In this subtitle the following words have the meanings indicated.
“Aquaculture” means the commercial rearing of fish or aquatic plants for sale, trade, barter, or shipment.
“Aquaculture Enterprise Zone” means an area of the Chesapeake Bay approved for the leasing of submerged land or the water column by the Department in consultation with the Department of the Environment and the Wetlands Administrator of the State Board of Public Works.
“Aquaculture lease” means a lease of any submerged land or the water column located in an Aquaculture Enterprise Zone for cultivating oysters or other shellfish for commercial purposes.
“Atlantic Coastal Bays” means the waters of the Assawoman, Isle of Wight, Sinepuxent, Newport, and Chincoteague Bays and their tributaries.
“Chesapeake Bay” means the waters commonly known as the Chesapeake Bay as defined by the charts of the Oyster Survey of 1906 to 1912 and its amendments.
“Demonstration lease” means a lease of submerged land for the purpose of demonstrating the ecological benefits of growing shellfish or for research or education.
“Dredge” includes any dredge, scoop, handscrape, or similar device used in catching oysters and clams by dragging.
“Enterprise lease” means a lease of the water column for the purpose of researching or testing the feasibility of cultivating native or naturalized species, as those terms are defined in § 4–205.1 of this title, of aquatic plants for commercial purposes.
“Natural clam bar” means any area of submerged tidal bottom not classified as a natural oyster bar which has a population of clams of any species judged by the Secretary to have significant commercial value.
“Natural oyster bar” means any submerged oyster bar, reef, rock, or area represented as an oyster bar on the charts of the Oyster Survey of 1906 to 1912 and its amendments.
“Person” means an individual, receiver, trustee, guardian, personal representative, fiduciary, or representative of any kind and any partnership, firm, association, corporation, or other entity.
“Public shellfish fishery area” means an area in which shellfish is harvested for commercial purposes.
“SAV Protection Zone” means an area of submerged aquatic vegetation as mapped in an SAV survey, as defined in § 4–1006.1 of this title, in 1 or more of the 5 years preceding the designation of an Aquaculture Enterprise Zone or an application for a lease under this subtitle.
“Submerged land lease” means any land lying beneath the waters of the State leased by the State to any person for cultivating oysters and other shellfish for commercial purposes.
“Tong” means any pincers, nippers, tongs, or similar device operated entirely by hand and consisting of 2 shafts or handles and a metal body composed of 2 opposable and complementary baskets used in catching oysters and clams.
“Water column lease” means a lease of the column of water on or under the surface of the water and above the surface of the submerged land.
“Yates Bar” means any submerged oyster bar, reef, rock, or area represented as an oyster bar on the charts of the Oyster Survey of 1906 to 1912, not including any amendments.
The Department shall promulgate by regulation requirements that are necessary to ensure that aquaculture operations do not adversely impact wild stocks of fish, including measures for identifying fish as products of an aquaculture operation. In developing these regulations, the Department shall consult with the Aquaculture Coordinating Council, established by § 4–11A–03.2 of this subtitle, and incorporate in the regulations public notice provisions in accordance with § 4–11A–09 of this subtitle.
The Department may not issue a permit for the raising of nonnative species, including hybrids of striped bass, or nonnative stocks unless:
The permit limits the aquaculture operation to nontidal ponds, lakes, or impoundments; and
The aquaculture operation is constructed in a manner that assures that nonnative stocks are precluded from entering the tidal waters or contaminating the native species of the State.
A person may not engage in aquaculture unless the person has obtained a permit from the Department. The permit shall be conditioned upon the person complying with the regulations promulgated under subsection (a) of this section.
A permittee under this section shall allow the Department to inspect at reasonable hours any facilities, equipment, or fish involved in the permittee’s aquaculture operations.
Except as otherwise provided by law or by regulations adopted by the Department, all provisions of this title and regulations adopted under this title applicable to the taking, possession, sale, and transport of finfish do not apply to finfish that are in or from aquaculture operations in nontidal ponds, lakes, or impoundments.
The General Assembly defines aquaculture as an agricultural and fisheries management activity.
“Aquaculture” includes the commercial rearing of finfish, shellfish, and aquatic plants for sale, trade, barter, or shipment.
It is the intent of the General Assembly to create:
An Aquaculture Review Board and an Aquaculture Coordinating Council to promote the development of an aquaculture industry in this State; and
An Aquaculture Coordinator, employed by the Department, to assist persons in obtaining the permits and licenses necessary to conduct aquaculture in the State.
The Department is the lead agency for:
The development and overall management of aquaculture and aquaculture products;
Coordinating and streamlining the process of applying for a State aquaculture permit;
Enforcing laws, regulations, and rules related to aquaculture; and
Identifying economic development opportunities related to aquaculture.
The University System of Maryland is the lead agency for research in aquaculture production and shall be responsible for development of education and extension programs which promote aquaculture as an industry.
The Department of Agriculture is the lead agency for the marketing of aquaculture products.
There is an Aquaculture Review Board.
The Review Board shall consist of the following members, each of whom shall represent one of the following State departments charged with responsibility for an aspect of the State aquaculture permitting process or oversight of permit compliance:
The Department of Natural Resources, to be represented by the Aquaculture Coordinator, who shall serve as chair;
One representative of the Department of the Environment, designated by the Secretary of the Environment;
One representative of the Maryland Department of Health, designated by the Secretary of Health; and
One representative of the Department of Agriculture, designated by the Secretary of Agriculture.
The National Marine Fisheries Service shall be invited to designate a representative to the Review Board.
The United States Army Corps of Engineers shall be invited to designate a representative to the Review Board.
The Aquaculture Coordinator shall be the single point of contact for an applicant for all permits and licenses necessary to conduct aquaculture in the State.
The Review Board shall:
Coordinate the development of statewide aquaculture policy and, to the maximum extent feasible, the streamlining of the application process;
Track each application as it is processed; and
Ensure full and meaningful departmental communication with an applicant during each stage of the application process.
There is an Aquaculture Coordinating Council.
The Coordinating Council shall consist of the following members:
1 member of the Maryland Senate designated by the President of the Senate;
1 member of the Maryland House of Delegates designated by the Speaker of the House;
1 representative of the Department of Agriculture designated by the Secretary of Agriculture;
1 representative of the Department of Natural Resources Police designated by the Secretary of Natural Resources;
1 representative of the Department of Natural Resources, Fisheries Service, designated by the Secretary of Natural Resources;
2 representatives of the University of Maryland designated by the President of the University of Maryland, College Park Campus:
1 with expertise in aquaculture research; and
1 representing the Maryland Cooperative Extension;
1 representative of the Department of Commerce designated by the Secretary of Commerce;
1 representative of the Department of the Environment designated by the Secretary of the Environment;
1 representative of the Maryland Department of Health designated by the Secretary of Health;
3 representatives of the aquaculture industry designated by the Governor;
3 tidal fisheries licensed harvesters, including at least one who is a member of the Maryland Watermen’s Association designated by the Governor;
1 representative designated by the President of the University of Maryland Center for Environmental Science;
1 representative of the Oyster Recovery Partnership designated by the Oyster Recovery Partnership; and
1 representative of the Maryland Farm Bureau designated by the Maryland Farm Bureau.
The Coordinating Council shall:
Formulate and make proposals to the Governor and, in accordance with § 2–1257 of the State Government Article, the Senate Education, Health, and Environmental Affairs Committee and the House Environment and Transportation Committee on or before September 1 each year for advancing Maryland aquaculture, including recommendations for a fee structure on aquaculture operations in order to reduce State expenditures on aquaculture programs;
Establish and monitor a grant program for the implementation of appropriate projects that support the economic health of the State aquaculture industry;
Conduct applied studies of projects and products that will expand the aquaculture industry in the State;
Conduct market tests to determine acceptability and potential demand for new aquaculture products;
As appropriate, implement pilot projects and small commercial demonstrations to resolve any outstanding quality or production issues and to educate industry representatives, regulators, and other partners;
Support the aquaculture industry in its efforts to implement innovative procedures and to comply with associated regulations;
Enhance the awareness of innovative aquaculture products and programs among commercial buyers and the general public;
On or before December 31, 2006, develop best management practices that:
Provide guidance for freshwater and marine aquaculture permitting and compliance; and
Serve as the basis for the adoption of State regulations regarding tidal and nontidal aquaculture;
Investigate and, to the extent feasible, enhance the area of State waters that is available to private lease for purposes related to the aquaculture and seafood industries;
Provide for the establishment of Aquaculture Enterprise Zones in the Chesapeake and coastal bays, so as to:
Streamline the permitting process in these zones;
Provide incentives for private investment in leasing operations; and
Encourage individuals with historical records in the commercial fishery to adapt their expertise to the raising and harvesting of seafood by aquaculture; and
On a regular basis, review State regulations impacting aquaculture and make recommendations to the Aquaculture Review Board regarding any necessary or advisable regulatory changes.
The Coordinating Council may establish subcommittees to provide technical assistance to the Council, with subcommittee topics and membership as the Council determines to be appropriate.
The term of a member appointed by the Governor is 3 years.
The terms of the members appointed by the Governor serving on July 1, 2006, expire as follows:
2 members in 2007;
2 members in 2008; and
2 members in 2009.
At the end of a term, a member continues to serve until a successor is appointed and qualifies.
A member who is appointed after a term begins serves only for the rest of the term and until a successor is appointed and qualifies.
An appointed member may not serve more than 2 consecutive terms.
The Governor may remove a member for incompetence or misconduct.
The Coordinating Council may elect from among its members a chairman, vice–chairman, secretary and other officers it deems appropriate.
The Coordinating Council shall determine the time and place of its meetings.
The members of the Coordinating Council may not receive a salary, but shall be reimbursed for reasonable expenses incurred in attending meetings and other Council business, as provided under the Standard State Travel Regulations.
In consultation with the Oyster Advisory Commission, the Department shall identify by regulation the public shellfish fishery area in the Chesapeake Bay based on commercial harvesting activity during the 3 years preceding June 1, 2009, any surveys conducted by the Department, and other quantitative data known or made available to the Department.
The public shellfish fishery area may not be leased for shellfish aquaculture.
This section applies to enterprise leases.
The Department may issue an enterprise lease to a person for use in the waters of the State.
The Department may not issue an enterprise lease for the purpose of cultivating a nonnative species, as defined in § 4–205.1 of this title.
A person who wishes to obtain an enterprise lease shall:
Complete and submit an application to the Department on a form the Department requires; and
Pay a nonrefundable application fee established by the Department in consultation with the Aquaculture Coordinating Council.
An application for an enterprise lease shall include:
A declaration that the applicant intends to actively use the leased area for assessing the feasibility of cultivating aquatic plants for commercial purposes; and
A proposed plan for active use of the lease that includes:
The species of aquatic plants to be cultivated;
The source of the aquatic plants to be cultivated;
The methods and means that the applicant will use to cultivate the aquatic plants;
The quantity of aquatic plants that the applicant expects to grow and harvest during the initial 3 years of the lease; and
A description of the labor, materials, and equipment to be used to cultivate the aquatic plants.
The Department may:
Deny an enterprise lease application for reasonable cause; or
Include any conditions in an enterprise lease.
The term of an enterprise lease may not exceed 5 years.
The size of an enterprise lease may not exceed 2 acres.
The Department shall establish, in consultation with the Aquaculture Coordinating Council, an annual amount of rent for an enterprise lease.
An enterprise lease may not be located:
Within 50 feet of a shoreline or any pier without the written permission of the riparian owner at the time of initial application for the lease;
Within 150 feet of the public shellfish fishery or a registered pound net site;
Within 150 feet of an oyster harvest reserve area or any Yates Bar located in an oyster sanctuary;
Within 150 feet of a federal navigational channel;
Subject to paragraph (2) of this subsection, in any creek, cove, bay, or inlet less than 300 feet wide at its mouth at mean low tide;
In an SAV Protection Zone; or
In a setback or buffer from the Assateague Island National Seashore established by the Department.
The provisions of paragraph (1)(v) of this subsection do not apply to the riparian owner or a lawful occupant of the riparian property.
An enterprise lease may not be assigned, transferred, or renewed.
Any transfer or assignment of or attempt to transfer or assign an enterprise lease shall void the lease and the interest in the water column shall revert to the State without the necessity of any action by the State.
A person with an enterprise lease in the waters of the State may cultivate aquatic plants in any manner approved by the Department.
The Department may adopt regulations to implement this section, including regulations concerning species that may not be cultivated or gear that may not be used in a leased area.
If the Department determines that an application for an enterprise lease meets the requirements of this section:
The applicant for the lease shall mark the proposed area with a stake; and
The Department shall:
Advertise the application on the website of the Department for at least 2 consecutive weeks;
Notify the owners of property directly in front of the proposed activity; and
Notify other interested parties that the Department deems appropriate.
Within 37 days after the first day that the notice of the enterprise lease application is posted on the Department’s website, a person may request a public informational meeting on the issuance of the lease.
The Department shall hold a public informational meeting on the issuance of an enterprise lease on the request of any person under subparagraph (i) of this paragraph.
Within 37 days after the first day that notice of the enterprise lease is posted on the Department’s website, any person who has a specific right, duty, privilege, or interest that is different from that of the general public and may be adversely affected by the proposed lease may file a petition with the Department protesting the issuance of the lease.
The protest shall be heard in accordance with the requirements of the Administrative Procedure Act under Title 10, Subtitle 2 of the State Government Article.
Immediately after termination of the period prescribed in subparagraph (i) of this paragraph for filing a petition or after a final decision dismissing a protest, the Department shall issue an enterprise lease to the applicant.
This section applies to a submerged land lease in the Chesapeake Bay that is not in an Aquaculture Enterprise Zone.
Subject to subparagraph (ii) of this paragraph, the Department may issue to a person a submerged land lease in waters of the Chesapeake Bay after the Department of the Environment classifies the waters as:
Approved, conditionally approved, or restricted for harvest; or
Prohibited, provided that the lease is used exclusively for the planting and gathering of seed for aquaculture and the leaseholder complies with the requirements of the National Shellfish Sanitation Program as implemented by the Department.
The Department may issue a submerged land lease in the waters of the Chesapeake Bay to a corporation only if:
The corporation is organized under the laws of the State; and
More than 50% of the stock in the corporation is owned by residents of the State.
A submerged land lease may not be located:
Within a minimum of 50 feet of shoreline or any pier without the written permission of the riparian owner at the time of initial application for the lease;
Within 150 feet of the public shellfish fishery or a registered pound net site;
Within 150 feet of an oyster reserve or any Yates Bar located in an oyster sanctuary;
Except as provided in paragraph (4) of this subsection, within 150 feet of a federal navigational channel;
Subject to paragraph (3) of this subsection, in any creek, cove, bay, or inlet less than 300 feet wide at its mouth at mean low tide; or
In an SAV Protection Zone.
Paragraph (2)(v) of this subsection does not apply to a riparian owner or a lawful occupant of the riparian property.
A submerged land lease of a riparian owner or a lawful occupant of the riparian property may be located in Herring Creek in St. Mary’s County.
A person with a submerged land lease in the Chesapeake Bay may cultivate shellfish on the submerged land, in temporary protective enclosures approved by the Department on the surface of the submerged land, or in any other manner authorized by the Department.
Notwithstanding any other provision of this subtitle, a lease of submerged land located within a sanctuary must be compatible with oyster restoration and must satisfy the criteria for permissible leasing within a sanctuary as provided in regulations adopted under this subtitle.
This section applies to a submerged land lease in the waters of the Atlantic Coastal Bays.
Subject to paragraph (2) of this subsection, the Department may issue to a person a submerged land lease in waters of the Atlantic Coastal Bays after the Department of the Environment classifies the waters as:
Approved, conditionally approved, or restricted for harvest; or
Prohibited, provided that the lease is used exclusively for the planting and gathering of seed for aquaculture and the leaseholder complies with the requirements of the National Shellfish Sanitation Program as implemented by the Department.
The Department may issue a submerged land lease in the waters of the Atlantic Coastal Bays to a corporation only if:
The corporation is organized under the laws of the State; and
More than 50% of the stock in the corporation is owned by residents of the State.
A submerged land lease may not be located:
Within a minimum of 50 feet of shoreline or any pier without the written permission of the riparian owner at the time of initial application for the lease;
Within 150 feet of the public shellfish fishery or a registered pound net site;
Within 150 feet of any oyster reserve or a Yates Bar located in an oyster sanctuary;
Within 150 feet of a federal navigational channel;
Subject to paragraph (2) of this subsection, in any creek, cove, bay, or inlet less than 300 feet wide at its mouth at mean low tide;
In an SAV Protection Zone; or
In a setback or buffer from the Assateague Island National Seashore established by the Department.
Paragraph (1)(v) of this subsection does not apply to a riparian owner or a lawful occupant of the riparian property.
A person with a submerged land lease in the Atlantic Coastal Bays may cultivate shellfish on the submerged land, in temporary protective enclosures approved by the Department on the surface of the submerged land, or in any other manner authorized by the Department.
The Department may establish submerged land areas in the Atlantic Coastal Bays that:
Are preapproved for leasing;
May not be leased; or
May be approved for leasing only on specific application and review by the Department.
In establishing areas that are preapproved for leasing or that may not be leased under paragraph (1) of this subsection, the Department shall consider potential conflicts presented by other uses of the proposed area, including navigation, recreation, and commercial fishing.
Notwithstanding any other provision of this subtitle, a lease of submerged land located within a sanctuary must be compatible with oyster restoration and must satisfy the criteria for permissible leasing within a sanctuary as provided in regulations adopted under this subtitle.
This section applies to a water column lease in the waters of the State.
The Department may issue to a person a water column lease in waters of the State after the Department of the Environment classifies the waters as:
Approved, conditionally approved, or restricted for harvest; or
Prohibited, provided that the lease is used exclusively for the planting and gathering of seed for aquaculture and the leaseholder complies with the requirements of the National Shellfish Sanitation Program as implemented by the Department.
A water column lease may not be located:
Within a minimum of 50 feet of shoreline or any pier without the written permission of the riparian owner at the time of initial application for the lease;
Within 150 feet of the public shellfish fishery or a registered pound net site;
Within 150 feet of an oyster reserve or any Yates Bar located in an oyster sanctuary;
Except as provided in paragraph (3) of this subsection, within 150 feet of a federal navigational channel;
Subject to paragraph (2) of this subsection, in any creek, cove, bay, or inlet less than 300 feet wide at its mouth at mean low tide;
In an SAV Protection Zone; or
In a setback or buffer from the Assateague Island National Seashore established by the Department.
The provisions of paragraph (1)(v) of this subsection do not apply to the riparian owner or a lawful occupant of the riparian property.
A water column lease of a riparian owner or a lawful occupant of the riparian property may be located in Herring Creek in St. Mary’s County.
A person with a water column lease in the waters of the State may cultivate shellfish:
Subject to approval by the United States Army Corps of Engineers, on or under the surface of the water in a floating structure; or
In any other manner authorized by the Department.
A person who wishes to obtain an aquaculture, water column, or submerged land lease shall pay a nonrefundable application fee established by the Department, in consultation with the Aquaculture Coordinating Council, and complete and submit an application to the Department.
An application for an aquaculture lease, water column lease, or submerged land lease shall include:
A declaration that the applicant intends to actively use the leased area for commercial purposes; and
A proposed plan for active use of the lease that shall include:
The lessee’s source and quantity of shellfish seed;
The methods and means the applicant will use to grow shellfish;
The quantity of shellfish that the lessee expects to plant and harvest, and the time for planting and harvesting, during the initial 3 years of the lease; and
A description of the labor, materials, and equipment to be used by the lessee.
The requirements for active use of a lease shall include:
Annually planting at least one–fourth of the leased area at a minimum density of 1,000,000 shellfish seed per acre; or
Complying with any other requirements established by the Department.
The term of a lease is 20 years.
Except for a demonstration lease under § 4–11A–11 of this subtitle, a lease may be of any size provided that the leaseholder actively uses the area.
The Department shall establish, in consultation with the Aquaculture Coordinating Council, an annual amount of rent and an aquaculture development surcharge for an aquaculture, water column, or submerged land lease.
The Department, as it considers necessary to protect the public health, safety, and welfare, may:
Deny a lease application for reasonable cause; or
Include any conditions in a lease.
If an application for an aquaculture lease meets the requirements of this subtitle, the Department shall survey the leased area and issue a lease to the applicant.
If an application for a submerged land lease in an area preapproved for leasing in the Atlantic Coastal Bays meets the requirements of this subtitle, the Department shall survey the leased area and issue a submerged land lease to the applicant.
If an application for a submerged land or water column lease in the Chesapeake Bay or in the Atlantic Coastal Bays meets the requirements of this subtitle:
The applicant for the lease shall mark the center of the proposed area with a stake; and
The Department shall:
Survey the corners of the proposed lease area;
Advertise the application on the website of the Department and once a week for 2 weeks in a newspaper published in the county or counties where the proposed lease is to be located;
Notify the owners of property directly in front of the proposed activity;
Notify each Chair of an Oyster Committee in the county in which the proposed activity is located; and
Notify other interested parties that the Department considers appropriate.
Any person may submit a written request for a public informational meeting on the issuance of a lease within 30 days after publication of the last advertisement under paragraph (1) of this subsection.
The request for a public informational meeting submitted to the Department under subparagraph (i) of this paragraph must contain the name, mailing address, and e–mail address of the requestor.
The Department shall hold a public informational meeting on the issuance of a lease on the request of any person.
Any person who has a specific right, duty, privilege, or interest that is different from that held by the general public and may be adversely affected by the proposed lease may file a written petition with the Department protesting the issuance of the lease:
Within 30 days after publication of the last advertisement under paragraph (1) of this subsection; or
Within 7 days after a public informational meeting held in accordance with paragraph (2) of this subsection.
A protest filed with the Department under subparagraph (i) of this paragraph must contain:
The name, mailing address, and e–mail address of the protestant;
A statement indicating that the protestant intends to protest the lease and the reasons for the protest; and
A statement describing the protestant’s specific right, duty, privilege, or interest that is different from that held by the general public and may be adversely affected by the proposed lease.
The Department may require mediation between the protestant, the applicant, and the Department before transmitting the protest to the Office of Administrative Hearings.
The protest shall be heard in accordance with the requirements of the Administrative Procedure Act under Title 10, Subtitle 2 of the State Government Article.
Immediately after termination of the period specified in subparagraph (i) of this paragraph for filing a petition or after a final decision dismissing a protest, the Department shall issue a lease to the applicant.
The Department, in consultation with the Aquaculture Coordinating Council, may charge an applicant reasonable advertising and survey fees.
A leaseholder shall:
Subject to subsection (b) of this section, actively use the lease and comply with any standards for planting, harvesting, and use of the leased area established by the Department;
Mark each lease area with an 8–inch by 12–inch marker displaying the initials of the leaseholder and posted on a minimum of four poles;
Comply with any other marking requirements established by the Department for the protection of navigation;
Comply with the regulations established by the Maryland Department of Health in consultation with the Department of the Environment to carry out the mandate of the National Shellfish Sanitation Program; and
Pay the rent and the aquaculture development surcharge for the lease at the time established by the Department.
The Department may waive the requirements for active use of a lease on a showing that conditions not present at the time of execution of the lease, including the unavailability of shellfish seed, prevent active use of the leased area.
A leaseholder may not:
Place shellfish, bags, nets, or structures on submerged aquatic vegetation without prior written approval from the Department;
Plant or harvest shellfish within 500 yards of any stationary blind or blind site that is occupied and being used for hunting migratory waterfowl;
Sublease a lease;
Transfer a lease without the approval of the Department;
Harvest shellfish outside the hours established by the Department in regulation; or
Place unlawfully harvested oysters on a lease.
In approving the placement of shellfish, bags, nets, or structures on submerged aquatic vegetation under subsection (c)(1) of this section, the Department:
May not authorize harvesting by dredge in areas where submerged aquatic vegetation is present;
Shall authorize for water column leases the placement of shellfish, bags, nets, or structures in at least 10% of the area where submerged aquatic vegetation is present; and
Shall authorize harvest by diving in areas on any submerged land lease where submerged aquatic vegetation is present.
Shellfish planted or harvested in accordance with a lease issued under this subtitle are subject to inspection by the Department.
A person who wishes to renew a lease issued under this subtitle or an existing shellfish lease or oyster lease shall submit an application that meets the requirements for an initial application in § 4–11A–09 or § 4–11A–11 of this subtitle.
Before the termination or expiration of a lease issued under this subtitle, the leaseholder shall have the right of first refusal with respect to future leases of the leased area.
The Department may terminate a lease issued under this subtitle for failure to comply with the requirements of this subtitle.
The Department shall notify a leaseholder by registered mail of its intention and proposed decision to terminate a lease for failure to comply with the requirements of this subtitle.
A leaseholder who wishes to contest the Department’s proposed decision may request a review of the decision by the Secretary, which shall be filed not later than 30 days after receipt of the Department’s decision.
Failure of a leaseholder to respond to the Department’s proposed decision within 30 days of the date of the decision shall cause the leasehold to revert to the State.
In consultation with the Aquaculture Coordinating Council, the Department shall establish by regulation the hours for harvesting shellfish within leased areas.
This section applies to demonstration leases.
The Department may issue a demonstration lease to a public high school, an incorporated college or university within the State, a 4–H club, or a nonstock, nonprofit corporation organized under the laws of the State exclusively for educational, conservation, or ecological purposes.
An application for a demonstration lease shall include a declaration that the applicant intends to actively use the leased area for demonstration purposes and a proposed plan for active use of the lease.
The size of the lease may not exceed 5 acres.
The proposed lease area may not be located:
Within a minimum of 50 feet of shoreline or any pier without the written permission of the riparian owner at the time of application for the lease;
Within 150 feet of the public shellfish fishery or a registered pound net site;
Within 150 feet of an oyster reserve or any Yates Bar located in an oyster sanctuary;
Within 150 feet of a federal navigational channel;
In any creek, cove, bay, or inlet less than 300 feet wide at its mouth at mean low tide;
In an SAV Protection Zone; or
In a setback or buffer from the Assateague Island National Seashore established by the Department.
A demonstration lease may not be assigned or transferred.
Any transfer or assignment or attempt to transfer or assign a lease shall be void and the interest in submerged land shall revert to the State without the necessity of any action by the State.
A demonstration leaseholder shall actively use the lease for the purpose of demonstrating the ecological benefits of growing shellfish or for research or education.
Failure to actively use the lease may result in termination of the lease.
A person may not harvest shellfish for commercial or consumption purposes from an area that is subject to a demonstration lease.
The Department shall maintain a record of leases issued under this subtitle.
Except as provided in paragraph (2) of this subsection, all fees, funds, and revenues derived from the administration of this subtitle shall be paid to the Comptroller of the Treasury and credited to the Fisheries Research and Development Fund.
The Department shall transfer any funds derived from the aquaculture development surcharge to the State Department of Agriculture to be used for development of, and training and grants for, shellfish aquaculture.
In accordance with § 4–742 of this title, the Department of the Environment may close to the catching, planting, or harvesting of shellfish waters in:
The shellfish public fishery area;
An Aquaculture Enterprise Zone;
An area preapproved for leasing in the Atlantic Coastal Bays; or
An area subject to an aquaculture lease, submerged land lease, or demonstration lease.
In consultation with the Department of the Environment and the Wetlands Administrator of the Board of Public Works, the Department shall adopt regulations to implement this subtitle.
Except as provided in § 4–1008 of this title, a leaseholder may plant, cultivate, sow, or protect oysters only of the species known as Crassostrea virginica in the waters of the State.
In this subsection, the word “shellfish” includes live bivalves and bivalve shells.
A person may not import or possess within the State shellfish taken from waters outside the waters of the State for planting in the waters of the State without the approval of the Department.
Except as provided in paragraph (2) of this subsection, a leaseholder may cultivate or remove shellfish planted on the leaseholder’s aquaculture or submerged land lease area in any manner the leaseholder considers proper.
A person may not use a hydraulic escalator dredge to harvest shellfish in the Atlantic Coastal Bays.
Each leaseholder shall keep accurate records concerning the seeding and planting of cultch and shellfish on and the harvesting and selling of shellfish from the leaseholder’s aquaculture, submerged land, or demonstration lease area.
Each leaseholder shall report this information to the Department electronically or on forms specified by the Department.
On or before January 31 of each year, a leaseholder shall provide to the Department a report documenting the use of the lease during the prior year.
A leaseholder shall provide to the Department any other report that the Department may require.
Failure to file a report may result in termination of the lease.
Failure to actively use a lease may result in termination of the lease.
A person, other than the leaseholder, may not willfully and without authority catch oysters on any aquaculture or submerged land lease area, or willfully destroy or transfer oysters on this land in any manner.
The Department shall request the office of the local State’s Attorney or the Attorney General to bring a criminal action under § 7–104 of the Criminal Law Article against a person found to be in violation of this subsection provided that the leased area is designated and marked with buoys and other signage or the person knew or should have known that the harvest of oysters from the area was unlawful.
On conviction of a person for a violation of this subsection, the Department may suspend all existing tidal fish licenses issued to that person for a period not to exceed:
1 year for a first conviction; or
2 years for a second or subsequent conviction.
Before suspending any license under this section, the Department shall give the licensee written notice of the right to request a hearing.
A licensee may request a hearing within 15 days from the date that the notice required by this section is mailed.
The Department shall hold a hearing within 30 days of the date of the request and render a decision within 30 days of the hearing.
A person, other than a leaseholder, may not remove, alter, transfer, or destroy any marker, shellfish, equipment, or structures on any aquaculture or submerged land lease area.
A person, other than an aquaculture or submerged land leaseholder, while he is in default in payment of any rent or fee, may not use for any purpose any submerged land of the State.
Subject to subsection (b) of this section, a person who willfully, negligently, recklessly, wrongfully, or maliciously enters any area leased to another person under this subtitle to harvest, damage, or transfer shellfish or to alter, damage, or remove any markings or equipment is liable to the leaseholder or any agent, employee, business partner, or contractor of the leaseholder for damages in an amount of:
Three times the value of the shellfish harvested, damaged, or transferred;
The actual restoration costs for the leased area and any altered, damaged, or removed markings or equipment; and
Any attorney fees or court costs incurred by the leaseholder or any agent, employee, business partner, or contractor of the leaseholder in the matter.
Subsection (a) of this section does not apply to a person engaging in aquaculture activity on a leased area in accordance with the terms and conditions of:
A shellfish aquaculture harvester registration card that is in the person’s possession; or
An operator card that is in the possession of the person or another person present in the lease area.
On the request of a law enforcement officer, a person who enters an area leased to another person under this subtitle and engages in any act specified in subsection (a) of this section shall display a shellfish aquaculture harvester registration card or an operator card for the lease area.
The owner of any pier, wharf, or other structure constructed on or about the water and approved by the corps of engineers, shall have exclusive use, for the purpose of growing and harvesting shellfish, of the area:
Below the owner’s pier, wharf, or structure; and
In Calvert, Howard, St. Mary’s, and Talbot counties only, within 10 feet of the owner’s pier, wharf, or structure, for oysters grown in trays, baskets, or containers that are attached by lines or ropes that are the property of the owner of the pier, wharf, or structure to:
The private pier, wharf, or structure; or
Another oyster tray, basket, or container that is attached to the private pier, wharf, or structure.
Oysters grown and harvested under § 4–11A–17 of this subtitle may not be commercially harvested, sold, or marketed for human consumption.
The Department shall establish 3 separate areas of 10 acres of submerged land each for oyster propagation research in the vicinity of:
Horn Point in Cambridge in Dorchester County;
Deale Island in Somerset County; and
The waters of St. Mary’s County, other than in the Potomac River.
Notwithstanding any other provision of this title, the Department may adopt regulations that allow taking, possession, transport, or sale of oysters, from leased oyster bottoms that are less than the minimum size limit in §§ 4–1015 and 4–1015.1 of this title.
The Department may issue a permit authorizing a person to establish and operate an artificial or man-made pond or lake which he owns, leases, or controls, where fishing is permitted for payment of a fee, and in which fish stocked are artificially propagated by commercial hatcheries, or purchased from persons licensed to sell fish. The Department may issue the permit if it determines the lake or pond does not conflict with any reasonable prior public interest. The permit fee shall be $25 a year. The permit expires on December 31 following the date of issuance.
The Department shall prescribe by regulation the size of the area, method of fishing, open and closed seasons, and the catching of fish by furnishing tags for a reasonable fee. The Department also shall regulate the release, possession, and use of legally propagated game and freshwater fish, and may require any report necessary concerning the operation of these areas.
Any permit issued under the provisions of this section may be revoked for violation of any provision of this section or any regulation of the Department relating to fee-fishing lakes. The owner or operator of a fee-fishing lake or pond may not operate it without a permit.
The provisions of this title do not apply to any privately owned recreational area if the following factors are present:
The payment of a fee to the owner of the area is not exclusively for the privilege of fishing in any ponds or lake on the property;
The lakes or ponds are stocked privately by the owner with privately owned fish; and
Activities other than fishing are provided for the users of the recreational area.
The owner or owners of any privately owned recreational area and the users of the area are not required to display fishing licenses.
A person may apply in writing to the Department for a permit to breed, propagate, and sell any species of game and freshwater fish protected by law, in ponds or lakes which he owns or leases. The Department, upon receipt of a permit fee of $5 may issue to the applicant a breeder’s license permitting him to hatch, rear, transport, sell, barter or exchange any fish. A fish breeder’s permit expires on December 31 following the date of issuance.
The Department shall promulgate regulations governing the release, possession, sale, shipment, and identification of every game and freshwater fish bred under a fish breeder’s permit. The Department may require any report necessary concerning the operation of a fish breeder’s permit. Any permit issued under the provisions of this section may be revoked for a violation of any provision of this section or any regulation made pursuant to it.
If a person who owns, controls, or erects an artificial pond on land he owns or possesses, puts any fish or the eggs or spawn of fish in the pond for breeding and cultivating purposes, and gives notice by written or printed handbills in public places near the pond, no other person may enter the premises to fish, without obtaining the consent of the owner.
In this section the following words have the meanings indicated.
“Permit” means a shellfish nursery permit.
“Pier” has the meaning stated in § 16–101 of the Environment Article.
A person may not engage in the commercial rearing of shellfish seed outside an area leased under this subtitle without first obtaining a permit from the Department.
For a shellfish nursery to be located on land, the Department may issue a permit only to the owner or legal tenant of the property or to a person with the permission of the property owner.
For a shellfish nursery to be located in waters of the State outside a leased area, the Department may issue a permit only:
To the owner of a pier or other structure constructed on or about the water and approved by the U.S. Army Corps of Engineers, or to a person with the permission of the owner of the pier or other structure; and
For the cultivation of shellfish seed within 20 feet of the pier or other structure, in an area of water not exceeding 200 square feet.
A person is not required to obtain a water column lease or a submerged land lease for a permitted in–water shellfish nursery operation.
Shellfish nursery products are exempt from water quality classifications and restrictions established by the Department of the Environment under the National Shellfish Sanitation Program.
A person cultivating shellfish seed using a pump, a pipe, or any other equipment attached to a pier in accordance with a permit issued under this section is not required to obtain a tidal wetlands license or permit from the Department of the Environment or a State wetlands license from the Board of Public Works under Title 16 of the Environment Article, provided that the pump, pipe, or other equipment does not require increasing the length, width, or channelward encroachment of the pier.
To obtain a permit, a person shall:
Complete and submit an application to the Department on a form prescribed by the Department; and
Pay a nonrefundable application fee established by the Department in consultation with the Aquaculture Coordinating Council.
The application fee may not exceed the cost of processing the permit.
The Department may, as it considers necessary to protect the public health, safety, and welfare:
Deny a permit application for reasonable cause; or
Include conditions in a permit.
The term of a shellfish nursery permit is 5 years.
The Department may revoke or suspend a permit issued under this section at any time for noncompliance with the requirements of this section, regulations adopted under this section, or the conditions of the permit.
A permit holder shall allow the Department to inspect at reasonable hours any facilities, equipment, or shellfish that are part of the permit holder’s shellfish nursery operations.
The Department may adopt regulations to implement this section.