Statutes, codes, and regulations
Louisiana Administrative Code
Title 76 - WILDLIFE AND FISHERIESPart VII - Fish and Other Aquatic life
Chapter 5 - Oysters
Section VII-501 - Oyster Leases

La. Admin. Code tit. 76 § VII-501

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Current through Register Vol. 50, No. 9, September 20, 2024
Section VII-501 - Oyster Leases
A. Office Policies and Leasing Procedures
1. Office hours will be from 8 a.m. to 4:30 p.m., Monday through Friday excluding state holidays.
2. If leases overlap, the department will examine the leases involved and eliminate the overlap by maintaining the overlapped area as part of the earliest-issued lease, amending the other lease agreement(s) and lease plat(s) to subtract the overlapped area, and notifying the lessees of the action taken.
3. If examination of a lease indicates an acreage miscalculation, the department will amend the lease agreement and lease plat to state the correct acreage and notify the lessee of the action taken.
4. The oyster lease section will keep an indexing system to determine the acreage held by all oyster lessees. The oyster lease section will also receive and accept information related to the location of private oyster leases, provided that they are on state claimed water bottoms and were encumbered by a private oyster lease that was in effect and properly recorded as of February 1, 2016, and to the extent possible, the location of such leases will be made available to the public through inclusion as part of the existing indexing system and/or the geographic index system ("GIS"). Pursuant to R.S. 56:432, no single lessee may hold more than 2,500 acres under lease. Whoever is found to have leased more than the allotted amount by a court of competent jurisdiction shall forfeit all leases held on any water bottom of the state.
5. Oyster leases shall not be issued or renewed within the boundaries of a Wildlife Management Area or a designated public oyster seed ground or reservation. If extenuating circumstances are established and significant public interests would be furthered, the secretary has the discretion to grant exceptions to this prohibition on a case by case basis.
6. All oyster leases are subordinate to the rights or responsibilities of the state, any political subdivision of the state, the United States, or any agency or agent thereof, to take any action in furtherance of integrated coastal protection as defined in R.S. 49:214.2.
7. Subordination and Designation of Access Channels
a. With the exception of those oyster leases issued under authority of Phase I of the Oyster Lease Moratorium Lifting Priority (LAC 76:VII.505.A.2), any oyster lease initially applied for after July 1, 2016, or any renewal or judicial partition of such lease, is subordinate to the rights of any person:
i. to engage in any activity authorized by a coastal use permit, determination, coastal use authorization, or drilling permit (collectively, for purposes of this Section, a "permit") for which the permit application was received prior to the date the application for the oyster lease was received. This subordination shall apply only within those areas as designated by the permit. If no area is delineated by the permit, then the default area shall be 75 feet from the centerline of a pipeline and 250 feet from the outside of a well, platform, shell pad, or facility;
ii. to operate, maintain, repair, replace, rehabilitate, or remove any pipeline, well, platform, shell pad, or facility on or impacting such an oyster lease where the structure was placed or constructed prior to September 20, 1980, or prior to the date the oyster lease was issued. This subordination applies only to areas 75 feet from the centerline of a pipeline and 250 feet from the outside of a well, platform, shell pad, or facility;
iii. to cross an oyster lease to access any activity, pipeline, well, platform, shell pad, or facility to which Clause A.7.a.i or A.7.a.h of this Section applies, within a single access route properly designated and identified as follows:
(a). for any activity, pipeline, well, platform, shell pad, or facility, including removal of any of those structures, for which a single access channel is identified in the permit, the department shall recognize that as the sole access channel across any subordinate oyster lease;
(b). if multiple access channels are identified in the permit that cross any subordinate oyster lease, then the holder of the permit shall propose one of them as the sole access channel to the oyster lease section in writing, identifying the centerline of the access channel using the North American Datum 1983 state plane coordinates. Upon receiving the proposal, the oyster lease section shall notify each affected oyster lessee in writing. Upon receiving written notification, the oyster lessee shall have 30 calendar days to object in writing to the oyster lease section and show good cause why the department should not consent to the proposed designation. If an objection is not made within this time period, the department shall recognize the access channel as proposed. If an objection is timely made, the department shall so notify all affected oyster lessees and the holder of the Permit in writing. The affected oyster lessees and the holder of the Permit shall have 30 days from issuance of this notice to propose a mutually agreeable access channel and submit it to the department, identifying the centerline using the North American Datum 1983 state plane coordinates, and the department shall recognize that as the sole access channel. Should the parties fail to reach a mutually agreeable resolution within this time period, the secretary shall have sole discretion to designate a sole access channel across the oyster lease from among those identified in the permit;
(c). for any activity, pipeline, well, platform, shell pad, or facility, including removal of any of those structures, that was placed or constructed before September 20, 1980 or was placed or constructed before the oyster lease was issued, but for which no access channel has been previously authorized, the holder of the Permit shall propose a single access channel in writing to the Oyster Lease Section, identifying its centerline using the North American Datum (NAD) 1983 state plane coordinates. Upon receiving the proposal, the oyster lease section shall notify each affected oyster lessee in writing. Upon receiving written notification, the oyster lessee shall have 30 calendar days to object in writing to the oyster lease section and show good cause why the department should not consent to the proposed designation. If an objection is not made during this time period, the department shall recognize the access channel as proposed. If an objection is timely made, the department shall so notify all affected oyster lessees and the holder of the permit in writing. The affected oyster lessees and the holder of the permit shall have 30 days from issuance of this notice to propose a mutually agreeable access channel and submit it to the department, identifying the centerline using the (NAD) 1983 state plane coordinates, and the department shall recognize that as the sole access channel. Should the parties fail to reach a mutually agreeable resolution within this time period, the secretary shall have sole discretion to designate a sole access channel across the oyster lease;
(d). any access channel designated across a subordinate oyster lease and accepted by the department shall be the area within 50 feet from the designated centerline of the channel;
(e). in addition, if a spoil area was previously identified in the permit for an access channel designated pursuant to this Subparagraph, this Subparagraph shall also apply to the same spoil area; however, such spoil area shall be limited to eighty feet in width adjacent to one side of the access channel.
8. All leases, all applications for leases by persons who have since died, and all property rights or interests acquired pursuant to such leases, made in conformity with the provisions of law and rule, are heritable and transferable. No such inheritance of transfer is effective with respect to the department unless and until an authentic act, judgment, or other valid instrument translative of title to the lease, application, or property right or interest is registered in the oyster lease section. In the event any oyster lease has been inherited, assigned or transferred to a non-resident, that lease shall not be renewed, pursuant to the residency requirements established in R.S. 56:422.
9. The fee schedule for all processes, as well as the purchase of extra maps, leases, plats or documents, is as follows.

Desktop Examination

$260

New Ground Application

$40

Renewal Application

$30

Lease Transfer

$10 per lease

Maps

$10 per copy

Plats

$5 per copy

Lease Documents

$5 per copy

Other materials

$1 per copy

Computations

State Plane to Latitude/Longitude

$2 per point

GIS Data

$5 per lease

$50 per USGS 24k section

$200 for the data set

B. Oyster Lease Applications
1. All applicants must appear in person at the oyster lease section office to apply for a new oyster lease.
a. All applicants must be either a bona fide resident as defined in R.S. 56:8(16)(a), an officer or registered agent of and applying on behalf of a firm composed of bona fide Louisiana residents, or an officer or registered agent of and applying on behalf of a corporation domiciled in Louisiana or organized under Louisiana law. Evidence of residency requirements for partnerships, corporations, LLCs, or other business entity and evidence of office-holding or agency shall be provided via certified copy of the filing, in good standing, with the Secretary of State.
b. Applicants shall be of the full age of majority (18 years) when applying for or renewing a lease, or provide power of attorney to agents, evidenced by authentic act, to act on their behalf.
c. Louisiana residency and age shall be evidenced by a valid Louisiana driver's license or state-issued identification.
2. An applicant will be required to outline on a department map the area for which he wishes to apply.
a. In the event of department error that results in an application being taken in an area where there is a prior application or lease that prevents the applicant from taking the full amount of acreage applied for in the area described, the following procedure shall apply. The applicant shall have the option of:
i. taking a lease of all available remaining acres within the originally described area; or
ii. taking a single lease for up to 110 percent of the number of acres originally applied for, outside of the originally described area but in the nearest unencumbered water bottom (a "revision"), provided that the oyster lease section approves the revision; or
iii. if neither of the above options is acceptable to the applicant, or if the oyster lease section does not approve a revision within 30 days after the applicant notifies the department that he has made that selection, the applicant may have his application cancelled and receive a full refund of the application fee.
b. The applicant shall have 30 days T from the date of notification of the conflict by certified letter to exercise the above options and notify the department in writing of his selection. If the applicant does not notify the department of his selection within this time period, his application shall be cancelled and the department shall retain all fees.
c. Before a revision lease is issued under Clause 2.a.ii above, the applicant shall first submit a new application for the revised area. This application shall be identified as a "revision" application and shall indicate the original application by number for which it is being substituted. There will be no charge for the revision application.
d. All revisions shall follow this procedure. No lease shall proceed until the properly completed revision application has been submitted, accepted and approved. No revision lease is authorized without the above procedure being followed.
3. Except as provided in Act 595 of the 2016 Regular Legislative Session, where distances between oyster leases, or between oyster leases and the shoreline, are 200 feet or less, no applications or leases shall be taken or issued except that the intervening space may be shared equally by the existing leases or applicants if properly applied for and leased in accordance with existing policies and practices.
4. Water bottoms identified or nominated in lease applications shall be configured in the most compact configuration possible. No new lease, or portion thereof, shall be issued whose length exceeds its narrowest width by more than a factor of three except as follows:
a. between existing leases where all surrounding water bottoms are leased, or under application;
b. in bayous (or similar configurations, connections or cuts between bays, lakes and ponds, etc.), but provided that the water bottom may be leased subject to a subservience clause to reasonable navigation. However, no application will be allowed to include a narrow water body connecting two otherwise non-contiguous larger water bottom areas identified in the lease application, except with the approval of the administrator of the Fisheries Management Division.
5. Oyster lease applications shall be heritable, but not otherwise transferable.
a. If an applicant dies before the secretary has determined whether to grant the application, the application may be maintained by the administrator of the applicant's estate, provided that proper proof of the death is presented to the department. The applicant's heir as to the application may also maintain the application, provided that the heir is otherwise eligible for an oyster lease and proper proof of death and heirship is provided to the department.
b. The administrator or heir shall appoint a representative to manage the application within 180 days of the applicant's death. If the department is not notified in writing of the appointment of a representative with the legal authority to maintain and manage the application within 180 days of the applicant's death, the application will be null and void regardless of when the department learns of the death, and automatically cancelled and all fees retained by the department.
c. If the lease is granted, it shall be granted in the name of the applicant's heir as to the application, as shown in the proof of heirship provided to the department.
6. Any application for a lease exceeding 1,000 acres will be denied.
7. No application will be accepted that would cause an applicant to exceed the maximum total of 2,500 acres under lease and application established in R.S. 56:432.
a. An applicant will be given 30 days to reduce the acreage contained in any application that would cause his lease acreage to exceed 2,500 acres. If the applicant does not amend the application to reduce the acreage accordingly within 30 days of notification of the exceedance, the application will automatically be cancelled and all fees retained by the department.
8. Once an application for a new lease is received by the department, it will be registered with the Oyster Lease Section and the department will post notice of the application for the lease, along with a copy of the application, map and general description on its website for 90 consecutive days. Concurrent with this 90-day notice period, the department will:
a. request the Office of State Lands to perform a reasonable investigation to determine whether the water bottom applied for is claimed by the state and susceptible to leasing. The department will deny the lease if the Office of State Lands does not determine that the water bottom applied for is claimed by the state and susceptible to leasing. Alternatively, if the Office of State Lands determines that only part of the water bottom applied for is claimed by the state and susceptible to leasing, the applicant may amend the application within 30 days of such denial to limit it to such areas, and the department will continue to process the application as amended. If the applicant does not notify the department of an amendment meeting all requirements within this time period, the application shall be cancelled and the department shall retain all fees;
b. submit any application for a new lease to the Coastal Protection and Restoration Authority to review and determine if the water bottom applied for is located in an area where a buffer zone may be necessary to protect sensitive and eroding lands, and if so to delineate the extent of that buffer zone. The department will deny the lease if the Coastal Protection and Restoration Authority determines that a buffer zone is needed on the water bottom applied for. Alternatively, the applicant may amend the application within thirty (30) days of notification of such denial to remove the area of the buffer zone, and the department will continue to process the application as amended. If the applicant does not notify the department of an amendment meeting all requirements within this time period, the application shall be cancelled and the department shall retain all fees;
c. send written notice of application for the lease to any private person who has previously submitted a claim of ownership of any part of the water bottom applied for to the Office of State Lands. The purpose of this measure is to provide additional notice. The posting of notice of application for lease on the department's website shall be the official notice. Any claim that the department failed to provide written notice, or that such notice was untimely shall not serve to negate an application for lease or extend the protest period.
9. Any private person claiming ownership of any part of the water bottom applied for may protest the issuance of a state lease on the grounds that the protesting party owns the water bottom, as provided below.
a. The protest must be made in writing via certified mail delivered within the 90-day notice period, concurrently to the secretary through the oyster lease section, the administrator of the Office of State Lands, and the applicant.
b. The protest shall include proof of ownership, including but not limited to all information and documentation that the protesting party believes is relevant to the question of ownership.
c. Any right to protest issuance of the lease shall expire if not delivered within the 90-day notice period.
d. Pursuant to R. S. 56:427(F)(2), if protest is timely made, the administrator of the Office of State Lands shall review the state's claim to ownership of the contested water bottom and issue a preliminary determination to the secretary, the protesting party, and the lease applicant within 90 days of receiving the notice of protest, as to whether the state claims ownership of the contested water bottom. The administrator of the Office of State Lands may evaluate additional information after his preliminary determination, but shall issue a final determination of ownership within 180 days of receiving the notice of protest.
e. The final determination by the administrator of the Office of State Lands shall not be reviewable under the Administrative Procedure Act and is appealable only to the Nineteenth Judicial District Court. Any petition for judicial review of the determination made in accordance with this rule must be filed within 60 days after issuance of the determination.
f. Failure of a private claimant to make a protest has no effect on the right to claim ownership of the leased water bottom pursuant to R.S. 56:423(D).
10. If the administrator of the Office of State Lands finally determines that the state claims ownership of the water bottom applied for, and if the Coastal Protection and Restoration Authority determines that the water bottoms applied for is not essential for integrated coastal protection, and all other requirements are met, the secretary may, at his discretion, execute a lease for the water bottoms in the application, with any amendments as provided in these regulations.
11. An application will automatically be cancelled and all fees retained by the department for any of the following reasons:
a. if the applicant does not appear in person to execute a lease agreement within 60 days of issuance of the initial rental notice;
b. if the applicant fails to request a desktop examination from the department or submit a complete survey meeting department specifications within one year of the date of submission of the lease application;
c. if the administrator of the estate of a deceased applicant or heir as to the application fails to submit the appropriate paperwork naming a representative within 180 days of the named applicant's death, as provided above;
d. as otherwise provided in these regulations.
12. An applicant may withdraw an application and receive a full refund from the department by submitting a written request for withdrawal within the following timeframes:
a. within 120 days after the department posts notice of the application on its website;
b. within 30 days after issuance of the final determination by the administrator of the Office of State Lands regarding the state's claim to ownership of the water bottoms applied for; or
c. within 30 days after final judgment in any proceeding for judicial review of the final determination by the administrator of the Office of State Lands regarding the state's claim to ownership of the water bottoms applied for.
13. The department will deny any new lease application for any water bottoms located within 75 feet of the centerline of a pipeline that is located on purchased right-of-way. However, if the right-of-way is abandoned and returned to commerce, the secretary may then lease such water bottoms.
a. If only part of the water bottom applied for is within 75 feet of the centerline of a pipeline that is located on a purchased right-of-way, the applicant may amend the application to remove all other areas within 30 days of notification of such denial, and the department will continue to process the application as amended. If the applicant does not notify the department of an amendment meeting all requirements within this time period, his application shall be cancelled and the department shall retain all fees.
14. The department will deny any new lease application for any water bottoms located within the following areas:
a. water bottoms designated as a public oyster seed ground, reservation, or other public oyster harvest area;
b. water bottoms that are within the boundaries of a Wildlife Management Area; or
c. water bottoms or bodies designated as navigable channels or waterways by the United States Army Corps of Engineers, or within 50 feet of the permitted boundary of such channel or waterway.
d. If only part of the water bottom applied for is within one of the above-listed areas, the applicant may amend the application to remove such areas within 30 days of notification of such denial, and the department will continue to process the application as amended. If the applicant does not notify the department of an amendment meeting all requirements within this time period, his application shall be cancelled and the department shall retain all fees.
C. Renewals
1. The lessees of record for expiring leases have first right of renewal on expiring leases for successive periods of 15 years each, provided that the leased area is capable of supporting oyster populations.
2. All applicants must appear in person at the oyster lease section office to apply for an oyster lease renewal.
a. Applicants shall be the full age of majority (18 years) when applying for or renewing a lease, or provide power of attorney to agents, evidenced by authentic act, to act on their behalf.
b. Louisiana residency and age shall be evidenced by a valid Louisiana driver's license or state-issued identification.
c. All applicants must be either a bona fide resident as defined in R.S. 56:8(16)(a), an officer or registered agent of and applying on behalf of a firm composed of bona fide Louisiana residents, or an officer or registered agent of and applying on behalf of a corporation domiciled in Louisiana or organized under Louisiana law. Evidence of residency requirements for partnerships, corporations, LLCs, or other business entity and evidence of office-holding or agency shall be provided via certified copy of the filing, in good standing, with the Secretary of State.
3. Leases, or portions of leases, will not be renewed if:
a. the water bottom is determined by the department to be incapable of supporting oyster populations.
b. the water bottom is designated as a public oyster seed ground, reservation, or other public oyster harvest area, unless specifically authorized by the secretary.
c. the water bottom is within the boundaries of a Wildlife Management Area, unless specifically authorized by the secretary.
d. the water bottom is within an area where the Coastal Protection and Restoration Authority determines is essential for integrated coastal protection or that a buffer zone is necessary to protect sensitive and eroding lands.
e. the renewal applicant fails to meet the residency requirements required by law.
4. In the event a lease, or a portion of a lease, is not renewed for one of the foregoing reasons, the lessee of record at the time of cancellation or his designee has until July 1 of the year the lease was non-renewed to remove cultch or improvements made to the previously leased bottom, or a period of 90 days from receiving notice of nonrenewal, whichever is longer. The secretary, at his discretion and upon a showing of good cause, may extend this time period by 90 additional days.
5. Upon renewal, the secretary may make such stipulations in the leases as he deems necessary and proper and may fully settle all disputes as to lease boundaries.
6. Except as provided in Act 595 of the 2016 Regular Legislative Session regarding Phase II of the oyster lease moratorium lifting process, "take-ups", expansions, reconfigurations, or other lease modifications shall not be considered as lease renewals. Any such application for previously unleased water bottoms shall be processed as a new lease application.
D. Lease Plat Requirements and Standards for Oyster Lease Surveys
1. Lease applicants can request the department to perform a desktop examination to produce a lease plat, or may hire a licensed surveyor to draft a lease plat.
a. If a desktop examination is requested, an additional fee established by the commission may be charged.
b. When drafting a lease plat depicting leaseable water bottom, the plat shall reference National Agricultural Imagery Program (NAIP) Imagery or any other relevant imagery with spatial resolution of at least one meter.
c. Upon execution of the lease, the department shall provide three copies of the plat to the lessee of record.
2. If no desktop examination is requested by the applicant, the applicant shall furnish to the department a plat, certified by a licensed surveyor, of the water bottom applied for, within one year of receipt of the lease application by the department. A licensed surveyor shall be responsible for conducting any such survey, in accordance with these regulations and the appropriate professional standards of practice. Failure to submit such a plat within the prescribed time period shall result in the automatic cancellation of the lease application and forfeiture of all application fees.
3. Each element of the description written on the application must be met by the plat required by R.S. 56:427(A). Additionally, the plat must conform completely to the map outline attached to and made a part of the application; provided, however, that deviations from the map outline (but not the written description) are permitted when such a deviation would not encroach on a neighboring lease or application. Such deviations are also permitted when the signed written consent of the lessee or applicant whose lease or application would be affected has been granted; in such cases, the affected lease or application will be amended to remove the overlapped area. In no case will an applicant be allowed to lease outside of his written description, except as provided in Clause B.2.a.ii of this Section.
a. Plats drafted by a licensed surveyor are to be drawn on the form prescribed by the department and stamped. The plat shall remain in the custody of the department after receipt.
b. An electronic CADD file, ESRI Shapefile, or other comparable file, as allowed by the department, of the boundary shall be provided to the department together with the plat and within the same time frame as the plat.
c. In the event that a licensed surveyor relies on department GIS information, it shall be at his own risk.
d. If a licensed surveyor repeatedly surveys over an existing lease, application or land area, that surveyor will be reported to the Louisiana State Board of Professional Engineers and Land Surveyors.
4. All corners of oyster lease plats shall be referenced to the Louisiana State Plane Coordinate System, south zone, NAD83, survey feet.
5. Plats shall illustrate any land, any existing structures or improvements within or adjacent to the application boundary.
6. The acreage indicated on all plats, even though calculated to the tenth or hundredth of an acre, shall be rounded up to the next highest acre.
a. All land areas shall be excluded from the acreage calculation and the lease.
7. The application number and the name of the applicant shall be shown on all plats, as indicated on the original application.
8. Standard signs and symbols shall be used on the plat.
9. The department shall not be responsible for the cost of any private survey performed. Contracting a private survey is at the sole discretion and expense of the applicant.
10. Noncompliance with any requirement established by law or by these rules, after 30-day notification from the department by certified mail, shall result in cancellation of the application or lease and forfeiture of all fees to the department.
E. Oyster Lease Posting Requirements. In an effort to comply with R.S. 56:430(B), and to keep within the constraints of R.S. 14:63 dealing with criminal trespassing, the following oyster lease posting requirements apply to any actively harvested lease.
1. The lessee shall post the oyster lease and maintain signs along the boundaries of the property or area to be posted. These signs shall be written in the English language.
2. The signs shall have letters at least 3 inches in height and shall be of sufficient size and clarity to give notice to the public of the location and boundary of the oyster lease. The signs shall be placed and maintained at intervals of not more than 1,000 feet and shall be at least 3 to 12 feet above the water level.
3. At the main entrance to the lease and at no less than all corners along the boundary of said property, the lessee shall include his name, initials, or lease number.
4. In marsh areas and canals, posted signs shall also be placed at all major points of ingress and egress.
5. In open waters all signs are to be placed facing outward.
F. Policy Regarding the Splitting of Leases
1. No lease shall be split into non-contiguous pieces unless done so by the Coastal Protection Restoration Authority or by judicial decree.
2. If a lease is split by an acquisition by the Coastal Protection Restoration Authority or judicial decree, the department will issue alternative lease numbers for each discrete remainder lease area. An amended lease or leases for such remainder lease areas will be mailed to the lessee at the address on file with the department's oyster lease section.
3. An amended lease issued by the department because a lease was split pursuant to these rules shall not constitute a new lease for purposes of subordination under Act 595 of the 2016 Regular Legislative Session.
4. Splitting of oyster leases will be done with no fee charged to the lessee by the department.

La. Admin. Code tit. 76, § VII-501

Promulgated by the Department of Wildlife and Fisheries, Wildlife and Fisheries Commission, LR 10:470 (June 1984), amended LR 12:844 (December 1986), LR 15:197 (March 1989), LR 17:808 (August 1991), LR 37:1622 (June 2011), Amended LR 46592 (4/1/2020).
AUTHORITY NOTE: Promulgated in accordance with R.S. 56:6(10), R.S. 56:422, R.S. 56:423, R.S. 56:425, R.S. 56:427, R.S. 56:428, Act 808 of the 2008 Regular Legislative Session, Acts 570 and 595 of the 2016 Regular Legislative Session.