TITLE 7

Conservation

Shellfish

CHAPTER 20. 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) "Certified dealer" shall mean anyone who is certified by the Department as being qualified to sell shellfish products.

(3) "Delaware corporation" shall mean a corporation or other legal entity whose ownership or Board of Directors is comprised of 50% or more Delaware residents. If fewer than 50% of the ownership or Board of Directors of a corporation is comprised of Delaware residents, then the corporation shall be considered a nonresident corporation.

(4) "Delaware partnership" shall mean a partnership comprised of at least 50% Delaware residents. If fewer than 50% of a partnership is comprised of Delaware residents, then the partnership shall be considered a nonresident partnership.

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

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

(7) "Handle shellfish" shall mean to take ownership either temporarily or permanently of a shellfish aquaculture product.

(8) "Off-bottom rearing cages and enclosures" mean any cage or artificial enclosure that retains for rearing purposes any stage of the life cycle of bivalve shellfish where such cage or enclosure is staked on or suspended above the bottom of the bay or tributary to the bay.

(9) "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.

(10) "Seed-on-cultch" shall mean bivalve shellfish seed attached to shell material.

(11) "Seed stock" shall mean immature or sub-legal stages of shellfish available for culturing or planting purposes.

(12) "Shellfish aquaculture" means the culture or rearing of any life stage of bivalve shellfish for commercial purposes within a leased area. 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 water.

(13) "Shellfish grounds" for the purposes of this chapter means the submerged lands of Delaware's Inland Bays and their tributaries capable of sustaining shellfish under the jurisdiction of the State.

79 Del. Laws, c. 178, § 3.;

(a) The Department is authorized to adopt, promulgate, amend and repeal regulations consistent with Titles 7 and 29 which shall be enforced by the Department for the following purposes:

(1) To issue and administer leases, licenses, and permits to engage in shellfish aquaculture and to amend or revoke said leases, licenses or permits for due cause;

(2) To identify areas where shellfish aquaculture leases may be established that are compatible with commercial and recreational finfishing and shellfishing, boating navigation and safety, public water access and use, and native biota. In no cases shall the sum total of areas identified for shellfish aquaculture leasing in Rehoboth Bay and Indian River Bay exceed 5% of their respective total subaqueous lands in each bay at mean high water and no more than 10% of the total subaqueous lands of Little Assawoman Bay at mean high water.

(3) To add acreage for shellfish aquaculture from areas not identified by the Department as long as all state and federal criteria for leasing are met and the percentage of subaqueous bottom available for leasing in each inland bay as detailed in paragraph (a)(2) of this section is not exceeded.

(4) To inspect and approve vessels and equipment intended to be used in Inland Bays waterways in support of the shellfish aquaculture industry;

(5) To attempt to prevent and control the spread of shellfish-borne diseases among both shellfish aquaculture products as well as wild shellfish and to provide for the sanitary harvesting, handling, transportation, processing, production and sale of shellfish aquaculture products and wild shellfish;

(6) To inspect and approve the importation of any live or dead shellfish and/or seed-on-cultch material to be used for shellfish aquaculture purposes conducted in or on waters of Delaware's Inland Bays or having a discharge into waters of Delaware's Inland Bays;

(7) To provide for the conservation, preservation and improvement of the wild shellfish resources of the Inland Bays or their tributaries when deemed necessary;

(8) To set criteria for the approval or denial of shellfish aquaculture leases in Delaware's Inland Bays;

(9) To establish criteria for the approval or denial of any requests to conduct shellfish aquaculture outside of identified shellfish aquaculture lease sites;

(10) To establish criteria for what constitutes active use of shellfish aquaculture lease sites and the criteria that define the abandonment of a shellfish aquaculture lease site, and for the release of the abandoned acreage into the inventory of available shellfish aquaculture lease sites;

(11) To establish marking requirements for shellfish aquaculture lease sites and any equipment moored on, suspended above, or placed on subaqueous lands leased for shellfish aquaculture purposes;

(12) To establish eligibility requirements for lease applicants and reporting requirements for shellfish planted and/or harvested from shellfish aquaculture lease sites;

(13) To approve the species of shellfish that may be used for aquaculture purposes in Delaware's Inland Bays;

(14) To establish the eligibility of shellfish seed stock proposed for planting on shellfish aquaculture leases, including consideration of the use of disease-free stock and the genetic make-up of the stock;

(15) To establish what types of mechanical gear may be used to harvest shellfish from identified shellfish aquaculture lease sites;

(16) To establish seasonal restrictions on when leased shellfish aquaculture sites may be actively worked;

(17) To approve methodologies to determine wild shellfish densities that will allow for prospective aquaculture lease sites.

(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.

79 Del. Laws, c. 178, § 3.;

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

79 Del. Laws, c. 178, § 3.;

(a) It shall be unlawful for anyone to take any bivalve shellfish from any shellfish aquaculture grounds leased to another unless specifically authorized in writing by the holder of said lease.

(b) It shall be unlawful to harvest or remove bivalve shellfish from aquaculture lease sites including off-bottom cages and enclosures between sunset and sunrise.

(c) It shall be unlawful to have both wild-caught bivalve shellfish and shellfish aquaculture products on the same vessel or to place wild-caught bivalve shellfish and shellfish aquaculture products in the same container prior to transfer to a licensed buyer or shellfish dealer.

79 Del. Laws, c. 178, § 3.;

(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 in Delaware's Inland Bays to be used for shellfish aquaculture beneath the waters of this State, subject to the provisions, limitations and restrictions set forth herein.

(b) Scientific use of shellfish grounds. — The Secretary is hereby authorized to issue a lease in the name of the State to educational and/or scientific institutions or their designees for tracts or parcels of shellfish grounds to be used for scientific and/or educational purposes determined by the Secretary to be in the best interests of the shellfisheries aquaculture industry. Such a permit shall contain at least the following information and criteria: geographic location of the lease, species of shellfish being reared on the leased grounds, and the reason for the issuance of the lease. At no time may the aquaculture products produced on shellfish grounds leased for scientific purposes be sold or traded or offered for sale or trade. Importation of any shellfish or shellfish parts from areas outside of Delaware's Inland Bays must be approved in advance by the Department according to regulations filed by the Department. The cost of processing this application shall be paid by the applicant. Anyone deploying and leaving in place any equipment for scientific use of shellfish grounds in the Inland Bays shall conform to all applicable Department equipment marking requirements and shall be responsible for the removal of this equipment upon the termination of the scientific investigation.

79 Del. Laws, c. 178, § 3.;

(a) No shellfish grounds shall be leased to any person or persons, partnerships or corporations in tracts consisting of less than 1 acre or more than 5 acres in Rehoboth and Indian River Bays combined. All leases shall be granted in minimum increments of 1 acre. An applicant may lease 1-5 acres in Little Assawoman Bay in addition to any acreage leased by the applicant in Rehoboth and Indian River Bay. All leases will be in a general rectangular shape. The initial offering of sites available for leasing shall be by public lottery conducted by the Department. Included in the lottery shall be all eligible applicants who indicate in writing before the published deadline their desire to participate in the lottery. Opportunity to participate in the lottery shall be duly noticed by the Department in a press release and publication of a legal notice in 2 newspapers of state-wide distribution at least 30 days prior to the lottery. The first participant selected in the lottery shall have first choice among available lease sites. The second participant selected shall have second choice. The third participant shall have third choice and so on until all available acreage for leasing has been assigned, or there are no more applicants remaining in the lottery. Subsequent to the initial lottery, potential lease sites shall be available for leasing on a first-come, first-serve basis.

(b) After 3 years from the date of issuance of the first lease, the Department shall decide by regulation if the size of leases issued to any 1 applicant may be increased beyond 5 acres. Those already holding leases shall have first right of refusal concerning adding to their acreage beyond 5 acres up to the maximum acreage allowed to any 1 applicant. The restriction contained in this subsection shall not apply to those leases granted for scientific purposes as described in § 2005(b) of this title.

(c) The Department shall annually make available to anyone requesting it the general locations of identified shellfish grounds which are available to be leased and are not currently subject to a valid lease. Upon specific request, the Department shall furnish a more detailed description of the remaining specific shellfish aquaculture subaqueous lands identified for lease.

(d) Any person wishing to lease shellfish grounds in accordance with this section shall make application to the Department on a 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.

(e) The Department shall have the final authority to approve a proposed lease in an area not identified for shellfish aquaculture by the Department, taking into consideration comments received at any public hearings relative to the proposed lease.

(f) In the event that more than 1 application is received for the same lease grounds, the grounds will be leased on a first-come, first-serve basis.

79 Del. Laws, c. 178, § 3.;

(a) The Department shall charge a 1-time fee of $300 for each shellfish aquaculture lease application received or each request for the transfer of an existing shellfish aquaculture lease. This fee is nonrefundable even if the application is eventually rejected or withdrawn.

(b) The Department shall charge a Delaware resident or Delaware resident partnership or Delaware resident corporation an annual fee of $100/acre for administration of a shellfish aquaculture lease.

(c) The Department shall charge a nonresident of this State or a nonresident partnership or nonresident corporation $1,000/acre annually for administration of a shellfish aquaculture lease.

(d) All revenue generated by the fees in this section shall be deposited in an appropriated special fund account that shall be used to partially offset the expenses of the Department activities pursuant to this chapter.

79 Del. Laws, c. 178, § 3.;

(a) Shellfish aquaculture leases shall be renewable annually for a term of 15 years from the date of issue. In the event that the original lessee does not pay their annual leased acreage fee by December 31 of each year, then these formerly leased grounds will become part of the inventory of potential lease sites on a first-come, first-served basis. Lease holders may designate any portion of their lease acreage in minimum 1-acre increments to be released to the inventory of available lease acreage at any time during the calendar year. There shall be no refund of lease fees for any acreage so released.

(b) At the end of 15 years from issuance of a lease, the original lessee shall have first right to renew the lease for another 15-year period. In the event that the original lessee or their designee fails to renew their lease for 1 or more acres of their original lease acreage, then after 60 days following the expiration date of the lease on the acreage in question, the acreage not renewed shall revert to the inventory of available lease sites. Any equipment on lease acreage that is not renewed must be removed by the original lease holder within 30 days after the termination of the lease, or it will be considered by the Department as abandoned.

(c) It shall be lawful for any lease holder to transfer his or her lease to another eligible applicant at any time within 30 days after written notification is received and approved by the Department, provided such notification is signed and notarized by both the parties making and receiving the transfer. Any stipulations or restrictions placed by the Department on the lease site in question shall be binding for any subsequent holders of a lease for this particular lease site.

79 Del. Laws, c. 178, § 3; 70 Del. Laws, c. 186, § 1.;

(a) For an annual fee of $25 the Department shall issue and administer shellfish aquaculture harvester licenses to any qualifying individual desiring to work on leased shellfish aquaculture sites who is not the lease holder of the shellfish aquaculture sites. The Department shall establish by regulation the qualifications for obtaining a shellfish aquaculture harvesting license.

(b) It shall be unlawful for any individual(s) working on a shellfish aquaculture lease site to not have at all times at least 1 person who is the holder of the lease for the site in question or 1 person having in his or her possession a valid shellfish aquaculture harvest license.

(c) It shall be unlawful for any licensed shellfish harvester to work on any shellfish aquaculture lease site without first obtaining the written permission of the lease holder for the site in question. Such written permission from the lease holder shall be in the possession of the shellfish aquaculture harvester licensee at all times while working on the lease site in question.

79 Del. Laws, c. 178, § 3; 70 Del. Laws, c. 186, § 1.;

(a) Shellfish aquaculture lessees shall file reports on the number of shellfish planted on any leased areas in a manner and frequency as specified by Department regulation, but shall include as a minimum the number of bivalve shellfish planted and number subsequently harvested annually.

(b) Any lease holder who fails to submit timely reports shall be charged with a class D misdemeanor for a first offense and fined $25-$100. Anyone convicted of a second offense within 2 years of the first offense for failure to report in a timely fashion shall be charged with a class B misdemeanor and fined $250-$1,000. Anyone convicted of a third offense for failure to report within 2 years of a second offense for failure to report will be subject to having his or her lease revoked by the Department.

79 Del. Laws, c. 178, § 3; 70 Del. Laws, c. 186, § 1.;

(a) It shall be unlawful for any person to intentionally tamper with, damage, take, carry away or remove shellfish or shellfish equipment from shellfish grounds leased, pursuant to this chapter, to a person other than himself or herself. If convicted, this person shall be guilty of grand or petty larceny according to the value of shellfish or equipment in question. In the case of shellfish grounds leased by a corporation, it shall be unlawful for any individual to remove shellfish from leased shellfish grounds unless the individual is a bona fide employee of or member of the corporation or is acting on behalf of the corporation that holds the lease to the shellfish grounds in question.

(b) Anyone convicted of damaging or removing equipment lawfully placed for shellfish aquaculture on a leased site may, at the discretion of the appropriate court, be required to make restitution to the lease holder in the amount of the replacement value for the equipment so damaged or removed.

(c) 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.

(d) Any vessel or person on or over grounds leased to another shall be presumed to be removing shellfish from those grounds if that vessel or person has overboard or in his or her possession at that time any device used for the taking of shellfish, subject to the discretion of the investigating Department officer.

(e) It shall be unlawful to sell or transfer aquaculture products to a final customer or consumer that has not been handled by a certified shellfish dealer/processor.

79 Del. Laws, c. 178, § 3; 70 Del. Laws, c. 186, § 1.;

(a) Any person convicted of violating any of the provisions of this chapter or regulations promulgated pursuant thereto shall have committed a class B misdemeanor subject to a fine of from $250 to $1,000 for the first offense and $1,000 for each offense thereafter.

(b) Any person convicted of a second offense for violating any of the provisions of this chapter, or any rules or regulations adopted pursuant thereto, may have, at the discretion of the Secretary, any licenses or leases issued to the person(s), partnership or corporation revoked for a term to be determined by the Department.

(c) All revenue generated by the fines in this section shall be deposited in an appropriated special fund account that shall be used to partially offset the expenses of the Department activities pursuant to this chapter.

79 Del. Laws, c. 178, § 3.;

(a) Any employee, authorized by the Department, may board any boat, and inspect equipment, materials or shellfish, or leased subaqueous lands associated with or used in the taking or culture of shellfish for aquaculture purposes.

(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 court having jurisdiction over the case.

(c) In the event that any bivalve shellfish are seized as evidence as a result of an investigation or arrest for any violation of the statutes in this chapter or Department regulations governing shellfish aquaculture, these shellfish shall be destroyed and disposed of as deemed appropriate by the Department. The lessee in consultation with the court of record shall determine the fair market value of the shellfish that were seized.

(d) In addition to being subject to the penalties of § 2012 of this title, anyone convicted of illegally removing bivalve shellfish products from a leased aquaculture site shall be assessed the fair market value of the shellfish so seized.

(e) Undamaged equipment that is seized by the Department shall be made available to the rightful owner as expeditiously as possible, provided the rightful owner can be identified with a reasonable amount of effort. If the rightful owner cannot be readily located or does not claim his or her equipment within 30 days of removal or the final disposition the case, this equipment shall be considered abandoned and will be disposed of by Department procedures.

(f) Any shellfish aquaculture equipment that the Department determines is abandoned as defined by Department regulation, which is not claimed by its owner within 30 days after its removal or disposition of the case by the court having jurisdiction, shall be disposed of according to Department procedures for the disposition of abandoned equipment and the funds from the public sale of abandoned equipment shall be deposited into an appropriated special fund account that the Department maintains to partially offset the Department's costs associated with administering this chapter.

79 Del. Laws, c. 178, § 3; 70 Del. Laws, c. 186, § 1.;

All shellfish harvester licenses for a given year shall expire on December 31 each year.

79 Del. Laws, c. 178, § 3.;

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 shellfish aquaculture or leasing of shellfish aquaculture 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 Department upon the residents of the state who seek to apply for a license to lease shellfish aquaculture grounds within the boundaries of the Inland Bays of this State.

79 Del. Laws, c. 178, § 3.;