23.02.04.12

.12 Compensation.

A. Except for any license issued to a governmental unit, the Board may require as a license condition that the licensee pay compensation to the State in an amount the Board deems appropriate for the following activities:

(1) Filling to make upland;

(2) Dredging or severance of material unrelated to navigational need; or

(3) Similar nonriparian use.

B. Except for any license issued to a governmental unit, the Board shall require as a license condition that the licensee pay compensation to the State in an amount deemed appropriate by the Board for the following:

(1) Cables, pipelines, or other structures over, on, in, or under State tidal wetlands; and

(2) Nonwater-dependent projects.

C. Compensation for Filling to Make Upland.

(1) When the Board requires compensation for filling to make upland, the licensee shall pay a one-time amount equivalent to the fair market value of the upland created or other amount specified by the Board.

(2) The Administrator shall:

(a) Determine the fair market value of the upland created based on the higher of two appraisals obtained by the licensee, after consulting with the Department of General Services; and

(b) Make a recommendation to the Board on the compensation amount.

D. Compensation for Dredging or Severance of Materials.

(1) The Board may not require compensation for dredging projects involving navigational purposes, beach nourishment, removal of bottom contaminants, or displacement of the bottom during archeological investigations.

(2) When the Board requires compensation for dredging or severance of materials from State tidal wetlands, the licensee shall pay an amount specified by the Board.

(3) The Administrator shall:

(a) Determine an amount based on:

(i) A nonrecurring, nonrefundable charge of $1,000, and a minimum of $250 or $1.75 per cubic yard of dredged or severed material, whichever is greater; or

(ii) Any other rates specified by the Board; and

(b) Make a recommendation to the Board on the amount of compensation.

E. Compensation for Cables, Pipelines, or Other Structures.

(1) The Board shall require compensation for cables, pipelines, or other similar structures over, on, in, or under State tidal wetlands.

(2) The licensee shall pay:

(a) A nonrecurring, nonrefundable charge of $1,000; and

(b) A minimum annual compensation rate of $2.50 per linear foot or an amount specified by the Board.

(3) Each individual cable, pipeline, or similar structure is subject to the annual compensation requirement.

(4) The Administrator shall make a recommendation to the Board on the amount of the annual compensation by multiplying $2.50 by each linear foot by each individual cable, pipeline, or other similar structure.

(5) Five years after issuing the license and every 5 years thereafter, the Board may adjust the per linear foot annual compensation rate to reflect changes in the Consumer Price Index as published by the U.S. Department of Labor, Bureau of Labor Statistics.

F. Annual Compensation for Nonwater-Dependent Projects on a Pier.

(1) Except for small-scale renewable energy system projects as authorized by Regulation .07B(3) of this chapter, the Board shall require annual compensation for:

(a) Nonwater-dependent projects; and

(b) Projects that materially alter or expand the footprint of an existing nonwater-dependent project.

(2) Calculation of Compensation.

(a) The Administrator shall make a recommendation to the Board on the annual compensation amount that is based on the most recent data provided by the State Department of Assessments and Taxation in the assessment record for the real property to which the nonwater-dependent project is attached.

(b) The annual compensation is computed by:

(i) Multiplying the total square footage of the nonwater-dependent project by a fraction, the denominator of which is the total square footage of the land area of the real property to which the nonwater-dependent project is attached, and the numerator of which is the assessed land value of the real property to which the nonwater-dependent project is attached; and

(ii) Multiplying the rate calculated under §F(2)(b)(i) of this regulation by a percentage considered appropriate by the Board not to exceed 100 percent.

(c) In determining the appropriate percentage under §F(2)(b)(ii) of this regulation, the Board may consider:

(i) The extent to which the nonwater-dependent project is used on a seasonal or year-round basis;

(ii) The extent of the economic impact of the nonwater-dependent project on the local jurisdiction;

(iii) The nature and extent of the environmental impact of the nonwater-dependent project;

(iv) The extent to which the nonwater-dependent project and, if applicable, its roof or covering, are permanent or temporary;

(v) Any history of violation of the State Tidal Wetlands Law by the licensee;

(vi) Any real property lease rates for the area for a commercial activity similar to the licensee’s or any real property appraisals obtained by the licensee; and

(vii) Any other factor that the Board considers relevant.

G. Compensation received under this regulation is deposited into the Department’s Wetlands and Waterways Program Fund.