Substitute House Bill No. 5241
Public Act No. 04-223
AN ACT CONCERNING STATE SHELLFISHERIES, STANDARDS FOR SHELLFISH TESTING, LEASING OF SHELLFISH GROUNDS, SHELLFISHING VIOLATIONS, THE USE OF POWER DREDGES TO RESTORE SHELLFISH BEDS AND THE AGRICULTURAL TECHNOLOGY DEVELOPMENT ADVISORY BOARD.
Be it enacted by the Senate and House of Representatives in General Assembly convened:
Section 1. Section 26-192a of the general statutes, as amended by section 146 of public act 03-6 of the June 30 special session, is repealed and the following is substituted in lieu thereof (Effective July 1, 2004):
The Department of Agriculture and Consumer Protection shall be the lead agency on shellfish in Connecticut. The department: (1) Shall coordinate the activities of other state agencies with regard to shellfish; (2) shall act as a liaison on shellfish matters between the state and municipalities, including local shellfish commissions; (3) shall take steps necessary to ensure compliance with federal standards for the shellfish sanitation program and compliance with the National Shellfish Sanitation Program Model Ordinance, as amended from time to time; (4) may, in conjunction with the Department of Public Health, enter into agreements with municipalities to utilize available municipal resources for monitoring and testing; and (5) shall encourage depuration.
Sec. 2. Section 26-192b of the general statutes, as amended by section 146 of public act 03-6 of the June 30 special session, is repealed and the following is substituted in lieu thereof (Effective July 1, 2004):
[The Department of Public Health shall recommend to the] Notwithstanding the provisions of subsection (a) of section 19a-29a, the Department of Agriculture and Consumer Protection shall promulgate health standards for shellfish testing and shall approve private laboratories to perform shellfish testing. Such health standards for shellfish testing shall incorporate by reference the provisions of the National Shellfish Sanitation Program Model Ordinance, as amended from time to time.
Sec. 3. Subsection (a) of section 26-192c of the general statutes, as amended by section 146 of public act 03-6 of the June 30 special session, is repealed and the following is substituted in lieu thereof (Effective July 1, 2004):
(a) The Department of Agriculture and Consumer Protection may inspect shellfish beds and areas in this state where shellfish are grown or harvested, all boats, tools and appliances used in the production and preparation of shellfish and all wharves or buildings where shellfish are stored, transferred, opened, packed or prepared for sale or shipment. [It] The Department of Agriculture and Consumer Protection may [prescribe] adopt regulations, in accordance with the provisions of chapter 54, after consultation with the Department of Public Health, for the sanitary growth, production, purification and preparation of shellfish. Such regulations shall incorporate by reference the provisions of the National Shellfish Sanitation Program Model Ordinance, as amended from time to time. Each commercial harvester, producer or shipper of shellfish shall obtain from said department a license on which shall be stated information regarding the identification of the license holder and any conditions pertaining to the character of such licensee's shellfish operations. Said department may establish a fee for each type of shellfish license it issues. The department may require that shellfish shipments be tagged or containers marked to identify the shipper by name and location and the source of the shipment and furnish such other pertinent information as may apply. Any license granted under the authority of this section may be revoked by said department for cause, after notification and hearing. No person, firm or corporation shall make any shipments or deliveries of shellfish after the license of such person, firm or corporation has been suspended or revoked. Any license may be suspended pending revocation proceedings, or amended, if shellfishing operations or harvesting areas are a public health hazard or if the licensee has violated any provision of this section, section 26-192e, as amended, 26-192f, as amended, or 26-192h, as amended, or any applicable department regulation or any section of the Public Health Code concerning shellfishing. The department may refuse to issue a license if the applicant has violated any provision of this section, section 26-192e, as amended, 26-192f, as amended, or 26-192h, as amended, or any applicable department regulation or any section of the public health code concerning shellfish.
Sec. 4. Section 26-194 of the general statutes, as amended by section 2 of public act 03-263, is repealed and the following is substituted in lieu thereof (Effective June 1, 2004):
(a) The Commissioner of Agriculture may lease in the name of the state, under such regulations as he may prescribe and for a period not longer than ten years, all shellfish areas that have been conveyed to the state or placed under state jurisdiction by the town of West Haven and any undesignated grounds, within the exclusive jurisdiction of the state, for the purpose of planting and cultivating shellfish. The authority herein conferred shall include the Cormell Reef, Portchester, Great Captain's Island, Field Point and Greenwich Point natural beds as located and described in section 3295 of the general statutes, revision of 1918. Any person desiring to lease grounds for such purpose shall make application in writing to the commissioner and all grounds leased by authority of the provisions of this section shall be leased to the highest responsible bidder, for a minimum fee of [two] four dollars per acre. Such lease or lease renewal shall require the lessee to make a good faith effort to cultivate and harvest shellfish from the leased area. Such lease or lease renewal shall prohibit the lessee from entering a contract whereby the lessee agrees not to cultivate and harvest shellfish for any period of time. No lessee may enter an agreement with a third party that will prevent the lessee from carrying out the lessee's obligations under the lease unless the Department of Agriculture and the Attorney General have approved such agreement. The form of such application and lease shall be approved by the Attorney General, and all such leases shall be recorded in the records of the commissioner. No lease shall be granted to a resident of a state which does not lease shellfish grounds to residents of this state, except that any nonresident who was granted a lease on or before October 1, 1985, may, upon the expiration of such lease, apply for a renewal or further lease as provided in this section. The commissioner shall grant any such lease to nonresidents upon the same terms and conditions as to residents of this state. Any lessee or holder of [oyster ground] shellfish grounds, on the expiration of any lease thereof which has been or which may be granted, having fulfilled all of such lessee's or holder's obligations under the lease shall, upon application to the commissioner, have [the] preference in the reletting of such ground for a like term to that granted in the original lease, [unless such applicant, at the time for granting such application, is] excluding the rental fee, which shall not be less than the minimum fee per acre as provided in this subsection. A lease renewal shall not be granted if the applicant is in arrears for rent on the original lease of such [ground] grounds. Such application for such renewal or further lease shall be granted without notice or advertisement of the pendency thereof; provided no renewal or further lease of such ground shall be granted when the commissioner, for cause, ceases to lease such ground for [oyster] shellfish culture. All assignments or transfers of leases shall be subject to the approval of the commissioner and shall be recorded in his records. Any person who interferes with, annoys or molests another in the enjoyment of any lease authorized by the provisions of this section shall be subject to the penalties provided in section 26-237. The provisions of sections 26-212, as amended, 26-215, as amended, and 26-232, as amended, shall not apply to any shellfish grounds leased pursuant to the provisions of this section.
(b) Upon request of a lessee, the commissioner may divide or consolidate shellfish grounds leased by such lessee, if the commissioner determines such division or consolidation to be in the best interests of the state. The minimum fee per acre shall apply to shellfish grounds divided or consolidated pursuant to this subsection.
[(b)] (c) Notwithstanding the provisions of subsection (a) of this section, any owner of a utility line or public use structure that impacts on a leased area shall pay to the lessee the costs of removing or relocating any shellfish. Nothing in this subsection shall be construed to prohibit the state or any lessee from recovering damages incurred by the state or the lessee caused by the installation, construction or presence of such utility line or public use structure.
[(c)] (d) The commissioner may designate an agent within the department to exercise the authority of said commissioner under this section.
Sec. 5. (Effective from passage) The Director of the Bureau of Aquaculture of the Department of Agriculture shall study the effects of disease, pollution, siltation and storm damage on oyster populations. The director shall report, pursuant to the provisions of section 11-4a of the general statutes, the results of such study to the joint standing committee of the General Assembly having cognizance of matters relating to the environment, not later than January 1, 2006.
Sec. 6. Section 26-192f of the general statutes, as amended by section 146 of public act 03-6 of the June 30 special session, is repealed and the following is substituted in lieu thereof (Effective July 1, 2004):
Any person, firm or corporation (1) harvesting or taking shellfish from an area closed and posted by the Department of Agriculture and Consumer Protection against the [taking] removal of shellfish, except as provided in section 26-192h, or an area closed by commercial shellfish transplant license issuance or by order of the local director of health with the approval of the department, (2) misusing any shipping tag or license in violation of section 26-192c, as amended, (3) mislabeling shellfish shipments or deliveries with any false information, (4) failing to identify shellfish shipments or deliveries in accordance with regulations adopted by the department, [or] (5) [failing to surrender a license to the department upon request,] harvesting shellfish from undesignated grounds, or (6) harvesting shellfish from designated grounds not listed on a license issued by the Department of Agriculture and Consumer Protection to such person, firm or corporation shall be fined [not less than fifty dollars nor more than] (A) one thousand dollars, or (B) three times the market value of any shellfish taken, based on the quantity and type [,] involved in the violation if such amount is greater than one thousand dollars, or imprisoned not more than twelve months. The Commissioner of Agriculture and Consumer Protection may revoke any license issued by said commissioner for up to sixty days for the second violation of this section within six months and up to ninety days for a third violation of this section within nine months. Any person who defaces or removes a sign posted by the Department of Agriculture and Consumer Protection in accordance with the provisions of section 26-192e, as amended, shall be fined not more than five hundred dollars or imprisoned not more than six months. The provisions of this section are in addition to and in no way derogate any other enforcement provisions or penalties contained in any other section of the general statutes.
Sec. 7. Section 26-235 of the general statutes, as amended by section 146 of public act 03-6 of the June 30 special session, is repealed and the following is substituted in lieu thereof (Effective July 1, 2004):
(a) No person shall take any long clams less than one and one-half inches in length, provided the Waterford-East Lyme shellfish commission may make such residency requirements for digging or taking clams from the shores or waters of the Niantic River as it deems reasonable and in the best public interest of the Waterford-East Lyme area. Unless otherwise provided by statute, regulation or local ordinance, the recreational harvest limit of clams shall not exceed one-half bushel per person daily. The Commissioner of Agriculture and Consumer Protection may designate by regulations adopted in accordance with the provisions of chapter 54 shores and waters for the exclusive recreational harvesting of clams. For the purposes of this section, recreational harvest of clams means the collection of clams by an individual for [his own or his family's consumption] personal consumption or consumption by such individual's family.
(b) The common council of any consolidated town and city and the selectmen of any other town may determine the quantity of clams to be taken therein by a person during one day and may prohibit, for a period not exceeding one year, the taking of clams from any waters or beaches they may designate within the territorial limits of such town, if they deem such prohibition necessary for the protection of the natural clam areas, by posting notices on such designated territorial limits stating that the taking of clams within such areas is prohibited.
(c) Any person who violates any provision of subsection (a) or (b) of this section shall have committed an infraction.
(d) Any person who takes clams from an area closed and posted against the taking of clams by the Department of Agriculture and Consumer Protection, or from an area closed by license issuance or by order of a local health department shall be fined not less than seventy-five dollars nor more than one thousand dollars or three times the market value of any clams taken, based on the quantity and type involved in the violation, if such amount is greater than one thousand dollars, or imprisoned not more than twelve months.
(e) Any person who defaces or removes a sign posted by the Department of Agriculture and Consumer Protection, in accordance with the provisions of section 26-192e, as amended, shall be fined not more than five hundred dollars or imprisoned not more than six months.
Sec. 8. Section 26-215 of the general statutes is repealed and the following is substituted in lieu thereof (Effective June 1, 2004):
(a) There shall not be used on any licensed boat any device operated otherwise than by hand power, for hoisting or operating dredges or other implements for gathering oysters, clams, mussels or other shellfish or oyster shells. [No] Except as provided in subsection (b) of this section, no person shall use any dredge or other contrivance weighing more than thirty pounds, exclusive of the net or bag, or with a capacity of more than one and one-half bushels in taking up or dredging for oysters, clams, mussels or other shellfish or oyster shells in any of the waters of the state, except upon private designated grounds. Nothing [herein] in this section shall be construed to prevent the use of power in taking up or dredging for oysters, clams, mussels or other shellfish or shells on private designated grounds by the owners thereof, or to prevent the use of excavators for deepening the water in places where there are no natural oyster or clam beds, or where such beds have not existed within ten years, by digging or removing the material, permission to use excavators being first given by the Commissioner of Agriculture, which permission shall not be given until after a public notice of at least two weeks of the time when and place where he will hear all parties desiring to be heard upon such application, which notice shall be posted in the office of the town clerk of the town where such grounds are located.
(b) A local shellfish commission established pursuant to section 26-257a, as amended, may allow limited and supervised use of a power dredge or other contrivance with a capacity of not more than three bushels, for the purpose of cultivation, enhancement or restoration of natural shellfish beds located within the jurisdiction of said commission. The use of a power dredge or other contrivance pursuant to this subsection shall not be extended to the harvesting or removal of oysters. Such shellfish commission shall administer such dredging pursuant to section 26-257a, as amended.
Sec. 9. (Effective from passage) Section 22-26h of the general statutes is repealed.
Approved on June 8, 2004