Chapter 23. Shellfish Aquaculture and Leasing

“Aquaculture activities” means those activities which include the purchase, monitoring, bottom preparation, planting, sale, possession, harvest, production, breeding, transportation, and processing of shellfish in State waters on or in an area used for shellfish cultivation.

“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.

“Demonstration lease” means a lease of submerged land for the purpose of demonstrating the ecological benefits of growing shellfish or for research or education.

“Maryland waters” means tidal and nontidal waters located within the boundaries of the State, including that portion of the Atlantic Ocean within the boundaries of the State, the Chesapeake Bay and its tributaries, and all ponds, lakes, rivers, streams, public ditches, and public drainage systems within the State.

“Person” means an individual, receiver, trustee, guardian, personal representative, fiduciary, or representative of any kind and any partnership, firm, association, corporation, or other entity.

“Pole” means a buoy, float, or stake used to mark a leased oyster bottom.

“SAV Protection Zone” means an area of submerged aquatic vegetation with a density greater than 10 percent as mapped in aerial surveys by the Virginia Institute of Marine Sciences in 1 or more of the 3 years preceding the designation of an Aquaculture Enterprise Zone, or an application for an aquaculture, submerged land, or demonstration lease.

“Seed oyster” means an oyster that is no more than 1 inch in size from hinge to bill.

“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.

“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.

A person may not engage in aquaculture activities on submerged land in waters of the State, including the areas listed in Regulation .06 of this chapter, unless the land is leased or permitted for shellfish aquaculture purposes.

To obtain a submerged land lease a person shall:

A person may not engage in aquaculture activities in the water column unless the water column is leased or permitted for shellfish aquaculture purposes.

To obtain a water column lease, a person shall:

Submerged Land Lease. Except as provided in §D(2) of this regulation, the rental rate for a submerged land lease is $3.50 per acre per year and is due in full to the Department by December 31 of the preceding year.

The rental rate for the first year of a lease may be prorated and is due in full to the Department within 30 days of lease approval.

In waters classified as restricted by the Maryland Department of the Environment unless the person:

In the Assateague Island National Seashore as described in 16 U.S.C. §459f; or

Within 150 feet of a Yates Bar located in an oyster sanctuary as established in COMAR 08.02.04.15A.

A leaseholder may not make any alteration which includes adding any type of fill or sediment other than shell to the existing condition of the lease without first obtaining the Department's written consent.

Shell present in the leased area at the time the lease is issued may not be removed from the leased area without the written permission of the Department.

Place a minimum of four poles at the corners of the lease perimeter;

Mark each pole with an 8-inch by 12-inch marker displaying only the initials or name of the leaseholder and the lease number; and

Maintain and meet any standards for corner marker structures as required by the Department in documents available on its website.

All equipment, gear, or manmade material placed on the lease shall be permanently and individually marked with the lease number and name of the leaseholder.

The leaseholder shall be responsible and liable for equipment, gear, or aquaculture-related material:

A leaseholder may apply to transfer a lease by completing forms provided by the Department.

Prior to receiving approval of a transfer, the person receiving a transferred lease shall complete a lease application and a shellfish aquaculture harvester permit application and submit the required forms with the transfer form described in §I(1) of this regulation.

Shall be valid for a 1-year term beginning on January 1 and expiring on December 31 each year;

Shall be automatically renewed for a new term upon receipt of all reports required under Regulation .03D of this chapter;

Is not transferable; and

Is an operator card for the purposes of Natural Resources Article, §4-11A-16.1, Annotated Code of Maryland.

Except for an individual under the supervision of a shellfish aquaculture harvester permittee who is present on the leased area, an individual engaged in aquaculture activities within the area described in the permit applicant's lease shall be:

A shellfish aquaculture harvester permittee shall immediately notify the Department of any changes of named permit registrants on a form provided by the Department.

A shellfish aquaculture harvester registration card shall be issued to each shellfish aquaculture harvester permittee and permit registrant.

A shellfish aquaculture harvester permittee shall be responsible for all work and acts performed on the leased area under the permittee’s supervision.

Shall harvest, transport, and store shellfish in accordance with the National Shellfish Sanitation Program Model Ordinance that is incorporated by reference in COMAR 10.15.07.01A;

Except as provided in §E(3) of this regulation, may not harvest oysters from a:

Shall have written permission from the Department if in possession of undersized shellfish outside of the leased area;

May possess seed oysters;

May only sell oysters in accordance with COMAR 08.02.08.02;

Shall implement vibrio parahaemolyticus control measures in accordance with COMAR 10.15.07.06;

Shall store oysters in accordance with §G of this regulation;

Shall tag oysters in accordance with §H of this regulation; and

May harvest oysters only during the following time periods:

A shellfish aquaculture harvester permittee or permit registrant may not possess oysters harvested from a lease that include a combined total of more than 5 percent of shells and oysters which measure less than the minimum allowable size specified in §E(2) of this regulation.

In ascertaining this percentage the Department shall select by random sample an amount of oysters from any pile, hold, bin, house, or place as deemed proper, cull the sample, and require any undersized oysters to be returned to the lease area.

All small oysters and cultch that adhere to marketable oysters shall be separated, and the marketable oysters shall be excluded from any measurement of small oysters and cultch.

A person may possess marketable oysters that have undersized oysters or spat less than 1 inch in length from hinge to bill attached to them that cannot be separated without destroying the small oyster.

Oysters harvested from a lease shall be placed in a container of any size prior to leaving the lease from which they were harvested.

Oysters shall remain in the original container until a tag is no longer required on the container in accordance with §J(1)(d) of this regulation.

Except as provided in §H(2) and I of this regulation, an individual storing oysters in accordance with §H of this regulation shall complete and affix a Department-issued tag to each container of oysters prior to leaving the lease from which the oysters were harvested.

An individual storing oysters in accordance with §G of this regulation may use a tag not supplied by the Department if:

Department-issued tags shall only be used by the individual to whom the tags were originally issued.

Definitions.

Except as provided in §I(3) of this regulation, an individual storing oysters in accordance with §G of this regulation may complete and affix a Department-issued bulk tag to a single container of oysters prior to leaving the lease from which the oysters were harvested.

An individual storing oysters in accordance with §G of this regulation may use a bulk tag not supplied by the Department if:

If a bulk tag is used, the vessel may only harvest from one lease on that trip.

Tags:

In addition to the tagging requirements of this regulation, a person who is licensed and certified to sell shellfish by the Maryland Department of Health in accordance with COMAR 10.15.04 and 10.15.07 shall follow the tagging requirements of the National Shellfish Sanitation Program Model Ordinance, incorporated by reference by the Maryland Department of Health in COMAR 10.15.07.01.

An individual shall only possess one type of tag, wild shellfish or farm-raised shellfish, while harvesting oysters.

An individual shall possess only one type of tag, individual or bulk, while harvesting oysters.

An individual may not use a farm-raised shellfish tag to tag wild shellfish.

An individual may not use a wild shellfish tag to tag farm-raised shellfish.

Denial. The Department may deny issuance of a shellfish aquaculture harvester permit or registration card if the applicant or listed registrant:

Suspension or Revocation. A shellfish aquaculture harvester permit or a shellfish aquaculture harvester registration card may be suspended or revoked by the Department if the individual:

Appeal.

Apply for a pilot program permit on forms provided by the Department;

Have a pilot program permit in order to participate in a pilot program;

Comply with any conditions of the permit; and

Be eliminated from the pilot project at the discretion of the Department.

Develop pilot projects in cooperation with the aquaculture industry; and

Provide adequate notice of a pilot program through various media so that an interested individual has a reasonable opportunity to be informed.

South Point Shoal. All of the waters Chincoteague Bay enclosed by a line beginning at a point at or near Lat. 38°10.860' N, Long. 75°13.379' W; then running 310° True to a point at or near Lat. 38°10.980' N, Long. 75°13.560' W; then running 19° True to a point at or near Lat. 38°12.060' N, Long. 75°13.079' W; then running 112° True to a point at or near Lat. 38°11.768' N, Long. 75°12.145' W; then running 227° True to the point of beginning.

Whale Gizzard Shoal. All of the waters Chincoteague Bay enclosed by a line beginning at a point at or near Lat. 38°5.288' N, Long. 75°15.311' W; then running 271° True to a point at or near Lat. 38°5.303' N, Long. 75°16.148' W;, then running 4° True to a point at or near Lat. 38°5.775' N, Long. 75°16.106' W; then running 76° True to a point at or near Lat. 38°5.932' N, Long. 75°15.288' W; then running 182° True to the point of beginning.

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.

Prior to obtaining a demonstration lease, an eligible group or organization shall complete and submit an application on a form provided by the Department.

The application shall include:

If an application for a demonstration lease in the Chesapeake Bay or in the Atlantic Coastal Bays meets the requirements of this regulation and Natural Resources Article, §4-11A-11, Annotated Code of Maryland:

Within 30 days of publication of the last advertisement under §C(1) of this regulation, 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 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.

The Department shall hold a public informational meeting on the issuance of a lease on the request of any person.

After termination of the period prescribed in §C(2) of this regulation for filing a petition or after a final decision dismissing a protest, the Department shall survey the proposed leased area and issue a lease to the applicant.

The Department, as it considers necessary to protect the public health, safety, and welfare, may:

Alterations, including adding any type of fill or sediment other than shell to the existing condition of the lease, are not permitted without written permission from the Department.

Shell present in the leased area at the time the lease is issued may not be removed from the leased area without the written permission of the Department.

Permanent structures of any kind may not be placed on the leased area without written permission from the Department.

Shellfish may not be harvested from the leased area for commercial or human consumption purposes.

Place a minimum of four poles at the corners of the lease perimeter;

Mark each pole with an 8-inch by 12-inch marker displaying the name of the leaseholder and the lease number;

Maintain and meet any standards for corner marker structures as described by the Department on its website;

Permanently and individually mark all equipment or manmade material used on the lease with the lease number and name of the leaseholder; and

Be responsible and liable for equipment, gear, or aquaculture-related material that has been found adrift or unattended outside the boundaries of the lease area.

The Department shall issue an operator card to the lessee at the time of lease approval.

When one or more individuals are engaged in demonstration activities on the leased area, an individual authorized by the lessee shall be present and in possession of the operator card.

Any individual engaged in demonstration activities on a leased area shall comply with the terms and conditions of the lease agreement for that area.

An individual shall submit an application for a shellfish nursery permit prior to engaging in shellfish nursery activities.

An application shall be submitted on a form provided by the Department.

The fee for a shellfish nursery permit application shall be $100 and shall be nonrefundable.

Shall be valid for a 5-year term beginning on the day of issuance;

May be renewed for a new term upon the Department’s receipt of:

May not be transferred; and

Shall be issued for each facility separately.

An in-water shellfish nursery structure:

A shellfish nursery permit for an in-water structure may only be issued to:

Maintain quarterly shipping and receiving records for each species cultivated at the facility that estimate:

Keep all shipping and receiving records for a minimum of 3 years; and

Allow the Department to inspect at reasonable hours the shellfish nursery facility and any of the permittee’s equipment, records, or product that are part of the permit holder’s shellfish nursery operations.

A shellfish nursery permittee shall:

The shellfish nursery permit shall be: