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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsAugust 2014

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(7 Del.C. §§2002, 2005(a), 2006(d & e))
This Order considers proposed revised new regulations, to wit: 7 DE Admin. Code 3801, Shellfish Aquaculture. The Department’s Division of Fish and Wildlife commenced the regulatory development process with Start Action Notice 2014-04. The Department published its initial proposed new regulation in the May 1, 2014 Delaware Register of Regulations, and held a public hearing on May 21, 2014.
The Department has recognized throughout the development of these proposed new regulations that there are numerous different perspectives on the issue of establishing shellfish aquaculture here in Delaware, and all such input was highly valued and taken into consideration during the regulatory development process. It should also be noted, however, that the decision to establish shellfish aquaculture in Delaware’s Inland Bays was made by the passage of House Bill 160 by the 147th General Assembly. The purpose of these proposed new regulations is to implement the intent of House Bill 160 by creating an aquaculture industry in Delaware that provides jobs and economic benefits to the citizens of this state, while potentially reducing nutrients in the Inland Bays. At the same time, these proposed new regulations also serve to ensure the compatibility with Delaware’s boating and fishing uses of the Inland Bays, while enabling the Department to protect and to sustain Delaware’s native species, including its robust hard clam population.
The Department has the statutory basis and legal authority to act with regard to these aforementioned proposed new regulations, pursuant to 7 Del.C. §§2002, 2005(a), 2006(d & e), and 7 Del.C., Chapter 60. Public comment was received by the Department regarding this proposed promulgation, and the same was thoroughly addressed and responded to by the Division of Fish & Wildlife in its formal Technical Response Memorandum dated July 7, 2014. Proper notice of the hearing was provided as required by law.
Some of the points that were considered within the legislation passed by the 147th General Assembly were that leases must be issued in one-acre increments, must generally be rectangular, and that leases must initially be issued by lottery and subsequently on a first-come, first-served basis thereafter. Fees and renewals were also established by the legislation, as were the penalties for violations of both the Delaware Code and the Department’s regulations.
I find that the Department’s experts in the Division of Fish and Wildlife fully developed the record to support adoption of these revised proposed regulations. I find that the revised proposed regulations are well-supported by the record developed by the Department, and I adopt the Report to the extent it is consistent with this Order. I also find that the proposed revisions to the Department’s new regulation, to wit: 7 DE Admin. Code 3801, Shellfish Aquaculture, are not substantive in nature, and thus no additional vetting of these proposed regulatory amendments is necessary at this time.
4.) The Department’s Hearing Officer’s Report, including its recommended record and the recommended revised new regulations as set forth in Appendix A, and the Technical Response Memorandum as set forth in Appendix B, are adopted to provide additional reasons and findings for this Order;
5.) The recommended revised new regulations should be adopted as final new regulations because Delaware will be able to (1) provide for a shellfish aquaculture industry in Delaware’s Inland Bays that is compatible with commercial and recreational finfishing and shellfishing, boating navigation and public safety, public water access and use; (2) provide a structured process and set conditions for leasing of subaqueous bottom within Delaware’s Inland Bays for the culture of bivalve shellfish; and, lastly, because (3) the revised new regulations are well supported by documents in the record;
6.) The Department shall submit this Order approving the final new regulation to the Delaware Register of Regulations for publication in its next available issue, and provide such other notice as the law and regulation require and the Department determines is appropriate.
These regulations provide for a shellfish aquaculture industry in Delaware's Inland Bays that is compatible with commercial and recreational finfishing and shellfishing, boating navigation and public safety, public water access and use, and native biota. Specifically, the regulations provide a structured process and set conditions for leasing of subaqueous bottom within Delaware's Inland Bays for the culture of bivalve shellfish. The regulations include requirements for lease: application, locations, issuance, marking, renewal, transfer, expiration, termination, condemnation and emergency relocation. The regulations further propose measures related to: shellfish aquaculture gear and marking, shellfish nursery permitting and structures, harvester license qualifications, bivalve species authorized for aquaculture, activities within subaqueous lease areas, and shellfish aquaculture reporting requirements.
Aquaculture activities” means those activities which include the purchase, monitoring, planting, sale, possession, harvest, production, breeding, transportation, and processing of shellfish.
Culture” means to cultivate bivalve shellfish at any life stage.
Farm gate” means the dollar value paid for a cultivated product upon harvest.
Lessee” or “leaseholder” means that person, persons, or entity, lawfully granted a Shellfish Aquaculture Subaqueous Land Lease in Delaware’s Inland Bays.
Navigation corridor” means the 20-foot tract of subaqueous land that is established between two adjacent one (1) acre shellfish aquaculture leases.
Non-Shellfish Aquaculture Development Area” or “Non-SADA” means that area of Delaware’s Inland Bays outside of the boundaries of the SADA designated by the Department for the purpose of shellfish aquaculture.
Shellfish Aquaculture Development Area” or “SADA” means those areas of Delaware’s Inland Bays designated by the Department for the purpose of shellfish aquaculture. These distinct areas are named and their corner coordinates described for the Inland Bays as follows:
Shellfish aquaculture gear” means any cage, rack, tray, or other similar device for holding and protecting oysters or clams, including any bags, containers, nets, or floating container.
Shellfish Nursery Structures” means any structure or container, such as an upweller, downweller or raceway in Delaware’s Inland Bays used to culture 1,000 or more bivalve shellfish at one physical address, and not located in a lawful Shellfish Aquaculture Subaqueous Land Lease.
Submerged aquatic vegetation” or “SAV” means any rooted, vascular submerged plants.
3.1.5 [a joint Department and an] Army Corps of Engineers permit [application]; and
(Penalty Section 7 Del.C. §2012)
(Penalty Section 7 Del.C. §2012)
13.1 It is unlawful to produce or culture bivalve shellfish species other than Crassostrea virginica, the eastern oyster, in Rehoboth Bay, Indian River and Indian River Bay and their respective tidal tributaries.
13.2 It is unlawful to produce or culture bivalve shellfish species other than Crassostrea virginica, the eastern oyster, and Mercenaria mercenaria, the hard clam, in Little Assawoman Bay and its tidal tributaries.
(Penalty Section 7 Del.C. §2012)
14.2 It is unlawful for the aquaculture lessee to not mark each corner of a Shellfish Aquaculture Subaqueous Land Lease with a PVC pole [or PVC pole buoy] at least six (6) inches in diameter and extending at least five (5) feet above the surface of the water [at mean high water]. (Penalty Section 7 Del.C. §2012)
(Penalty Section 7 Del.C. §2010(b))
(Penalty Section 7 Del.C. §2012)
(Penalty Section 7 Del.C. §2012 and §2013(d))
Last Updated: December 31 1969 19:00:00.
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