§ 2002 — Duties of Department; powers; making and enforcing regulations

(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 shellfish aquaculture leasing in Little Assawoman Bay shall be limited to within the following 2 areas as defined by their respective corner latitude and longitude coordinates:

a. 38° 29ʹ 16.87142" N, 075° 03ʹ 39.95005" W and 38° 29ʹ 16.85469" N, 075° 03ʹ 34.44911" W and 38° 28ʹ 56.70667" N, 075° 03ʹ 34.54853" W and 38° 28ʹ 56.72340" N, 075° 03ʹ 40.04904" W; and

b. 38° 28ʹ 15.51403" N, 075° 03ʹ 32.63198" W and 38° 28ʹ 15.47068" N, 075° 03' 18.50567" W and 38° 28ʹ 04.36517" N, 075° 03ʹ 18.56112" W and 38° 28ʹ 04.40853" N, 075° 03ʹ 32.68683" W;

(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. Off-bottom rearing cages and enclosures are strictly prohibited in Little Assawoman Bay, except for predator mesh placed at grade directly upon hard clams grown on the bottom;

(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, except that shellfish aquaculture lease sites within Little Assawoman Bay shall not be marked by poles, pipes or stakes. The corners of each leased acre within Little Assawoman Bay shall be marked with 9-inch x 16-inch orange bullet-style floating buoys, marked with at least 100 square inches of orange reflective material, a portion of which must be visible from all directions. Each corner buoy must include the corresponding lease number in 3-inch black block lettering;

(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, except that the species of shellfish cultured within the Little Assawoman Bay shall be limited to hard clams grown directly on the bay bottom;

(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.

Legislative History

79 Del. Laws, c. 178, § 3 ; 81 Del. Laws, c. 133, § 1