S*590 Session 106 (1985-1986)
S*0590(Rat #0256, Act #0168 of 1985) General Bill, By
Senate Fish, Game and Forestry
A Bill to amend Article 5 of Chapter 17 of Title 50, Code of Laws of South
Carolina, 1976, relating to leases of shellfish bottoms, so as to provide that
the Article shall apply to shellfish generally; to define commercial purposes,
state resident, commission, and division; to provide for the use of intertidal
and subtidal bottoms for mariculture in addition to shellfish culture; to
reduce the amount of acreage which may be granted by permit from one thousand
acres to five hundred acres; to limit the permit term to five years; to allow
permits for shellfish culture use by state residents for purposes other than
commercial use; to allow for closure of shellfish grounds and for mitigation
or compensation for the loss of public shellfish resources; to require the
making of permit maps and plats showing shellfish areas; to provide that each
permittee shall plant specified numbers of bushels of oysters; to provide for
gathering of shellfish for replanting; to require approval of the division for
a transfer of a permit; to provide for the gathering for personal use of
oysters and clams; to prohibit the harvesting of shellfish for commercial
purposes without an individual harvesting permit; to regulate the use of
mechanical devices for shellfish harvesting; to establish times when it is
unlawful to harvest shellfish; to provide penalties; to define mariculture; to
establish the standard measure for the harvesting, selling, and marketing of
shellfish; to regulate wholesale shellfish dealers; to establish areas in
which it is unlawful to harvest shellfish in Game Zone No. 9; to establish
that the Division of Marine Resources has jurisdiction over all natural shell
deposits on state-owned bottoms and certain deposits lying above the main
high-water mark and may regulate the use of the deposits; and to amend the
1976 Code by adding Section 50-17-503, so as to provide an annual fee for
persons who harvest shellfish for commercial purposes from state bottoms not
under permit for shellfish culture or mariculture as provided in Section
50-17-710 and to provide for the use of the proceeds of the fee; and to repeal
Article 9 of Chapter 17 of Title 50 of the 1976 Code relating to
shellfish.-amended title
04/30/85 Senate Introduced, read first time, placed on calendar
without reference SJ-1792
05/01/85 Senate Read second time SJ-1976
05/02/85 Senate Read third time and sent to House SJ-1902
05/07/85 House Introduced and read first time HJ-2953
05/07/85 House Referred to Committee on Agriculture and Natural
Resources HJ-2953
06/03/85 House Committee report: Favorable with amendment
Agriculture and Natural Resources HJ-3757
06/04/85 House Amended HJ-3826
06/04/85 House Read second time HJ-3832
06/05/85 House Read third time HJ-3937
06/05/85 House Returned HJ-3937
06/05/85 Senate Concurred in House amendment and enrolled SJ-2815
06/18/85 Ratified R 256
06/24/85 Signed By Governor
06/24/85 Effective date 05/01/86
06/24/85 Act No. 168
07/10/85 Copies available
(A168, R256, S590)
AN ACT TO AMEND ARTICLE 5 OF CHAPTER 17 OF TITLE 50, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO LEASES OF SHELLFISH BOTTOMS, SO AS TO PROVIDE THAT
THE ARTICLE SHALL APPLY TO SHELLFISH GENERALLY; TO DEFINE COMMERCIAL PURPOSES,
STATE RESIDENT, COMMISSION, AND DIVISION; TO PROVIDE FOR THE USE OF INTERTIDAL
AND SUBTIDAL BOTTOMS FOR MARICULTURE IN ADDITION TO SHELLFISH CULTURE; TO REDUCE
THE AMOUNT OF ACREAGE WHICH MAY BE GRANTED BY PERMIT FROM ONE THOUSAND ACRES TO
FIVE HUNDRED ACRES; TO LIMIT THE PERMIT TERM TO FIVE YEARS; TO ALLOW PERMITS FOR
SHELLFISH CULTURE USE BY STATE RESIDENTS FOR PURPOSES OTHER THAN COMMERCIAL USE;
TO ALLOW FOR CLOSURE OF SHELLFISH GROUNDS AND FOR MITIGATION OR COMPENSATION FOR
THE LOSS OF PUBLIC SHELLFISH RESOURCES; TO REQUIRE THE MAKING OF PERMIT MAPS AND
PLATS SHOWING SHELLFISH AREAS; TO PROVIDE THAT EACH PERMITTEE SHALL PLANT
SPECIFIED NUMBERS OF BUSHELS OF OYSTERS; TO PROVIDE FOR GATHERING OF SHELLFISH
FOR REPLANTING; TO REQUIRE APPROVAL OF THE DIVISION FOR A TRANSFER OF A PERMIT;
TO PROVIDE FOR THE GATHERING FOR PERSONAL USE OF OYSTERS AND CLAMS; TO PROHIBIT
THE HARVESTING OF SHELLFISH FOR COMMERCIAL PURPOSES WITHOUT AN INDIVIDUAL
HARVESTING PERMIT; TO REGULATE THE USE OF MECHANICAL DEVICES FOR SHELLFISH
HARVESTING; TO ESTABLISH TIMES WHEN IT IS UNLAWFUL TO HARVEST SHELLFISH; TO
PROVIDE PENALTIES; TO DEFINE MARICULTURE; TO ESTABLISH THE STANDARD MEASURE FOR
THE HARVESTING, SELLING, AND MARKETING OF SHELLFISH; TO REGULATE WHOLESALE
SHELLFISH DEALERS; TO ESTABLISH AREAS IN WHICH IT IS UNLAWFUL TO HARVEST
SHELLFISH IN GAME ZONE NO. 9; TO ESTABLISH THAT THE DIVISION OF MARINE RESOURCES
HAS JURISDICTION OVER ALL NATURAL SHELL DEPOSITS ON STATE-OWNED BOTTOMS AND
CERTAIN DEPOSITS LYING ABOVE THE MAIN HIGH-WATER MARK AND MAY REGULATE THE USE
OF THE DEPOSITS; AND TO AMEND THE 1976 CODE BY ADDING SECTION 50-17-503, SO AS
TO PROVIDE AN ANNUAL FEE FOR PERSONS WHO HARVEST SHELLFISH FOR COMMERCIAL
PURPOSES FROM STATE BOTTOMS NOT UNDER PERMIT FOR SHELLFISH CULTURE OR MARICULTURE
AS PROVIDED IN SECTION 50-17-710 AND TO PROVIDE FOR THE USE OF THE PROCEEDS OF
THE FEE; AND TO REPEAL ARTICLE 9 OF CHAPTER 17 OF TITLE 50 OF THE 1976 CODE
RELATING TO SHELLFISH.
The General Assembly intends for this act to provide increased recreational
opportunities for the citizens of this State and increased opportunity for
participation in the commercial harvesting of shellfish.
The General Assembly further intends that the compensation and mitigation
provisions in Section 50-17-720 of this act are not meant to and shall not
facilitate the permitting process for coastal development but instead are to
provide additional safeguards for the preservation and conservation of the
state's shellfish resources.
Be it enacted by the General Assembly of the State of South Carolina:
Shellfish
SECTION 1. Article 5 of Chapter 17 of Title 50 of the 1976 Code is amended to
read:
"ARTICLE 5
Shellfish
Section 50-17-705. As used in this article:
(1) 'Commercial purposes' means being engaged in the commercial fisheries
industry with the intent to derive a livelihood or a substantial portion of
livelihood from the industry.
(2) 'State resident' has the same meaning as provided in Section 50-9-30 added
to the Code as Section 28-18 of the 1962 Code by Act 742 of 1976.
(3) 'Commission' means the South Carolina Wildlife and Marine Resources
Commission.
(4) 'Division' means the Division of Marine Resources.
Section 50-17-710. a. The Division may grant permits to any state resident of
the exclusive portions of the intertidal and subtidal bottoms owned or controlled
by the State, for the purpose of shellfish culture or mariculture for commercial
purposes, not exceeding an aggregate of five hundred acres to any firm or
individual. For any shellfish culture purpose other than for commercial use, the
Division may issue permits for as many as two acres, but no more, to any state
resident at the annual fee provided in Section 50-17-760.
b. Each permit issued under this section must be for a term of five years and
any permit may be renewed at the option of the Division for an additional term
of five years at the yearly rate provided in Section 50-17-760.
Section 50-17-720. a. In the event that the State authorizes any activity or use
requiring the permanent closure of shellfish grounds the portion of a permitted
area which falls within the closed area may be removed from the permit acreage
agreement by the Commission. If a portion of the acreage is removed, the permit
acreage agreement and annual fee must be adjusted on the annual renewal date as
prescribed in Section 50-17-770.
b. In the event a state or federal permit is issued over the objections of the
Wildlife and Marine Resources Department, or for a project of overriding public
need, and if the permitted project causes the closure of any shellfish grounds
or renders any bottoms unsuitable for the purpose of shellfish propagation, the
Department may require the permittee to mitigate or compensate or both for the
loss of such public shellfish resource.
The compensation must be remitted to the Division and placed in a special fund
for shellfish management.
Compensation and mitigation under authority of this section may not be
considered as factors in justifying the issuance of any such permit and this
section may not be interpreted as authorizing the closure of any shellfish
grounds or authorizing the rendering of any bottoms unsuitable for shellfish
propagation.
In the event an unauthorized action results in a closure of shellfishing waters
or renders them temporarily or permanently unsuitable for the purpose of
shellfish propagation, the party responsible for the action may be required by
the department to mitigate the loss of the resource and to compensate for damages
which result from the loss of the shellfish resource.
c. The terms of the mitigation or compensation authorized by subsection (b)
and the amount of the award of damages must be determined in the first instance
by the Commission. Its determination shall constitute final decision for the
purpose of subsection (a) of Section 8 of Part II of Act 176 of 1977 and the
affected party may seek judicial review, pursuant to the decision.
Section 50-17-730. Any person desiring to acquire permit rights to any bottom,
as provided in Section 50-17-710, shall apply upon forms prescribed by the
Division. The nonrefundable sum of twenty-five dollars shall accompany the
application for each permit. The application shall include the location and
boundaries of the area desired to be used. If the area is subject to a permit,
the Division shall determine the acreage of shellfish bottoms and acreage capable
of producing shellfish and shall have a permit map or plat made, in accordance
with the Division specifications showing the perimeter boundaries of the area and
the bottoms to be used for shellfish culture in the area. No other permit for
shellfish culture on the bottoms delineated within a plat or permit map may be
made during the term of the permit. Provided, the Division has the authority to
issue permits for mariculture, as defined in Section 50-17-860, within the
perimeter boundaries of an existing permit if it is determined by the Division
that the mariculture operation will not interfere with the harvesting and
cultivation of shellfish by the permittee. If any additional area suitable for
cultivation of shellfish is found within the perimeter boundaries of the permit
area, prior to the renewal of the permit or at the time of application for a new
permit, the original permittee shall have first opportunity to acquire permit
rights to the area capable of producing shellfish. The annual permit fee must
be based upon the number of acres capable of producing shellfish within the
boundaries of the entire permit area.
Section 50-17-740. Upon approval of the application and plat by the Director of
the Division, the applicant shall publish in a newspaper in which legal
advertisements by the sheriff are published in the county wherein the territory
applied for is located, a notice to all persons of the application for permit
rights to the bottoms for the culture of shellfish, giving the name of the
applicant and a sufficient description of the bottoms applied for to enable them
to be located. The advertisement must be published once a week for three weeks
prior to the granting of a shellfish culture permit.
Section 50-17-750. Should an application be made by a person who was the holder
of the lease or permit on the bottoms for the term immediately preceding the term
for which application is made, preference must be given to that applicant, if he
has complied with all of the cultivation and planting requirements of this
article. Section 50-17-760. Each permittee shall pay for a permit under Section
50-17-710 an annual fee of five dollars an acre for the acreage of bottoms
delineated on the permit map or plat lying below the mean high-water mark.
Section 50-17-770. The annual fee for shellfish permits must be prorated from
the first of the month following the issuance of the permit to January first
next. Thereafter, all annual fees must be payable yearly in advance. On January
first the Director of the Division shall render a bill to each permittee showing
the amount owed. If the annual fee is not paid by February first, the Division
shall add a late payment penalty of ten percent of the total originally due and
shall send a final notice advising the permittee that if he fails to pay the fee
and the late payment fee before March first, the Division shall declare the
permit revoked for noncompliance.
Section 50-17-780. Each permittee shall plant one hundred and twenty-five
bushels of shell, cultch, or seed oysters annually for each acre of bottoms which
is producing or capable of producing shellfish included in his permit issued
under Section 50-17-710. All shell must be planted between May first and August
thirty-first, except that raw shuck houses may replant green shell from current
operations if the shell is replanted within three days after gathering. All
shell and seed planting may be under supervision of the Division of Marine
Resources, which may require up to five percent of the total quota of shell or
seed oysters of any permittee to be planted on state shellfish bottoms not under
permit but within a twenty-mile radius of the permittee's place of business.
Shell or seed oysters planted by a permittee on those bottoms must be credited
to the permittee's annual quota in the amount equal to two times that of the
number of bushels actually planted. The Division may, at its discretion, provide
incentives to permittees for improved or innovative management and cultivation
techniques in the form of additional planting credits or planting variances. If
a permittee does not plant the required quota of shell or seed oysters on the
permit area, the permit must be revoked by the Division or the acreage of
shellfish reduced based upon the percentage of the quota planted. In the event
a permittee believes that a permit area or portion of it does not require
planting during a given year for reasons of sound management, he may apply in
writing to the Division for a variance in his annual quota. The Division may
then conduct an inspection of the permit area or portion of it to determine
whether the requested variance may be granted, and notify the permittee of its
decision. The decision of the Division in those matters is legally binding. For
the purpose of shell planting, a U.S. bushel is the standard measurement. One
cubic yard of shell for planting is considered as twenty-one and seven-tenths U.
S. bushels.
The provisions of this section do not apply to mariculture operations as
defined under Section 50-17-860. The division is authorized to specify the terms
and conditions on any permit issued for the purpose of shellfish mariculture.
Section 50-17-790. Persons granted permits for shellfish cultivation may gather
shellfish for replanting from the bottoms of the State which may be designated
from time to time by the Division for such purpose. The permittee shall advise
the Director ten days before moving the seed.
Section 50-17-800. In addition to the requirements of this article, the Division
may specify other permit terms and conditions that it considers appropriate. One
year after the date of the permit issued under Section 50-17-710 and each year
thereafter during the life of the permit, if the permittee has not met the terms
and conditions of the permit or the legal requirements of this Article, the
Division may after notice, revoke the permit. Prior to the reissuance of any
permit in the area, consideration must be given to the designation of all or part
of the area as state shellfish grounds for public use.
Section 50-17-810. No permit issued under Section 50-17-710 may be transferred
without the approval of the Division endorsed on it to be effective or to act as
a release of the original permittee from the terms of the permit.
Section 50-17-820. Any person may gather for personal use not more than two U.
S. bushels of oysters or one-half of one U. S. bushel of clams, or both, in any
one day from state bottoms designated for public shellfishing. When bottoms are
under permit by the State for shellfish cultivation as provided in Section
50-17-710, written permission for the gathering of shellfish must be obtained
from the permit holder. This written permission must be on the person of the
harvester when he is gathering shellfish from the area. Any person violating the
provisions of this section must, upon conviction, be punished as provided in
Section 50-17-130, and any shellfish in the possession of any person cited for
a violation of this section may be seized and returned to the bottoms in the area
harvested.
Section 50-17-830. Owners of riparian property may gather shellfish for personal
use in the amounts specified in Section 50-17-820 from bottoms adjoining their
property without a license, if written permission for the purpose is obtained
from the Division.
Section 50-17-840. It is unlawful for any person to take or harvest shellfish
for commercial purposes from state-owned bottoms
without an individual harvesting permit issued by the Division. A permit is also
required for harvesting shellfish from any bottoms of the State by mechanically
operated devices including dredges, hydraulic escalators, patent tongs, and
mechanical oyster harvesters. The harvesting permits shall include provisions
specifying the areas, times, types of equipment, species to be harvested, catch
reporting requirements, and other conditions that the Division determines
necessary. The Division may limit the number of harvesting permits in accordance
with sound fishery management practices.
Any person issued any permit under this section shall harvest shellfish,
whether for commercial or personal use, only from the areas of state bottoms
specified on the permit.
The harvesting permits required by this section are in addition to the
shellfish culture permits provided for under Section 50-17-710.
It is unlawful for any person to harvest shellfish between one-half hour after
official sunset and one-half hour before official sunrise. In the case of
bottoms under permits issued in accordance with Section 50-17-710, harvesting of
shellfish during the period specified is lawful with the written permission of
the Division.
Any person violating the provisions of this section or failing to abide by the
provisions of a permit issued under this Section is guilty of a misdemeanor and,
upon conviction, must be fined not less than one hundred dollars nor more than
two hundred dollars or imprisoned for not more than thirty days. In addition,
any person found guilty of a violation of any of the conditions or requirements
of a permit issued under this section, or convicted of a violation of applicable
conservation laws or regulations, shall have the permit issued to him suspended
for the next thirty open season days following the date of conviction. Any boat,
motor, and fishing equipment used by a person engaged in the taking of shellfish
without a permit as required by this section, or during the period which his
permit has been suspended, must be seized, and upon conviction, sold, or redeemed
as provided for in Section 50-17-1615.
Section 50-17-850. It is unlawful for any person to remove, take, or harvest any
shellfish, as defined in Section 50-17-20, from the coastal waters and bottoms
of the State from May fifteenth to September fifteenth, inclusive. The
Commission, acting upon the advice of the Division, has the authority to open or
close any area of state waters or bottoms for the removal, taking, or harvesting
of shellfish for specified periods at any time during the year when biological
and other conditions warrant the action. Nothing in this act may be construed
to alter the authority of the Department of Health and Environmental Control to
open and close shellfish grounds for public health reasons.
Nothing in this section shall prevent the removal of shellfish for the purpose
of replanting under permit granted by the Division. Possession of live oysters
or clams during the closed season is prima facie evidence of a violation of the
provisions of this section. Clams and oysters may be imported during the closed
season in this State from other states where the taking and possession of the
shellfish is lawful. Each shipment or load of imported shellfish must be
properly marked and identified to verify compliance with the provisions of this
section. Any person violating the provisions of this section is guilty of a
misdemeanor and upon conviction must be punished as provided in Section
50-17-130.
Section 50-17-860. As used in this section, 'mariculture' means the controlled
cultivation in confinement of marine and estuarine organisms.
The Division may grant permission to persons engaged in mariculture operations
to harvest, have in possession, and sell shellfish at any time during the year.
Section 50-17-870. The Division shall maintain and keep open areas where
licensed bona fide residents of this State may gather, for personal use, not more
than two bushels of oysters in any one day. The areas must be designated upon
the approval of a majority of the county legislative delegation. The open areas
must be located preferably at or near public landings. The Division shall
clearly mark and identify the open areas so that the public may readily recognize
them as open areas. The Division is responsible for the maintenance of the
signs. Any person violating the provisions of this section must, upon
conviction, be punished as provided in Section 50-17-130.
Section 50-17-880. The standard measure for the harvesting, selling, and
marketing of shellfish in South Carolina is the U. S. bushel, equal to 2150.42
cubic inches.
Section 50-17-890. It is unlawful for any wholesale shellfish dealer licensed
under Section 50-17-450 to purchase shellfish from any person other than a
properly licensed and permitted commercial fisherman or another properly licensed
and approved seafood dealer. He shall maintain a record of all shellfish
purchases which shall include the name and address of the seller, the area where
harvested, the type of shellfish purchased, the date of purchase and the
commercial shellfisherman's license number of the seller. The record must be
available for inspection upon proper identification by any lawfully constituted
law enforcement officer, conservation officer, or authorized management personnel
of the Division. Any person violating the provisions of this section is guilty
of a misdemeanor and upon conviction must be fined not less than five hundred
dollars nor more than one thousand dollars or imprisoned for not more than ninety
days, or both.
Section 50-17-900. It is unlawful to commercially harvest shellfish in Game Zone
No. 9 between Butler Inlet (Pawley's Inlet) and Midway Inlet in Georgetown
County. Any person violating the provisions of this section is guilty of a
misdemeanor and upon conviction must be fined not less than fifty dollars nor
more than two hundred dollars or imprisoned not more than thirty days.
Section 50-17-910. The Division has jurisdiction over all natural shell deposits,
including those of oysters, clams, and other molluscans occurring upon or within
state-owned bottoms. In addition, the Division has jurisdiction over all shell
deposits lying above the mean high-water mark if the deposits have been created
by processes of natural accretion upon state-owned lands or bottoms. The Coastal
Council permit requirements for alteration of critical areas apply to the removal
of all shell deposits within a critical area.
The Division may grant permits to any person to remove shell from natural
deposits for use in shellfish cultivation and mariculture. The permits must be
issued for a term not to exceed three years and shall specify conditions the
Division may require, including areas from which shell may be harvested, dates
and schedules of harvesting, types of equipment which may be used and reporting
requirements. Prior to granting permission to remove, the Division shall analyze
the potential for increased erosion in the area of the shell which is removed.
Permission may be granted only when no significant erosion potential is foreseen.
If permission is granted and the removal does cause significant erosion in the
area, the person granted permission shall restore the area to its original
condition or as close to its original condition as possible under the
circumstances.
The Division shall specify a fixed price for each unit of shell removed.
Payments for shell removed must be made by the permit holder on or before the
tenth day of each month for the preceding month.
All monies derived from the sale of shell under this section must be deposited
in a special fund to be used for the management and improvement of shellfish
bottoms utilized solely for the purpose of recreational harvest by the public and
the bottoms may not be permitted for commercial operations for a period of not
less than ten years.
The Division shall promulgate regulations it determines are necessary to carry
out the provisions of this section.
Any person violating the provisions of this section is guilty of a misdemeanor
and, upon conviction, punished as provided in Section 50-17-130. In addition, any
permits issued for the removal of shell must be revoked by the Division."
Repeal
SECTION 2. Article 9 of Chapter 17 of Title 50 of the 1976 Code is repealed.
Fee
SECTION 3. The 1976 Code is amended by adding:
"Section 50-17-503. An annual license fee of twenty-five dollars and fifty
cents is required of any person who harvests shellfish for commercial purposes
from state bottoms not under permit for shellfish culture or mariculture as
provided in Section 50-17-710. Fifty cents of this fee may be retained by the
issuing agent and the balance must be remitted to the Division.
All funds derived from the sale of licenses under this section must be
deposited in a special fund to support the public shellfish program of the
Division."
Time effective
SECTION 4. This act shall take effect May 1, 1986. |