TITLE 7

Conservation

Shellfish

CHAPTER 19. GENERAL PROVISIONS


The following definitions shall apply to Chapters 19 through 28 inclusive of this title:

(1) "Bivalve shellfish" means any species of shellfish having 2 shells connected by a hinge.

(2) "Commercial purpose" means a person's intent to sell shellfisheries to another.

(3) "Crab pot" means a cube shaped wire device that contains opening or openings toward the inside for the entrance and capture of crabs without the assistance of any manually exerted tension to any closing mechanism.

(4) "Culled" means separated live shellfish from all other material and organisms.

(5) "Cultivation" means the process of preparing and/or improving shellfish grounds to foster the growth and survival of shellfish.

(6) "Delaware's Inland Bays" shall mean Rehoboth Bay, Indian River and Indian River Bay and Little Assawoman Bay and Big Assawoman Bay and their respective tributaries.

(7) "Department" means Department of Natural Resources and Environmental Control.

(8) "East line" means a political division of the Delaware Bay along a line running due east from the Port Mahon lighthouse (Delaware State Plan Coordinates: N431, 537.3600, E504, 396.9600).

(9) "Hand tongs" means any grasping device consisting of 2 pieces joined at 1 end of a pivot and manipulated by physical exertion of a person.

(10) "Market oysters" means oysters harvested for sale to another for consumption.

(11) "Mean high water" means the level of the water surface which is an average of the highest daily tides over a period of at least 29 days.

(12) "Mechanical device" means an apparatus operated by a machine used to take shellfish.

(13) "Natural oyster beds" means those shellfish grounds designated to be "natural oyster beds" by the Department.

(14) "Nonresident" means any person not an alien who has not continuously resided for 1 year within this State.

(15) "Patent tongs" means any grasping device consisting of 2 pieces joined at 1 end by a pivot and raised with a rope, cable or other hoisting device used to take shellfish.

(16) "Person" means a human being.

(17) "Public tonging area" means any shellfish ground designated by the Department to be used for the tonging of oysters in areas exclusive of Delaware's Inland Bays.

(18) "Resident" means any person not an alien who has continuously resided 1 year or more within this State.

(19) "Secretary" means the Secretary of the Department of Natural Resources and Environmental Control or a duly authorized designee provided any such delegation of authority is consistent with Chapter 80 of Title 29.

(20) "Shellfish" means any mollusca, crustacea and chelicerata that includes oysters, clams, lobsters, mussels, whelks, bay scallops, crabs, shrimp and horseshoe crabs.

(21) "Shellfishing" means to attempt to take, catch, kill or reduce to possession any shellfish by any means whatsoever.

(22) "Shellfish aquaculture" means the culture or rearing of any life stage of bivalve shellfish for commercial purposes within an area leased for that purpose. Within the leased area, said shellfish may be reared in an artificial enclosure, or on any other type of structure or substrate, either on land or in the water.

(23) "Shellfish grounds" means the submerged lands of the rivers, bays and oceans sustaining or capable of sustaining shellfish under the jurisdiction of the State.

(24) "Spat" means immature oysters.

60 Del. Laws, c. 513, § 2; 64 Del. Laws, c. 243, § 1; 67 Del. Laws, c. 194, §§ 2, 3; 68 Del. Laws, c. 33, § 1; 69 Del. Laws, c. 284, § 1; 70 Del. Laws, c. 186, § 1; 79 Del. Laws, c. 178, § 2.;

(a) The Department shall have control and direction of the shellfish industry and of the protection of shellfish resources throughout this State. The Department may adopt, promulgate, amend and repeal regulations consistent with the law, which shall be enforced by the Department or any peace officers for the following purposes:

(1) To preserve and improve the shellfish industry of this State;

(2) To prevent and control the spread of shellfish-borne diseases by providing for the sanitary harvesting, handling, transportation, processing, production and sale of shellfish;

(3) To regulate, inspect and approve any vessel or equipment used in the shellfish industry in this State;

(4) To provide for the issuance of licenses or leases to persons engaged in the shellfish industry in this State and for the revocation for cause of such licenses or leases;

(5) To provide for the preservation and improvement of the shellfish resources of this State, when deemed necessary.

(b) The regulations of the Department shall have the force and effect of law and shall supersede all local ordinances and regulations enacted or adopted which are inconsistent therewith.

(c) For the purpose of enforcing the marine fisheries laws on the waters under the jurisdiction of the State, the Department shall keep and maintain suitable vessels to patrol these waters. The patrol vessel shall be subject to call at all times to enforce the marine fisheries laws of the State. On board the patrol boats shall be kept log books in which shall be recorded the daily activities of all the functions performed on any work day.

7 Del. C. 1953, § 1907; 51 Del. Laws, c. 151, § 1; 57 Del. Laws, c. 739, §§ 91, 92; 60 Del. Laws, c. 513, § 2; 70 Del. Laws, c. 588, § 1; 79 Del. Laws, c. 178, § 2.;

A copy of the regulations adopted pursuant to this chapter and any amendments thereto shall be filed in the office of the Secretary of State. The regulations of the Department shall be published by the Department in convenient form and distributed to or made available to all persons shellfishing in Delaware who request this information.

7 Del. C. 1953, § 1907; 51 Del. Laws, c. 151, § 1; 57 Del. Laws, c. 739, §§ 91, 92; 60 Del. Laws, c. 513, § 2.;

(a) It shall be unlawful to take any shellfish from any waters or shellfish grounds of this State unless specifically authorized by statute or regulation.

(b) Except on leased shellfish aquaculture sites, it is unlawful to take or attempt to take shellfish, except crabs, conchs (whelks) and clams, for commercial purposes on Sundays, provided however, that clams may not be taken for commercial purposes on any Sunday between and including this State's designated Memorial Day and Labor Day, next ensuing.

(c) It shall be unlawful to take shellfish for commercial purposes between sunset and sunrise, except a commercial crab pot licensee or a commercial conch pot licensee may take blue crabs or conchs, respectively, 1 hour before sunrise.

60 Del. Laws, c. 513, § 2; 67 Del. Laws, c. 2, § 1; 67 Del. Laws, c. 194, § 4; 68 Del. Laws, c. 412, §§ 1, 2; 69 Del. Laws, c. 284, §§ 2, 3; 79 Del. Laws, c. 178, § 2.;

(a) Authorized lease of shellfish grounds. — The Department is hereby authorized to lease, in the name of the State, tracts or parcels of shellfish grounds to be used for protecting, planting and harvesting shellfish beneath the waters of this State, subject to the provisions, limitations and restrictions set forth herein.

(b) Shellfish grounds not leasable. — No lease, other than a scientific lease, shall be granted for any of the following shellfish grounds of this State, nor shall any person acquire by lease, assignment, appropriation or otherwise any of the following shellfish grounds:

(1) Except in the case of shellfish aquaculture in Delaware's Inland Bays, shellfish grounds within 1,000 feet of the natural shoreline (mean high water) of any waters under the jurisdiction of the State;

(2) Natural oyster beds;

(3) Any leasing of shellfish aquaculture grounds in Delaware's Inland Bays shall be governed by a separate chapter.

(c) Scientific use of shellfish grounds. — The Secretary is hereby authorized to issue a permit in the name of the State to educational and/or scientific institutions for tracts or parcels of shellfish grounds to be used for scientific and/or management purposes determined by the Secretary to be in the best interests of shellfisheries management. Such permit shall contain at least the following information and criteria: Seasonal dates, seasonal harvest, size limits and the reason for the issuance of the permit. The cost of processing shall be paid by the applicant.

7 Del. C. 1953, § 1908; 51 Del. Laws, c. 151, § 1; 57 Del. Laws, c. 640; 57 Del. Laws, c. 739, § 93; 58 Del. Laws, c. 107, § 1; 60 Del. Laws, c. 513, § 2; 79 Del. Laws, c. 178, § 2.;

(a) Except in the case of shellfish aquaculture leases on Delaware's Inland Bays, no new shellfish grounds shall be leased to any person in tracts consisting of less than 50 or more than 100 acres. All new leases will be in a general rectangular shape. The restriction contained in this subsection shall not apply to those leases granted for scientific purposes as described in § 1905(c) of this title.

(b) Except in the case of shellfish aquaculture leases on Delaware's Inland Bays, the Department shall annually advertise the general locations of shellfish grounds which may be leased and are not currently subject to a valid lease. Such advertisements shall be in 1 daily newspaper of statewide distribution and shall be published on 2 separate occasions at least 30 days apart between January 1 and March 1 of each calendar year. Upon specific request, the Department shall furnish a more detailed description of the specific shell-lands available for lease.

(c) Except in the case of shellfish aquaculture leases on Delaware's Inland Bays, any person wishing to lease shellfish grounds in accordance with this section shall make application to the Department prior to March 15 on the form which shall be provided by the Department. Each application must be complete. The Department may require additional and/or supplemental information if deemed necessary.

(d) Except in the case of shellfish aquaculture leases on Delaware's Inland Bays, in the event that more than 1 application is received for the same grounds, the grounds will be leased on a competitive sealed bid over and above the base fee for the first year.

60 Del. Laws, c. 513, § 2; 79 Del. Laws, c. 178, § 2.;

(a) Except in the case of shellfish aquaculture in Delaware's Inland Bays, the Department shall charge $0.90 per acre annually for shellfish grounds leased pursuant to this chapter to a resident of the State.

(b) Except in the case of shellfish aquaculture in Delaware's Inland Bays, the Department shall charge $11.50 per acre annually for new shellfish grounds leased pursuant to this chapter to nonresidents.

(c) Except in the case of shellfish aquaculture in Delaware's Inland Bays, the Department shall charge $1.75 per acre annually for shellfish grounds to nonresidents who hold valid leases at the time of adoption of this chapter.

(d) Except in the case of shellfish aquaculture in Delaware's Inland Bays, in addition to the above application fee for a shellfish ground lease, there will be an additional charge of $17.25 per corner within 60 days of the approval and acceptance of a lease. The Department will inspect all corners for said leased grounds and where necessary will assist in the relocation of buoys to their correct location. All corners will be located in accordance with the lease as filed with the Department.

7 Del. C. 1953, § 1908; 51 Del. Laws, c. 151, § 1; 57 Del. Laws, c. 640; 57 Del. Laws, c. 739, § 93; 58 Del. Laws, c. 107, § 1; 60 Del. Laws, c. 513, § 2; 67 Del. Laws, c. 260, § 1; 79 Del. Laws, c. 178, § 2.;

(a) Except in the case of Delaware's Inland Bays, all shellfish leases shall begin on January 1 and end December 31 of the same year. In no case shall a shellfish lease be transferred or subleased, except to a person eligible according to this chapter.

(b) Upon Department approval, a lease will be drawn up and executed by the Secretary and the applicant. Said lease shall be recorded with the Department and shall grant the exclusive shellfishing rights of those shellfish grounds to the lessee.

7 Del. C. 1953, § 1908; 51 Del. Laws, c. 151, § 1; 57 Del. Laws, c. 640; 57 Del. Laws, c. 739, § 93; 58 Del. Laws, c. 107, § 1; 60 Del. Laws, c. 513, § 2; 71 Del. Laws, c. 245, § 1; 79 Del. Laws, c. 178, § 2.;

(a) Except in the case of shellfish aquaculture leases on Delaware's Inland Bays, upon approval of the application, the successful applicant will, within 30 days after location of the corners by the Department, mark all corners of the area leased with buoys or stakes approved by the Department. Such buoys or stakes shall, in addition to other requirements of the Department, extend vertically at least 6 feet above mean high water.

(b) Except in the case of shellfish aquaculture leases on Delaware's Inland Bays, any buoys, or stakes removed, destroyed or broken in such a manner that said buoys or stakes are less than 6 feet above mean high water shall be replaced with a positive flotation buoy within 5 days and subsequently a buoy or stake extending 6 feet above mean high water within 30 days.

7 Del. C. 1953, § 1908; 51 Del. Laws, c. 151, § 1; 57 Del. Laws, c. 640; 57 Del. Laws, c. 739, § 93; 58 Del. Laws, c. 107, § 1; 60 Del. Laws, c. 513, § 2; 79 Del. Laws, c. 178, § 2.;

Except in the case of shellfish aquaculture in Delaware's Inland Bays, any person issued a commercial shellfishing license or permit by the Department shall file monthly reports of his or her catch by area, effort, species, and weight or number on forms provided by the Department. A commercial shellfishing license or permit holder who does not file said monthly report by 4:30 p.m. of the last working day of the month following the month for which the report is due may for the first failure to file be given a warning, for the second failure to file may have his or her commercial shellfishing license or permit suspended by the Secretary for a period of up to 30 days or until such time as the report is filed, whichever occurs sooner, and for a third or subsequent failure to file may have his or her commercial shellfishing license or permit revoked by the Secretary until such time when all reporting requirements are fulfilled in a manner acceptable to the Secretary.

7 Del. C. 1953, § 1908; 51 Del. Laws, c. 151, § 1; 57 Del. Laws, c. 640; 57 Del. Laws, c. 739, § 93; 58 Del. Laws, c. 107, § 1; 60 Del. Laws, c. 513, § 2; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 436, §§ 1-3; 79 Del. Laws, c. 178, § 2.;

(a) It shall be unlawful for any person to take, carry away or remove shellfish or equipment from shellfish grounds leased, pursuant to this chapter, to a person other than himself or herself. If convicted, said person shall be guilty of grand or petty larceny according to the value of shellfish or equipment in question.

(b) For the purpose of determining the value of shellfish unlawfully removed, all shellfish found on board a vessel utilized in the removal of shellfish from grounds leased to another shall be presumed to have been unlawfully removed from those leased grounds.

(c) Any vessel on or over grounds leased to another shall be presumed to be removing shellfish from those grounds if that vessel has overboard at that time any device used for the taking of shellfish.

60 Del. Laws, c. 513, § 2; 70 Del. Laws, c. 186, § 1.;

(a) Any person who violates any of the provisions of Chapters 19, 21, 23, 24, 25 and 28 of this title, except §§ 1910, 1911, 2306, 2506, 2509 of this title, or any rules or regulations adopted pursuant thereto except those adopted under the auspices of Chapter 20 of this title, shall be fined $25 for the first offense and $100 for each offense thereafter. Magistrates shall have jurisdiction over all offenses under this section.

(b) Any person convicted of violating any of the provisions of Chapters 19, 21, 23, 24, 25, 26 and 28 of this title, or any rules or regulations adopted pursuant thereto, may have, upon the recommendation to the Secretary by the majority of the Council on Shellfisheries and/or at the discretion of the Secretary, any licenses or permits issued to the person revoked for a term to be determined by the Department.

60 Del. Laws, c. 513, § 2; 69 Del. Laws, c. 284, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 73, §§ 1, 2; 73 Del. Laws, c. 132, § 2; 79 Del. Laws, c. 178, § 2.;

(a) Any employee, authorized by the Department, at a reasonable time may board any boat, inspect equipment, materials or shellfish, or lands associated with or used in the taking or cultivation of shellfish.

(b) The Department may seize any shellfish or equipment as evidence which is believed to be in violation of or is being used by a violator of Chapters 19 through 28 of this title or the regulations promulgated pursuant thereto. Seized equipment, at the discretion of the Department, may be released upon the posting of a bond, the value of which shall be determined by the magistrate.

60 Del. Laws, c. 513, § 2; 69 Del. Laws, c. 284, § 1.;

In the event that any shellfish are seized as evidence as a result of an investigation or an arrest for any violation of the statutes or regulations governing shellfish in the State, said shellfish shall be disposed of as deemed appropriate by the Department.

60 Del. Laws, c. 513, § 2.;

In the event a person with a commercial shellfishing license is disabled and unable to perform the physical requirements necessary to harvest, transport and/or market shellfish for which he or she is licensed to harvest, said person may be issued a written permit by the Department authorizing a member of said person's immediate family, as defined in § 1918(c) of this title to assist said person or perform in place of said person the harvesting, transporting and marketing of the shellfish for a period or periods not exceeding a total of 24 months. The duration and nature of the disability shall be specified in writing by a medical physician licensed to practice in the State. The 24 months may be continuous or fragmented. For purposes of this section, the term "disabled" shall mean a person, certified in writing by a licensed medical physician in Delaware, to be temporarily unable to perform the substantial and material duties associated with the harvesting, transporting or marketing of the shellfish in question based upon medical evidence.

73 Del. Laws, c. 28, § 1; 70 Del. Laws, c. 186, § 1.;

All licenses and permits issued pursuant to Chapters 21 through 28 of this title shall automatically expire on December 31 of each calendar year.

7 Del. C. 1953, § 1906; 51 Del. Laws, c. 151, § 1; 57 Del. Laws, c. 739, § 89; 60 Del. Laws, c. 513, § 2; 69 Del. Laws, c. 284, § 1; 71 Del. Laws, c. 245, § 3.;

(a) This section applies to this title.

(b) When by or pursuant to the laws of any other state, should any other state impose any tax, other fee or restrictions on nonresidents for the privilege of commercial shellfishing or leasing of shellfish grounds within its boundaries, which tax or other fee is in the aggregate greater or restriction is greater, to include but limited to the nonavailability of license or leasing for nonresidents, the same taxes, other fees, license requirements and restrictions shall be imposed by the Division of Fish and Wildlife of the Department of Natural Resources and Environmental Control upon the residents of the state who seek to apply for a license to commercially shellfish or lease shellfish grounds within the boundaries of this State.

60 Del. Laws, c. 513, § 2.;

(a) Notwithstanding the provisions of § 2303 of this title, the Department shall not issue any commercial crab pot license to any new licensee after March 13, 1990, and shall not issue crab pot licenses to any new licensee until the number of commercial crab pot licenses drops to 82 or below as of October 31 of any year. At that time, a lottery will be held by the Department to allow the number of commercial crab pot licenses to increase to 100.

(b) Notwithstanding the provisions of § 2307 of this title, the Department shall not issue any crab dredgers licenses to any new licensee after March 13, 1990, and shall not issue crab dredgers licenses to any new licensee until the number of crab dredgers licenses drops to 18 or below as of March 31 of any year. At that time, a lottery will be held by the Department to allow the number of crab dredgers licenses to increase to 21.

(c) A commercial crab pot licensee or crab dredgers licensee may transfer a license at any time, including posthumously, to a member of the immediate family. A member of the immediate family shall mean a parent, child, sibling or spouse. A commercial crab pot licensee also may transfer a license, including posthumously, to a designee provided the designee has been listed as same on the license for at least 2 consecutive years. The transfer of the appropriate license shall be in writing.

(d) Notwithstanding subsection (c) of this section, no license shall be transferred to any person under 16 years of age.

(e) An active commercial fisher with a commercial crab dredger's license may transfer his or her license to a commercial fishing apprentice who has completed no less than 150 days of commercial fishing activities over no less than a 2-year period.

67 Del. Laws, c. 194, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 216, §§ 1, 2; 73 Del. Laws, c. 29, § 5; 78 Del. Laws, c. 42, §§ 1-3.;

Repealed by 73 Del. Laws, c. 29, § 6, effective May 3, 2001.;

An individual at least 16 years of age may enter into an agreement with an active commercial fisher licensed by the Department to serve as a commercial fishing apprentice to said commercial fisher. This agreement shall be in writing on a form provided by the Department and filed with the Department. In the event an agreement is cancelled by either party, the Department shall credit an apprentice with time served and said time shall be retained if the apprentice signs an agreement with another active commercial fisher. An apprentice shall not enter into an agreement with more than 1 active commercial fisher at any 1 time and an active commercial fisher shall not enter into an agreement with more than 1 apprentice at any 1 time. An apprentice must compete no less than 150 days of commercial fishing activities over no less than a 2-year period to be eligible for the transfer or enter lotteries for certain commercial fishing licenses. Eight hours of commercial fishing activities shall equal 1 day. Commercial fishing activities shall include fishing, operating a vessel, maintaining fishing equipment or a vessel, handling and transporting fish for sale, or other activities directly associated with a commercial fishery. Fishing activities shall be documented on a daily log form provided by the Department. Said logs shall be signed by the apprentice and the commercial fisher listed on the agreement and witnessed by another commercial fisher licensed by the Department. Log sheets shall be submitted to the Department on a monthly basis on or before the tenth day of the following month. An apprentice who completes no less than 150 days of commercial fishing activities over no less than a 2-year period shall be eligible for the following:

(1) Commercial crab dredgers license transferred by another active commercial crab dredger;

(2) Commercial conch pot license transferred by another active commercial conch potter;

(3) Commercial conch dredge license transferred by another active commercial conch dredger;

(4) Commercial crab pot license transferred by another active commercial crab potter;

(5) Oyster harvesting license transferred from another active oyster harvester;

(6) Commercial clam tong/rake license transferred from another active commercial clam tong/raker;

(7) Commercial dredge clam license transferred from another active commercial clam dredger;

(8) Commercial lobster pot license transferred from another active commercial lobster potter;

(9) Commercial surf clam license transferred from another active commercial surf clammer;

(10) Commercial horseshoe crab collecting permit transferred from another active horseshoe crab collector;

(11) Participation in lotteries conducted by the Department for commercial crab dredgers licenses, commercial conch pot licenses and commercial conch dredge licenses; and

(12) Commercial food fishing equipment permits for gill nets and authority to commercially fish with hook and line according to the provisions of § 915(n) of this title.

If, during the previous calendar year, fewer commercial crab dredgers licenses are issued than in 1999, the Department shall conduct a lottery for the number of said licenses different from the number issued in 1999 and the previous year. In 1999, the Department issued 52 commercial conch pot licenses. If during the previous calendar year, fewer commercial conch dredge licenses are issued than in 1999, the Department shall conduct a lottery for the number of said licenses different from the number issued in 1999 and the previous year. In 1999, the Department issued 15 conch dredge licenses.

73 Del. Laws, c. 29, § 7; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 49, § 1; 79 Del. Laws, c. 178, § 2.;