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 sections: 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 January 15, 2002 at 1:00 p.m. at the Delaware Department of Agriculture Building, Veterinarians office. Comments may be submitted in writing to Bruce Walton on or before 1:00 p.m. on January 15, 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.
1.1 These regulations are promulgated under the authority of 3 Del.C. §407.
2.1 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 indigenous 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.
"Aquaculturists" 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 capable of holding and/or 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 that stage of its life.
"Aquaculture Registration" means the formal registration by application to the Department of Agriculture of an aquaculture facility by a person, 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 with discharges that do not connect in any way to the waters of the State prior to filtration or percolation in order 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" (DDA) means the Delaware Department of Agricultire or its authorized representative.
“DNREC” means the Department of Natural Resources and Emvironmental Control.
"Domesticated" means to be trained, adapted and/or bred to live in a human controlled environment and be of use to man.
"Fee Fishing" means removing cultured aquatic stock from a registered aquaculture facility in a sportsman-like manner for payment of a fee.
"Fee Fishing Operation" means a registered aquaculture facility where a person may fish for cultured aquatic stock for a fee.
"Finfish", "Food fish", "Game fish" and "Bait fish" mean those animals so defined in Chapter 906, Title 7, Delaware Code Annotated.
"General Aquaculture Permit" means written authorization from DNREC to conduct aquaculture that is not subject to DNREC inspection and approval prior to receiving possession of aquatic organisms subject to permit.
"Native Species" means any species or hybrid thereof of any plant or animal that naturally occurs in the waters of the State.
"Non-Native Species" means any species or hybrid thereof of any plant or animal that does not occur naturally 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 this State and has become established by reproducing in the Waters of this State.
"Open System" means an aquaculture facility with a water discharge(s) 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 a valid aquaculture registration issued by the Department of Agriculture.
"Restricted Aquaculture Permit" means written authorization from DNREC to conduct aquaculture that is subject to DNREC inspection and approval prior to receiving possession of aquatic organisms subject to permit.
“Shellfish” means any molluska, 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 where the lunar tide regularly ebbs and flows and all non-tidal waters under the jurisdiction of this State except for man made ponds where there is no natural outlet of water to any ditch, stream, river, etc. that eventually may lead to tidal water. Waters in aquacultural facilities are not included.
"Wild' means an 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 producers of cultured aquatic stock with an anticipated or realized gross annual revenue in excess of $2,500 must register with the Department of Agriculture. Producers with lower rates of revenue that deal with species regulated by the Department of Natural Resources and Environmental Control (i.e., game fish in a fee fishing operation) must register with the Department of Agriculture and obtain the appropriate possession permits from DNREC.
4.2 The registration of all qualifying aquaculture facilities will allow the Department to generate and maintain a list of all active aquaculture facilities in the state as prescribed by the Delaware Aquaculture Act.
5.0 General Aquaculture Permit
5.1 The Department of Agriculture will prepare a list, and update it yearly, listing those commonly kept aquaculture species for which permits are not needed and those species which require additional permits from DNREC. Requests for propagation of other species will be handled on a case by case basis by DNREC.
5.2 DNREC shall issue a general aquaculture permit for the propagation, production, possession and disposition of cultured aquatic stock, including Black crappie, Pomoxis nigromaculatus: white crappie, Pomoxis annularis; striped bass, Morone saxatilis; white perch, Morone americana; walleye, Stizostedion vitreum; northern pike, Esox lucius; chain pickerel, Esox niger; Muskellunge, Esox masquinongy; tiger muskellunge, Esox lucius x Esox masquinongy; 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 7 Del.C. §906(28). 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. Upon registering a facility culturing of these species, the registrant will be supplied a general aquacultural permit by DDA.
6.0 Restricted Aquaculture Permits
6.1 The possession and disposition of certain species, those listed in Section 5.0 , are strictly regulated under these regulations. When a facility is to be used to grow restricted species it then must have DNREC approval.
6.2 Any aquaculture facility involving shellfish shall contact the Department of Natural Resources and Environmental Control, Fisheries Section, for pertinent regulations for shellfish culture.
6.3 All non-native species of shellfish and Finfish capable of surviving in the waters of the State may be imported into the State provided prior written authorization is granted by DNREC.
6.4 Finfish or shellfish may be added to or deleted from the restricted species categories by mutual consent of Department of Agriculture and DNREC.
6.5 Prohibited Species
6.5.1 DNREC shall not issue any aquaculture permits for walking catfish, Clarias batrachus.
6.6 Restricted Species
6.6.1 Black bass - Micropterus spp.
18.104.22.168 No wild black bass shall in any way be made part of, or used for, an aquaculture facility or co-mingled with any domesticated black bass raised in an aquaculture facility except as authorized under Section 8.0, Broodstock, of these regulations.
22.214.171.124 Any black bass sold by an aquaculturist would have to be accompanied by a manifest which indicates where the black bass were reared, the size and number of black bass contained in the shipment and the buyer of the black bass.
126.96.36.199 The sale of Large and Smallmouth bass for any purpose, including, but not limited to, stocking or consumption, shall be legal for any registered and permitted aquaculture operation.
6.6.2 Grass Carp - Ctenopharynadom idella
188.8.131.52 A certificate of triploidy from the U.S. Fish and Wildlife Service is required from their authorized point of origin. An Aquacultural facility must be a closed system approved by DNREC and any distribution for stocking in this State must have site approval in advance by DNREC.
6.6.3 Hybrid striped bass - Morone saxatilis x Morone-spp.
184.108.40.206 Size limits and/or creel limits shall be waived. An aquacultural facility must be a DNREC approved closed system. There are no restrictions on their disposition except they may not be released into any open system.
6.6.4 Eels - Anquilla rostrata
220.127.116.11 Eels are restricted until a fishery management plan for eels is approved by the Atlantic States Marine Fisheries Commission. Eels less than six (6) inches in length shall not be in an aquacultural facility unless documentation of their origin is approved by DNREC.
6.6.5 DNREC and the DDA shall provide copies of all aquacultural permits and registrations to each other.
6.7 Unrestricted Species
6.7.1 Minnows and shiners, Cyprinidae (family); killifish, Fundulus spp.; anchovy, Anchoa spp.; sand lance, Ammodytes spp-; mullet, Mugilidae (family); do not require an aquaculture permit from DNREC.
7.0 Stock Certification Fish Health
7.1 All non-aquarium trade 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 hour period. Certificates of health must also be included when local facilities for their procurement exist and their preparation is practical. If a shipment will not be accompanied by a certificate of health, before shipment enters the State a written or oral authorization must be obtained from the Department of Agriculture. All incoming international shipments must be accompanied by a valid health certificate or be held in a Department of Agriculture approved closed system until the State Veterinarian is satisfied of the shipment's health status and authorizes its distribution.
7.1.1 As with other commodity groups, when the 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 aquaculture species, he will, in a timely manner, alert Delaware aquaculturists by way of a memo or appearance at an industry group meeting.
7.1.2 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 Del.C. §7107.
7.2 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.
8.1 Broodstock for aquaculture facilities may be obtained as follows:
8.1.1 By propagation of existing broodstock and maturation of the offspring.
8.1.2 By purchase from a legal aquaculture facility.
8.1.3 By legal sportfishing or commercial harvest methods authorized in the Delaware Code and DNREC regulations.
8.1.4 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.
8.1.5 Broodstock acquired under 8.1.1 and 8.1.2 above may be bought, sold, traded and transported at any time as stated in 7.0 Fish Health. Wild game fish, as defined in 7 Del.C. § 906 (3) obtained under 8.1.3 and 8.1.4 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 DDA and DNREC are notified at least 48 hours in advance.
9.0 Identification and Certification
9.1 Except as provided in Section 6.0 above, any aquatic organisms that have been produced in aquacultural facilities and are being transported for sale or distribution to another shall be accompanied by a bill of sale or bill of lading. Any aquatic organisms being transported by, or for, an aquaculturist and not for sale or distribution to another shall be accompanied by a copy of the valid aquacultural permit issued by DNREC.
9.2 Any label, bill of sale or bill of lading shall contain the name and address of the receiver and the identity of the aquatic organisms by species, total weight or number.
10.0 Inspection of Premises
10.1 Upon the proper completion of the Department's Aquaculture Registration Application, and verification of approval of all, if any, requirements from the Department of Natural Resources and Environmental Control, an appointment will be made with the aquaculturist for an on-site visitation by a representative of The Department. Department personnel may inspect any aquacultural facility for verification of registration.
10.2 It will be illegal to begin aquaculture operation without being inspected by the Department of Agriculture. The registration shall be signed by the owner, agreeing to abide by the aquaculture regulations and signed by a Department representative certifying the facility as having met the requirements of all applicable laws and regulations. The registration will be valid for 5years. The owner of an aquaculture facility shall renew the registration of the facility in the event of any change in ownership or a significant change in operations, such as change in genus or type of system.
10.3 Each registered Aquaculture facility will be issued a number by the DDA to be used as a reference to marketing and movement documents.
10.4 At any time during the five year period for which a facility is registered, any authorized employee of the Department, after determining there is probable cause that there has been a violation of the laws or regulations pertaining to aquaculture facilities, may at any reasonable time, re-inspect the facility. During the re-inspection the Department's representative may search and/or examine the aquaculture facility in the presence of any occupant to determine compliance with the provisions of the Delaware Aquaculture Act, as well as any ensuing regulations.
11.1 The DNREC and the DDA shall have joint responsibility to develop a practical enforcement policy to protect cultured aquatic stock from theft and to minimize the poaching of any wild fishes by, or on behalf of aquaculturists.
11.2 3 Del.C. §7101 states the Department of Agriculture shall protect the health of domestic animals of the state, and determine and employ the most efficient and practical means for the 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 DDA or its authorized agents may put under quarantine the entire group containing the suspected or diseased individual or individuals.
11.3 A person affected by any of the above actions may request a hearing before the Department. The hearing shall be informal, and the technical rules of evidence shall not apply. A hearing shall be held within 30 days after the request. 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. An appeal from that order may be taken to the Superior Court within 30 days. All fines and penalties for violations of this subsection shall be paid to the Department and deposited in the General Fund account of the State.
12.0 Future Considerations
12.1 The Department of Agriculture may amend and make such rules and regulations as it deems advisable to aid in carrying out the purposes of these regulations and relative to the enforcement thereof.
13.0 Fee Fishing
13.1 The owner(s) of a fee fishing operation must apply to the Department to register that operation as an aquaculture facility. Within such a facility, registered as a fee fishing operation with the Department, it shall be lawful for any person to fish, without being licensed to fish in this State. The fee fishing operation shall meet with the following requirements, subject to inspection and approval by the Department of Natural Resources and Environmental Control, prior to the Department's approving the registration:
13.1.1 The fee fishing operation shall be a closed system.
13.1.2 The fee fishing operation shall not contain any wild Finfish.
13.2.1 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 DNREC without regard to any seasonal restrictions, size limits or creel limits.
13.2.2 Unless otherwise authorized, it shall be unlawful for any person 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 person has in his possession a valid receipt issued by the owner or the owner's agent of the fee fishing operation.
13.2.3 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 or 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 up to one year from the date of issuance.
14.0 Aquaculture Facility Protection
14.1 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.
15.0 Civil Penalties
15.1 In addition to proceeding under any other remedy available by law or in equity for a violation of a provision of this act or a rule or regulation adopted thereunder, or any order issued pursuant to, the Secretary of the Department may hold an administrative hearing for the purpose of determining whether or not there should be a revocation of the aquaculture registration number issued by the Department.
15.2 No civil penalty shall be assessed unless the person charged shall have been given notice and opportunity for a hearing on such charge.
15.3 Any person who interferes with the Department of Agriculture in the enforcement of these regulations as determined by an administrative hearing, shall be assessed a civil penalty of up to $500. In determining the amount of the penalty, the Secretary of the Department shall consider the appropriateness of such penalty to the gravity of the violation. 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 penalty.
15.4 In cases of inability to collect such civil penalty or failure of any person to pay all, or such portion of such penalty as the Secretary may determine, the Secretary shall refer the matter to the Attorney Generals Office of the State of Delaware who shall recover such amount by action in the appropriate court.
5 DE Reg. 1242 (12/01/01) (Prop.)