DAR File No. 44144

Natural Resources, Wildlife Resources

Rule R657-59

Private Fish Ponds, Short Term Fishing Events, Private Fish Stocking, and Institutional Aquaculture

Notice of Proposed Rule

(Amendment)

DAR File No.: 44144
Filed: 10/22/2019 07:18:36 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is being amended pursuant to Regional Advisory Council meetings and the Wildlife Board meeting conducted for taking public input and reviewing the private pond rule.

Summary of the rule or change:

The amendments to this rule establish criteria for when a hobby aquaponics facility can operate without a Certificate of Registration.

Statutory or constitutional authorization for this rule:

• Section 23-15-10
• Section 23-15-9

Anticipated cost or savings to:

the state budget:

These amendments remove requirements that were time consuming and difficult for a hobby aquaponics operator to follow. The Division of Wildlife Resources (DWR) has determined that these amendments do not create a cost or savings impact to the state budget or DWR's budget, since the changes will not increase workload and can be carried out with the existing budget.

local governments:

None--This filing does not create any direct cost or saving impact to local governments because they are not directly affected by these amendments. Nor are local governments indirectly impacted because these amendments do not create a situation requiring services from local governments.

small businesses:

These amendments remove a requirement that was time consuming and difficult for a hobby aquaponics owner. DWR has determined these amendments do not impose any additional requirements on small businesses, nor generate a cost or savings impact to small businesses.

persons other than small businesses, businesses, or local governmental entities:

These amendments remove a requirement that was time consuming and difficult for a hobby aquaponics owners. DWR has determined these amendments do not impose any additional requirements on other persons, nor generate a cost or savings impact to other persons.

Compliance costs for affected persons:

These amendments remove requirements that were time consuming and difficult for a hobby aquaponics owner. There are not any additional compliance costs associated with these amendments.

Comments by the department head on the fiscal impact the rule may have on businesses:

After conducting a thorough analysis, it was determined that these proposed rule amendments will not result in a fiscal impact to businesses.

Brian C. Steed, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Natural Resources
Wildlife Resources
1594 W NORTH TEMPLE
SALT LAKE CITY, UT 84116-3154

Direct questions regarding this rule to:

• Staci Coons at the above address, by phone at 801-538-4718, by FAX at 801-538-4709, or by Internet E-mail at stacicoons@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

12/16/2019

This rule may become effective on:

12/23/2019

Authorized by:

Mike Fowlks, Director

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs	FY 2020	FY 2021	FY 2022
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Person	$0	$0	$0
Total Fiscal Costs:	$0	$0	$0
Fiscal Benefits
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Persons	$0	$0	$0
Total Fiscal Benefits:	$0	$0	$0
Net Fiscal Benefits:	$0	$0	$0

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described in the narrative. Inestimable impacts for Non - Small Businesses are described in Appendix 2.

 

Appendix 2: Regulatory Impact to Non - Small Businesses

These rule amendments are not expected to have any fiscal impact on non-small businesses' revenues or expenditures, because it does not require a service or product from a non-small business.

 

The Executive Director of the Department of Natural Resources, Brian Steed, has reviewed and approved this fiscal analysis.

 

 

R657. Natural Resources, Wildlife Resources.

R657-59. Private Fish Ponds, Short Term Fishing Events, Private Fish Stocking, and Institutional Aquaculture.

R657-59-1. Purpose and Authority.

(1) Under the authority of Sections 23-15-9 and 23-15-10 of the Utah Code, this rule provides the standards and procedures for:

(a) private fish ponds;

(b) short term fishing events;

(c) aquaponics facilities;

(d) private fish stocking; and

([d)]e) institutional aquaculture.

(2)(a) This rule does not regulate fee fishing or private aquaculture as provided in Title 4, Chapter 37 of the Utah Code, and Department of Agriculture Rule R58-17.

(b) The display of aquatic wildlife in aquaria for personal, commercial, or educational purposes is regulated by R657-3.

(3) A person engaging in any activity provided in Subsection (1) must also comply with all requirements established by Title 4 of Utah Code and all rules promulgated by the Utah Department of Agriculture, including, but not limited to:

(a) requirements for the importation of aquaculture products into Utah; and

(b) requirements for fish health approval for aquaculture products.

(4) Any violation of, or failure to comply with, any provision of Title 23 of the Utah Code, this rule, or any specific requirement contained in a certificate of registration issued pursuant to this rule may be grounds for suspension of the certificate or denial of future certificates, as determined by the division.

 

R657-59-2. Definitions.

(1) Terms used in this rule are defined in Section 23-13-2.

(2) In addition:

(a) "Aquaculture" means the husbandry, production, harvest, and use of aquatic organisms under controlled, artificial conditions.

(b) "Aquaculture facility" means any facility used for the husbandry, production, harvest, and use of aquatic organisms under controlled, artificial conditions that holds a valid Certificate of Registration from the Utah Department of Agriculture.

(c)(i) "Aquaculture product" means privately purchased, domestically produced aquatic organisms, or their gametes.

(ii) "Aquaculture product" does not include aquatic wildlife obtained from the wild.

[(d) "Aquatic wildlife"](d) "Aquaponics facility" means a facility that combines fish and plant culture for a non-commercial purpose where:

(i) all water flowing into or through the facility is completely isolated from any other water source via a self-contained water transport system;

(ii) all water flowing from the facility is discarded into a permitted sewer or septic system;

(iii) the aquatic animals held within the facility are used for hobby purposes only;

(iv) no aquatic animals are transported from the facility alive; and

(v) the primary use of the facility is for food production and not for the general display of fish in aquaria.

(e) "Aquatic wildlife" for the purposes of this chapter are aquatic organisms that are conceived and born in public waters.

([e]f) "Certified sterile salmonid" means any salmonid fish or gamete that originates from a health certified source and is incapable of reproduction due to triploidy or hybridization, and is confirmed as sterile using the protocol described in R657-59-13.

([f]g) "FEMA" means Federal Emergency Management Administration.

([g]h)(i) "HUC"or "Hyrologic Unit Code" means a cataloging system developed by the US Geological Survey and the Natural Resource Conservation Service to identify watersheds in the United States.

(ii) HUCs are typically reported at the large river basin (6-digit HUC) or smaller watershed (11-digit and 14-digit HUC) scale.

(iii) HUC maps and other associated information are available at http://water.usgs.gov/wsc/sub/1602.html.

([h]i) "Institutional aquaculture" means aquaculture engaged in by any institution of higher learning, school, or other educational program, or public agency.

[(i](j) "Ornamental aquatic animal species" means any species of fish, mollusk, or crustacean that is commonly cultured and sold in the United States' aquarium industry for display as defined in R657-3-4.

[(j)](k) "Private fish pond" means a body of water or any fish culture system which:

(A) is not located on a natural lake, natural flowing stream, or reservoir constructed on a natural stream channel;

(B) is contained entirely on privately owned land; and

(C) is used for holding or rearing fish for a private, noncommercial purpose.

[(k)](l) "Purchase" means to buy, or otherwise acquire or obtain through barter, exchange, or trade for pecuniary consideration or advantage.

([l]m) "Salmonid" means any fish belonging to the trout/salmon family.

([m]n) "Short-term fishing event" means any event where:

(i) privately acquired fish are held or confined for a period not to exceed ten days in a temporary structure or container;

(ii) for the purposes of providing fishing ar recreational opportunity; and

(iii) no fee is charged as a requirement to fish.

([n]o) "Sterile" means the inability to reproduce.

 

R657-59-3. Certificate of Registration Not Required -- Private Fish Ponds[ and], Short Term Fishing Events, and Aquaponics Facilities .

(1) A certificate of registration is not required to stock an aquatic animal in an aquaponics facility, provided:

(a) the aquatic animals stocked are accompanied by a valid health approval number issued by the Utah Department of Agriculture and Food pursuant to Chapter 4 Title 37 of Utah Code; and

(b) the aquatic animals to be stocked belong to one of the following species:

(i) bluegill;

(ii) hybrid bluegill (bluegill x green sunfish);

(iii) redear sunfish;

(iv) green sunfish;

(v) striped bass;

(vi) white bass;

(vii) hybrid striped bass or wiper (white bass x striped bass);

(viii) largemouth bass;

(ix) smallmouth bass;

(x) channel catfish

(xi) yellow perch;

(xii) fathead minnow;

(xiii) black crappie;

(xiv) white crappie;

(xv) rainbow trout;

(xvi) cutthroat trout;

(xvii) brown trout;

(xviii) brook trout;

(xix) tiger trout;

(xx) walleye;

(xxi) golden shiner; and

(xxii) any aquatic animal species classified as non-controlled for possession and importation under R657-3-22 or 23.

(2) A certificate of registration is not required to receive and stock an aquaculture product in a private fish pond, provided:

(a) the private fish pond satisfies the screening requirements established in R657-59-10;

(b) if a screen is required, the aquaculture product received must be of sufficient size to be incapable of escaping the pond through or around the screen;

(c) the species, sub-species, and sterility of the aquaculture product received is authorized for stocking in the area where the private fish pond is located consistent with the requirements in R657-59-11;

(d) the aquaculture product is:

(i) delivered to the pond by a licensed aquaculture facility as defined in Title 4 Chapter 37 of Utah Code; or

(ii) the owner, lessee, or operator of the private pond:

(A) possesses documentation from the aquaculture facility verifying the information itemized in R657-59-6 and R58-17-14 during transport; and

(B) assumes legal responsibility for directly transporting the fish from the aquaculture facility to the private fish pond;

(e) the owner, lessee, or operator of the pond obtains from the aquaculture facility providing the aquaculture product a valid health approval number issued by the Utah Department of Agriculture and Food pursuant to Chapter 4 Title 37 of Utah Code; and

(f) the owner or operator of the private fish pond provides the aquaculture facility a signed written statement that the pond and aquaculture product received are in compliance with this section.

([2)]3) A certificate of registration is not required to receive and stock an aquaculture product in a short-term fishing event, provided:

(a) the temporary container or structure to be stocked is entirely separated from any public waterway or waterbody;

(b) the species, sub-species, and sterility of the aquaculture product received is authorized for stocking in the area where the short-term fishing event is located consistent with the requirements in R657-59-11;

(c) the aquaculture product is:

(i) delivered to the pond by a licensed aquaculture facility as defined in Chapter 4 Title 37 of Utah Code; or

(ii) the owner, lessee, or operator of the short-term fishing event:

(A) possesses documentation from the aquaculture facility verifying the information itemized in R657-59-6 and R58-17-14 during transport; and

(B) assumes legal responsibility for directly transporting the fish from the aquaculture facility to the short-term fishing event;

(d) the owner, lessee, or operator of the pond obtains from the aquaculture facility providing the aquaculture product a valid health approval number issued by the Utah Department of Agriculture and Food pursuant to Chapter 4 Title 37 of Utah Code; and

(e) the operator of the short-term fishing event provides the aquaculture facility a signed written statement that the short-term fishing event and aquaculture product received are in compliance with this section.

 

R657-59-4. Certificate of Registration Required -- Other Fish Stocking Activities.

(1)(a) A certificate of registration must be obtained from the division to receive, possess, stock, or release an aquaculture product or aquatic wildlife in a manner that does not satisfy the certificate of registration waiver requirements identified in R657-59-3.

(b) If a certificate of registration is required, a separate application for each fish stocking request must be submitted, except:

(i) stocking locations are separated by less than 1/2 mile may be placed on a single application; and

(ii) water bodies that drain to, or are modified to drain to, the same drainage may be listed on a single application.

(2) Fish stocked or released in a water body not eligible as a private fish pond or short-term fishing event under R657-59-3 are considered wild aquatic wildlife and may be taken only as provided in Rule R657-13 and the fishing proclamation.

(3) A permanent water body stocked pursuant to a certificate of registration for private stocking may not be screened to contain fish, except:

(a) a water stocked with grass carp to control aquatic weeds must be adequately screened to prevent the grass carp from escaping; and

(b) the division may require screening of the water body to protect wildlife resources found in the water body and any connected waterways.

(4)(a) An application for a certificate of registration for private stocking to stock fish other than grass carp may be approved only if:

(i) the stocking will only occur on privately owned land;

(ii) the body of water to be stocked is a reservoir that is wholly contained on the land owned by the applicant;

(iii) the body of water is not stocked or otherwise actively managed by the division;

(iv) the fish to be stocked are for a non-commercial purpose; and

(v) in the opinion of the division, stocking will not interefere with division management objectives or cause detrimental interactions with other species of fish or wildlife.

(5) An application for a certificate of registration for private stocking of triploid grass carp for control of aquatic weeds will be evaluated based upon:

(a) the severity of the weed problem;

(b) availability of other suitable means of weed control;

(c) adequacy of screening to contain the grass carp; and

(d) potential for conflict with division management objectives or detrimental interactions with other species of fish or wildlife.

 

R657-59-12. Institutional Aquaculture.

(1)(a) A certificate of registration is required for any public agency, institution of higher learning, school, or educational program to engage in aquaculture.

(b) A certificate of registration is not required for any public agency, institution of higher learning, school, or educational program to engage in the hobby of aquaponics, so long as the aquaponics facility complies with the regulations in R657-59-3(1).

(2) Aquatic wildlife or aquaculture products produced by institutional aquaculture may not be:

(a) sold;

(b) stocked; or

(c) transferred into waters of the state unless specifically authorized by the certificate of registration.

(3) The fish health approval requirements of Title 4 Chapter 37 apply.

(4)(a) A certificate of registration for institutional aquaculture may be obtained by submitting an application to the division.

(b) A certificate of registration may be renewed by submitting an application prior to the expiration date of the current certificate of registration.

(c) The application may require up to 30 days for processing.

(d) The division may require a site inspection of the institutional aquaculture facility be performed to confirm compliance with the provisions found in this rule.

(e) The division may deny an application where:

(i) the application is incomplete, filled out incorrectly, or submitted without the appropriate fee;

(ii) operating the institutional aquaculture facility may violate any federal, state or local law or any agreement between the state and another party;

(iii) the application fails to demonstrate an ability to operate the aquaculture facility in a manner that protects Utah's wildlife, their habitats, and other aquaculture facilities from contamination; or

(iv) the applicant has violated any provision of Title 23, Utah Wildlife Resources Code, Administrative Code R657, a guidebook of the Wildlife Board, a certificate of registration, an order of the Wildlife Board, or any other law that bears a reasonable relationship to the applicant's ability to responsibly operate an institutional aquaculture facility.

(5) An application for a certificate of registration may not be denied without the review and consent of the division director or a designee.

(6) A certificate of registration for a institutional aquaculture may remain effective for up to 5 years from the date of issuance as identified on the certificate of registration, unless:

(a) amended by the division at the request of the certificate of registration holder;

(b) terminated or modified by the division pursuant to R657-59-13; or

(c) suspended by the division or a court pursuant to Section 23-19-9.

 

KEY: wildlife, aquaculture, fish

Date of Enactment or Last Substantive Amendment: [ March 13, 2017 ] 2019

Notice of Continuation: July 19, 2018

Authorizing, and Implemented or Interpreted Law: 23-15-9; 23-15-10