Artificial Reefs in French Law
Studies on relationships between immersion and the economic exploitation of artificial reefs are relatively rare on the coastlines of France.
The biological effects produced by such installations are beginning to be known and scientifically demonstrated. However, caution is still required when assessing the economic benefits of artificial reefs. They may not be sufficient unto themselves, out of a broader framework of spatial regulation of professional and recreational fisheries and attendance. Each operation of immersion poses specifics problems (technical and practical) and requires obtaining prior administrative authorization, usually very stringent.
The marine environment is protected by the basic principles of public domain; any form of private occupation or use remains systematically temporary, precarious and revocable.
This first aspect is essential in the case of artificial reefs, in which immersion and productive potential are registered over the long term, without any real vocation to be removed from the seabed once their term expired. The administration is still very reserved about the perennity of artificial reefs, a concept against the classic rules in practice for the management of the public domain.
The second aspect lies in the arrangements concerning the exploitation of artificial reefs. Purely private access and use of artificial reefs seem irrelevant, given the potential conflicts they generate and the physical and legal impossibility of recognizing a form of private property of the species they house. The public or “collective” uses are certainly more appropriate to the situation of artificial reefs, they are de facto majority, but do not offer legible and uniform mechanisms for implementation.
Ultimately, artificial reefs offer a fragmented vision between different legal systems indirectly relevant to their case. Reflection about a formalization of their status opens up interesting perspectives concerning effectively taking into account the multifunctional specificities of artificial reefs.
KeywordsLegal System Artificial Reef Permit Holder Marine Culture Environmental Code
Artificial reefs are solid structures immersed directly and arranged on the seabed, without anchorage 1 in the subsoil. Conventional international law determines a minimum framework for the preservation of the waters and seabed, including the immersion of artificial reefs and assessment of risks inherent in such operations. At the state level, the design and construction of an artificial reef is now formalized and governed by strict rules, prohibiting use of any form of support to act as “artificial reef” poorly integrated to its natural environment (piles of tires 2, cars, poles, and other industrial waste). However, the laws applicable to the artificial reefs are not uniform (Quimbert 2005a). In accordance with the principles of management and protection of maritime public domain (MPD, or DPM in French: domaine public maritime), multiple conditions exist for the immersion of artificial reefs. The complicated juridical and administrative process involved and the various regulatory requirements keep the artificial reefs in an uncertain and uncomfortable legal situation. To date, we can identify three forms of legal documents authorizing the installation and/or exploitation of artificial reefs. However, it appears that marine farming concessions (see 4) are no longer used in applications for the establishment of artificial reefs, although they represent the most thorough legal system and the most favorable to the exercise of private interests on the public maritime domain, which is perhaps the reason for its abandonment.
2 Immersion License
Established by Article 4 of the Act of 7 July 1976, 3 the immersion permit or license marks the emergence and implementation of principles established in 1972 by international agreements between Oslo and London. To allow its consolidation (coding), the 1976 Act was repealed by Ordinance of 18 September 2000, 4 itself amended by Ordinance of 18 July 2005. 5 Articles L218-42 et seq. of the Environmental Code refer to the London Convention to reaffirm the ban on the dumping of waste, while restricting the scope of exemptions. Indeed, apart from the dumping of vessels 6 and dredging, 7 such permits are no longer possible and seem doomed to disappear, except for those “regularly issued before the publication of Ordinance No. 2005-805 of July 18 2005... continue until they expire but shall not exceed ten years” (Article L218-44). Technically, only the reformed vessels are likely to be converted into artificial reefs. The dredgings are composed mainly of sand, gravel, and mud. They are soft sediments, partially biodegradable (organic materials, wood) and gradually dispersed as a result of spilling at sea. They are therefore unsuitable for creating artificial reefs. A number of penalties threaten potential offenders, including up to 2 years imprisonment and a €18,000 fine (article L218-48 and following).
The processing of permit applications is relatively formalized. This type of operation is likely to have a sustainable affect and change the seabed, and therefore first requires an impact study 8 and a public inquiry. 9 The information-gathering process is completed by the consultative Commission Nautique (boating/nautical advisory committee) consisting of ex officio 10 and temporary members. 11 These commissions have been created by a decree of 1986 12 in order to examine, inter alia, “... any matter requiring consultation browsers sea” (art. 1 al. 3). Final analysis and observations are recorded in the minutes “sent to the maritime service, the seaport authority or the local government service, as appropriate” (art. 7). After obtaining this authorization, the permit holder must observe the safety measures in respect to staff employed to carry out the immersion and others and must also monitor the ships or aircraft involved in the immersion operations. At the request of the administration, the licensee may be obliged to conduct, at his or her own expense, work or study, or to take effective measures for possible consequences and for monitoring facilities. In fact, the administration imposes a regular assessment and consideration of the artificial reef, its effects, and risks to the natural environment, and also to people who use the sea, whether professionally or recreationally.
Inspired by international law, the permit to immerse artificial reefs is not concerned with the biological and economic benefits of installing such “recycled” reefs; only environmental considerations are taken into account. The reef should be properly and sustainably cleaned. Structures of this kind generally have a very large volume in a single mass (vessel) and are sometimes submerged at great depths, far from the shore. The authorization for immersion does not include the right to exploit the biological potential of the reef, which would be for the sole recipient of the title. Indeed, the installation of a reef of such a template is not, generally, the only private initiative and does not imply the granting of a concession. We speak, preferably, of a consensus among the State, project supervisor, company, contractor (permit holder), and the various stakeholders involved through nautical committees (fishermen, environmentalists, boaters, local elected officials and politicians, etc.).
Accordingly, the permit suggests a final and permanent immersion of materials (except in case of serious environmental problems), without any form of prescription for site remediation and removal of the reef. An artificial reef designed in this way would therefore be directly integrated into the maritime public domain as real estate (immovable property) by destination (the French term is immeuble par destination).
3 Granting Use of Maritime Public Domain Outside of Ports
Described in French as CUDPM (concession d’utilisation du domaine public maritime en dehors des ports), it replaces the “containment concession” that has existed since 1979. 13 Founded in 2004, 14 this authorization allows a very broad definition of the concept of use of the MPD (marine public domain), thus opening the door for artificial reefs. The concession is applicable to various forms of work, facilities, and/or uses, subject to assigning them to public use, to a public service, or to an operation of general interest (Becet 2004). After a rather conventional administrative instruction procedure, 15 the CUDPM is granted by order of the Prefect (art. 11) for a maximum of 30 years, with implementation conditions strictly regulated by Articles 8 and 9 of the decree. First, the dealer must be able to guarantee “the effective reversibility of changes in the natural environment.” Due to the precarity of authorizations for MPD occupation, when they arrive at their term or if permission is withdrawn prematurely by the administration, the owners 16 are forced to repair, restore, or rehabilitate the occupied sites. For this purpose, the licensing authority requires financial guarantees according to the estimated potential cost of such operations. Second, the decree of 2004 states that the CUDPM is not constitutive of “real rights” (property rights) and does not confer the commercial property to its owner.
Do we consider the use of CUDPM as the most appropriate legal system for the situation of artificial reefs? The original purpose of containment and the associated concessions was precisely to allow for implantation around beach areas 17 in order to “win land from the sea” (Quimbert 2005b). The immersion of materials and layout work on the seabed are not mentioned in the Decree of 2004. The duration of the concession for 30 years (non-renewable) does not seem to be compatible with the physical characteristics and long-term goals of artificial reefs. 18 Because of the weight and volume of the modules used, the development of artificial reefs is time-consuming, difficult, and costly. The reefs are a series of stacks and casings of the grantor, which in the end is a mass that is too heavy and dense. Eventual dismantling of a reef after several decades for the rehabilitation of the site would obviously be destructive and counterproductive, except for bringing to light any evidence of the failure of the the biological and economic effectiveness of the submerged structure. This conjecture remains improbable because the very purpose of artificial reefs is to recreate shelter and attachment points as close as possible to the natural habitats 19 rich in biodiversity. In addition, they are usually installed in naturally poor areas or, more frequently, where the seabed has been depleted and degraded by multiple anthropogenic pressures. In this case, the dismantling of an artificial reef in a good state of conservation would be absolute nonsense, negating all benefits sought for and brought to the restoration of the marine environment.
Finally, in the first article of Decree of 2004, we note the oddity that “the provisions of this Decree shall not apply (...) for marine culture (farming) exploitation.” However, the legal possibility to immerse artificial reefs by either of the two procedures demonstrates the contrary. This measure determines the necessary scope of CUDPM to avoid any risk of confusion with other models of concessions, but more importantly illustrates the inadequacy of these concessions in the area of artificial reefs, a category that is still unclassifiable and therefore unclear.
4 Authorization of Marine Culture Exploitation
Used for a long time in the case of artificial reefs, the authorization of marine culture exploitation (farming) has not been feasible since the 2000s. Being relatively old, 20 this authorization does not concern, as its name suggests, the immersion of artificial reefs. Its extension to the latter is the result of a flexible interpretation of the definition of the activity of “marine culture” and its contents. Sensu lato, marine cultures include shellfish farming (oyster and mussel cultures) and continental/marine fish farming, related to a general legal system of an agricultural 21 nature. Article 1-§1 of Decree of 1983 specifies that these farms are “for the purpose of organic production, including capture, breeding (farming), refining, processing, storage, packing, and shipping of seafood.” The idea of biological productivity through capture and breeding (farming) is extrapolated to the case of artificial reefs in terms of economic profitability. Indeed, the installation of new habitats attracts, protects, especially juveniles, and creates areas of concentration and settings for species (fish, crustaceans, algae, shellfish).
Permits are issued by the Prefect (administrative instructions) following similar methods to those desecribed above, but also involving a marine culture committee (art. 3). The title of occupancy, valid for a maximum of 35 years, which is renewable once, is accompanied by specifications laying down conditions for the occupation and use (form of installations and recommended improvements), the nature of the cultures and technology being proposed, the amount of the fee for occupation, the presence of easements, etc. According to Art. 5, the beneficiaries are individuals or private law corporations. The allocation to public law corporations (state, local government service, public institution, etc.) shall be admissible only for the purposes of “collective actions” contributing to the development of aquaculture.
Resolutely oriented (directed) towards the development and recovery of marine activities, marine culture concessions recognize “real rights” (property rights or real property) or “quasi-real” 22 rights of their operators. These rights, expressed in Articles 9 to 14 of the decree, based on the personal nature (Art. 5.2) of the permit and its exploitation, give the right of use and enjoyment (usufruct) exclusively to its “owner.” Thus, in the owner’s absence, he or she may temporarily transfer its use to another operator. Many dealers can form a private corporation to undertake the exploitation of the structures. As long as the title is valid, the beneficiary may request the transfer of his or her rights to a third party. The exchange of equivalent concessions between two operators is also possible. Finally, the transfer to a surviving spouse or direct-line heirs helps to overcome the difficulties involved in the sudden death of the concessionaire (holder). All these possibilities of change are of course regulated and subject to prior approval of the administration. As in the case of CUDPM, the authorizations of marine cultures suffer from the same threat related to the prescription and the rehabilitation of the site at the end of the concession. A “classic” and normal exploitation of marine culture (shellfish tables, poles, nets, and aquaculture ponds) does not pose serious problems of decommissioning. This is not the same for an artificial reef installed several tens of meters deep, weighed down by the organic concretions, and that can be removed at the cost of the concession holder. The ordinary life of a reef is not ephemeral, the results are revealed slowly, and such a structure is not intended to deconstruct.
Aquaculture or shellfish activities open the possibility for operators to be the exclusive owners of their live products. Indeed, a fish trapped and bred (for farming) within a fence or shells mounted on ropes, wires, or pickets belong to the holders of concessions, compared to a fish or a crustacean colonized within an artificial reef, which still retains its status as res communis. The animals belong to anyone until they are captured by the first fisherman, a holder of the concession or not. An operator or a group of farmers who have exclusive access and use of the reef cannot be considered the owner of species that live there, since no physical barrier could prevent the animals from moving outside of the reef. Therefore, it is easy to imagine the conflicts that can arise among different stakeholders in the sea, whether professional fishermen, boaters, or scientists. How can we effectively define the surface contours of an artificial reef? How can we monitor and articulate pragmatic uses and their users? How can we find a balance among the protection of an artificial reef, especially at the beginning of an installation, and easement of passage and attendance over the concession.
Since a letter from the Minister of Agriculture and Fisheries on 17 March 2000, “the Decree of 22 March 1983 cannot be used to authorize the establishment of artificial reefs.” However, the letter states that according to Article 19 of the Decree and in exceptional circumstances, such authorization may be granted for artificial reefs with an “experimental purpose (test) for the protection, conservation, and regeneration of the seabed” and be exempted from payment of the fee. Only interprofessional agencies (Law of 2 May 1991) and scientific organizations can benefit from these special permits. In the end, the new legal system of the CUDPM23 is now favored by the administration for future artificial reef projects. This reversal has not been consolidated in legal terms, such as by adding an amendment to the Decree of 2004 on CUDPM to incorporate artificial reefs permanently. The term “artificial reef” has still not been added, also not to any other regulation in force. Currently, the administration has begun a process of legal “requalification” (in CUDPM) of artificial reefs installed under the framework of marine cultures. By way of comparison, and by extension, we mention the example of Japan, unanimously recognized by experts as the world reference for artificial reefs. Traditionally, the priority of access and use of the sea is given to fishermen. The Japanese legal framework allows the creation of property rights for the management and exploitation of artificial reefs. The arrangements for the exercise of these rights are based on groups of fishermen, identified and representative of the same village, cooperative, or region. The Japanese model is conceived as a seaward extension of land use rights, with a vision of rural development and a fruiting seabed (Cazalet 2009).
For most artificial reefs located on the French coastline (main land of the hexagon), within the territorial sea and whose legal status is analyzed here. But many models exist around the world, targeting various types of species of pelagic and demersal fishes, shellfishes, crustaceans, and algae. Some “fish aggregating devices” (dispositifs concentrateurs de poissons - DCP in French) have fastening systems, connected in part to a surface float, whose components may “navigate” in the water column. Others may drift over the deep areas, while not having any form of anchor or ground contact.
We can quote a famous American example, presented in the Thalassa issue of 19 September 2008. In the 1970s, more than two million used tires were donated by the firm Goodyear and immersed off Ford Lauderdale, Florida. The “mountain” of tires has rapidly spread because of the currents, and the seabed covered has become a true desert of fauna and flora. Removal operations have now been started and should last another 30 years.
Law No. 76-599 of 7 July 1976 on the prevention and suppression of marine pollution by dumping by vessels and aircraft, and the fight against marine pollution. Decree No. 82-842 of 29 September 1982 (JORF, 8 July 1976, p. 4107).
Art. 5. I al. 10 & 11 of the Ordinance No. 2000-914 of 18 September 2000 on the legislative part of the Environmental Code (JORF no. 219 of 21 September 2000, p. 14792, text no. 39).
Ordinance No. 2005-805 of 18 July 2005 on simplification, harmonization and adaptation of policies for water and aquatic environments, fishing and the dumping of waste (JORF no. 166 of 19 July 2005, p. 11760 text no. 42).
Authorization granted by the State representative at sea (Maritime Prefect).
Subject to the provisions of Articles L214-1 to L214-4 and L214-10 of the Environmental Code (JORF no. 219 of 21 September 2000, p. 14792, text no. 39).
In accordance with Articles L122-1 et seq. and the R122-1 et seq. of the Environmental Code (JORF no, 219 of 21 September 2000, p. 14792, text no. 39).
Articles L123-1 et seq. and R123-1 et seq., Environmental Code (JORF no. 219 of 21 September 2000, p. 14792, text no. 39).
Permanent and legal members: The Prefect, the Maritime Prefect, the Administrator of Maritime Affairs, the head of the district (Maritime Quarter) concerned and, where applicable, the representative of the Management Committee of the Marine Natural Park.
Five sailors (professional and recreational) and their substitutes and representatives of the maritime service, and the director of the autonomous seaport and the local government service are involved in the project.
Decree no. 86-606 of 14 March 1986 on boating (nautical) commissions (JORF of 19 March 1986, p. 4623).
Decree no. 79-518 of 29 June 1979 relating to containment concessions and use dependencies of maritime public domain maintained in this area outside ports (JORF of 1 July 1979, p. 1593). Repealed by Article 13 of Decree 2004 (JORF no. 76 of 30 March 2004, p. 6078, text no. 40).
Decree no. 2004-308 of 29 March 2004 (JORF no. 76 of 30 March 2004, p. 6078, text no. 40).
Request to the Prefect, the followed including an impact study, a public inquiry, and the convening of an Advisory Boating (nautical) Committee. See Articles 6 and 7.
Individual person or private law corporation.
Article 1 of Decree of 2004 states that CUDPMs are distinct from beach concessions sensu stricto, but are discussed in Decree no. 2006-608 of 26 May 2006.
Even though the administration does not share this view and is very cautious about the durability of artificial reefs: See legal update following the publication of decree No. 2004-308 of 29 March 2004, entitled “The legal feasibility of the implantation of artificial reefs on the coastline”, Response of Direction du Transport Maritime, des Ports et du Littoral (Directorate of Maritime Transport, Ports and Coastline) to a Prefect (maritime service) dated 18 October 2000, April 2004, p. 3.
The research and efforts towards maximum integration, even an imitation, led some authors to prefer the expression “artificial habitats” to that of artificial reefs. See S. Pioch, Les “habitats artificiels” : élément de stratégie pour une gestion intégrée des zones côtières ? Essai de méthodologie d’aménagement en récifs artificiels adaptés à la pêche artisanale côtière, Thèse de doctorat de géographie, Université de Montpellier III Paul Valéry, mai 2008, 289 p.
Decree no. 83-228 of 28 March 1983 (JORF of 25 March 1983, p. 918).
Article L311-1 of the Rural Code (JORF of 23 July 1993).
Expression of Quimbert, M. (2005) “Les récifs artificiels: autorisation d’immersion, régime d’occupation du domaine public et cadre d’exploitation en droit français”, Revue juridique de l’environnement, 2/2005, p. 129.
The ambitious project in Marseille, located off the Prado Bay, is exemplary of the limits of CUDPM (concession d’utilisation du domaine public maritime en dehors des ports) to determine the conditions of exploitation after the immersion. For now, the reef has been permanently installed since July 2008 and classified as a strict nature reserve (no-take, no-entry) for 2 years to become progressively (a) a colonized habitat and productive. This period was used by the city of Marseille (holder of the reef concession) to encourage various stakeholders to reach agreement on conditions for future exploitation of the reef... if no agreement, the strict nature reserve will be renewed 2 more years by the City. The CUDPM offers no predetermined solution or framework in terms of management and use of artificial reefs.
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