DEPARTMENT OF AGRICULTURE
Statutory Authority: 3 Delaware Code Section 407(a) (3 Del.C. § 407(a))
The Department proposes these regulations pursuant to 3 Del.C. § 407(a). The proposed regulations contain the following general sanctions: Definitions, Aquaculture Registration, General Aquaculture Permits, Restricted Aquaculture Permits, Aquaculture Stock Certification, Aquaculture Broodstock, Identification and Certification, Inspection of Premises, Enforcement, Future Considerations, Fee Fishing, Aquaculture Facility Protection and Civil Penalties. These regulations are intended to more clearly define the role of the Department in the Delaware aquaculture industry. The proposed regulations will be considered at a public hearing scheduled for May 10, 2002 at 1:00 p.m. at the Delaware Department of Agriculture Building, Conference Room #1. Copies of the proposed regulations may be obtained from the State Veterinarian’s office. Comments may be submitted in writing to Bruce R. Walton on or before 1:00 p.m. on May 10, 2002 and/or in person at the hearing. The Delaware Department of Agriculture is located at 2320 S. DuPont Highway, Dover, Delaware 19901 and the phone number is (302) 698-4503.
These regulations are promulgated under the authority of 3 Del.C. Section 407 of the Delaware Code.
The purpose of these regulations is to encourage the orderly development of an aquaculture industry in Delaware, while ensuring that aquaculture operations do not adversely impact upon the state’s wild stocks of fish by introducing any non-indigenous species that harbor disease or parasites or are capable of surviving and adversely competing with resident plant or animal species.
As used in these regulations:
“Aquaculture” means the controlled propagation, growth, harvest and subsequent commerce in cultured aquatic stock by an aquaculturist.
“Aquaculturist” means an individual, partnership or corporation involved in the production of cultured aquatic stock or parts thereof.
“Aquaculture Facility” means any water system and associated infrastructures used for producing cultured aquatic stock.
“Aquatic Organism” means an animal or plant of any species or hybrid thereof, and includes gametes, seeds, eggs, sperm, larvae, juvenile and adult stages, any one of which is required to be in water during any stage of its life.
“Aquaculture Registration” means the formal registration with the Delaware Department of Agriculture of an aquaculture facility by an individual, partnership, or corporation.
“Broodstock” means sexually mature aquatic organisms, either domesticated or wild, used to propagate cultured aquatic stock.
“Closed system” means an aquaculture facility or system(s) with water discharge(s) that does not connect in any way to the waters of the state prior to the discharged water being screened, filtered or percolated to prevent cultured aquatic stock from escaping.
“Cultured Aquatic Stock” means privately owned aquatic organisms, lawfully acquired, held and grown in a registered aquaculture facility.
“Department” means the Delaware Department of Agriculture.
“DNREC” means the Department of Natural Resources and Environmental Control.
“Authorized Employee or Representative” means any Department employee with a regulatory enforcement capacity or a ranking official instructed by the Secretary of the Department to act on its own behalf.
“Domesticated” means an animal or plant trained, adapted and/or bred to live in a human controlled environment.
“Fee Fishing” means hook and line fishing for cultured aquatic stock in a registered aquaculture facility upon payment of a fee.
“Fee Fishing Operation” means a registered aquaculture facility where for a fee, one may fish for cultured aquatic stock.
“Finfish”, “food fish”, “Game fish” and “Bait fish” mean those fish as defined in 7 Del.C. § 906.
“General Aquaculture Permit” means written authorization from DNREC to conduct aquaculture practices that do not require DNREC inspection.
“Native Species” means any species or hybrid thereof of any plant or animal, which naturally occurs in the waters of the state.
“Non-indigenous Species” means any species or hybrid thereof of any plant or animal that does not occur in the waters of the state.
“Naturalized Species” means any species or hybrid thereof of any plant or animal, which has been introduced to the waters of the state and has become established by reproducing in the waters of the state.
“Resident Species” means those species defined as "native" or "naturalized."
“Open System” means an aquaculture facility with a water discharge or discharges that connects to the waters of this state without being screened, filtered or percolated prior to discharge to prevent cultured aquatic stock from escaping.
“Registered Aquaculture Facility” means an aquaculture facility that has an aquaculture registration issued by the Department.
“Restricted Aquaculture Permit” means a written authorization from DNREC to conduct aquaculture that is subject to DNREC approval prior to receiving possession of aquatic organisms
“Shellfish” means any mollusca, crustacea, and chilcerata that includes oysters, clams, lobsters, mussels, whelks, crabs, shrimp and horseshoe crabs.
“Waters of the state” means all the tidal waters under the jurisdiction of the State of Delaware where the lunar tide regularly ebbs and flows and all non-tidal waters under the jurisdiction of the state except for waters contained in aquacultural facilities registered with the Department.
“Wild” means any animal or plant that is not trained, adapted and/or bred to live in a human controlled environment.
4.0 AQUACULTURE REGISTRATION
4.1 All aquaculturists with anticipated or realized gross annual revenues in excess of twenty-five hundred dollars ($2500.00) must register with the Department. Aquaculturists with lower rates of revenues may voluntarily register with the Department. Formal registration shall be on a form prescribed by the Department.
4.2 Aquaculturists that deal with species regulated by the DNREC (i.e., game fish) must obtain the appropriate possession permits from DNREC.
4.3 The aquarium industry is not governed by these regulations.
4.4 Neither the Department nor DNREC shall release any information other than names and addresses contained in the registration without the express permission of the registrant.
4.5 The Department may verify any information provided on the registration form.
4.6 Each registered aquaculture facility will be issued a number by the Department to be used as a reference for marketing and movement documents.
4.7 The initial terms of aquaculture registration shall be for 5 years from the date of the issue. The Department shall, unless due cause is shown, renew an approved aquaculture registration every five (5) years thereafter. The owner of an aquaculture facility shall notify the Department in the event of any change in ownership or a significant change in operation. A significant change in operation would be conversion to or from a closed to open system. A change in the type of cultured aquatic stock does not constitute a significant change but may require a change in the aquaculture permit. Normal maintenance of registered aquaculture facilities shall not be considered a significant change.
5.0 AQUACULTURE PERMITS
5.1 Permits shall be required for the propagation, production, harvest, possession, transport , and disposition of cultured aquatic stock, except for those unrestricted species described in Section 5.4 and any other species as may be specifically designated by DNREC. All permits shall be issued by the Department.
5.2 The Department shall provide copies of all aquaculture permits to DNREC.
5.3 On an annual basis, DNREC will provide to the Department a list of aquatic organisms with a designation as to the type of permit required for each, and an indication as to whether or not each shall be considered a resident species of the state.
5.3.1 Species not listed, all non-resident species, and all species which have not otherwise been provided for, shall be assumed to require a permit and the DNREC shall handle those species on a case-by-case basis.
5.3.2 Any changes in this list must take into account the crop cycle and allow for the grow-out and sale of existing cultured aquatic stock(s).
5.4 UNRESTRICTED SPECIES: Aquaculture facilities engaged with resident minnows and shiners, Cyprinidae (family); killifish, Fundulus spp; anchovy, Anchoa spp; sand lance, Ammodvtes spp; and mullet, Mugilidae (family) do not require an aquaculture permit from the DNREC. Non-resident species incapable of surviving in the waters of the state shall be listed in this category on a case-by-case basis.
5.5 GENERAL AQUACULTURE PERMIT: a general aquaculture permit is required by facilities engaged with culturing the following aquatic organisms; resident freshwater crayfish, black crappie pomoxis niqromaculatus: white crappie, Pomoxis annularis; striped bass, Morone saxatilis; black bass Micropterus spp; white perch, Morone americana; walleye, Stizostedion vitreum; northern pike, Esox lucius; chain pickerel, Esox niqer; Muskellunge, Esox masauinonqy; tiger muskellunge, Esox Licius x Esox masauinonqy; rock bass Ambloplites rupestris; salmon and trout except Pacific salmon, Salmonidae (family) (including rainbow trout Oncorhynchus mykiss, but no other Oncorhynchus spp.); sunfishes, Lepomis spp; channel catfish, Ictalurus punctatus; yellow perch, Perca flavescens: and other food fish included in Subsection 906(28), 7 Del. Code. Size limits and/or creel limits shall be waived. There will be no restrictions on their disposition, provided none are stocked into the waters of this state without approval from DNREC.
5.5.1 SPECIAL PROVISIONS: The Department and the DNREC in cooperation with representatives from the aquaculture industry shall develop a list of species including, at a minimum, rainbow trout, golden shiner, fathead minnow, channel catfish, bluegill and largemouth bass, which may be stocked in privately-owned ponds to support recreation without specific authorization from the DNREC.
5.6 RESTRICTED AQUACULTURE PERMIT: A restricted aquaculture permit is required to culture any aquatic organism(s) not specifically enumerated as species for which the general permit shall apply or for which no permit is required. Such permits, if and when used, may be subject to various restrictions, limitations, stipulations, special conditions, and guidelines, as the Department may deem appropriate in consultation with DNREC. The Department shall attempt to maintain a consistency of standards and restrictions among and within the permits issued to all facilities operating similar systems for particular species.
5.7 PROHIBITED SPECIES: The Department, in consultation with DNREC, may designate particular species of aquatic organisms as entirely prohibited for aquaculture.
6.0 STOCK CERTIFICATION AND FISH HEALTH
The Department of Agriculture in cooperation with the DNREC and representatives of the industry shall expedite the development of a list to designate aquaculture facilities and their stock as disease free. Once so identified and listed by the Department, shipments of cultured aquatic stock from such facilities shall be considered to have valid health certification. The Department shall review disease status annually by questionnaire and distribute revisions to Delaware aquaculturists as appropriate.
The Department shall also attempt to develop Memorandums of Understanding with other states, especially those adjacent to Delaware, to facilitate and simplify interstate shipment of cultured aquatic stock.
6.1 All shipments of cultured aquatic stock into the state shall be accompanied by documentation of origin, which describes the species involved, and the name and address of the original source. It must also include the name and address of additional premises where the shipment has been held for more than a twenty-four (24) hour period.
6.2 Certificates of health must be included when facilities at the point of origin for their procurement exist and their preparation is practical.
6.2.1 Shipments into the state, not accompanied by a certificate of health, require a written or oral authorization from the Department.
6.2.2 All incoming international shipments must be accompanied by a valid health certificate or be held in a Department approved closed system until the Delaware State Veterinarian authorizes its distribution.
6.3 As with other commodity groups, when the Delaware State Veterinarian is made aware of a particular disease condition affecting cultured aquatic stock, and the presence of which could have adverse effects on Delaware’s aquaculture species, he will, in a timely manner, alert Delaware aquaculturists by way of a memo or appearance at an industry group meeting.
6.4 Commercially grown aquacultural species in the State of Delaware are considered in the same class with livestock and poultry and, therefore, in the case of a serious contagious or infectious disease, would be subject to quarantine, testing or destruction under 3 Delaware Code Section 7107.
6.5 To the extent practical, species with demonstrated genetic characteristics inappropriate to Delaware should be prevented from entering the waters of the state. Specifically, striped bass from races, which have sinking eggs, should not be released into Delaware waters.
6.6 Section 7101 of Title 3 of the Delaware Code provides that the Department shall protect the health of the domestic animals of the state, and determine and employ the most efficient and practical means for detection, prevention, suppression, control or eradication of a dangerous, contagious, or infectious disease. It may establish, maintain, enforce, and regulate such quarantine and other measures relating to the movement and care of animals and their products, the disinfection of suspected localities and articles and the destruction of animals, as it deems necessary, and may adopt from time to time all such regulations as are necessary. In the case of a contagious disease, the Department or its authorized agent may put under quarantine the entire group containing the suspected or diseased individual or individuals. Any loss of cultured aquatic stock sustained by the aquaculturist due to inspection or condemnation by Department shall be reimbursed by the Department in accordance with 3 Del. C. § 7107.
Broodstock for aquaculture facilities may be obtained as follows:
7.1 By propagation of existing broodstock and maturation of the offspring.
7.2 By purchase from commercial source.
7.3 By legal sportfishing or commercial harvest methods authorized in the Delaware Code and DNREC regulations.
7.4 Through the use of a collecting permit issued by DNREC which authorizes the collecting of specified species by methods that otherwise would be illegal, in consideration of the broodstock availability needs of the aquaculture industry.
7.5 Broodstock acquired under Regulations 7.1 and 7.2 (above) may be bought sold, traded and transported at any time. Broodstock of wild game fish, as defined in 7 Del.C. § 906 obtained under Regulations 7.3 and 7.4 (above) must be marked (i.e., fin-clipped) upon capture and shall not be bartered, sold or traded. However, such broodfish may be transported out of state with written authorization from DNREC. Interstate transport or sale of commercially harvested wild food fish as broodstock may be permitted providing Department and DNREC are notified at least 48 hours in advance.
8.0 IDENTIFICATION AND CERTIFICATION
8.1 Except as provided in Section 4.0 above, any cultured aquatic stock that is being transported for sale or distribution shall be accompanied by a bill of sale or bill of lading or functional equivalent.
8.2 Any label, bill of sale or bill of lading shall contain the name and address of the receiver and the identify of the cultured aquatic stock by species, and to the extent that practically determined total weight or number.
8.3 Cultured aquatic stock being transported but not for sale or distribution shall be accompanied by a copy of the aquaculture registration issued by the Department.
8.4 Shipments of black bass must also include the facility of origin.
9.0 FEE FISHING
The owner(s) of a fee fishing operation must register as an aquaculture facility. Within a registered facility, it shall be lawful for any person to fish without being licensed to fish in this state. The fee fishing operation shall meet the following requirements, subject to inspection and approval by the Department prior to the Department’s approving the registration:
9.1 The fee fishing operation shall be a closed system.
9.2 The fee fishing operation shall not contain any wild Finfish.
10.1 When authorized by the owner of a fee fishing operation, it shall be lawful for a person to take and/or possess those species, or hybrids thereof, permitted by species name by the Department without regard to any seasonal restrictions, size limits or creel limits.
10.2 Unless otherwise authorized, it shall be unlawful for any person other than the facility operators to possess any cultured aquatic stock that remain alive after legally taking them from a fee fishing operation. Any person who lawfully takes and has fish in his possession from a fee fishing operation, registered as such with the Department, is exempt from any seasonal restrictions, size limits and/or creel limits on that particular species of fish, provided that the person has in his or her possession a valid receipt issued by the owner or owner’s agent of the fee fishing operation.
10.3 Any person in possession of cultured aquatic stock lawfully taken from a fee fishing operation shall be issued a receipt for same by the owner’s agent of that fee fishing operation. This receipt shall include the name and address of the fee fishing operation , the date the cultured aquatic stock was taken, the identification and number of each species of cultured aquatic stock taken, and the signature of the person to whom the receipt is issued. This receipt shall remain in the possession of the person who took the cultured aquatic stock from the fee fishing operation until that person enters his or her personal abode or temporary or transient place of lodging. The owner or owner’s agent of the fee fishing operation shall maintain a copy of each receipt for a period of to one year from the date of issuance.
11.0 INSPECTION OF PREMISS
11.1 Pursuant to 3 Del.C. § 407, any authorized employee of the Department after determining there is probable cause to believe that there has been a violation of these regulations or the Delaware Code, may do the following without first obtaining a search warrant:
11.1.1 Inspect, search and/or examine any registered aquaculture facility or vehicles on the premises in the presence of any operator(s) or occupant(s) of said facility or vehicles to determine compliance with Chapter 4 of Title 3 or any regulation promulgated by the Department.
11.2 Only reasonably foreseeable damages sustained by the Aquaculture facility due to inspections, searches, and/or examinations shall be reimbursed by the Department.
12.0 AQUACULTURE FACILITY PROTECTION
It shall be unlawful for any person, without the written consent of the owner, to remove, destroy or release cultured aquatic stock from a registered aquaculture facility or introduce any toxic substance directly or indirectly into the waters of a registered aquaculture facility. Fines and penalties for such acts will be those specified in Title 11 of the Delaware Code.
13.0 CIVIL PENALTIES
13.1 In addition to proceeding under any other remedy available by law or in equity for a violation of a provision of the Aquaculture Act or a rule or regulation adopted thereunder, or any order issued pursuant thereto, the Secretary of the Department may hold an administrative hearing for the purpose of determining whether or not there should be a suspension or revocation of the aquaculture registration issued by the Department.
13.1.1 The persons affected by such suspension or revocation may request a hearing before the Department.
13.1.2 A hearing shall be held within 30 days after the request.
13.1.3 Within 30 days after the hearing, the Department shall affirm, withdraw or modify its action by an order based upon the record of the hearing.
13.1.4 An appeal from that order may be taken to the Superior Court within 30 days from the date of the order.
13.1.5 Registration shall remain in effect until all such hearings or appeals have been completed.
13.1.6 If no request for a hearing is made within 30 days the order becomes effective.
13.2 Any person who interferes with the Department in the enforcement of these regulations as determined by an administrative hearing, may be assessed a civil fine of up to $500.
13.2.1 In determining the amount of the fine, the Secretary shall consider the gravity of the violation.
13.2.2 Whenever the Secretary finds the violation occurred despite the exercise of due care or did not cause significant harm to property or the environment, the Secretary may issue a warning in lieu of assessing a fine.
13.2.3 No civil fine shall be assessed unless the person(s) charged shall have been given notice and opportunity for a hearing.
13.3 If no violations are charged after an inspection or examination as herein provided, any loss of cultured aquatic stock or reasonably foreseeable damages to the aquaculture facility will be reimbursed by the Department.
13.4 All fines and penalties for violations of this subsection shall be paid to the Department and deposited in the general fund account.
13.5 In the case of the failure to pay civil fines, the Secretary shall refer the matter to the Attorney General’s Office of the State of Delaware for enforcement.
14.0 FUTURE CONSIDERATIONS
14.1 The Department, in consultation with the Delaware Aquaculture Council, may amend or adopt such rules and regulations as it deems advisable to aid in carrying out the purpose of these regulations and to facilitate their enforcement.
5 DE Reg. 1864 (04/01/02) (Prop.)