Title of Regulation: 4VAC20-70. Pertaining to the Harvesting of Clams (amending 4VAC20-70-20 through 4VAC20-70-50, 4VAC20-70-70, 4VAC20-70-80, 4VAC20-70-90; adding 4VAC20-70-135).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: July 1, 2015.

Agency Contact: Jennifer Farmer, Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248 or email jennifer.farmer@mrc.virginia.gov.

Summary:

The amendments (i) establish the criteria for harvesting cultured hard clams by water rakes on leased ground and (ii) add clarifying language to the description of sections relating to hydraulic dredging on leased and public grounds.

4VAC20-70-20. Definitions.

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise.:

"Bull rake" means a device designed for use by hand for the purpose of harvesting clams, and which has the following characteristics: rake mouth width shall not exceed 30 inches, the teeth on the bar shall not be longer than 4½ 4-1/2 inches, the holding basket shall not hold greater than ¾ 3/4 of a bushel of clams and bottom material, and the handle shall not be longer than 30 feet. A bull rake may be equipped with skids to adjust the teeth for depth of penetration into the bottom.

"Commission" means the Marine Resources Commission.

"Conventional dredge" means the type of dredge that has become customarily used in Virginia to dredge oysters and crabs. It excludes any type of dredge where the dredging action functions or is aided by hydraulic action.

"Conventional hard clam rake" means a device designed for use by hand for the purpose of harvesting clams, and which has the following characteristics: rake mouth width shall not exceed 16 inches, the teeth on the bar shall not be longer than seven inches, the attached holding basket shall not hold greater than one-tenth 1/10 of a bushel of clams and bottom material, and the handle shall not be longer than 10 feet.

"Cultured clams" means hard shell clams (Mercenaria mercenaria) that have been spawned in a hatchery, planted on leased ground, and covered with netting or other means protected from predators until harvest.

"Public ground" means the grounds defined by §§ 28.2-551 and 28.2-639 through 28.2-649 of the Code of Virginia, and any areas set aside as public ground by court order.

"Leased ground" means any grounds leased by the Marine Resources Commission pursuant to the provisions of Chapter 6 (§ 28.2-600 et seq.) of Title 28.2 of the Code of Virginia.

"Officer" means a law-enforcement officer of the Marine Resources Commission.

"Unassigned ground" means any ground outside the public ground as defined by this chapter and which has not been set aside, or assigned by lease, permit or easement by the Marine Resources Commission.

"Water rake" means a device for use by hand for the harvesting of cultured clams on leased grounds. The mouth of the water rake shall not exceed 36 inches in width, and the water rake shall be attached by a hose to a single pump engine of no greater than 7.5 horsepower and shall only be pulled by a single person, with no mechanical assistance.

Part II
Pertaining to the Taking or Catching of Soft Shell Clams from Leased Grounds

4VAC20-70-30. License required for use of a hydraulic dredge on leased ground.

A. It shall be unlawful to take or catch soft shell clams from any leased grounds in any of the tidal waters of the Commonwealth by the use of a hydraulic dredge without first obtaining (i) a soft shell clam dredge license for each boat used for such a purpose and (ii) a permit for each boat and operator thereof.

B. Any lessee desiring to take or catch soft shell clams from leased ground by the use of a hydraulic dredge shall apply to the officer in charge of the district, in writing, specifying the location and identity of the specific lease or leases where he desires to dredge and request the privilege to dredge the specific lease or leases.

C. Each application will be reviewed by the commission. The commission may conduct a public hearing on such application if, in its discretion, it is deemed necessary. If the commission deems it wise to permit dredging of soft shell clams within the area of such a lease, the commission engineers shall first approve the existing boundaries, survey and plat of each lease. Any surveying or marking of the lease which may be necessary shall be at the expense of the lessee, unless such survey shows that the leased ground was properly marked.

4VAC20-70-40. Additional permits required for use of a hydraulic dredge on leased ground.

A. After the license is issued by the officer in charge of the district and before the licensee may begin to operate the hydraulic dredge, the lessee shall obtain from the officer in charge of the district a separate and individual permit which combines the identification of each lease, boat, and the operator thereof. An additional permit shall be obtained from the officer in charge of the district each time there is any change in operations which does not comply with all provisions in the original permit.

B. The license and permit shall at all times be on board the boat available for inspection by any inspector of the commission.

4VAC20-70-50. Operation of a hydraulic dredge on leased ground.

A. It shall be unlawful to operate a hydraulic dredge in the nighttime between the hours of sunset and sunrise or on Sunday for the catching of soft shell clams from leased ground.

B. It shall be unlawful to operate a hydraulic dredge on any lease for less than three acres unless adjoining other leases where the combined leases total more than three acres.

C. It shall be unlawful to operate a hydraulic dredge on any leased ground unless the boundaries of the lease are distinctly marked between corners to the satisfaction of the officer in charge of the district. All such marking shall be continually maintained during the dredging operations.

4VAC20-70-70. License required for use of a hydraulic dredge on public ground.

A. It shall be unlawful for any person, other than an employee of the commission or the Virginia Institute of Marine Science while conducting tests or experiments, to take or catch soft shell clams from any public grounds in the tidal waters of the Commonwealth by the use of a dredge without first obtaining (i) a soft shell clam dredge license as set forth in subsection E of this section for each boat used for such purpose and (ii) a permit for each boat and operator thereof.

B. Any person desiring to take or catch soft shell clams from the public grounds by the use of a hydraulic dredge shall apply to the officer in charge of the district, in writing, describing the area and requesting the privilege to dredge the specific area.

C. Each application shall be reviewed by the commission. The commission shall conduct a public hearing to determine the suitability of the area for the production of oysters, and shall make such further investigations and studies as in its discretion it deems necessary. If the commission deems it wise to permit dredging of soft shell clams in such an area, the area must be surveyed and marked by the commission before a license and permit is issued.

D. If the application is approved by the commission, no person shall have the exclusive use of the area for taking or catching soft shell clams by hydraulic dredge. The area shall be open to the general public for such a purpose provided each person obtains the necessary license and permit and complies with all other provisions of this chapter.

4VAC20-70-80. Additional permit required for use of a hydraulic dredge on public ground.

A. After the license is issued by the officer in charge of the district, and before the licensee may begin to operate the hydraulic dredge, the licensee shall obtain from the officer in charge of the district a separate and individual permit which combines the identification of the approved area, boat and the operator thereof. An additional permit shall be obtained from the officer in charge of the district each time there is any change in operations which does not comply with the provisions in the original permit.

B. The license and permit shall at all times be on board the boat available for inspection by any officer.

4VAC20-70-90. Operation of a hydraulic dredge on public ground.

It shall be unlawful to operate a hydraulic dredge in the nighttime between the hours of sunset and sunrise, or on Saturday or Sunday, for the catching of soft shell clams from public ground.

4VAC20-70-135. Water rakes.

A. It shall be unlawful for any person to purchase a water rake permit, unless that person is a valid clam aquaculture product owner permittee.

B. It shall be unlawful for any person to harvest or attempt to harvest cultured clams by water rake from leased ground without a water rake permit.

C. It shall be unlawful for any person to pull a water rake by any means, other than by hand, and it shall be unlawful for that person to use any mechanical assistance while harvesting or attempting to harvest cultured clams.

D. It shall be unlawful for any person to harvest or attempt to harvest cultured clams by water rake prior to sunrise or after sunset. It shall be unlawful for any person to leave the dock prior to one hour before sunrise, or return to the dock after sunset, on a boat with a water rake on that boat.