Current through Register 2021 Notice Reg. No. 51, December 23, 2022
(a) Definitions. The following definitions
are established for terms used in this section:
(1) "Aquaculture Area" means any public
waters or private waters contiguous to public waters set aside for the purpose
of cultivating, harvesting or relaying of any aquatic plant or animal
(2) "Aquaculture Agreement"
means an agreement for the establishment of an aquaculture area on private
water bottoms contiguous to state water bottoms which may include a permit for
relaying or depuration of shell fish under authority of Fish and Game Code
Division 12. Permits may include use of state or private lands for aquaculture
(3) "Aquaculture Lease"
means a lease of state water bottoms for the cultivation of aquatic plants and
(4) "Depuration" means the
process by which shellfish cleanse themselves of contaminants in a controlled
process water environment.
"Depuration Facility" means the physical structure, enclosure or device in
which depuration is accomplished, including all appurtenances.
(6) "Growing Area" means any offshore ocean,
coastal estuarine or freshwater area suitable for natural shellfish growth or
artificial shellfish propagation and shall include open seawater
(7) "Relaying" means the
moving of shellfish from one water to another.
(8) "Shellfish" in this section means native
or nonnative bivalve mollusks.
"Classified Areas" include those waters that may be classified by the State
Department of Health according to the following:
(A) "Approved Area": a shellfish-growing area
not adversely affected by sewage or other wastes.
(B) "Conditionally Approved Area": a
shellfish-growing area that may be occasionally affected by sewage or other
Area": a shellfish-growing area not certified because of its proximity to a
known waste discharge or because the area is influenced by other detrimental
"Restricted Area": a shellfish-growing area subjected to a limited degree of
pollution which makes it unsafe to harvest shellfish for direct marketing but
where harvesting for relaying or depuration may be permitted.
(10) "Lot" is a designated
quantity of shellfish that is identifiable and may consist of one or more
(11) "Batch" is a
measurable, identifiable unit such as bushel, and one or more batches will
comprise a lot.
(12) "Tidal Area"
means the intertidal area between the high tide mark and 1,000 feet offshore.
Commercial harvesting of native invertebrates in this area is subject to
special permit requirements under Section
the Fish and Game Code.
(1) Applications for a lease of state water
bottoms for aquaculture or for an aquaculture agreement or for a permit to
relay or depurate shellfish shall be made to the commission.
(2) Applications shall be accompanied by
proof of ownership of, or a valid lease on the lands on which the operations
are to occur, or description of the state lands which the applicant has leased
or intends to lease and on which the operations are to occur.
(3) Applications also shall be accompanied by
a description of the area involved and a reference map clearly showing the
exterior boundaries of the area. The description must be tied to monuments of
record and maps must be in a form acceptable for recording in the county(ies)
in which the aquaculture area is located. A copy of all maps shall be submitted
by the commission to the State Lands Commission. No aquaculture agreement will
be valid until the State Lands Commission has certified to the department that
the area applied for is unencumbered or the private ownership is properly
described, so as not to preclude its use for the proposed culture.
(4) No aquaculture lease for state water
bottoms will be approved until the commission has held a public hearing at
least 90 days after notice thereof has been published in a newspaper of general
circulation within the county involved. An aquaculture lease or aquaculture
agreement is subject to repeal if a map of the area is not filed by the holder
of such lease or agreement in the appropriate county(ies) within 30 days of
approval by the commission.
aquaculture agreement for private water bottoms will be approved until the
commission has held a public hearing at least 30 days after notice thereof has
been published in a newspaper of general circulation within the county
involved. An aquaculture agreement is subject to repeal if a map of the area is
not filed by the holder of such aquaculture agreement in the appropriate
county(ies) within 30 days of approval by the commission.
(6) An explanation of the type of operation
including the aquaculture practices, relay or depuration activities to be
employed, shall be included in all applications for aquaculture leases or
(7) The change of any
authorized cultural practices as specified in the aquaculture lease or
agreement must have approval of the commission before the change is put into
(8) The application shall
include information as to whether each of the areas involved in the aquaculture
relay or depuration operation has been classified by the Department of Health
Services as approved, conditionally approved, prohibited, restricted or
Aquaculture Leases and Agreements.
Aquaculture leases or agreements shall not be modified, amended, transferred,
assigned or hypothecated without the approval of the commission.
(2) The holder of the aquaculture lease or
agreement shall comply with the provisions of the Fish and Game Code and the
rules and regulations of the commission and any special provisions set forth in
the lease or agreement by the commission.
(3) Before an aquaculture lease or agreement
is issued by the department, the applicant must present evidence that the
applied for aquaculture area has been registered in compliance with Fish and
Game Code Section
(4) The department may inspect the depuration
facilities, culture or relay areas of a holder of an aquaculture lease or
agreement at any time.
used by holders of an aquaculture lease or agreement may be required to
maintain clearly visible identifying numbers.
(6) The holder of an aquaculture lease or
agreement shall record the size, numbers or pounds of shellfish or other marine
life planted, relayed or taken in or from waters of the state on forms as
designated by the department.
Marking of leases. All aquaculture leases shall be clearly marked. Minimum
marking requirements shall include:
buoy anchored on each of the four corners and one buoy, possessing
radar-reflecting capabilities, anchored in the center of each aquaculture
lease. All buoys used to define the boundaries of an aquaculture lease shall be
marked in conformance with the International Association of Lighthouse
Authorities Maritime Buoyage system regulations ( 33 CFR Section 62.33 and
(B) All buoys shall
bear the Aquaculture Lease No. M- (followed by the appropriate
(C) Buoys marking the
boundaries of an aquaculture lease shall be maintained at all times. If buoys
are lost, displaced or are otherwise removed from an aquaculture lease, they
must be replaced within a two-week period, weather conditions permitting, or
the lease may be subject to termination.
(D) If aquaculture leases are located in
areas too shallow to effectively maintain buoys, the four corners (boundaries)
of a lease may be defined by stakes extending no less than three feet above the
surface of the water at mean higher high water supporting the markings
prescribed in subsection (A). Stakes used to define the limits of an
aquaculture lease shall be marked and maintained in the same manner as buoys in
the preceding subsections.
aquaculture lessee shall make application to the U.S. Coast Guard, Aids to
Navigation Branch, 400 Ocean Gate, Long Beach, CA 90822, for approval of the
buoys and markings to be established on aquaculture leases.
(d) In addition to
other requirements, a permit to relay or depurate shellfish shall contain the
(1) An operation
conducted under an aquaculture agreement or a relay or depuration permit that
receives shellfish from the licensee's or permittee's own lands or lands leased
by it, is not required to be licensed as a wholesale fish dealer and preserver,
but shall maintain such records as are required by the department to monitor
such operations, including but not limited to: data with respect to each batch
of shellfish depurated or relayed that will show: its origin and quantity; date
or reception by the depuration facility or relay bed and the length of time
held in the facility or bed; and their final disposition. All depurated or
relayed shellfish shall be identified by a tag or label securely fastened to
the shipping container and bearing the certificate number of the shipper, his
name and address, the name and address of the consignee, and the kind and
quantity of shell- fish in the container and the batch or lot number.
(2) The operator of a depurating facility
receiving shellfish from other than the operator's owned or leased areas shall
obtain a wholesale fish dealer's and preserver's license prior to the
department's issuance of a permit and the permittee will maintain such records
as required by the department.
A relay or depuration permittee, moving shellfish for the purpose of cleansing,
shall satisfactorily identify each lot of shellfish harvested and maintain its
identity separate from other shellfish throughout its relaying or depuration
process until certification by the Department of Health Services that edible
shellfish standards have been met.
(4) Persons holding an aquaculture lease or
agreement who relay shellfish from one area of the state to another, whether
from private or public water bottoms, shall give the department notice two
working days prior to the relay. Such notification shall be given to the
department's office specified in the agreement.
(5) No shellfish shall be relayed without
obtaining written permission from the department.
(6) Shellfish harvested from a conditionally
approved or restricted area for relaying or depuration, shall be identified by
a lot number. Shellfish so identified must be kept separate throughout the
relaying or depuration process.
Oysters, clams and mussels harvested for human consumption from the waters of
Districts 12 and 13 by commercial fishermen, shall be taken only for the
purposes of relaying or depuration.
(8) Shellfish produced by a registered
aquaculture facility within the state may be relayed at any time. Such
shellfish shall be free of disease and parasites so as to pose no threat to the
environment. Hatcheries producing shellfish to be planted in state waters shall
be inspected by the department for the presence of disease organisms at least
once a year and, following such inspection, a permit authorizing planting of
specified species for the ensuing year may be issued.
In lieu of the hatchery inspection, at the option of the
registrant, inspection of each lot from the hatchery that is to be planted in
state waters shall be requested. Request for inspecting each lot shall be made
by the registrant at least two working days prior to the transfer. A written
permit authorizing the planting shall be obtained before planting the
(d)(8) does not preclude inspections under Section
the Fish and Game Code.
(e) Shellfish relayed from Districts 12 and
(1) Native shellfish taken from Districts
12 and 13 under an aquaculture lease or agreement for purposes of purification,
whether from public or private lands, are subject to a royalty of 0.0125H per
pound after taking the shellfish from the relaying or depurating sit. For the
purpose of computing the royalty, the charge shall be based on the weight
(including shell) of the shellfish after completion of the cleansing process.
The royalty is payable within 30 days after close of the calendar month in
which it became due. If not paid within 60 days after the close of the month
for which it became due, a penalty equal to 10% of the royalty shall be added
(2) Nonnative shellfish
relayed from Districts 12 and 13 and relayed for the purposes of purification,
are subject to a 0.02H per pound fee after taking them from the relaying or
depuration site. The fee is charged to cover administrative costs and is
subject to adjustment and penalty as described in subsection (e)(1).
(f) Persons holding an aquaculture
lease or agreement and using state water bottoms shall, in addition to the
acreage rental fee for use of state water bottoms, be assessed a fee on all
shellfish harvested not to exceed the privilege tag as provided in Fish and
Game Code Section
The fees shall be subject to the penalty and adjustment as described in
subsection (e)(1). These fees shall not apply to the harvesting of shellfish
from state or private water bottoms in Districts 12 and 13 for the purposes of
cleansing. When water quality in Districts 12 and 13 permits direct use of the
shellfish from state water bottoms or native shellfish from private water
bottoms, the fee established by Fish and Game Code Section
plants taken from state waters are subject to the fees of Section 165(a)(2)(E)
of this title.
(h) Oysters, clams
and mussels harvested from Districts 12 and 13 for commercial purposes must be
taken by licensed commercial fishermen. In addition to a commercial fishing
license, every fisherman when harvesting shellfish, must have in his possession
a current permit issued pursuant to Section 123 of this title. Only those
species listed on the permit for harvest from Districts 12 and 13 may be
(i) Improvements of
(1) Oyster Cultivation.
(A) Bottom culture: leases must be improved
at an average rate of at least two cases of seed-bearing shell (160 pounds of
seed-bearing shell) or 30 bushels of shellfish one or more years of age per
acre over the allotted acreage per year. Improvements by unattached, single
seed (less than one year old) shall consist of planting an average rate of
10,000 single seed per acre per year over the allotted acreage. Term of
improvement shall be four years for seed-bearing shell and three years for
oysters one or more years of age.
(B) Off-bottom culture: leases must be
improved at an average rate of at least one case of seed-bearing shell (80
pounds of seed-bearing shell), or 15 bushels of oysters one or more years of
age per acre over the allotted acreage per year. Improvement by unattached
single seed (less than one year old) shall consist of planting an average rate
of 5,000 single seed per acre per year over the allotted acreage. Term of
improvement shall be four years for seed-bearing shell and three years for
oysters one or more years of age.
(C) Production requirements: the annual
harvest rate shall be an average of 2,000 oysters per acre (over one year of
age) over the allotted acreage effective three years after the effective date
of the lease. Harvest reports shall be recorded in the form of a receipt in
quadruplicate furnished by the department. The triplicate copy shall be
delivered to the department on or before the first and sixteenth day of each
(A) A lease of state water
bottoms for the cultivation of species other than oysters will include minimum
planting and harvesting requirements for the species to be cultivated to insure
that water bottoms so encumbered will be used for the purpose
(B) Harvest amounts shall
be recorded in the form of a receipt in quadruplicate furnished by the
department. The triplicate copy shall be delivered to the department on or
before the first and sixteenth day of each month.
(j) As proof of use, holders of
aquaculture leases shall submit to the department office designated in the
lease agreement, a written declaration under penalty of perjury showing the
date, quantity of species and acreage in each planting, also including a map
showing acres, amounts and dates planted.
Note: Authority cited: Sections 1050, 8500,15003, 15101, 15200,15400 and
15408, Fish and Game Code. Reference: Sections 1050,8500,
15101 and 15400, Fish and Game
1. New subsection
(c)(7) filed 7-14-86; effective thirtieth day thereafter (Register 86, No.
2. Amendment of subsection (d) filed 7-25-88; operative
7-25-88 (Register 88, No. 32).
3. Amendment of subsection (c)(7)
filed 4-14-89; operative 5-14-89 (Register 89, No.