La. Admin. Code tit. 43 § XXXI-209

Current through Register Vol. 50, No. 11, November 20, 2024

Section XXXI-209 - Agreements to Facilitate Integrated Coastal Protection Projects Through Acquisitions (Type 2 Agreements)

A. Required Determinations. The executive director may enter into an agreement under this section (also referred to as a type 2 agreement) with an owner as an acquiring authority, or with an acquiring authority and an owner, when the executive director determines:

1. that an integrated coastal protection project would likely be facilitated by the proposed acquisition of land from the owner;

2. that the principal purpose of entering into the agreement would be to facilitate an integrated coastal protection project by the state, its political subdivisions, or by the state and federal government;

3. that the purported owner 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; and

4. that the purported acquiring authority is an acquiring authority. It is specifically contemplated that the state or any of its subdivisions, departments, or agencies may be an acquiring authority and enter into agreements under this Section to acquire land for the principal purpose of facilitating an integrated coastal protection project.

B. Rights Authorized to be Obtained. Pursuant to an agreement under this Section, the state may obtain or receive any interest, consideration, or benefit that the state may obtain or receive pursuant to an agreement under Section 207(B) of this Chapter.

C. Rights Authorized to be Established or Conveyed. Pursuant to an agreement under this Section, the executive director may establish, convey, or provide any interest, consideration, or benefit that the executive director may establish, convey, or provide pursuant to an agreement under §207.C of this Chapter.

D. Discretion of the Executive Director. Pursuant to an agreement under this Section, the executive director may define any subsurface mineral right established or conveyed pursuant to the agreement in any manner that the executive director may define a subsurface mineral right established or conveyed pursuant to an agreement under §207.D of this Chapter.

E. Emergent Land. Any conveyance of subsurface mineral rights in emergent land pursuant to an Agreement under this Section shall be effective only upon actual emergence of the land and fulfillment of the requirements for conveyance of such rights, as required pursuant to an agreement under §207.E of this Chapter.

F. Acquisition by Acquiring Authority. Pursuant to an agreement under this Section, an acquiring authority may obtain ownership of any of the owners existing land, an undivided interest therein, or any other interest therein, subject to the limitations imposed by this Chapter and R.S. 41:1702, any limitations imposed by the agreement, and/or any subsurface mineral rights established or conveyed by the agreement. If an agreement under this Section is in the form of, or constitutes part of, an act of gratuitous 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, if applicable, regarding determination by the commissioner of the Division of Administration whether accepting the donation is in the best interests of the state and negotiation of the terms and conditions of the donation, and approval by the House Committee on Natural Resources and the Senate Committee on Natural Resources.

G. Required Considerations. Before entering into an agreement under this Section, the executive director may 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.

H. Additional Required Terms. In addition to any other terms required by this Chapter, an agreement under this Section shall contain the following terms:

1. identification of the principal purposes of entering into the agreement;

2. identification of all mineral rights in the acquired land or affected by the agreement and the holders thereof upon execution of the agreement, and the manner in which any such mineral rights may be exercised;

3. stipulation that mineral rights shall not be exercised so as to impair, contravene, or interfere with any integrated coastal protection project or the principal purpose of the acquisition, that the state may use specific performance and executive procedure to enforce this stipulation, and that the acquiring authority will pay all of the states reasonable attorney fees, expenses, and costs involved in enforcing this stipulation;

4. identification of all permanent easements, servitudes, rights-of-way, and rights of use necessary to facilitate the principal purposes of the acquisition, and the holders thereof, upon execution of the agreement. 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 coastal protection, conservation, restoration, or management 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;

5. identification of any other easement, servitude, right-of-way, or right of use as may be determined by the executive director to be necessary regarding public access and use, and the holders thereof upon execution of the agreement;

6. indemnity and hold harmless provision in favor of the state and any other public entity affected by the agreement, by the acquiring authority and the holder of any mineral interest upon execution of the agreement, except for the negligence or actions of the public entity, its employees, agents, contractors, and assigns;

7. stipulation regarding 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. The agreement shall also include a stipulation that the state may use specific performance to enforce this stipulation, and that the acquiring authority will pay all of the states reasonable attorney fees, expenses, and costs involved in enforcing this stipulation;

8. agreements involving an acquiring authority that is not CPRA shall include:

a. a requirement that the acquiring authority determine the immediate and long-term financial and management implications of the agreement and that it secure and maintain the dedicated and/or operating funds needed to manage the property, including funds for liability insurance, maintenance, improvements, monitoring, enforcement, and other costs and prevent any use of the property that will impair, contravene, and/or interfere with the integrity and sustainability of the property;

b. a requirement that the acquiring authority inventory the natural and cultural features of the land acquired pursuant to an agreement prior to developing a management plan that identifies its conservation goals for the land and how it plans to achieve them, create and establish a management plan for the land, and permit on the land only activities that are compatible with the conservation goals, stewardship principles, and public benefit mission of the acquiring authority and the management plan;

c. a requirement that the acquiring authority mark the boundaries and regularly monitor the land acquired pursuant to an agreement for potential management problems (such as trespass, misuse or overuse, vandalism, or safety hazards) and take appropriate action to rectify such problems;

d. a requirement that the acquiring authority perform administrative duties in a timely and responsible manner, including establishing policies and procedures, keeping essential records, filing forms, paying insurance, paying any taxes and/or securing appropriate tax exemptions, budgeting and maintaining files;

e. a requirement that the acquiring authority keep affected and interested parties including neighbors immediately adjacent to the acquired land, individuals who are directly or indirectly affected, as well as those who have expressed an interest in the agreement or the acquired land, informed about its ownership and management of the acquired land pursuant to an agreement;

f. a requirement that the acquiring authority maintain its certification as a certified land conservation organization under the applicable CPRA rules and regulations and a provision that upon revocation of the certification, the land conservation organization shall be obligated to transfer or convey all of its right, title and interest in and to the coastal land, the reclaimable land and the emergent land to another certified land conservation organization designated by the owner, his heirs, successors or assigns, or if none is designated within a reasonable time set by the executive director, by the executive director. If no other reasonably qualified certified land conservation organization will agree to accept such interests, then the certified land conservation organization shall be obligated to transfer or convey such rights to the state;

g. a restriction of the acquiring authority from transferring or otherwise conveying the land acquired pursuant to an agreement to anyone other than the state or another acquiring authority;

9. agreements involving the state as an acquiring authority shall include a restriction prohibiting the state from transferring or otherwise conveying the land acquired pursuant to an agreement to anyone other than an acquiring authority.

I. Initiation by Acquiring Authority or Owner. An acquiring authority or 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 proposed to be acquired by the acquiring authority and/or the land, water bottoms, and subsurface mineral interests sought to be included in the agreement. A plat depicting all such land, water bottoms, and subsurface mineral interests shall be attached;

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

3. the basis upon which the acquiring authority or owner asserts that the owner 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; any consideration, undertaking, performance, or concession intended to be provided or made by the acquiring authority or owner; and 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;

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

6. the identity of all persons owning or believed by the acquiring authority or 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 acquiring authority or owner believes the interest to be relevant or existing. The acquiring authority or 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 acquiring authority or 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 acquiring authority or owner believes the claim to be relevant or meritorious. The acquiring authority or 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. any other contract executed or proposed by the acquiring authority or the owner in relation to the agreement sought from the executive director. A copy or draft of any such contract shall be attached;

9. documentation of the certification of the acquiring authority as a certified land conservation organization shall be attached, with respect to an entity asserting that it is an acquiring authority by virtue of such certification;

10. 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-209

Promulgated by the Office of the Governor, Coastal Protection and Restoration Authority, LR 451584 (11/1/2019).

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