for a person to harvest shellfish between one-half hour after sunset as locally published and one-half hour before sunrise as locally published. In the case of bottoms under Shellfish Culture Permit or Shellfish Mariculture Permit harvesting of shellfish during the specified period is lawful with the written permission of the department.

Section 50-5-990.    (A)    It is unlawful to take or attempt to take, possess, sell, purchase, or import a hard clam of the genus Mercenaria of less than one inch in thickness as measured from the exterior surface of one shell of the intact clam to the exterior surface of the opposite shell. A person taking a clam of other than legal size must immediately return it to the bottoms from whence it came.

(B)    It is lawful for persons and entities state residents engaged in shellfish mariculture operations to possess mariculture clams of less than the minimum size specified in this section and to import, purchase, sell, or transplant undersized mariculture clams, as defined in this section, by obtaining a permit. It is also lawful for a licensed wholesale seafood dealer or retail restaurant to purchase and possess for resale undersized maricultured clams purchased from a mariculture operation permitted pursuant to this section, provided the licensed wholesale seafood dealer or retailer has proof of origin in possession for each lot of clams purchased.

(C)    A violation of this section by a person is a misdemeanor and, upon conviction, that person must be fined not less than twenty-five dollars nor more than five hundred dollars or imprisoned for not more than thirty days.

Section 50-5-995.    The department may permit persons and entities state residents engaged in shellfish mariculture operations to take, possess, and sell maricultured shellfish at any time during the year.

Section 50-5-1000.    (A)    It is unlawful for any wholesale seafood dealer to purchase shellfish produced, taken, or landed in this State from anyone who is not either:

(1)    a properly licensed and permitted commercial saltwater fisherman; or

(2)    a properly licensed wholesale seafood dealer.

(B)    The wholesale seafood dealer must maintain a record of all purchases of shellfish produced, taken, or landed in this State including the name and address of the person from whom purchased, the area where harvested, the type of shellfish purchased, the dates of harvest and purchase, and the commercial saltwater fisherman's license number. The record must be available for inspection by any law enforcement officer or department personnel for one year after the date of sale.

(C)    Any licensed wholesale seafood dealer who violates this section is guilty of a misdemeanor and, upon conviction, must be fined not less than one thousand dollars nor more than two thousand five hundred dollars and must have his saltwater privileges suspended for twelve months.

Section 50-5-1005.    (A)    No molluscan shellfish, shellfish tissues, or shells may be imported into this State and placed in waters in this State except under the provisions of a shellfish importation permit.

(B)    The department may grant permits to persons to import molluscan shellfish, shellfish tissues, or shells into this State. Permits may include conditions related to:

(1)    the type or species of mollusks to be imported;

(2)    ancillary species attached to or associated with the species to be imported;

(3)    structure and placement of holding or storage facilities;

(4)    placement of the product in natural waters of this State;

(5)    disposal of shellfish, shellfish parts, and associated biota;

(6)    reporting requirements; and

(7)    other matters which are considered important by the department to the protection of the natural resources of this State.

A person who imports molluscan shellfish, shellfish tissues, or shells into this State for placement into state waters or waters connected to state waters must first acquire a permit from the department.

(C)    A person who violates this section is guilty of a misdemeanor and, upon conviction, must be fined not less than one thousand dollars and not more than two thousand dollars or imprisoned for not more than thirty days.

Section 50-5-1010.    (A)    The department has jurisdiction over all natural shell deposits, including oysters, clams, and other mollusks occurring upon or within state-owned bottoms, and over all shell deposits lying above mean high water if those deposits have been created by the process of accretion to state-owned lands or bottoms.

(B)    The department may grant permits to remove shell from these deposits for use in shellfish cultivation and mariculture. The permits must be granted for a term not to exceed three years and must specify conditions for removal. Permits may be granted only when no significant ecological perturbations are foreseen. If permitted removal does cause significant ecological perturbations as a result of the permittee failing to abide by conditions of the permit, the permittee must restore the area to its original condition or as close to its original condition as possible. The department must specify a fixed price for each unit of shell removed. Payments for shell removed must be made by the permittee on or before the tenth day of each month for the preceding month.

Section 50-5-1015.    It is unlawful to remove shell from any shell deposits under state jurisdiction except as provided by this article. A person who violates this section is guilty of a misdemeanor and, upon conviction, must be fined not less than twenty-five dollars nor more than five hundred dollars or imprisoned for not more than thirty days.

Section 50-5-1020.    It is unlawful to take, possess, sell, or purchase a living whelk (conch) of the genus Busycon of less than a size as determined by the department but not less than four inches in maximum dimension if taken or landed in this State for a commercial purpose, provided this prohibition does not apply to conchs of less than legal size taken during lawful trawling which are returned immediately to the water."

SECTION    2.    Shellfish Culture Permits and Shellfish Mariculture Permits issued by the Department of Natural Resources before the effective date of this act shall remain in full force and effect for the duration of the permits.

SECTION    3.    This act takes effect upon approval by the Governor.