La. Admin. Code tit. 43 § XXXI-207

Current through Register Vol. 50, No. 9, September 20, 2024

Section XXXI-207 - Agreements to Facilitate Integrated Coastal Protection Projects (Type 1 Agreements)

A. Required Determinations. The executive director may enter into an agreement under this Section (also referred to as a type 1 agreement) with an owner when the executive director determines:

1. that an integrated coastal protection project would likely be facilitated by acquiring ownership of, servitudes over, and/or other interests in existing land owned by the owner holding reclamation rights; and/or that an integrated coastal protection project would likely be facilitated by acquiring any rights in eroded land claimed by an owner holding reclamation rights; and

2. that the person contracting with the state is an owner who holds marketable title to the property or property rights to be conveyed by him, and/or to property providing him with reclamation rights. This requirement may be satisfied by a title opinion;

B. Rights Authorized to be Obtained. Pursuant to an agreement under this Section, the state may obtain or receive ownership of, servitudes over, and/or other interests in existing land that may affect or may be affected by an integrated coastal protection project, any other consideration or performance of any action that may affect or may be affected by an integrated coastal protection project, and/or compromise of ownership and reclamation rights within such area and for such time as the executive director deems appropriate in relation to an integrated coastal protection project.

1. In the case of an agreement providing for a limited or perpetual alienation or transfer, in whole or in part, to an owner of subsurface mineral rights owned by the state relating to emergent land that emerges from water bottoms that are subject to the owners reclamation rights, the agreement shall require the owner to compromise his claim of ownership and reclamation rights at a minimum for the time the land meets the definition of emergent land pursuant to R.S. 41:1702, and in further exchange for the owner's agreement to allow his existing land, in whole or in part, to be utilized in connection with an integrated coastal protection project, to the extent deemed necessary by the executive director.

2. In the case of an integrated coastal protection project involving a barrier island, the executive director may require the owner to transfer title to all or a portion of the island in exchange for any subsurface mineral rights acquired by the owner.

C. Rights authorized to be established or conveyed. pursuant to an agreement under this Section, the executive director may do one or more of the following:

1. establish in an owner holding reclamation rights the limited or perpetual, transferrable or non-transferrable ownership of subsurface mineral rights in the owners existing land to the then-existing coast or shore line;

2. convey to an owner holding reclamation rights the limited or perpetual, transferrable or non-transferrable ownership of subsurface mineral rights owned by the state in emergent land that emerges from eroded land subject to the owners reclamation rights;

3. convey or provide any other consideration for the agreement that is within any authority of the executive director.

D. Discretion of the Executive Director. An agreement under this Section may contain any term that is within any authority of the executive director, when the executive director determines that inclusion of the term is in the best interests of the state. In particular, the executive director may define any subsurface mineral right established or conveyed pursuant to an agreement under this Section in any manner that he deems appropriate and in the best interests of the state, including but not limited to the following respects:

1. whether to convey ownership of such mineral rights in any portion of the emergent land that emerges from water bottoms subject to the owners reclamation rights, and to define any such portion;

2. whether to make ownership of such mineral rights in any portion of the emergent land perpetual or limited, and to define the duration of a limited conveyance;

3. whether to make ownership of such mineral rights in any portion of the emergent land transferrable or non-transferrable;

4. whether to establish in any portion of the owners existing land such perpetual or limited, transferrable or non-transferrable mineral rights, the ownership of which is not affected by any future erosion, compaction, subsidence, or sea level rise;

5. whether to convey full ownership or an undivided interest in such mineral rights, and to define the extent of any such undivided interest.

E. Emergent Land. Any conveyance of subsurface mineral rights in emergent land shall be suspended until actual emergence of the land and fulfillment of the following requirements. Unless for purposes of reclamation by the owner to recover land lost through erosion, the state shall not alienate the surface rights to emergent land.

1. Upon the emergence of emergent land, the owner shall submit verification of the emergence to the executive director and the administrator of the office of state lands, including a legal description of the emergent land claimed by the owner, and a plat and aerial photography thereof. The plat shall be prepared by a surveyor currently registered by the Louisiana Professional Engineering and Land Surveying Board.

2. With the approval of the attorney general, the owner and the governor shall enter into an emergent land boundary addendum to the agreement, agreeing to the boundary between the emergent land and the remaining water bottoms.

a. The administrator of the Office of State Lands shall consult with the executive director to determine the extent to which the emergent land is reasonably permanent.

b. In the event of disputed boundaries between the state and other owners, the executive director may require a boundary determination pursuant to R.S. 41:1131-1136.

c. No definitive boundary shall be fixed nor shall mineral rights be vested unless and until proof reasonably satisfactory to the executive director is made that the land is emergent land as defined in this Chapter.

d. Any emergent land boundary addendum shall include a final plat showing the emergent land as agreed by the owner and the administrator of the office of state lands or as determined by the boundary determination. The plat shall be prepared by a surveyor currently registered by the Louisiana Professional Engineering and Land Surveying Board.

e. Any emergent land boundary addendum shall include a legal description of the boundaries of the emergent land.

f. The commissioner of the Division of Administration shall also be a party to any such emergent land boundary addendum.

3. Upon execution of an emergent land boundary addendum by all parties thereto, the administrator of the Office of State Lands shall provide a fully-executed copy to each person that is a party thereto and to the commissioner of the Division of Administration.

a. The owner shall record the emergent land boundary addendum in the conveyance records of all parishes in which the emergent land is located.

b. Recording of an emergent land boundary addendum in the conveyance records of all parishes in which the emergent land is located shall constitute public notice thereof for all purposes.

c. The owner recording the emergent land boundary addendum shall immediately provide certified copies thereof to the executive director and the administrator of the Office of State Lands.

4. Any conveyance of subsurface mineral rights in emergent land by an agreement shall be effective as of the effective date of the emergent land boundary addendum.

5. Any conveyance of subsurface mineral rights in emergent land shall be subject to and such rights shall be encumbered with any right-of-way or servitude grant, or any mineral, geothermal, geopressure, or any other lease granted by the state for a lawful purpose while the emergent land was an eroded or subsided area, the rights of the state or lessee thereunder to be in no manner abrogated or affected by the agreement and to remain free and clear of any claim by the owner for compensation out of the proceeds of the grant or lease or otherwise.

6. In the event a portion of emergent land subject to an agreement no longer meets the definition of emergent land, the conveyance of subsurface mineral rights for that portion of emergent land, whether for a term or in perpetuity, to the owner shall terminate and revert back to the state; except the provisions of R.S. 9:1151 et seq. shall not be affected thereby. The agreement shall remain in effect for those portions of emergent land that continue to meet the definition of emergent land.

F. Initiation by Owner. An owner may request an agreement under this Section from the executive director. Unless otherwise agreed, any such request shall be in writing and shall state and fully explain the following:

1. the land, water bottoms, and subsurface mineral interests that the owner seeks to include in the Agreement. A plat (which may but need not be a survey) depicting all such land, water bottoms, and subsurface mineral interests shall be attached;

2. the reasons that the owner asserts that an agreement is appropriate;

3. The basis upon which the owner asserts that he qualifies for an agreement under this Section. Copies of documentation evidencing the owners title to the land or water bottoms sought to be included in the agreement and to land providing the owner with reclamation rights, shall be attached. A title opinion may satisfy this requirement.

4. Draft proposed memorandum of understanding stating the general terms sought for the agreement, including but not limited to all consideration, undertakings, performances, or concessions sought from the executive director or any interest owner or claimant in relation to the acquisition; and any consideration, undertaking, performance, or concession intended to be provided or made by the owner.

5. CD-ROM containing the proposed memorandum of understanding in Microsoft Word format or other form of documentation or format approved by the executive director.

6. The identity of all persons owning or believed by the owner to own any interest affecting the land or water bottoms sought to be included in the agreement, the nature and extent of the interest, and contact information for such person, regardless of whether the owner believes the interest to be relevant or existing. The owner shall make a thorough search of the public records and any other relevant source of knowledge for such interests. Copies of all documents indicating the existence or extent of such an interest shall be attached.

7. The identity of all persons holding or believed by the owner to hold a claim adverse to the owner in relation to the land or water bottoms sought to be included in the agreement, the nature and extent of the claim, and contact information such holder, regardless of whether the owner believes the claim to be relevant or meritorious. The owner shall make a thorough search of the public records and any other relevant source of knowledge for such claims. Copies of all documents indicating the existence or extent of such a claim shall be attached.

8. Contact information for the person seeking the agreement, and designation of a single point of contact regarding the agreement.

La. Admin. Code tit. 43, § XXXI-207

Promulgated by the Office of the Governor, Coastal Protection and Restoration Authority, LR 451583 (11/1/2019).

AUTHORITY NOTE: Promulgated in accordance with R.S. 41:1702.