2020 Louisiana Laws
Revised Statutes
Title 41 - Public Lands
§1702. Reclamation of lands lost through erosion, compaction, subsidence, and sea level rise; land acquisition for certain coastal projects; requirements
RS 1702 - Reclamation of lands lost through erosion, compaction, subsidence, and sea level rise; land acquisition for certain coastal projects; requirements
A. To best insure the public interests sought to be protected by the trust, the lands encompassed therein shall not be alienated except as provided in this Section. This Section shall not prevent the leasing of state lands or water bottoms for mineral or other purposes.
B.(1) Pursuant to the authority of Article IX, Section 3 of the Constitution of Louisiana, owners of land contiguous to and abutting navigable waters, bays, arms of the sea, the Gulf of Mexico, and navigable lakes belonging to the state shall have the right to reclaim or recover land, including all oil, gas, and mineral rights, except as otherwise provided in Subsection E of this Section, lost through erosion, compaction, subsidence, or sea level rise occurring on and after July 1, 1921, in accordance with the procedures set forth in this Title for the fixing of boundaries by mutual consent and, also, those procedures applicable to contested boundaries.
(2) In either case applicants seeking to reclaim or recover such submerged land shall additionally comply with the provisions of Subsections C and D of this Section.
(3) As to owners of land formerly or presently contiguous to and abutting the coast of the Gulf of Mexico, as that coast is defined in the decree of the United States Supreme Court dated June 16, 1975, in United States v. State of Louisiana, No. 9 Original (Tidelands Case) lands lost by erosion, compaction, subsidence, or sea level rise on the landward side of said coastline may be the subject of reclamation hereunder, whether or not the erosion occurred before July 1, 1921, and reclamation may be authorized out to that coastline.
C. Application for the reclamation or recovery of land lost through erosion, compaction, subsidence, or sea level rise shall be made to the State Land Office, pursuant to Paragraph (D)(1) of this Section, on forms to be provided and with such reasonable fee as may be prescribed by the office, provided that all such applications shall be accompanied by a deed of ownership or a certified map or plat of survey prepared by a professional land surveyor qualified and currently licensed by the Louisiana Professional Engineering and Land Surveying Board in accordance with R.S. 37:681 et seq., defining the boundary between lands belonging to the state and those of riparian owners and showing the exact extent of land claimed to be lost through erosion, compaction, subsidence, or sea level rise, and by such other evidence as may be required by the administrator showing ownership of the riparian lands in question by the applicant.
D. In all cases in which a definitive boundary may be arrived at by mutual consent or through the procedures applicable to contested boundaries, the administrator of the State Land Office, as provided in Paragraph (1) of this Subsection, or the executive director of the Coastal Protection and Restoration Authority, as provided in Paragraph (2) of this Subsection, may allow reclamation.
(1) The administrator of the State Land Office may issue a permit for the carrying out of the work necessary to implement the recovery of the land lost through erosion, compaction, subsidence, or sea level rise; however, no such permit shall be issued until plans and specifications for such work have been first submitted to the governing authority of the parish in which the proposed project is located, the Department of Transportation and Development, the Department of Wildlife and Fisheries, the Coastal Protection and Restoration Authority, and the Department of Natural Resources for review and comment not less than sixty days prior to the issuance of such permit. No permit shall be required for projects to facilitate the development, design, engineering, implementation, operation, maintenance, or repair of integrated coastal protection projects by the Coastal Protection and Restoration Authority under R.S. 49:214.1 et seq. or other applicable law or projects for the Atchafalaya Basin Program. Within sixty days of completion of the reclamation project, the riparian owner shall submit to the State Land Office proof of the extent of the land area actually reclaimed in the manner provided in Subsection C of this Section for showing the submerged area, which map or plat shall be employed for fixing the definitive boundary between the reclaimed land area and the state water bottoms. Permits issued pursuant to these provisions shall be effective for a period not to exceed two years from the date of issuance and shall thereupon expire. All work remaining or any additional work may be completed only by application in the manner provided by this Section.
(2)(a)(i) To facilitate the development, design, and implementation of integrated coastal protection projects, including hurricane protection and flood control, pursuant to R.S. 49:214.1 et seq., the executive director of the Coastal Protection and Restoration Authority, after consultation with other state agencies, including the Department of Natural Resources and the State Land Office, may enter into agreements with owners of land contiguous to and abutting navigable water bottoms belonging to the state who have the right to reclaim or recover such land, including all oil and gas mineral rights, as provided in Subsection B of this Section, which agreements may establish in such owner the perpetual, transferrable ownership of all subsurface mineral rights to the then-existing coast or shore line. Such agreements may also provide for a limited or perpetual alienation or transfer, in whole or in part, to such owner of subsurface mineral rights owned by the state relating to the emergent lands that emerge from waterbottoms that are subject to such owner's right of reclamation in exchange for the owner's compromise of his ownership and reclamation rights within such area and for such time as the executive director deems appropriate and in further exchange for the owner's agreement to allow his existing property to be utilized in connection with the project to the extent deemed necessary by the executive director.
(ii) When land is acquired from any person by an "acquiring authority" as defined in R.S. 31:149, for the principal purpose of facilitating the development, design, and implementation of integrated coastal protection projects, including hurricane protection and flood control, by the state, its political subdivisions, or by the state and federal government, the executive director of the Coastal Protection and Restoration Authority, after consultation with other state agencies, including the Department of Natural Resources and the State Land Office, may, in accordance with rules and regulations adopted in accordance with the Administrative Procedure Act by the Coastal Protection and Restoration Authority after consultation with other state agencies, including the Department of Natural Resources and the State Land Office, enter into an agreement under this Section with respect to the ownership of minerals and other matters to the same extent as authorized under Item (i) of this Paragraph. In addition, such agreement shall, at a minimum, specify:
(aa) That the acquired land shall remain available for the principal purposes of the acquisition.
(bb) Ownership of minerals.
(cc) Mineral servitudes and exercise of mineral rights, including noninterference with the principal purposes of the acquisition consistent with the provisions of Item (i) of this Paragraph and R.S. 31:149.
(dd) Permanent easements, servitudes, rights-of-way, and rights of use as necessary to facilitate the principal purposes of the acquisition. These shall include, but are not limited to, those necessary for construction, operation, maintenance, repair, replacement, and rehabilitation of any projects or cooperative agreements undertaken by the state or a political subdivision for integrated coastal protection or by the state and federal governments pursuant to state or federal law, including but not limited to, the Coastal Wetlands Planning, Protection and Restoration Act, the Coastal Zone Management Act, the Water Resources Development Act, the Coastal Impact Assistance Program, and the North American Wetlands Conservation Act.
(ee) Other easements, servitudes, rights-of-way or rights of use as may be determined by the state to be necessary regarding public access and use.
(ff) Indemnification and the holding harmless of the public entity, except for the negligence or actions of the public entity, its employees, agents, contractors, and assigns.
(iii) No agreement shall be entered into pursuant to the provisions of Item (ii) until after the adoption in accordance with the Administrative Procedure Act of rules and regulations to implement such provisions as provided above. Such rules and regulations shall not be promulgated or adopted as emergency rules. Such rules and regulations shall additionally consider the nature, extent and conditions of public access to and use of the surface lands and waters that will be permitted by the acquiring authority on the land and water bottom acquired, including for navigation, boating, commercial and recreational fishing, hunting, trapping, nature observation and study, and other traditional activities that are consistent with the principal purposes of the acquisition.
(iv) If the agreement authorized in Item (ii) is in the form of, or constitutes part of, an act of donation of immovable property to the state, acceptance by the state of such property shall be subject to the requirements of R.S. 41:151 or its successor.
(b) In addition to the provisions of Subparagraph (a) of this Paragraph, in the case of a project involving a barrier island, the executive director may also require the owner to transfer title to all or a portion of the island in exchange for any subsurface mineral rights acquired by said owner.
(c) Any person granted a perpetual, transferrable ownership of subsurface mineral rights as a result of an agreement entered into pursuant to the provisions of this Section shall have a perpetual transferrable servitude to use the surface of any such land for the purposes of locating, accessing, extracting, and transporting those subsurface minerals with the same freedom, and subject to the same restrictions, as an owner of the surface.
(d) When the executive director proposes to execute an agreement by which an election pursuant to this Section is affected, the executive director shall first submit the agreement for review and approval to the House Committee on Natural Resources and Environment and the Senate Committee on Natural Resources, after publishing the agreement as provided in the Administrative Procedure Act.
(e) As used in this Section, the term "emergent land" shall mean land that emerges from a public water bottom to an elevation sufficient to support emergent vegetation, except that in the case of the seaward side of a barrier island the minimum elevation required shall be the lowest elevation sufficient to support emergent vegetation on the landward side of such island. However, no land which lies below the elevation of ordinary low water shall be considered emergent land.
(f) The Coastal Protection and Restoration Authority shall provide an owner granted subsurface mineral rights pursuant to this Paragraph, recordable evidence of the rights transferred, which documents shall include an adequate legal description of the area subject to such owners' rights and a plat thereof. The owner shall be responsible for filing any such document in the conveyance records of the parish in which such property is located, which filing shall be public notice thereof.
E. Except to the extent that the land lost through erosion, compaction, subsidence, or sea level rise continues to be encumbered by an oil, gas, and mineral lease and subject to R.S. 9:1151, upon emergence of any land within a permitted reclamation area or within an area subject to an agreement entered into pursuant to Subsection D of this Section, said land or any subsurface mineral right created pursuant to Subsection D of this Section shall be reacquired and owned by the riparian owner, or the state or its transferee in the case of areas subject to an agreement entered into pursuant to Paragraph (D)(2) of this Section, subject to and 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 reclaimed 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 reclamation and to remain free and clear of any claim by the riparian owner for compensation out of the proceeds of the grant or lease or otherwise.
F. Except as otherwise provided in Paragraph (D)(2) of this Section, the words "reclamation" or "recovery of land" or "reclamation project" as used in this Section shall refer to the raising of land through filling or other physical works which elevate the surface of the theretofore submerged land as a minimum above the level of ordinary low water in the case of rivers or streams and above the level of ordinary high water in the case of bodies of water other than rivers and streams, to such heights as may be prescribed in regulations or forms adopted by the administrator of the State Land Office to ensure reasonably permanent existence of the reclaimed lands. Any reclamation pursuant to Paragraph (D)(1) of this Section not in substantial compliance with the permit procedure provided above shall be an absolute nullity and no private rights of ownership shall vest or be acquired by prescription.
G.(1) The administrator of the State Land Office shall have the authority to adopt regulations allowing reclamation of land in compliance with the provisions of Paragraph (D)(1) of this Section, and the executive director of the Coastal Protection and Restoration Authority shall have the authority to adopt regulations pursuant to Paragraph (D)(2) of this Section.
(2) Permits may be granted for bulkheads, generally parallel to the shore, that do not interfere with navigation on any inland navigable water body whether or not the area to be bulkheaded eroded before July 1, 1921, if, on the basis of evidence furnished the administrator of the State Land Office, such bulkheading will aid in reclaiming submerged land or preventing erosion, compaction, or subsidence. No permit shall be required for projects to facilitate the development, design engineering, implementation, operation, maintenance, or repair of integrated coastal protection projects by the Coastal Protection and Restoration Authority under R.S. 49:214.1 et seq. or other applicable law or projects for the Atchafalaya Basin Program. Such permits shall not vest any title in any private owner other than as to lands eroded after July 1, 1921.
(3) Permits may be further granted to provide adequate foundation of flood protection for presently existing structures in proximity to the eroded banks.
H. No reclamation by a riparian landowner shall be permitted if, in the determination of the Department of Natural Resources, the State Land Office, the Coastal Protection and Restoration Authority, or the attorney general, such activity would unreasonably obstruct or hinder the navigability of any waters of the state or impose undue or unreasonable restraints on the state rights which have vested in such areas pursuant to Louisiana law, and to that extent the land area sought to be reclaimed may be limited.
I. Any person aggrieved either by a substantive agency decision made pursuant to the provisions of this Section, including interlocutory decisions relating to boundaries and determinations of areas reclaimed, or by a failure of the agency to render such decisions timely, may seek immediate judicial review of the agency action. Proceedings for review of decisions by the Department of Natural Resources, the Coastal Protection and Restoration Authority, or the State Land Office may be instituted by filing a petition in the Nineteenth Judicial District Court within thirty days after mailing of notice of the final decision by the administrator or secretary. Any party may request and be granted a trial de novo.
J. No person, firm, partnership, or corporation shall dredge the water bottom of Lake Pontchartrain for private commercial purposes, except as authorized by Article IX, Section 3 of the Constitution of Louisiana, and then only to the extent that such dredging does not unreasonably or unduly restrain the navigability or public use of Lake Pontchartrain. The provisions of this Subsection shall not apply to water bottoms located in Jefferson Parish.
Added by Acts 1978, No. 645, §2, eff. July 13, 1978; Amended by Acts 1996, 1st Ex. Sess., No. 55, §1, eff. May 7, 1996; Acts 2001, No. 919, §1; Acts 2003, No. 279, §6; Acts 2004, No. 716, §1, eff. July 6, 2004; Acts 2006, No. 626, §1, eff. June 23, 2006; Acts 2008, No. 580, §5; Acts 2010, No. 734, §5; Acts 2015, No. 72, §1.
