Leasing State Water Bottoms

Fish and Game Code Division 12, Chapter 5 deals with the leasing of state water bottoms. Section 15400 authorizes the commission to lease state water bottoms or the water column to any person for aquaculture, including, but not limited to, marine finfish aquaculture.

State leases cannot be issued unless the commission determines that the lease is in the public interest in a public hearing conducted in a fair and transparent manner, with notice and comment, in accordance with commission procedures. Leases issued, and regulations adopted, pursuant to this section are not to be construed to be fishery management plans.

A person is prohibited from engaging in marine finfish aquaculture in ocean waters within the jurisdiction of the state without a lease from the commission. Leases and regulations adopted by the commission for marine finfish aquaculture are required to meet all of the ten specified standards.

Section 15401 prohibits areas used by the public for digging clams from being leased. The department designates those areas.

Section 15402 provides that a lessee of a state water bottom owns all lawfully cultivated organisms that are described in the application for the lease and produced in the area leased. The lessee has the exclusive right to cultivate and harvest the aquatic organisms in the area leased.

Section 15403 requires persons wishing to lease a state water bottom from making a written application to the commission. An application is required to contain all four of the specified items of information.

Section 15404 states that, if the commission finds that the area applied for is available for lease and that the lease would be in the public interest, the commission is required to publish a notice that the area is being considered for leasing.

Section 15405 prohibits an initial term of a state water bottom lease from exceeding 25 years. The initial term of a state water bottom lease for marine finfish aquaculture cannot exceed 10 years.

Section 15406 requires each state water bottom lease to specify a period prior to expiration when renewal of the lease may be requested by the lessee. If during this period the lessee is still actively engaged in aquaculture, the lessee must have a prior right to renew the lease on terms agreed upon between the commission and the lessee. If terms are not agreed upon, the commission must advertise for bids on the lease. If a request for renewal is not made by the lessee, the commission is required to advertise for bids on the lease. The commission can only consider bids from aquaculturists registered.

Section 15406.5 requires the commission to award water bottom leases to the highest responsible bidder, if the bid meets or exceeds the minimum annual rent established by the commission, which cannot be less than $2 per acre, for all species cultivated, unless the acreage applied for is 10 acres or less, in which case the minimum acceptable rent is $10 per acre.

Section 15406.7 requires every person operating under an oyster lease to pay a privilege tax of $0.04 per packed gallon, or fraction thereof, of shucked oysters harvested by the lessee.

If the oysters are marketed in the shell, the tax is based on the equivalent yield of shucked oyster meat. In determining the yield of oysters, it is deemed that 100 oysters are equivalent to one packed gallon of shucked oyster meat.

Section 15407 requires the annual rent to be paid to the department within 30 days of the commencement of the lease and within 30 days of the anniversary. The commission may establish penalty fees for late payment and may cancel the lease if rent is not paid within 90 days of the commencement of the lease or within 90 days of any anniversary.

Section 15408 requires the commission to promulgate regulations governing the termination of leases due to failure to pay rent or improper use of the leasehold.

Section 15409 states that, upon termination of a lease, for any reason, all structures are to be removed at the lessee’s expense from the leasehold, and the area is to be restored to its original condition. If the lessee fails to remove the structures, the state may remove them and the lessee must pay the removal costs incurred.

Section 15410 requires all leases to be subject to the power of the Legislature to increase or decrease the rents, fees, taxes, and other charges relating to the lease, but no increase in rent will be applicable to an existing lease until it is renewed.

Section 15411 provides that lessees under a state water bottom lease may not unreasonably impede public access to state waters for purpose of fishing, navigation, commerce, or recreation. The lessee may, however, limit public access to the extent necessary to avoid damage to the leasehold and the aquatic life culture. The commission may prohibit any recreational activity in any aquaculture area subject to a state water bottom lease if it determines that the activity is detrimental to the enhancement of the resource.

Section 15412 prohibits any water bottom lease from being assigned without the prior approval of the commission. Application for approval of a lease assignment must comply with all of the requirements for an original lease.

Section 15413 prohibits any person from entering upon any area subject to a water bottom lease in which aquatic life is cultivated, or remove the aquatic life therefrom without the consent of the lessee, or willfully destroy the cultivated aquatic life or any markers intended to designate the boundaries and limits of the leased area.

Section 15414 allows a water bottom lease to require periodic reports that the commission deems necessary for the proper administration of the state’s water bottoms.

Section 15415 requires the department to notify the State Lands Commission of all applications for water bottom leases. The department must inform the State Lands Commission of all leases executed, renewed, or assigned pursuant to this chapter.