Conservation Leasing of Submerged Lands
Woodard Bay Marine Project
& Various Case Studies
.WOODARD BAY PROJECT.DOC
I. Introduction to Conservation Leasing
The field of environmental law and regulation is becoming an ever-increasingly-diverse field of
study. For the purpose of completing the practicum portion of the University of Washington’s
Certificate Program, our five-member group decided to focus on the issue of conservation
through land trusts. While looking into this issue, we were able to establish a contact at The
Nature Conservancy. Shelley Rolfe, a coordinator at the Conservancy explained that the
organization has been working on a project regarding the leasing of submerged lands for the
purpose of conservation. The organization needed to conduct additional research for the
Woodard Bay Marine Project, an area of land currently owned by the Washington Department of
Natural Resources (WDNR). Shelley provided the majority of background information in this
report, as she was able to act as a liaison between our group and The Nature Conservancy.
Our focus, as a group was to identify the primary stakeholders, discuss the issues and regulatory
analysis of leasing of submerged lands. Based on our research of the leasing and conservation
practices of New York, Maryland, Virginia, North Carolina and Louisiana we are able to provide
The Nature Conservancy with additional information to help process a proposed lease with the
WDNR. Before examining research regarding other states, it is important to ask a few
fundamental questions. What are land trusts? Why is The Nature Conservancy focusing on the
leasing of submerged lands? Finally, why Woodard Bay and what is the Woodard Bay Marine
There are several conservation tools available in Washington. Conservation easements and
conservation leases, which are often managed by land trusts, are some of the most common ways
of protecting lands in Washington. A land trust is a way of managing land, primarily for
conservation purposes. Nonprofits work to conserve land by undertaking or assisting with land
transactions. Land trusts act in several different ways. They can purchase land for permanent
protection, accept donations of land or funds to purchase land, accept a bequest, or accept the
donation of a conservation easement. Generally, by purchase or acceptance of charitable
conservation easements. Land trusts are responsible for enforcing the restrictions that a
conservation easement describes. By maintaining written records and monitoring the site, the
land trust is often able to establish endowments to provide long-term stewardship of the
easements they hold (http://www.lta.org.faq). While land trusts are not governmental agencies,
they often work closely with local and state agencies.
A conservation easement is an agreement between a landowner and an agency, which limits
development and subdivision of the property with the intent of protecting its conservation value.
While designating land as a conservation easement, the landowner may give up some rights
normally associated with the land (such as development), but still allows the landowner to use
the land. A legally binding document, listing as a conservation easement also allows the
landowner to sell or pass the land on to heirs, as long as the easement’s terms are followed.
Easements also allow the landowner to receive tax benefits.
A conservation leasing is coming to an agreement between two agencies (such as The Nature
Conservancy or other nonprofit organization) to form a tenant/landlord relationship for a specific
.WOODARD BAY PROJECT.DOC
amount of time. The lease gives the property owner (for example, the WDNR) final oversight
regarding activities conducted by the “renter.” The Woodard Bay Marine Project specifically
addresses conservation leasing of aquatic lands. In such a case, The Nature Conservancy defines
conservation leasing as “the use of state-owned aquatic land for the sole purpose of enhancing,
restoring, creating, or preserving aquatic resources.” The Nature Conservancy is looking to
broaden its relationship with state agencies by pursuing the leasing of state owned submerged
Currently, the WDNR manages nearly 6 million acres of land. Of that, 2.6 million of that are
aquatic lands. Like many other coastal states, WDNR is involved in the leasing of submerged
lands for aquaculture. The WDNR requires several steps in the leasing process.
Process of leasing of submerged lands: Individual proposes site in an application to
DNR. Any local, state, or federal permits that might relate to the specific site must also
be presented. The individual must hire a private surveyor to determine the acreage
and assess the ecological status of the proposed site. The applicant must also present
proof of insurance and put forward a security bond equal to twice the annual rent for the
leased site. Based on the information provided, the DNR decided whether to approve or
deny the lease
Fee structure: Applicant pays $25 application fee. The lease holder pays a$25 fee
whenever the lease changes hands (by transfer or sale). For bottom culture in the
tidelands, the annual lease fee is approximately $110/acre. For water column
aquaculture, the DNR demands 3.5% of the aquaculturist’s annual revenue. The DNR
determines this annual revenue at the beginning of each year by estimating the annual
production/acre and multiplying that production level by the local market price for the
shellfish being produced.
Terms of lease: Leases are approved for periods of 10-25 years, depending on the
aquaculturist’s development plans and the DNR’s confidence in the lease holder’s ability
to develop the lease site. Leases are renewable, transferable, salable, and heritable. The
DNR contact lease holders 6 months prior to the lease’s expiration date and explains the
procedure for renewing, transferring, or selling the lease. If the lease holder hopes to
renew or pass the lease on to someone else, he/she must notify the DNR within 30 days
of the lease’s expiration date (Hirsh, p. 1).
According to The Nature Conservancy, leasing state owned aquatic lands for conservation is a
relatively new idea. In the past, the WDNR has agreed to set aside land through its Aquatic
Reserve Program and external agencies have agreed to take on habitat improvement activities.
One such example is the WDNR Conservation area at Weyer Point (which geographically
borders and overlaps with Woodard Bay). By creating a relationship that likens that of a
landlord and tenant, “external entities can assume a lead management role on state-owned
aquatic lands, determining, planning, and implementing activities that should and should not take
place on the property.” (TNC Submerged Lands, p. 20) The difference between the
Conservation Area and the Woodard Bay Marine Project, is that one is regarding submerged,
rather than terrestrial lands. So why pursue submerged lands?
.WOODARD BAY PROJECT.DOC
There are several reasons why The Nature Conservancy began to explore the leasing of
submerged lands. First, it is clear that coastal estuary protection greatly lags behind that of
terrestrial lands. While over fishing is often considered a threat to Marine Protected Areas
(MPAs), the overall health of the estuary, watershed and species that inhabit the area are rarely
addressed as one. Secondly, all coastal states have some form of provision for leasing portions
of submerged land. Often these provisions have been created for the development and
harvesting of shellfish. Pursing submerged land populated by shellfish is ideal because “shellfish
habitats are some of the few types of submerged lands readily available for lease that are
amenable to restoration, conservation and management of native specie in natural
environments.” (TNC Submerged Lands, p. 16) Furthermore, this type of restoration project
encourages communities to address the link between watersheds, clean water and estuaries.
The WDNR has already begun to move forward with conservation leasing of submerged lands.
A Conservation Leasing Program has been established to work cooperatively with agencies
throughout the state. In order to accomplish their goals, the WDNR has designated three kinds
of uses: a conservation lease, conservation easement, and conservation license. The WDNR is
also considering waiving or reducing the standard lease fees by implementing monitoring
programs and providing the state with research results.
II. Woodard Bay Marine Project
Due in part to the WDNR’s willingness to coordinate with other agencies, the cost effective
nature of leasing the lands, (submerged lands tend to be less expensive than terrestrial lands), and
the ability to meet several other key pieces of criteria, The Nature Conservancy was able to
pursue a lease agreement involving WDNR owned property in Woodard Bay. Some of the
criteria for the proposed conservation project are as follows:
Lease must take place on WDNR land
Land must be available for lease
Must provide for restoration and stewardship of site
Must be in Puget Sound
Must be associated with The Nature Conservancy
Must be acceptable to key stakeholders
The product of this forward thinking marine initiative is referred to as the Woodard Bay Marine
Project. Currently the WDNR manages both the terrestrial and submerged land in and around
Woodard Bay. The Bay, which lies northeast of Olympia in Thurston County, is rich with both
history and wildlife. The 261 acres of uplands and 190 acres of tidelands are biologically
diverse, serving as a home to many native plant and animal species. While the submerged lands
are home to a large colony of harbor seals, fish and waterfowl, the once expansive population of
shellfish has dwindled due to years of abuse.
While the exact locations of Native American villages at Woodard Bay are unknown, recorded
documents indicate a history of tribal activity in the area. Whether it was occasionally living in
the uplands, or primarily hunting and gathering, the Bay’s shoreline was considered of “sensitive
nature” to the indigenous populations (Rolfe, p.1). The Bay draws its name from the Woodard
.WOODARD BAY PROJECT.DOC
family, which settled in the area in 1853. The family left the area in the mid 1850’s due to the
Indian Wars of 1855-56. The trend toward oyster cultivation began when the family started to
sell timber and portions of the property in the late 1800’s. In 1924, the oyster beds and adjacent
uplands were sold to Weyerhaeuser.
Weyerhaeuser maintained ownership of the land for the next 60 years. In conjunction with the
Army Corps of Engineers, Weyerhaeuser was able to construct a trestle, boom and log dump in
Henderson Inlet (adjacent to Chapman Bay and Weyer Point). The majority of submerged logs
in Woodard Bay were from the booms and pilings established in the early years of the
Weyerhaeuser logging operations. By the mid 1970’s larger timber was becoming increasingly
rare and the logging industry began to slow down. Weyerhaeuser leased the lands to the Western
Oyster Company for approximately one year (1986-1987), when WDNR declared the lease
expired in 1986. Increasing fees for upkeep and limited use led to the sale of the property in
The Washington Department of Natural Resources obtained the land in the late 1980’s when it
began to establish terrestrial conservation areas. In fact, the terrestrial lands at Woodard Bay
were declared the first Nature Conservation Area in the state of Washington. The WDNR
continues to manage the land, visitor’s center and trails, bringing in local visitors and tourists
alike. While the conservation area has been established and is thriving, there is great potential to
further the restoration efforts at Woodard Bay.
The Nature Conservancy and the WDNR have come to agreement that Woodard Bay meets the
aforementioned criteria for a pursuing a conservation lease. The Nature Conservancy aims not
only to conserve and preserve the submerged lands, but to restore them as well. Removal of the
submerged logs would be the first step in restoration efforts. The hazardous materials leeching
from the log booms effect aquatic and human life. Another move toward restoration would be to
bring back a substantial oyster population. Oysters have the ability to filter large quantities of
water and will only help to improve the water quality in Woodard Bay. These efforts and others
will only help to improve the quality of life for all species that live in or near Woodard Bay.
While The Nature Conservancy is looking to move forward with its proposed lease agreement
with the WDNR, there are still some issues to be addressed. Although more Marine Protected
Areas are being identified, progress has been slow. The idea of protecting submerged lands for
the purposes of conservation is still relatively new. The formations of laws that are directed at
conservation efforts vary from state to state. As The Nature Conservancy has pointed out,
aquaculture and conservation do not have to be mutually exclusive. The Nature Conservancy
plans to complete and implement its lease agreement with the Washington State Department of
Natural Resources in the summer of 2005. By identifying and considering some of the
conservation practices in other states listed in the following case studies, our group hopes to
provide information necessary to secure existing funding.
.WOODARD BAY PROJECT.DOC
Case Study #1:
New York’s Peconic and Gardiners Bays:
Merging Conservation with a Water Dependent Economy
Peconic and Gardiners Bays are located in the the Peconic Estuary on Long Island, New York.
Coastal features of these bays have some similarities to Washington’s coastal areas and
specifically Woodard Bay with its estuarine ecosystems. Long Island is located east of New
York City and is 120 miles long. It lies between Long Island Sound to the north and Atlantic
Ocean to the south. The Peconic River, which is the Long Island’s longest river, creates the
watershed consisting of the Peconic Estuary with its four bays, including Gardiners and Peconic,
which connect to the Atlantic Ocean.
specific habitats are salt marshes, submerged eelgrass beds, and mud/sand flats. The rare
Kemps-Ridley sea turtle, numerous shorebirds, and harbor seals use the estuary for breeding and
feeding grounds (Suffolk County Department of Planning, 2002, p.57)
Since the 1950’s, thousands of acres have been preserved on Long Island through the work of
The Nature Conservancy (TNC). Initially land acquisition was the primary conservation tool,
but eventually more creative approaches were developed that have included partnerships with
local townships, agencies, community and environmental groups, aquaculture companies,
academic institutions and other non-profit organizations. Less than 1% of state land is currently
under marine conservation lease (TNC South Fork- Shelter Island Chapter NY, 2002). There are
51 miles of protected lands under conservation easement along the coast of Long Island held by
U.S. Department Fish and Wildlife and trustees of some towns.
The submerged lands of the Peconic and Gardiners Bays have had some interesting challenges
over the years. Hard work, persistence, and collaboration with agencies and groups at various
levels have led to policies that reflect some compromises along with an overriding concern for
II. The Evolution of Aquaculture in Peconic and Gardiners Bays
The oyster industry declined dramatically in the 1940s’ in the Peconic and Gardiners Bays and
bay scallop fishery began to fall off in the mid-1980’s due in part to brown tide blooms. In the
late 1970’s, L.I. Oyster Farms was the only large company remaining in Gardiner’s and Peconic
bays. They ultimately went out of business in 1986 due to business and environmental factors.
Wild shellfish harvesting gradually gave way to aquaculture as the years passed. Aquaculture is
not defined anywhere in New York State law but there are underwater land leases in Suffolk
County specifically designated for the “purpose of shellfish cultivation”. According to the
Suffolk County Aquaculture Committee, shellfish is defined as “oysters, scallops, and all kinds
.WOODARD BAY PROJECT.DOC
of clams and mussels” and cultivation is the “controlled or partially controlled raising, breeding,
growing, planting, and containment of marine plant or animal life in any marine hatchery or
through on-bottom or off-bottom culture”. Therefore aquaculture is defined as “shellfish
cultivation”. As of 2002, there were about 2-300 individuals who made their livelihood from
aquaculture in the Peconic bays which included those involved in the clam transplant program
(representing 95% of total hard clam production). By comparison, there were only about 20 or
30 individuals twenty years ago. Many people who turned to aquaculture were baymen.
Overall, nearly 90% of the annual hard clam production and over 90% of the annual oyster
production in the Peconics comes from approximately 2900 acres which represents only 2.4% of
the underwater land in the Gardiners and Peconics Bays. There has been an ongoing dispute for
years over the expansion of private shellfish cultivation of underwater lands. Some of the issues
relate to hydraulic dredging techniques used by big aquaculture companies for harvesting natural
hard clams. Stacking off-bottom culture cages in a water column can preclude the use of the
water column and underwater land for commercial fin fishermen, lobstermen, conchmen and
recreational fishermen. There is increased potential for introducing disease and overpopulating
the ecosystem with transplanted shellfish using this method. There are concerns that this could
possibly damage the wild shellfish population.
III. Legislative History of Peconic and Gardiners Bays
In 1884, the first piece of legislation affecting aquaculture in Peconic and Gardiners bays was
passed (Peconic Bay Aquaculture Committee, 2002). It was officially known as Chapter 385.
It permitted Suffolk County to issue grants of underwater land for the purpose of oyster culture.
Deeds were to be filed and taxes were to be paid to Suffolk County. Between 1885 and 1914,
over 45,000 acres of land was granted for oyster cultivation by the county comprising almost
40% of Peconic and Gardiners Bays. The majority of those lands reverted back to the State due
to non-payment of taxes. Other grant acreage remained in private ownership through deed
transfers (Suffolk County Aquaculture Committee, June 2002, p.14).
The 1969 Law entitled “An Act to cede lands underwater of Gardiners and Peconic Bays to
Suffolk County, and in relation to the management of such lands for the cultivation of shellfish”
(Peconic Bay Aquaculture Committee, 2002). This law returned all properties to Suffolk County
that had previously reverted back to New York State for nonpayment of taxes. These properties
had ceased to be used for oyster culture. It also permitted Suffolk County to lease underwater
lands in Gardiners and Peconic bays under the condition that the county survey the bays and
write regulations to manage aquaculture activities such as oyster culture or setting areas for clam,
shell, or scallop beds. The County never completed the surveys required by law, nor did they
write and carry out management regulations at that time. Therefore, it would appear that any
lands acquired from Suffolk County after the 1969 law was passed could be considered illegally
obtained. The ownership of underwater land is a key component of any marine management
program since the owner has jurisdictional control over the shellfish found on the land, or
exclusive right to their harvest. Suffolk County supposedly had sole authority under New York
State law to issue shellfish cultivation leases in Peconic and Gardiners Bays where underwater
lands were owned by the State of New York.
.WOODARD BAY PROJECT.DOC
The New York State Environmental Conservation Law takes on the challenges of the
National Environmental Protection Act at the State level. Its mission is “to conserve, improve,
and protect its natural resources and environment, and control water, land and air pollution, in
order to enhance the health, safety, and welfare of the people of the state and their overall
economic and social well being………”
The Tidal Wetlands Act (ECL 13) was passed in 1995 and established public policy for the
State of New York to preserve and protect tidal wetlands. Due consideration is given to the
reasonable economic and social development of the state. Tidal wetlands are defined as “all salt
marshes, non vegetated as well as vegetated flats and shorelines subject to
Review of State Owned Land (ECL 3-0303) “requires the Commissioner in consultation with a
NYS biodiversity research team institute to conduct a review of lands currently in state
ownership and under departmental jurisdiction”. The purpose of this ongoing review is to
identify lands and waters that harbor plants, animals, and ecological communities that are rare in
NYS. Subsequent action based on these findings can then be carried out by appropriate
jurisdictions and willing partners.
Resolution No. 487-2001 of the 1969 Law Chapter 990 addresses the dispute over the status of
oyster beds in the Peconic and Gardiners Bays, and the need to look into the role of Suffolk
County under the Laws of 1969 Chapter 990 and predecessor acts. It also calls for Suffolk
County to create the Suffolk County Aquaculture Committee for the purpose of managing
shellfish cultivation activities in Peconic and Gardiners Bays. One of the recommendations made
by the committee was to have Suffolk County take title to oyster grant parcels by tax deed and
reduce lease plots to 1 acre. The County would then be able to exercise better control but
unfortunately would not be paid the back taxes owed them. Another suggestion was to have
Suffolk County set aside some parcels for general use thereby reducing their tax burden. The
dispute continues but progress is being made (Suffolk County Aquaculture Committee, 2002,
The EPA Management Projects (ECL 54) includes local waterfront revitalization plans and
coastal rehabilitation projects. NYS is charged with providing assistance of not greater than 50%
of the cost of any local waterfront revitalization program including planning, studies, preparation
of local laws, and construction projects. The coastal rehabilitation projects are supposed to serve
a public purpose for “beach nourishment necessary to maintain the natural functions of beach
areas, maintenance of the natural passage of sand along coastal areas, emergency breach closures
and similar activities undertaken by the state, a municipality, or a not-for-profit corporation
which demonstrates to the commissioner's satisfaction that it is financially and otherwise capable
of operating and maintaining the project, for the restoration and rehabilitation of coastal areas
diminished, damaged or destroyed by natural forces”. It also states that these projects can take
place on “underwater lands”.
.WOODARD BAY PROJECT.DOC
IV. What is the Role of the Public Trust Doctrine?
“The Public Trust Doctrine provides that the public lands, waters, and living resources in a State
are held by the State in trust for the benefit of all the people, and establishes the right of the
public to fully enjoy public trust lands, waters and living resources for a wide variety of
recognized public uses”(http://nyswaterfronts.com/waterfront_public_trust.asp)
In New York State “the public trust waters are the waters of the State, and the public trust lands
are the lands now, or formerly beneath those waters to the high water mark”. The living
resources living in or depending on these lands and waters are also subject to the Public Trust
Doctrine (Eichenberg, Vestal, 1992).
In the late 1800’s and early 1900’s, many grants of public trust lands were made to private
interests to promote state commerce (such as oyster grants). In many instances the underwater
lands conveyed were filled lands but rights to that land which was originally underwater still
exist according to the Doctrine.
In 1992, the NY legislature amended the Public Lands Law (Laws of 1992, c.791). This
amendment imposed regulation of projects and structures proposed to be constructed in or over
public trust lands and waters in order to responsibly manage the public’s interests in trust lands.
The intent of the amendment was also to ensure that the “waterfront owners’ reasonable exercise
of riparian rights and access to navigable waters did not adversely affect the public’s rights”
(Coastal States Organization, 1997). The NYS Office of General Services is the current
custodian of public trust lands.
One NY case law relating to The Public Trust Doctrine is particularly noteworthy:
The New York State Supreme Court, Suffolk County upheld the Long Island Pine Barrens Act against a takings
challenge by highlighting the public trust doctrine. The decision was handed down on April 22, 1998. Briefly
stated, the Act is a comprehensive planning law that established in a 100,000 acre area of Long Island a 50,000 acre
protected preserve surrounded by a 50,000 acre managed growth area. Justice William L. Underwood’s decision
includes an analysis of the common law and he concludes that, “Contrary to popular misconception, the Common
Law did speak on the subject of environmental regulation.” i(13)ii(13) W.J.F. Realty Corporation and Reed Rubin v.
the State of New York.
It appears that The Public Trust Doctrine can be imposed when interpreting and writing State
law. Well-written legislation that reflects the edict of the doctrine may very well serve to guide
land use to include conservation for the benefit of the public
V. How did the Peconic Estuary Program Develop?
In 1992, the Peconic Estuary was accepted as one of the 28 estuaries in the National Estuary
Program which is administered by the United States Estuary Program Administration (USEPA)
via section 320 of the Clean Water Act. The purpose of the National Estuary Program is to
protect and preserve national estuaries which are threatened by pollution, development, or
overuse (http://www.epa.gov.nep/). Section 320 addresses the attainment and maintenance of
water quality in an estuary in regards to “….protection and propagation of a balanced,
.WOODARD BAY PROJECT.DOC
indigenous population of shellfish, fish, and wildlife…” (Federal Water Pollution Control Act
Section 320). The Peconic Estuary is significant because it provides critical habitats to a wide
variety of marine organisms including eelgrass beds since it provides food, shelter and breeding
grounds for shrimp, scallops and other bivalves, crabs, and fish. At the state and local level, it is
sponsored and operated by NY Department of Environmental Conservation (NYDEC) and the
Suffolk County Department of Health Services (Beck, 2002, p.20). NYDEC is a major player in
the management of NY coastal regions. NYDEC “…protects, improves, and conserves the
State’s land, water, air, fish, wildlife and other resources to enhance health, safety and welfare
of the people and their overall economic and social well being” and promotes “…restoration
and reclamation of degraded or despoiled areas and natural resources”(NYS ECL 1-0101). It is
administered by the Department of Environmental Conservation (DEC).
As part of the National Estuary Program, the Peconic Estuary Program (PEP) is required to
establish a Comprehensive Conservation and Management Plan which was developed by the
Citizens Advisory Committee, the Technical Committee, and the Local Government. In 2001,
the PEP Comprehensive Conservation and Management Plan were adopted. The PEP has
ambitious goals. Here are a few of the ones that are included in the overall comprehensive plan
Adopt a water quality preservation policy
Develop a submerged aquatic vegetation and management strategy including long term
monitoring and restoration trials to develop survival criteria
Focus on preservation, as well as restoration with emphasis on sub watersheds as well as
main bay system
Secure early funding for implementation through NYS Clean Water/Clean Air Bond Act
and Town Open space/Farmland Preservation Bonds Acts
VI. How is the PEP Comprehensive Conservation and Management Plan Funded?
Significant funding is available once an estuary is accepted into the National Estuary Program.
This helps to jump-start a local comprehensive conservation and management plan
$5 million USEPA so far with significant match from Suffolk County
$13.9 million Federal and State funding for priority and demonstration projects
NYS Clean Water/Clean Air Bonds
Suffolk County ¼% Sales Tax
Local Community Preservation Fund Initiatives
.WOODARD BAY PROJECT.DOC
VII. Why are Coastal Underwater Maps Important?
By combining the information on oyster grounds reflected from the early Suffolk County Real
Property Tax Maps the Suffolk County Department of Planning prepared underwater land
ownership maps for each of the townships located within the Peconic estuary. The majority of
the land, which is state owned, has never been granted for oyster culture (Suffolk County
Department of Planning, 2002, pp.16-17).
New York State 65,380 acres 54%
Suffolk County 30,290 acres 25%
Towns/Town trustees and others 14,500 acres 12%
Private Ownership 11,168 acres 9%
Inventory work has also been conducted under the (PEP) in a recent report entitled: An Inventory
of Submerged Aquatic Vegetation and Hardened Shorelines of the Peconic Estuary, New York
(U.S. Fish and Wildlife Service, 2003). It contains GIS maps and aerial photographs of
submerged aquatic vegetation beds. In some cases fisherman could determine whether
additional areas (sandy bottom near eelgrass beds) should be added to address the survey
requirement pertaining to bay scallops. The surveys outlined by the Laws of 1969 required the
identification of areas where scallops were produced since those areas are not available for
underwater leasing (Laws of 1969, Chapter 990).
The PEP Benthic Mapping Survey was initiated in 2003 with multi-agency support to improve
decision-making on issues such as Essential Fish Habitat and Critical Natural Resource Areas
(Suffolk County Department of Planning et al, 2003, p.13). The Marine Sciences Research
Center, SUNY @ Stony Brook will be producing the GIS maps of benthic habitat types in the
entire Peconic Estuary based on depth, sediment characteristics, and fauna/flora populations.
There could be as many as 10-20 different benthic habitats. To date, The Nature Conservancy,
Suffolk County, Peconic Estuary Program, and New York State have successfully leveraged a
total of $295,000 to fund this survey (Ibid.)
$70,000 Suffolk County Capital Program
$120,000 The Nature Conservancy
$55,000 Peconic Estuary Program
VIII. What are Peconic and Gardiners Bays Leasing Critera?
Five acre land use assignments have been issued by the State Department of Environmental
Conservation for aquaculture on state-bottom
(http://www.dec.state.ny.us/website/dpai/pubs/gdec.html). The holder of these assignments
.WOODARD BAY PROJECT.DOC
“must use off-bottom culturing techniques” requiring the grower to use cages or racks as they
cannot plant shellfish directly on the bottom. New York State leases submerged land for
aquaculture legally speaking, but there haven’t been any new leases of state lands in decades.
These are different from land use assignments.
Suffolk County’s Leasing Guidelines have been developed for Aquaculture in Peconic and
Gardiners Bays (Suffolk County Aquaculture Committee, 2002):
Fees: paid by applicant to cover cost of DEC’s site survey including Environmental Assessment
Bond: Lessee is required to post a bond equal to the projected total lease price of the duration of
Lease payment: $1.00/acrea or otherwise determined by highest bidder.
Term: 10 year lease period renewable 90 days after expiration and transferable after first 5 years.
Size: 50 acre minimum
There have been recent attempts to reduce minimum acreage requirements. Anti-aquaculture
segments of the fishing community have opposed such measures. On a positive note, there has
been a newly elected County Executive for Suffolk County who has expressly vowed to
prioritize conservation measures and indeed has dedicated $600,000 thus far to this endeavor
(TNC South Fork-Shelter Island Chapter NY, 2002).
Harvest Rights to Wild Shellfish on Leased Grounds- it is the present policy of DEC that
naturally-produced shellfish found on Temporary Marine Area Use Assignments are the property
of the people of the State of New York and the assignment holder has no inherent right to these
animals. That means that the lessee has exclusive rights only to those shellfish that are actually
planted or placed onto the leased bottom.
Conflicting Authorities-in towns with approved Local Waterfront Revitalization Plans as part of
the State’s Coastal Management Plan, there are may be conflicts about what authority regulates
commercial aquaculture on state owned lands or lands previously ceded by the state to Suffolk
County. Is aquaculture subject to the policies of LWRP or the State or Suffolk County (Suffolk
County Aquaculture Committee, 2002, p. 32)?
IX. Proposed Studies
The Habitat and Living Resources Management Section of the Peconic Estuary Comprehensive
Conservation and Management Plan speaks to the positive impacts of bivalves on ambient water
quality. Unfortunately there are few published studies that document the positive and adverse
impacts of commercial-scale shellfish farming activities on different benthic habitat types. The
benthic mapping survey could be used to design a study of this nature. Funding for this program
may be available through the New York Sea Grant Program (Suffolk County Department of
Planning, 2003, p.13).
.WOODARD BAY PROJECT.DOC
Suffolk County has been encouraged to pursue this research project. The results would help to
improve decisions on where and how the County should lease, and help to improve guidelines
for permitting for shellfish culture activities by NYSDEC.
X. Recommendations for TNC in Washington-based on New York State Findings
Develop a site plan and incorporate it into the state’s coastal management plan. Survey of the
bay bottom using multi-beam sonar and side scan sonar techniques to see what’s on the bottom
and count the various logs and pilings and determine whether they have any economic value.
Conduct biodiversity studies and benthic studies to get baseline information and determine what
is needed to get the water quality to where it needs to be in order to sustain life as it was. Partner
with distinguished state research institutions to pool funding for research, educational outreach,
and development of a restoration and management plan. Possibly partner with tribes that have
used the waters in earlier days for their own benefit.
With current philanthropic trends leaning towards support of regulation reform (Bray, 2005,
p.18) consider the option of a bargain sale in lieu of a lease arrangement with DNR as a
suggestion to a donor. This would relieve them of some fiduciary responsibilities and
management obligations. Most of Washington’s coastal lands are privately owned and owning
Woodard Bay bottom would likely give TNC more clout in dealing with agencies and
community groups which perhaps could the speed progress of conservation efforts. Take notice
of the model of Long Island with their successful acquisition efforts and development of marine
preserves. As well, consider how they have managed to work with local baymen and local
jurisdictions to change zoning and develop regulations that are both supportive of the economy
and restorative to the environment. TNC should work closely with government agencies and
other partners to build support and encourage public policies for the protection and management
of the marine environment and promote watershed protection initiatives to preserve and restore
water quality in the estuary and coastal waters of the Washington coast.
Interpretation and amendments to the laws of the State of Washington should use the Public
Trust Doctrine to the maximum extent possible in order to promote “productive use” of state-
owned waters as a common resource which belongs to and is to be managed for all the people of
the state. Submerged and “intertidal land” leasing laws in Washington can relate to aquaculture
but should also integrate broad public trust criteria including restoring natural environments.
Once restored, Woodard Bay could revert to general use for the benefit of the people.
.WOODARD BAY PROJECT.DOC
Case Study #2:
North Carolina Submerged Lands
In this section, I will discuss how North Carolina views submerged lands leases, compare the
relevant similarities and dissimilarities with Washington State’s submerged lands leasing
policies, and then examine what course of action might be recommended for an NGO to
successfully lease submerged lands in Washington for the purposes of conservation. Although
the criteria that we set out to use as a guide for data that we needed has been modified quite a bit,
I’m including it below as a quick reference of the key issues that we’ve tried to address, with
some limited success, for our client, The Nature Conservancy.
II. Key Issues
Agencies involved: The North Carolina Division of Marine Fisheries “administers the Shellfish
Lease Program for the State of N.C. under the authority of the Secretary of the N.C. Dept. of
Environment and Natural Resources. (Planting, deployment of cultch and seed) must comply
with the dredge and fill rules and use only materials approved by The N.C. Div. Of Coastal
Management who enforces CAMA (Coastal Area Resources Commission, administered by the
Coastal Resources Commission) “regulations.” (Hardy, 2005)
Habitats involved: The waters of North Carolina are made up of the largest estuarine system on
the Atlantic coast at 2.3 million acres of water and coastal wetlands. It is also the place where the
Gulf Stream, flowing north, collides and mixes with the Labrador (Virginia) Current. The
Labrador Current brings shrimp and Spanish and King mackerels down to mix with the summer
flounder, tautog and Atlantic mackerel brought up with the warm Gulf Stream (ncfisheries,
2005). The habitats vary of course with some bottom composition of silt, some of sand and some
gravel. Other variables include the characteristics of the water column directly over them, and
the vertical structure, what kind of plants grow there.
The authority to regulate the submerged lands, in this case, within 3 miles of the state, is explicit
in the form of the Submerged Lands Act of 1953, in which the United States Congress turned
over title and ownership of the lands and their resources within the three mile territorial sea to
the states. This authority is mitigated by both the constitutionally derived right of the Federal
government to regulate shipping (commerce) and the Public Trust Doctrine.
North Carolina has its share of environmental groups who are active in conservation and
restoration including, to name but a few; the Audubon Council of North Carolina, the Carnivore
Preservation Trust, the Carolina Recycling Association, and the North Carolina Chapter of The
The adjacent/upland/existing lessee rights exist in the Public Trust Doctrine, guaranteeing the
right of the public to use navigable waters and shorelines. They are further guaranteed by the
common law in the form of Riparian, otherwise known as Littoral, rights. The current law, as
inherited from English common law, is that the owners of land adjoining navigable waters, both
.WOODARD BAY PROJECT.DOC
tidal and non-tidal, have the right to: Access the water, Wharf out (docks), Acquire accretions,
and, Replace land lost to avulsion. North Carolina does limit the right of riparian access so to
balance the riparian rights with the public trust uses of navigable waters and submerged lands,
protecting the estuarine environment and to protect shellfish leaseholders (The Nature
Conservancy, 2004). Specifically, for North Carolina shellfish production leasing, you must have
“Riparian consent if within 100’ of a developed shoreline. Must have new consent at time of
renewal – consent is good for the full 10 year term of the contract regardless of changes in
ownership of adjacent property. Lease is protected from the harvest or intentional disturbance of
product or structures – cages-nettings etc., but public can use area for boating, swimming, fishing
etc. (lessee has right to grow shellfish – public has right to continue use of water unless
damaging shellfish culture)” (Hardy, 2005).
At this time it appears that the National and State Environmental Policy Acts, NEPA and SEPA
respectively, are not invoked because of state regulation and threshold limits not being triggered.
The North Carolina SEPA criteria for applicability are threefold and all three criteria must be
met. They are:
An action by a state agency (such as land and money appropriations, awarding
grants, issuing permits, or granting licenses; and
An expenditure of public monies or private use of state land (or waters); and
Has a potential detrimental environmental effect upon natural resources, public
health and safety, natural beauty, or historical or cultural elements, of the state’s
common inheritance (NC SEPA, 2005).
An Environmental Assessment (EA) will also be required for a project involving a submerged
lands lease. As in Washington State, an Environmental Impact Statement (EIS) will have to be
completed unless there is a “Finding of No Significant Impact (FONSI). The North Carolina
Division of Marine Fisheries is the permitting authority and holds delegated authority for the
states submerged lands within 3 miles of the shoreline. An interesting little twist is the
requirement that the lessee of submerged bottomlands must have been a citizen of the state of
North Carolina for a period of at least ten years. (Hardy, 2005)
There appears to be little if any Tribal involvement in state affairs beyond the states Federal
obligations to indigenous cultural artifacts. In fact, there has be no involvement by the tribes in
submerged lands leasing at all. (Hardy, 2005)
Fees: Application fees for submerged land leases for shellfish production are currently $100.00,
increasing this year to $200.00. The rental fee is $5.00 per acre per year, increasing to $10.00 per
acre per year. The renewal fee (to begin a new ten year lease) is $50.00, increasing to $100.00.
III. North Carolina’s Submerged Lands Policies
It has proven to be rather difficult to obtain useful data from a distant state regarding their
submerged lands leasing policy in support of The Nature Conservancy’s stated goal for the
Woodard Bay Marine Initiative. Long distance information gathering is limited not only by my
finite imagination, but, by of course, the availability of information to be gleaned from the web.
.WOODARD BAY PROJECT.DOC
Other methods of obtaining information such as phone calls and specialty library book loans
were hampered by time zone, unresponsive points of contact and time constraints.
North Carolina does not appear to currently be interested in either conservation or restoration of
its submerged lands as the primary goal of a submerged land lease. Unlike Washington State,
which does not require that production quotas be met as terms of submerged lands leasing, North
Carolina strictly monitors the lessee’s attainment of production benchmarks. During the first
three years of the lease, the “lessees can use just planting volume (50 bushels of
cultch/seed/acre/year) for the initial three years of a new lease to meet production requirements.
After that time, they must produce and market, as evidenced by trip tickets (our trip-by-trip
fisheries reporting record), at least 10 bushels of shellfish/acre/year. An NGO might be able to
get a lease, but they would have to meet the same production requirements as commercial
lessees. Nothing in (the) rules would prevent an NGO that held a lease from marketing 10
bu/ac/yr and using the income to support management of the lease. Producing and marketing
oysters would also be a way to obtain cultch needed to plant areas to support setting of oyster
spat” (Street, 2005). As do all other coastal states, North Carolina owns it’s near shore
submerged lands to three nautical miles of the shoreline in accordance with the Submerged
Lands Act of 1953 (The Nature Conservancy; Towards Conservation of Submerged Lands: The
Law and Policy of Conservation Leasing and Ownership, 2004). As with all other states the use
of submerged lands has been one of aquaculture for profit. Today’s submerged lands policies
continue with this historical use of submerged lands, while trying to harness the monies
generated from today’s aquaculture businesses to restore these submerged lands through
North Carolina does have a process available by which an NGO may lease submerged lands. It’s
called the Research Sanctuary and has already been entered into by The Nature Conservancy,
albeit in a small way. The Research Sanctuaries, unlike a traditional submerged lands lease, does
not require that a product be produced. So, an NGO may apply to the North Carolina Division of
Marine Fisheries (DMF) (acting as the agent of the North Carolina Marine Fisheries
Commission) for a submerged lands lease under the Research Sanctuary process and perform
conservation/restoration work agreed upon by both parties.
The drawbacks to a Research Sanctuary lease are many. The leases are very short in duration;
one year renewable as opposed to a ten year renewable lease as a shellfish operator. The short
lease duration doesn’t guarantee that the NGO would be able to see a project through to
completion. If the lease were terminated for any reason, the lessee could lose their investment at
the site, including not just the materials planted but just as importantly, an incomplete
Interestingly, the TNC Research Sanctuary lease was made as a cooperative venture between
TNC and DMF. “TNC provided the NGO (with a) vehicle to qualify for grant funding, with
DMF deployment/construction efforts (that) provided (a) match for those funds. By utilizing
DMF designated sites acquisition and permit(t)ing became a non-issue for TNC and” “provided
creditability to the grant proposal for reviewers.” The results were that “TNC gained long-term
oyster habitat restoration for the price of material and the State of N.C. gained additional
material to deploy on the oyster sanctuaries.” (Hardy, 2005) I haven’t been able to confirm that
.WOODARD BAY PROJECT.DOC
the “cooperative” sanctuary project has lease guarantees that the Research Sanctuary lease
There is an office within the North Carolina Department of Environment and Natural Resources
called One North Carolina Naturally, Office of Conservation and Community Affairs. “One
North Carolina Naturally is a comprehensive statewide conservation plan that involves the
public, governmental agencies, private organizations, and landowners in an effort to maintain
functional ecosystems, biological diversity, and working landscapes through the stewardship of
land and water resources. One North Carolina Naturally is part of a larger effort by the State to
implement a plan that will conserve and restore the State’s natural heritage and sustain a healthy
life to all North Carolinians and visitors. This project is a cooperative effort of the NC
Department of Environment and Natural Resources (DENR), the NC Center for Geographic
Information and Analysis (CGIA), and the Carolina Environmental Program (CEP) at UNC-
Chapel Hill.” (DENR, 2005) One North Carolina Naturally is currently partnered with the
Conservation Trust of North Carolina, The Nature Conservancy, The Trust of Public Land and
The Plant Conservation Board (DENR, 2005) in proactively searching out opportunities to
conserve and restore the natural environment.
The One North Carolina Naturally office is unique in that North Carolina has identified that
traditional environmental regimes are too rigid and not able to quickly or easily adapt to the
changing conservation landscape. For example, the environmental plan for fisheries generally
has tried to maintain the status quo for the sake of the sport and commercial fishing interests.
One North Carolina Naturally is looking at the entire ecosystem and the relationships that the
flora, fauna and the human species have within it. In this way, they don’t necessarily want to
artificially prop up a specific fish or shellfish for the fisheries sake, they’re interested in the
water column, including the other plants, animals, nutrients, and pollutants that all contribute or
impact a particular ecosystem.
One of the tools that One North Carolina Naturally is using is the North Carolina Coastal Habitat
Protection Plan (CHPP). The CHPP was officially created in December of 2004 by the
Department of Environment and Natural Resources. This was in response to a requirement from
the North Carolina state legislature’s requirement that the Coastal Resources, Marine Fisheries
and the Environmental Management Commissions approve plans to help protect and restore
resources critical to North Carolina’s commercial and recreational fisheries. (DCM, 2005) The
CHPP, although intended to support the interests of North Carolina’s fisheries, is a huge benefit
to conservationists because its current mandate is to: “Improve the effectiveness of existing rules
and programs protecting coastal fish habitats. Identify, designate and protect Strategic Habitat
Areas. Enhance and protect habitats from physical impacts, and
Enhance and protect water quality” (DCM, 2005).
So, the CHPP mandate to “enhance” the environment makes it a proactive tool well suited for
use by a forward thinking government entity or NGO. It may offer one of the foot in the door
opportunities for groups like The Nature Conservancy to effect change. Another benefit is that
the second mandate to “Identify, designate and protect” is resulting in a more thorough
documentation of the environment. A holistic approach is being taken to cataloguing the
different habitats as separate components of a single, integrated system. So, although the CHPP
.WOODARD BAY PROJECT.DOC
has divided the major fish habitats into six discreet systems; Water Column, Wetlands, Shell
Bottom, Submerged Aquatic Vegetation, Ocean Hard Bottom and Soft Bottom, they recognize
that the different systems are integral components of the complete marine ecosystem.
IV. Similarities and Dissimilarities Between North Carolina and Washington State’s
Submerged Lands Policies
So, what can we apply from what is happening in North Carolina to our submerged lands
situation here in Washington State? I wish that there were an easy answer. As stated previously,
North Carolina does not appear to be interested in the conservation and or restoration of their
submerged lands, except in the context of oyster production or some other viable business
venture in which a non-governmental organization (NGO) could meet minimum market
requirements while busying itself with restoration or conservation as a by-product of its business
involvement. Washington State however, has shown its willingness to partner with both private
and public agents in the creation of the Conservation Leasing Program, administered by the
Department of Natural Resources.
North Carolina has a pragmatic justification for its current stand on not considering the fruits of
either conservation or restoration as a product to satisfy the lessee terms. There is the very real
shortage of oyster shells, known as “cultch”, which are needed for the spawned oyster young
(spat) to adhere to. As is the case with virtually all historical oyster habitat on both coasts,
oysters (and virtually all shellfish and finfish) have been over fished, encroached upon and
polluted to just a remnant of their historical numbers. Also, non-native oysters may displace the
native oysters. So, by rigidly enforcing what constitutes a product, the state hopes to encourage
oyster production, even by NGO’s. In contrast, Washington State is leading edge in it’s
commitment to innovate and take a fresh look at the best solutions.
A possible alternative for The Nature Conservancy would be to force the issue of the North
Carolina state constitution provision of the right of its citizens to enjoy clean air and water and
the preservation of its natural resources. Another more likely winnable alternative that The
Nature Conservancy is already investigating is the leasing of submerged lands as Research
Sanctuaries. Designated Submerged Land Research Sanctuaries, unlike traditional leases, are
leased on a year to year basis and are not required to meet production quotas. Because the
Research Sanctuaries are a demonstrated departure from the historical leasing regulations, it may
be possible to alter the terms of the Research Sanctuary so that conservation and restoration,
even including aquaculture and cultch production, could be done with an exemption to the
production requirements. Clearly, Washington State does not share in this particular dilemma.
V. Conclusions and Recommendation
It seems clear to me that barring a change of heart within the North Carolina Department of
Marine Fisheries, any NGO must be willing, in the short term, to operate as a business entity and
produce a marketable product within the current guidelines of the submerged lands leasing
regulations. As for the long term, environmental groups such as The Nature Conservancy are
probably faced with an uphill battle of cultivating relationships within the respective states
regulatory agencies and then either influencing change in how terminology is viewed, or using
.WOODARD BAY PROJECT.DOC
the relationships within the regulatory agency to bring about legislation to change current
Case Study #3:
Louisiana’s Commitment to Saving Their Coastal Wetlands
I. Brief History
The Coastal Prairies and Marsh Eco-region cover approximately 10,700 square miles of
Louisiana. This region covers the entire coastline and borders the pinewoods regions of
southwestern and southeastern Louisiana and the expansive forested wetlands in central
Louisiana. The coastal marshes of Louisiana comprise approximately 12% of the nation's coastal
wetlands and constitute the largest contiguous wetland system in the lower 48 states.
Because of the economic and recreational importance of Louisiana coastal wetlands and the
unparalleled rate of loss, hundreds of millions of dollars have been spent on federal and state
land acquisition and management programs. The Louisiana Department of Wildlife and Fisheries
and the U.S. Fish and Wildlife Service have been leaders in coastal wetland conservation for
many decades. To date, nine wildlife management areas and six national wildlife refuges have
been established in this region, totaling over 800,000 acres. In addition to the conservation
programs of state and federal agencies, countless millions have been spent by private wetland
owners to ensure long-term viability of coastal wetlands under their jurisdiction.
II. Agencies involved in permitting conservation efforts
Louisiana Department of Wildlife and Fisheries, U.S. Army Corps of Engineers, Louisiana
Department of Natural Resources, private landowners.
Restore ecosystems, engage community, acquire land, secure conservation easements, and
promote compatible development.
IV. The Coastal Wetlands Planning, Protection and Restoration Act (CWPPRA)
In 1989 the Louisiana legislature created the Louisiana Coastal Wetlands Conservation,
Restoration, and Management Act to coordinate the state’s conservation and restoration efforts.
The act recognizes the urgency of the problem: Coastal land loss in Louisiana continues in
catastrophic proportions. Wetlands loss threatens valuable fish and wildlife production and the
viability of residential, agricultural, and industrial development in coastal Louisiana.
.WOODARD BAY PROJECT.DOC
Congress then passed the Coastal Wetlands Planning, Protection, and Restoration Act of 1990
(CWPPRA). These two pieces of legislation, one state, one federal, have facilitated the
coordination of the various agencies involved and orchestrated federal-state cost sharing
agreements for joint projects. One of the more significant projects of the joint state/federal has
been to complete projects that divert fresh water from the Mississippi River to create sheet flow
into saltwater or brackish marshes that were once freshwater coastal wetlands. These areas had
become increasingly saline with coastal erosion. With the diversion projects, salinity has been
reduced or eliminated.
This act was developed to design and construct projects to preserve and restore Louisiana's
coastal landscape. It was passed in 1990, and is authorized until 2009. CWPPRA is funded an
average of $50 million per year. Section 303(a)(1) of the CWPPRA directs the Secretary of the
Army to convene the Louisiana Coastal Wetlands Conservation and Restoration Task Force, to
consist of the following members:
o the Secretary of the Army (Chairman)
o the Administrator, Environmental Protection Agency
o the Governor, State of Louisiana
o the Secretary of the Interior
o the Secretary of Agriculture
o the Secretary of Commerce
To address projected future loss of coastal Louisiana larger projects with more ecosystem-scale
impacts must be constructed which exceeds the funding capacity and authorization period of
CWPPRA. Therefore the Louisiana Coastal Area (LCA) initiative began in 2001, which seeks
future Water Resources Development Act (WRDA) authorization to address the need for future
funding of large scale coastal Restoration (http://www.lacoast.gov/watermarks/2005-
V. Department of Natural Resources Coastal Use Permit (CUP)
The Coastal Use Permit (CUP) process is part of the Louisiana Coastal Resources Program
(LCRP), which is an effort among Louisiana citizens, as well as state, federal and local advisory
and regulatory agencies to preserve, restore, and enhance Louisiana's valuable coastal resources.
The purpose of the Coastal Use Permit process is to make certain that any activity affecting the
Coastal Zone, such as a project that involves either dredging or filling, is performed in
accordance with guidelines established in the LCRP. The guidelines are designed so that
development in the Coastal Zone can be accomplished with the greatest benefit and the least
amount of damage. We are, therefore, providing the following information concerning the steps
involved in applying for a CUP. Submitting an application for a CUP does not imply that a CUP
will be required; application is simply one step in following the Rules and Procedures for CUP's
so that the Coastal Zone will be protected.
.WOODARD BAY PROJECT.DOC
VI. Conservation Easements
The Natural Resources Conservation Service is the agency of the U.S. Department of Agriculture
that works directly with farmers, ranchers, landowners and others to install conservation
practices that help protect our natural resources. The Wetlands Reserve Program (WRP) is the
nation’s premier wetlands restoration program. It is a voluntary program offering landowners the
opportunity to protect, restore, and enhance wetlands on their properties. The USDA Natural
Resources Conservation Service manages WRP and provides technical and financial support to
help landowners who participate in the program. WRP offers landowners three options:
• Permanent Easements - Landowners are offered fair market agricultural value for their eligible
lands and NRCS pays 100 percent of the restoration costs. Land payments may be lump sum.
• 30-year Easements - Landowners are offered 75 percent of the fair market agricultural value of
their lands, and NRCS pays 75 percent of the restoration costs.
• Restoration Cost-share Agreements - NRCS pays 75 percent of the restoration costs and
agreements are established for a minimum of 10 years.
There are over 200,000 acres of land enrolled in the Wetlands Reserve Program in Louisiana.
During 2004, NRCS offered to purchase easements on another 15,613 acres for 41 additional
VII. The Oyster Industry
The harvesting and cultivation of oysters has long been a significant part of the Louisiana
wetlands economy and tradition. In excess of 400,000 acres of state-owned water bottoms are
leased to private individuals for the culture of oysters. It is estimated that more than half of the
oysters taken and sold from Louisiana waters come from these leases. The leases cost $2.00 an
acre and are granted for initial primary terms of 15 years, with options to renew for terms of 15
years. In addition to the rather modest rental payment, significant sums are spent by the lessees
to develop the beds. For example, a substrate of clam shells is required as a base before the
seeding of oysters can be accomplished. Such development costs are often quite expensive.
The statutes regulating the leases by the state Department of Wildlife & Fisheries require that the
department grant renewals unless the beds are found to be no longer suitable for oyster
production. Apparently, the department may not refuse to renew for any reason other than a
finding that the water bottom was no longer suitable for oyster production.
VIII. The Oyster Lease Relocation Project
One of the measures that the state has taken to alleviate the effects that coastal restoration will
have on oyster leases was to adopt an oyster lease relocation program. Under this scheme, the
lessee is given notice that a coastal restoration project may adversely affect his lease. He is given
.WOODARD BAY PROJECT.DOC
30 days to respond and four options. First, the lessee can maintain the lease and assume the risk
of damage that may occur. Second, the leaseholder may exchange his lease for another in an
unaffected area. Third, the leaseholder may relocate his lease to an area outside the zone of
impact. Finally, if it is more cost effective than relocation, the state may choose to purchase the
IX. Potential Liabilities of the State Regarding Coastal Restoration
Citing the extensive ecological, economic, and commercial benefits of Louisiana’s coastal areas,
the necessity to restore and preserve those areas, and the coordinated effort required to complete
such a task, the Louisiana Legislature passed House Concurrent resolution Number 41 which
directs the Louisiana State Law Institute to conduct a complete study of the State’s liability
resulting from coastal restoration efforts. The resolution specifically orders the Louisiana State
Law Institute to study possible coastal restoration liability stemming from expropriation, inverse
condemnation, property rights, contract rights, personal rights, sovereign immunity, and relevant
jurisprudence. The resolution also directs the Louisiana State law Institute to suggest legislation
that would reduce the state’s liability concerning coastal restoration efforts.
X. Recommendations for Washington
After researching Louisiana’s state-wide conservation programs, it is apparent that Washington
State could benefit from a similar program. Working towards legislation that would fund a
wetland reserve program through tax dollars would help large-scale projects like Woodard Bay
be accomplished. Conservation Easements are also an effective tool for restoring privately-
owned land, providing an incentive for farmers to restore sections of their land. After finishing
this research it is apparent that state agencies would benefit from learning about each other’s
challenges and success stories.
Case Study #4:
Virginia: Ownership of Conserving Virginia’s Submerged Lands
Virginia has over 5,242 miles of tidal shoreline encompassing 2,300 square miles of water
surface covering 1,472,000 acres of State-owned bottomlands. These submerged lands harbor
some 21,000 acres of Chesapeake Bay grasses, 251,000 acres of public oyster grounds, and
102,000 acres of oyster grounds under private lease. These lands are a public resource and a
valuable habitat for shellfish, crabs and finfish. Along the fringes of the coves, creeks, great
rivers and bays of the Chesapeake estuary grow some 225,000 acres of vegetated tidal wetlands.
.WOODARD BAY PROJECT.DOC
These vegetated areas, particularly the salt marshes, constitute a vital spawning and nursery area
and are an important element of the marine food web for many of the marine resources in the
state of Virginia. (http://www.mrc.state.va.us/hmoverview.htm)
II. Who is responsible for maintaining the shoreline?
Virginia’s Marine Resources Commission (VMRC) Habitat Management Division is
accountable for ensuring that the marine resources are used responsibly, operating under the
mandates of Virginia's Wetlands and Subaqueous Laws. The Code of Virginia vests ownership
of "all the beds of the bays, rivers, creeks, and shores of the sea in the Commonwealth to be used
as a common by all the people of Virginia." (http://leg1.state.va.us/cgi-
bin/legp504.exe?000+cod+28.2-1200, § 28.2-1200.) Permits are required from the Marine
Resources Commission to encroach upon or over State-owned bottomlands. The division:
Receives and reviews the application,
Solicits public comment,
Applies public interest factors during assessment,
Prepares a recommendation to the Commissioner or Commission for a decision.
Division personnel weigh each individual application received to determine that they are in the
public interest. This is accomplished ensuring that projects are necessary--there are no
reasonable alternatives requiring less environmental disruption-- and that adverse effects do not
unreasonably interfere with other private and public rights to the use of waterways and
bottomlands. Particular emphasis in this regard has been applied to the reduction of unnecessary
filling of State bottom, the reduction of obstructions or hazards to navigation, and the prevention
of structures encroaching into adjoining riparian areas. Use of these project evaluation criteria at
an early stage often suggests project modifications, reduces conflicts between property owners,
and, of course, protects inter-tidal habitats and navigation.
This division is the permitting authority for public and private projects that would encroach into
these areas. In addition to the permitting activities of the division, the division also manages the
leasing of private oyster planting grounds and houses the agency’s survey teams. Currently, the
division has 7,000 leases issued for 101,000 acres of private oyster grounds. The survey teams
mark the boundaries for the private as well as public oyster grounds (Joint Legislative Audit And
Review Commission Of The Virginia General Assembly Interim Report, 1996, p. 15).
III. Available Leasing for Submerged Lands
Virginia leases submerged lands for aquacultural purposes. The process for leasing submerged
1. Individual files an application,
2. VMRC acknowledges receipt of application,
.WOODARD BAY PROJECT.DOC
3. The site being petitioned for is advertised, at the applicant's expense, in a local newspaper
once a week for four weeks,
4. The highest bidder pays a fee to the VMRC in return for its survey of the site
5. The results of the survey are posted for 30 days and if no one objects at this time, the
lease is awarded.
The startup fee includes an application fee of $25 and a site-survey fee of $470. The yearly
charge is $1.50 per acre per year, rounded up to the nearest full acre. The terms of each lease is
ten years. Three months before the expiration date, VMRC will contact the lease holder and ask
him to submit a form explaining annual production levels and development efforts. The VMRC
conducts no site inspections with renewal request. The lease is transferable, which requires the
lease holder to fill out a transfer form and the transfer recipient pays $17 for leases of 10 acres or
less and $22 for leases of more than 10 acres. The leases are recognized as part of the deceased
leaseholder's estate for a period of 18 months, during which time the lease can be transferred to a
Virginia resident. The leases are available only to Virginia residents.
IV. Additional Programs Available for Conservation and Leasing in Virginia
The Conservation Reserve Program (CRP) is a voluntary program for agricultural
landowners. Through CRP, landowners can receive annual rental payments and cost-
share assistance to establish long-term, resource-conserving covers on eligible farmland.
Part of the Mutton Hunk preserve is under private lease for agricultural production as
part of the sale agreement. Department of Conservation and Recreation will phase out the
agricultural lease over several years and work to restore the fields to native upland
habitats. The protection of this and other properties in the area is a cooperative effort of
the Virginia Department of Conservation and Recreation, The Nature Conservancy and
the Virginia Eastern Shore Land Trust.
The Water Column project is a continuation of an initiative to improve the management
and development of marine aquaculture. To date, with the assistance of an Aquaculture
Management Committee, the Virginia Department of Environmental Quality have
developed regulations and general permits to better accommodate the leasing of
submerged lands for intensive aquaculture purposes, prepared and distributed a guideline
booklet summarizing applicable statutes and regulations, and prepared draft legislation to
provide for leasing of the water column for aquaculture activities.
IV. Conclusion and Recommendations
As is true in Washington State, Virginia has submerged land that is privately owned. There have
been legal battles in Virginia regarding the ownership of submerged lands. In Commonwealth v.
.WOODARD BAY PROJECT.DOC
Morgan and beyond, the question of ownership of the Virginia tidal beds has both legal and
economic significance to tidewater property owners and to the Commonwealth because of the
oyster beds. Private ownership diminishes the state’s ability to lease land for oyster beds and its
ability to regulate extraction of underwater minerals.
Washington State is actually a step ahead of Virginia in that the Washington Department of
Natural Resources is willing to accept assistance from outside organizations to aide in the
conservation efforts of submerged lands. When talking with Wilford Kale of the Virginia
Commissioner’s Office, he stated that there is no need to lease submerged land for conservation
purposes, as that is the goal of the Virginia Marine Resources Commission.
In The Nature Conservancy's "Towards Conservation of Submerged Lands: The Law and Policy
of Conservation Leasing and Ownership", it is stated that "in the 1800's, the abundance of
oysters in Chesapeake Bay was sufficient to filter the entire water column of the Bay in three to
six days, but by the 1980' the biomass of oysters had declined to the point that nearly a year
would be required to filter an equal volume. “Leasing submerged lands for oyster cultivation is a
major theme throughout the states researched for this paper. In order to get submerged lands
conservation leasing started, conservation groups should use oyster restoration as the selling
point to be able to lease the land. Oyster restoration improves the environment, restores the
habitat for all marine life, and can be returned to a profitable use once the land is properly
In summary, the “battle of cultivating relationships” is something that The Nature Conservancy
might well be stuck with here in Washington State. There are some key issues such as liability
that must be ironed out. Indeed, when it comes to the possibility of the removal of hazardous
materials or contaminants from a leased submerged land, “The Conservancy posits that the
assumption of liability requested by the WDNR is too onerous and requires them to assume
potential liability for actions that may be outside of their control” (The Nature Conservancy,
2004). The Nature Conservancy has done its homework well. The breadth of its conservation
outreach, the depth of its commitment and the thoroughness of its staff in researching any
conceivable approach to the leasing of submerged lands has left little room for fresh insight. It
appears to be on a promising path in it’s dealings with the Washington State Department of
Natural Resources, and the time constraint of the expiring money from the Russell Family
Foundation not withstanding, I think that with it’s obvious resolve, The Nature Conservancy and
the DNR should be able to work this out. It truly is in the best interests of the citizens of
.WOODARD BAY PROJECT.DOC
Bibliography (as it appears in the paper)
Hirsh, http://www.mass.gov/czm/spappb.htm; Referenced on May 2, 2005
Rolfe, Shelley, Notes: History of Woodard Bay; May 24, 2005; pgs. 1-2
“What is a Conservation Easement,” http://www.catskillcenter.org/programs/easements.html;
Referenced on Apr. 24, 2005
“Interesting Facts About DNR and State Owned Land,”
http://www.dnr.wa.gov/base/interstingfacts.html; Referenced on May 24, 2005
“Frequently Asked Questions,” http://www.lta.org/faq/; Referenced on May 10, 2005
(TNC Submerged Lands):
“Towards Conservation of Submerged Lands: The Law and Policy of Conservation
Leasing and Ownership,” The Nature Conservancy; pgs 1-40.
“The Marine Initiative: Leasing and Restoration of Submerged Lands,” The Nature
Conservancy; August 2002; pgs 3-31
“SEPA Lead Agency & Mitigated Determination of Nonsignificance,” Washington State
Department of Natural Resources; March 24, 2005
M. Beck. Leasing and Restoration of Submerged Lands. The Nature Conservancy, August 2002.
T. Bray. Soaring High: New Strategies for Environmental Giving. The Philanthropy Round
Coastal States Organization. Putting the Public Trust Doctrine to Work, 1997.
T. Eichenberg and B. Vestal. Territorial Sea Journal, 2003.
Peconic Bay Aquaculture Committee. Peconic Bay Aquaculture, 2002.
Peconic Estuary Program. Peconic Estuary Comprehensive Conservation and Management Plan,
Suffolk County Aquaculture Committee. Policy Guidance on Shellfish Cultivation in Peconic
and Gardiners Bays, 2002.
Suffolk County Department of Planning, Suffolk County Department of Heatlh Services, and
Suffolk County Department of Public Works. Survey Plan for Shellfish Cultivation
Leasing in Peconic and Gardiners Bays, 2003.
.WOODARD BAY PROJECT.DOC
The Nature Conservancy: phone conversation with Conservation Projects Director, South Fork-
Shelter Island Chapter, May 2002.
U.S. Fish and Wildlife Service, NE Region, Hadley, MA. An Inventory of Submerged Aquatic
Vegetation and Hardened Shorelines of the Peconic Estuary, New York. Prepared for the
Peconic Estuary Program of the Suffolk County Dept. of Health Services, Office of
Ecology, Riverhead, N.Y., 2003.
Ncfisheries, 2005: North Carolina Department of Marine Fisheries,
Hardy, 2005: e-mail excerpt, Craig Hardy, Chief, Resource Enhancement, North Carolina
Division of Marine Fisheries, May 20, 2005
The Nature Conservancy, 2004: The Nature Conservancy; Towards Conservation of Submerged
Lands: The Law and Policy of Conservation Leasing and Ownership, 2004
DENR, 2005: Department of Environmental and Natural Resources,
CHPP, 2005: Coastal Habitat Protection Plan, http://www.ncfisheries.net/habitat/chpp1.htm
NCSEPA, 2005…North Carolina State Environmental Protection Act,
DCM, 2005: Division of Coastal Management, www.nccoastalmanagement.net/Facts/habitat.htm
LaCoast Organization: http://www.lacoast.gov/watermarks/2005-02/2cwppra/index.htm
United States Department of Agriculture, Natural Resource Conservation Service:
Report To Legislature Louisiana State Law Institute Committee on Limitation of State Liability
Coastal Wetlands Conservation and Restoration:
Louisiana Coastal Lawyer, Email Update, August 2002:
Marine Resources Commission Habitat Management Division:
Virginia State Legislative, The Code of Virginia - § 28.2-1200:
.WOODARD BAY PROJECT.DOC
Joint Legislative Audit And Review Commission Of The Virginia General Assembly
Interim Report: Feasibility of Consolidating Virginia's Wildlife and Marine Resource
Massachusetts Aquaculture Strategic Plan Appendix B - State Submerged Land Leasing Survey:
Farm Service Agency, Conservation Reserve Program:
Department of Conservation and Recreation, Mutton Hunk Fen Natural Area Preserve:
Virginia Coastal Program: 2000 Coastal Grant Project Description and Final Summary:
Energy Citations Database, Ownership of Virginia’s submerged lands: Commonwealth v.
Morgan and beyond:
.WOODARD BAY PROJECT.DOC