DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL
Order No. 2003-f-0039
Summary of Evidence and Information
Horseshoe Crab Regs., HC-1 thru HC-14
Horseshoe crabs are a vital component to the estuarine foodweb and support several important commercial industries. Horseshoe crabs are important in the diets of the federally protected loggerhead sea turtle, and the eggs are a seasonally important food item in the diets of at least seven species of commercially and/or recreationally important finfish species. Horseshoe crab eggs also are an important component in the diets of migratory shorebirds using Delaware Bay, which serves as one of the most important migratory stopover sites in North America. The spectacle of the birds feeding on horseshoe crab eggs supports an ecotourism industry of regional significance. In addition, horseshoe crabs are harvested for the manufacture of Limulus Amoebocyte Lysate (LAL). LAL is the worldwide standard for testing virtually all pharmaceuticals for the presence of gram negative bacteria. Horseshoe crabs are also extensively harvested for use as a primary bait in the American eel and conch (whelk) pot fisheries and to a lesser extent in several other fisheries. Although the epicenter of horseshoe crab spawning and nursery areas is in the Delaware Bay, the horseshoe crab resource is cooperatively managed coastwide through the Atlantic States Marine Fisheries Commission (ASMFC). The ASMFC has recognized the particular importance of the Delaware Bay to horseshoe crabs and migratory shorebirds.
Horseshoe crabs take 8 - 12 years to reach sexual maturity. Current estimates place fecundity at approximately 88,000 eggs annually. To place this in context, weakfish often reach sexual maturity in one year and a large (22-inch) female may produce 1,700,000 eggs in a single spawning season. Therefore, failure to adequately protect the horseshoe crab resource may result in consequences not fully realized for a period of 8 - 12 years.
There are several sources of fishery-independent survey information available for assessing the status of the horseshoe crab population using the Delaware Bay. The Delaware Division of Fish and Wildlife conducts both 30-foot and 16-foot trawl surveys in the Delaware portion of the Delaware Estuary. The Division's 16-foot trawl survey is used to monitor juvenile horseshoe crab relative abundance. Juvenile (<160mm) horseshoe crab relative abundance has declined marginally (P=0.0632) since 1992 and young-of-the-year relative abundance has generally followed a declining trend, though not statistically significant. Horseshoe crab relative abundance in the Division's 30-foot trawl survey has declined significantly (P=0.0007) relative to 1990; however, since 1998 when stringent management measures were adopted, there has been no detectable trend in horseshoe crab relative abundance. In addition, the Delaware Bay horseshoe crab spawning survey indicated that the index of spawner abundance has been stable since 1999. These indices are currently the best long-term fishery-independent surveys available for assessing horseshoe crabs. Although there is evidence that horseshoe crabs are stable at a low level of abundance (relative to the early 1990's), there is concern that this stability is not sufficient to ensure adequate horseshoe crab egg resources are available for migratory shorebird populations, particularly red knots (Calidris canutus rufa). Surface horseshoe egg densities at five of six beaches sampled in Delaware declined in 2002 relative to 2001, with a less than a two percent increase at a single beach. Surface egg densities at six beaches sampled in New Jersey by the Department of Environmental Protection declined significantly (P < 0.0001) from 2000 to 2002. Though these surveys are not sufficient to provide a statistically robust baywide indicator of surface egg abundance, they do suggest that egg availability has declined in recent years.
Of further concern, are indications that the red knot population has declined in recent years. Aerial survey data provided by the New Jersey Department of Environmental Protection indicate that wintering red knot populations in Bahia Lomas, Chile declined from 45,705 in 2000 to 20,000 in 2003 and that wintering populations in Chile and Argentina (combined) declined from 67,496 in 1986 to 29,271 in 2002. Though it is difficult to establish direct causal links between these declines and evidence of declines in horseshoe crab egg availability on Delaware Bay, a more precautionary management approach is warranted based on the available information and the risks associated with a failure to act.
The Delaware Department of Natural Resources and Environmental Control and the New Jersey Department of Environmental Protection have both agreed to measures that will increase the availability of horseshoe crab eggs and allow for the continuance of a reduced commercial fishery. New Jersey took action in 2003 by Emergency Order to restrict their harvest to 150,000 horseshoe crabs and to close the season from May 1 through June 7. Subsequent to the expiration of the 60 allowable period for emergency regulations to remain in effect, New Jersey implemented these same catch restrictions and closure by the normal regulatory process. By taking similar action for the 2004 fishing season, Delaware would be acting in concert with New Jersey. Failure to act in a timely manner could result in long-term negative consequences for horseshoe crabs, dependant wildlife and dependant industries.
Findings Of Fact
• Section 103 of 7 Delaware Code entitles the Department of Natural Resources and Environmental Control to promulgate regulations that it deems necessary for the protection and conservation of any protected species of wildlife, including those measures needed to protect shorebirds. Section 1902 of 7 Delaware Code also entitles the Department to pass regulations designed to provide for the preservation and improvement of the shellfish resources of this state, including horseshoe crabs.
• The Atlantic States Marine Fisheries Commission’s (ASMFC’s) Horseshoe Crab Board voted to initiate development of an addendum to the Horseshoe Crab Fishery Management Plan that would impose a harvest cap of 150,000 horseshoe crabs for both New Jersey and Delaware and include a seasonal closure on harvesting from May 1 through June 7.
• The ASMFC’s Shorebird Technical Committee recommended a 66-75% reduction in horseshoe crab harvest for the states of Delaware, New Jersey, and Maryland in a risk adverse strategy to ensure that adequate numbers of spawning horseshoe crabs are available to meet the bird’s dietary needs for horseshoe crab eggs.
• The New Jersey Department of Environmental Resources passed an emergency regulation in the spring of 2003 to restrict their horseshoe crab harvest to the agreed upon 150,000 crabs and also closed their harvesting season from May 1 through June 7. Since the expiration of the 60-day emergency closure period, New Jersey has implemented more permanent regulations for the remainder of 2003 and next year.
• Although there is evidence that horseshoe crabs are stable at a low level of abundance (relative to the early 1990's), there is concern that this stability is not sufficient to ensure adequate horseshoe crab egg resources are available for migratory shorebird populations, particularly red knots (Calidris canutus rufa), or to allow the horseshoe crab population to rebuild to levels of abundance observed in the early 1990s.
Conclusions
I have reached the following conclusions:
• These regulation changes (attached) are necessary to conserve the horseshoe crab resource and to benefit the estuarine fishes, marine reptiles and the shorebirds that utilize horseshoe crab eggs and early life stages as a food resource. The rationale for these regulatory changes are as stated above and in the Hearing Officer’s Report to the Secretary of the Department of Natural Resources and Environmental Control, July 9, 2003.
Order
IT IS HEREBY ORDERED, the 15th day of July, 2003 that the amendments and additions to shellfish regulation Nos. S-50 through S-61, copies of which are attached hereto, are adopted pursuant to Sections 103, 1902, 2701, and Chapters 18 and 28 of 7 Delaware Code.
John A. Hughes, Secretary, Department of Natural
Resources And Environmental Control
The following regulations are adopted pursuant to Title 7, Delaware Code, Chapters 1, 18, 19, 27, and 28.
2S-50 HC-1 Definitions
The following definitions shall apply to terms in Chapter 27, Title 7, Delaware Code relative to horseshoe crabs.
1) 'Dispose of said crabs properly' shall mean bury on the beach, incorporate into soil as fertilizer or any other method approved by the Department.
2) Personal, non-commercial use' shall mean to be used as food, fertilizer or bait or otherwise properly disposed without trading, bartering, or selling by one individual to another, or without transporting, shipping, or causing to be transported or shipped, out of state.
3) 'Collect' shall mean to take live horseshoe crabs by any means other than by dredge.
4) 'Dredge' shall mean to use any device to gather, scrape, scoop, fish for or otherwise take bottom dwelling horseshoe crabs.
5) 'Bait saving device' shall mean any device that when so deployed in or on a pot reduces either the rate at which bait, meaning horseshoe crabs or parts thereof, must be replenished or reduces the number or quantity of horseshoe crabs used as bait.
HC - 2 Horseshoe Crabs As Bait In Pots; Conch Pots
(a) It shall be unlawful for any person to place more than one-half of a female horseshoe crab or one male horseshoe crab as bait in any type of pot on any one day in the waters of this State.
(b) It shall be unlawful for any person to fish with a conch pot that is not equipped with a bait saving device, provided that a horseshoe crab or parts thereof are used as bait.
S - 51 HC-3 Seasons And Area Closed To Taking Horseshoe Crabs With Dredges
(a) It shall be unlawful for any person to collect or dredge or attempt to collect or dredge by means of a dredge horseshoe crabs [or parts thereof] from any state or federal land owned in fee simple or the tidal waters of this state during a period beginning at 12:01 am on May 1 and continuing through midnight, June 30, next ensuing. except that It shall be lawful for persons with valid horseshoe crab collecting permits and eel licensees and their alternates may to collect [adult] horseshoe crabs on Tuesday and Thursday from state owned lands to the east of state road No. 89 (Port Mahon Road) from 12:01 a.m. on June 8 and continuing through midnight on June 30.
(b) It shall be unlawful for any person to collect or attempt to collect, any horseshoe crabs [or parts thereof] from any land not owned by the state or federal government during the period beginning at 12:01 a.m. on May 1 and continuing through midnight, June 7 30, next ensuing., except that It shall be lawful, during a period beginning at 12:01 a.m. on June 8 and continuing through midnight on June 30, for persons with valid horseshoe crab collecting permits and eel licensees and their alternates to may collect horseshoe crab [adults] on Mondays, Wednesdays and Fridays from such private lands.
(c) It shall be unlawful for any person to collect or attempt to collect any horseshoe crabs from any land not owned by the State or federal government unless said person has on his or her person written permission, signed by the owner of said land with the owner's address and phone number, indicating the individual to whom permission to collect horseshoe crabs is granted.
(d) It shall be unlawful for any person to collect or dredge or to attempt to collect or dredge horseshoe crabs at any time prior to May 1 in any given year after during a calendar year after 35% of the annual quota of the date the Department determines the annual quota of horseshoe crabs are, approved for Delaware by the Atlantic States Marine Fisheries Commission, is landed."
S-52 HC-4 Requirement For Collecting Horseshoe Crabs For Persons Under 16
(a) It shall be unlawful for any person with a valid horseshoe crab collecting permit to collect any horseshoe crabs as an alternate to a person with a valid commercial eel fishing license.
(b) It shall be unlawful for any person under the age of sixteen (16) years to possess more than six (6) any horseshoe crabs unless accompanied by a person who has been issued a valid horseshoe crab scientific collecting, commercial collecting or dredge permit.
S-53 HC-5 Number Of Persons Accompanying A Person With A Valid Horseshoe Crab Collecting Permit
(a) It shall be unlawful for any person with a valid horseshoe crab commercial collecting permit when collecting horseshoe crabs to be assisted by more than three (3) persons under the age of 16 who are not required to have valid horseshoe crab commercial collecting permits.
(b) It shall be unlawful for any person 16 years of age or older who does not have a valid commercial horseshoe crab collecting permit, to assist any person with a valid commercial horseshoe crab collecting permit in the handling, loading or driving a vehicle used to transport horseshoe crabs collected by said horseshoe crab collecting permittee while within 300 feet of the shoreline of the water from which said horseshoe crabs are collected or the point on shore where said horseshoe crabs are landed from a vessel.
S-54 HC-6 Possession Limit Of Horseshoe Crabs, Exceptions
(a) Unless otherwise authorized, it shall be unlawful for any person to possess more than six (6) a horseshoe crabs, except a person with a validated receipt from a person with a valid horseshoe crab commercial collecting or dredge permit for the number of horseshoe crabs in said person's possession. A receipt shall contain the name, address and signature of the supplier, the date and the number of horseshoe crabs obtained.
(b) Any person who has been issued a valid commercial eel fishing license by the Department or said person's alternate while in the presence of the licensee, is exempt from the prohibition on the possession limit of six (6) horseshoe crabs, provided said commercial eel fishing licensee has submitted all required reports of his/her and his/her alternate's previous week's harvest of horseshoe crabs with the Department in accordance with S-57 HC-10. Any person who has been issued a commercial eel fishing license and said person's alternate while in the presence of the licensee, may collect horseshoe crabs by hand without a horseshoe crab commercial collecting permit provided all horseshoe crabs taken are for personal, non-commercial use, as bait for the licensee's eel pots fished in this state.
(c) It shall be unlawful for any person with a valid commercial eel fishing license to be assisted in collecting horseshoe crabs by any person who is not listed on his commercial eel fishing license as the alternate.
(d) Any person with both a valid commercial eel fishing license and a valid commercial horseshoe crab collecting permit shall be considered as a commercial horseshoe crab collecting permittee for purposes of enforcing the provisions of chapter 27, 7 Del. C. Chapter 27 and/or shellfish regulations pertaining to horseshoe crabs.
(e) It shall be unlawful for any person with a valid commercial eel fishing license to commingle any horseshoe crabs collected either by said commercial eel fishing licensee or by his or her alternate with horseshoe crabs either collected by a person with a valid horseshoe crab dredge permit or by a person with a valid commercial horseshoe crab collecting permit.
(f) It shall be unlawful for any person with a valid horseshoe crab dredge permit or with a valid commercial horseshoe crab collecting permit to commingle any horseshoe crab dredged or collected by said horseshoe crab dredge permittee or horseshoe crab collecting permittee with horseshoe crabs collected by any person with a valid commercial eel fishing license.
(g) It shall be unlawful for any person to possess more than 300 cubic feet of horseshoe crabs except in a stationary cold storage or freezer facility.
(h) It shall be unlawful for any person to collect or attempt to collect more than 300 cubic feet of horseshoe crabs during any 24 hour period beginning at 12:01 AM and continuing through midnight next ensuing.
S-55 HC-7 Horseshoe Crab Dredging Restrictions
(a) It shall be unlawful for any person to dredge horseshoe crabs in the area in Delaware Bay designated as leased Sshellfish grounds except on one's own leased shellfish grounds or with permission from the owner of leased shellfish grounds. The area in Delaware Bay designated as leased shellfish grounds is within the boundaries that delineate leasable shellfish grounds and is described as follows: Starting at a point on the "East Line" in Delaware at Loran-C coordinates 27314.50/42894.25 and continuing due east to a point at Loran-C coordinates 27294.08/42895.60 and then 27270.80/42852.83 and then continuing southwest to a point at Loran-C coordinates 27281.31/42803.48 and then continuing west to a point at Loran-C coordinates 27280.75/42795.50 and then in a northerly direction on a line 1000' offshore, coterminous with the existing shoreline to the point of beginning on the "East Line."
(b) It shall be unlawful for any person, who operates a vessel and has on board said vessel a dredge of any kind, to have on board or to land more than 1500 horseshoe crabs during any 24 hour period beginning at 12:01 a.m. and continuing through midnight next ensuing.
(c) It shall be unlawful for any person, who operates a vessel and has on board said vessel a dredge of any kind, to have or possess on board said vessel any horseshoe crabs at any time during the period beginning 12:01 a.m. on May 1 and continuing through midnight, June 30, next ensuing.
(d) It shall be unlawful for any person to land horseshoe crabs taken from the Exclusive Economic Zone unless said person has a valid horseshoe crab dredge permit."
S-55-A HC-8 Horseshoe Crab Dredge Permit Lottery
(a) The Department of Natural Resources and Environmental Control shall hold an annual lottery to select eligible individuals for the five horseshoe crab dredge permits authorized to be issued each year if more than five applications are received by the Department. Applications for an annual commercial horseshoe crab permit shall be accepted by the Department until 4:30 PM December 31 or 4:30 PM on the Friday preceding if December 31 is a Saturday or Sunday. If an annual lottery is necessary it shall be conducted at 1:00 PM on January 1, or the first work day thereafter, in the Richardson and Robbins Building, 89 Kings Highway, Dover, Delaware."
(b) To be eligible an applicant for a horseshoe crab dredge permit shall be the current holder of and oyster harvesting license issued by the Department."
Note: This regulation was adopted by order of the Secretary on March 4, 1997, as "S-55." However, with the adoption of a second S-55 ("Horseshoe Crab Dredging Restrictions") on February 11, 1998, this regulation has been designated as "S-55-A.
S-56 HC-9 Horseshoe Crab Sanctuaries
(a) All state and federal lands owned in fee simple are horseshoe crab sanctuaries during the period beginning 12:01 a.m. on May 1 through midnight June 30.
(b) Any land owner(s) may register their land with the Department to be designated as a horseshoe crab sanctuary for a period to be specified by the land owner(s).
(c) It shall be unlawful to collect any horseshoe crabs at any time from a horseshoe crab sanctuary except as provided in S-51 HC-3 (a)."
S-57 HC-10 Horseshoe Crab Reporting Requirements
(a) It shall be unlawful for any person who has been issued a horseshoe crab dredge permit, a horseshoe crab commercial collecting permit or a commercial eel pot license to not report his/her harvest of horseshoe crabs to the Department on a weekly basis. Said weekly reports shall not be required to be submitted to the Department during any month said person indicates previously in writing to the Department that he/she will not be harvesting horseshoe crabs. Any person required to submit a weekly report on his/her harvest of horseshoe crabs to the Department shall submit said report on or before 4:30PM on the Monday following the week covered by said report. If Monday is a legal State holiday, said report shall be submitted on or before 4:30PM on Tuesday, next ensuing. For purposes of this section, a week shall commence at 12:01AM on Monday and conclude at midnight on Sunday, next ensuing. Said report shall include but not be limited to said person's unique identification number assigned by the Department, the dates and location horseshoe crabs were harvested, the number and sex of horseshoe crabs harvested and the method of harvest of horseshoe crabs. Said report shall be submitted to the Department by telephone by calling a phone number, dedicated by the Department for the reporting of harvested horseshoe crabs, and entering the required data by code or voice as indicated.
(b) Any person who fails to submit a weekly report on his/her harvest of horseshoe crabs to the Department on time shall have his/her permit to dredge or his/her permit or authority to collect horseshoe crabs suspended until all delinquent reports on harvested horseshoe crabs are received by the Department."
(c) In addition to the requirement to phone in weekly catch reports, horseshoe crab collectors and harvesters and commercial eel fishermen are required to compile and file monthly log sheets detailing daily landings of horseshoe crabs on forms supplied by the Department. These forms must be submitted by the 10th day of the month next ensuing. Failure to submit these monthly reports on a timely basis may be cause for horseshoe crab collecting or horseshoe crab dredge permit revocation or non-renewal of said permit the following year; or in the case of a commercial eel licensee, forfeiture of permission to possess or use horseshoe crabs as bait for the remainder of the year.
S-59 HC-11 Horseshoe Crab Commercial Collecting Permit Eligibility And Renewal Requirements
(a) The Department may only issue a horseshoe crab commercial collecting permit to a person who makes application for such a permit in calendar year 1998, and who, prior to July 1, 1997, had applied for and secured from the Department at least 2 valid horseshoe crab commercial collecting permits. Any person holding a horseshoe crab commercial collecting permit in 1998 may apply for renewal of their horseshoe crab commercial collecting permit by April 1 each year. Failure of If any person holding a horseshoe crab commercial collecting permit from the previous year fails to apply for renewal of their horseshoe crab commercial collecting permit by April 1, will limit they forfeit their eligibility to obtain a horseshoe crab commercial collecting permit in the future. in the lottery process of subsection (b).
(b) When the total number of horseshoe crab commercial collecting permits drops to 45 or below, as of April 2 of any year, the Department may schedule a lottery to take place prior to April 30 of that year to allow the total number of horseshoe crab commercial collecting permits to increase to 50."
S-60 HC-12 Prohibitions; Sale Of Horseshoe Crabs
(a) It shall be unlawful for any person who collects or dredges horseshoe crabs, except a person with a valid horseshoe crab commercial collecting permit or a person with a valid horseshoe crab dredge permit, to sell, trade and/or barter or to attempt to sell, trade and/or barter any horseshoe crab."
S-61 HC-13 Collecting Horseshoe Crabs At Night, Prohibited
(a) It shall be unlawful for any person with a valid commercial eel fishing license to collect horseshoe crabs between sunset and sunrise."
S-62 HC-14 Horseshoe Crab Annual Harvest Limit
(a) The annual harvest limit for horseshoe crabs taken and/or landed in the State shall be 150,000 or whatever the Atlantic States Marine Fisheries Commission has approved as Delaware's current annual quota, whichever number is less.
(b) When the Department has determined that the annual horseshoe crab quota has been met, the Department shall order the horseshoe crab fishery closed and no further horseshoe crabs may be taken during the remainder of the calendar year.