DEPARTMENT OF AGRICULTURE Animal Industry Division RULES PERTAINING TO THE ADMINISTRATION AND ENFORCEMENT OF THE COLORADO AQUACULTURE ACT 8 CCR 1201-21 [Editor’s Notes follow the text of the rules at the end of this CCR Document.] I. DEFINITIONS A. “Aquaculture Facility Permit” means a permit issued by the Commissioner to operate an aquaculture facility as defined in section 35-24.5-103(2), C.R.S.

B. “Broker” means an agent who negotiates contracts of purchase and sale of live fish and viable gametes.

C “Commissioner” means the Commissioner of the Colorado Department of Agriculture. D “Department” means the Colorado Department of Agriculture. E “Division” means the Colorado Division of Wildlife.

F. “Gamete” shall have the common biological definition of sperm and egg as that definition relates to fish for the purposes of this rule.

G. “Transport” means the movement of live fish or viable gametes off of an individual's, partnership's, corporation's, or other legal entity's property or the movement of live fish or viable gametes from one watershed to another.

II. PERMIT REQUIREMENTS A. Except as provided herein, no person may propagate, sell, broker, trade or transport or attempt to propagate, sell, broker, trade or transport any live fish or viable gametes unless the aquaculture facility which said person operates first obtains an aquaculture permit as provided in these rules:

1. 1. A broker that never takes physical possession of said live fish and viable gametes shall not be required to have an aquaculture permit.
2. 2. A person who only sells directly to individuals, for use as food, live fish from a holding tank that is not hydrologically connected to the waters of the state, and who does not propagate, transport, or release live fish into the waters of the state, shall not be required to have an aquaculture facility permit.
3. 3. A bait dealer shall not be required to have an aquaculture facility permit if all the live fish and viable gametes the dealer sells are obtained:
   1. a. From a source that has been inspected and certified free of disease in accordance with Division regulations and policies, and b. Records are maintained and receipts provided to customers as required in section VI.E.
4. 4. No aquaculture facility permit shall be required for persons exempted from such requirement by sections 35-24.5-109(5) and (6), C.R.S.
5. 5. No aquaculture facility permit shall be required to transport legally obtained live fish or gametes for non-commercial personal use or consumption so long as such live fish or gametes are not released into the waters of the state.

B. Non-compliance with the provisions of this rule constitutes grounds for denial, suspension or revocation of an aquaculture facility permit pursuant to the provisions of §35-24.5-110, C.R.S. Any permittee whose permit is denied, suspended, or revoked, by the Commissioner shall lawfully dispose of all live fish and viable gametes held pursuant to the permit in the manner and within the time period ordered by the Commissioner.

III. PERMITTED ACTIVITIES A. Aquaculture Permit Except as otherwise prohibited by law, a permittee may sell, trade, transport or broker live fish or viable gametes or operate a fish production facility for the purposes of propagating, selling, trading or transporting live fish or viable gametes. Several satellite stations of a fish production facility may operate under one aquaculture facility permit provided all such satellite stations are listed on such permit. All production facilities that sell or stock live fish shall obtain an annual fish health inspection performed by a qualified fish pathologist in accordance with Division regulations and policies.

IV. APPLICATION AND PERMITTING PROCEDURE A. Applicants for an aquaculture facility permit and renewal of a permit shall apply for required permits on forms provided by the Department accompanied by funds in the amount of one hundred dollars ($100.00). Each applicant shall submit a signed, complete, accurate, and legible application. An additional fee is not required to amend a permit (i.e., add more species).

B. Aquaculture facility permits are non-transferable and shall expire December thirty-first (31) of each year.

C. Applications for renewal of an aquaculture facility permit shall be postmarked on or before December 31 of the year preceding the year for which renewal is sought.

D. Applicants shall list the species of fish they intend to possess.

E. A Division employee shall make a personal inspection of the applicant's facilities when considering an initial application to determine compliance with these regulations.

F. An aquaculture facility permit shall not be issued for waters that have been stocked with fish at public expense within five (5) years prior to application unless: (a) all fish stocked in such waters have been removed or eliminated (e.g., by winter kill) or (b) the applicant has negotiated with the Division for purchase or salvage of state-stocked fish. All waters shall be equipped with screening installations, if necessary, to prevent fish in public waters or private lakes from entering the permitted production facilities or lake(s), or prevent fish in the permitted production facilities or lake(s) from entering public waters.

G. 1. An application for an aquaculture facility permit issuance or renewal may be denied in its entirety or limited as to species authorized to be kept if necessary to protect Colorado's wildlife resources or cultured aquatic stock from a negative impact such as:

1. a. Potential habitat competition, damage or destruction.
   1. b. Disruption of migration, breeding, or rearing and survival of young.
   2. c. Predation.
   3. d. Danger to humans, domestic livestock or property.
   4. e. Disease.
2. 2. An aquaculture facility permit shall not be denied, however, for species endemic to the local area of the facility, or for species generally accepted as not having negative impact to wildlife resources.
3. 3. Written notification of denial shall be furnished to the applicant stating the reasons for denial within sixty (60) days of the receipt of a sufficient application.
4. 4. Review of a denial shall be in accordance with section 24-4-104 & 105, C.R.S.

V. INSPECTION The permitee shall allow the inspection of fish or viable gametes by persons authorized by the Commissioner to enforce these regulations, at any reasonable time. Records required by these regulations shall be made available to such authorized Department or Division employees during regular business hours.

VI. RECORD KEEPING A. Acquisition: All aquaculture facility permitees shall maintain records documenting the acquisition of fish and viable gametes. The records shall show the name and address of the business or person from whom such fish and viable gametes were obtained, their date of acquisition, and their species, number and size. All records shall be retained for the period of ownership of the fish or viable gametes and for three (3) years after disposition.

B. When live fish or viable gametes are sold, traded, taken or otherwise disposed of from an aquaculture facility, the permittee or operator shall, at the time of transfer of possession, give an invoice to the person receiving such fish or viable gametes. Such invoice shall contain the permittee's name and such invoice shall show the name and address of the recipient, the license number or designation of the receiving facility or lake, date of delivery, species, number and size of the fish or viable gametes.

C. Copies of all invoices for aquaculture facility permits shall be maintained by the permitee for three (3) years.

D. All original records must be kept at the same location as the production facility or satellite location or at the Colorado address of the permitee.

E. Bait dealers that are exempt from the aquaculture facility permit requirement pursuant to section II of these rules shall be required to:

1. 1. Maintain records of all acquisitions of live fish or viable gametes. The records shall show the name and address of the business or person from whom such fish and viable gametes were obtained, their date of acquisition, and their species, number and size.
2. 2. Provide each purchaser of live fish or viable gametes with a written receipt stating the seller’s name, the date of sale, and the species, and the number sold.

VII. SPECIAL REGULATIONS Most Restrictive Federal or State Law - In all cases of permitting, taking, possession, importation, exportation, release, marking and sale of cultured aquatic stock, the most restrictive state or federal law shall apply.

VIII. STATEMENTS OF BASIS, SPECIFIC STATUTORY AUTHORITY AND PURPOSE A. March 30, 1992 – Effective April 30, 1992 The Statement of Basis, Specific Statutory Authority and Purpose for this rulemaking activity is no longer in the Department’s files.

B. February 17, 1998 – Effective April 30, 1998 These rules are adopted pursuant to 35-24.5-105(1) and 35-24.5-106(1). These recommended changes are the result of a review of the existing regulation by the Colorado Aquaculture Board. This review resulted in both technical and operational changes being recommended.

C. May 13, 2008 – Effective June 30, 2008 Statutory Authority These amendments to these rules are proposed for adoption by the Commissioner of the Colorado Department of Agriculture (“CDA” ) pursuant to his authority under the Aquaculture Act (the “Act” ), §35- 24.5-107(1)(a),(c), and 5, C.R.S.

Purpose The purpose of these proposed rules is to:

1. 1. Require all fish in Colorado aquaculture holding and aquaculture production facilities to be certified as Viral Hemorrhagic Septicemia (“VHS” )-free in accordance to Colorado Division of Wildlife Chapter 0 Regulations.
2. 2. Reduce the aquaculture facility permit fee from $150.00 to $100.00.
3. 3. Correct several typographical errors, delete obsolete language, and to add a section to contain the statements of basis, specific statutory authority and purpose. Factual and Policy Issues The factual and policy issues encountered when developing these rules include:
4. 1. Rule III(A) currently requires all production facilities that sell or stock live salmonids to obtain an annual fish health inspection. In March of 2008 the Colorado Division of Wildlife expanded its Viral Hemorrhagic Septicemia (“VHS” )-free certification requirements for salmonids to include testing for all species of fish. The requirement applies to all in-state aquaculture holding and aquaculture production facilities and is intended to maintain Colorado’s VHS-free status. CDA proposes to amend Rule III(A) to expand the VHS-free certificate carrying requirement to all fish in Colorado aquaculture holding and aquaculture production facilities.
5. 2. Section 35-24.5-106(1)(a), C.R.S. allows for the Colorado Aquaculture Board to consider and recommend to the Commissioner rules concerning fees to fund all direct and indirect costs of the administration and enforcement of the Act. CDA recommends a reduction in the aquaculture facility permit yearly fee from $150.00 to $100.00 because the current level of administration of the program would remain intact, and there would be a reduction in cost to the aquaculture industry.
6. 3. After review of these Rules, the Aquaculture Board found three typographical errors that needed to be corrected and, if these amendments are passed, an obsolete sentence that needs to be struck from the Rules.

D. December 9, 2008 – Effective January 30, 2009 Statutory Authority The amendments to these rules are proposed to the Commissioner of the Colorado Department of Agriculture (“Commissioner” ) for his adoption pursuant to his authority under the Aquaculture Act (the “Act” ), § 35-24.5-107(1) and (5), C.R.S.

The purpose of these proposed rules is to:

1. 1. Define “aquaculture facility permit” to comport with the current definition as codified within the Aquaculture Act, § 35-24.5-103(2), C.R.S.
2. 2. Define the common, biological term “Gamete(s)” as it specifically relates to fish and aquaculture.
3. 3. Clarify aquaculture facility permitting requirements for the following groups of persons in the following ways:
   1. a. To articulate that a broker who never physically possesses a live fish or viable gamete does not need a permit;
   2. b. To create an exemption for those persons who sell live fish to individuals from grocery stores, fish markets, and restaurants, but to maintain the requirement that those who transport live fish to these types of outlets must have a permit;
   3. c. To distinguish bait dealers who propagate, transport, or release live fish or viable gametes into state waters from those who do not such that only bait dealers who propagate, transport, or release live fish or viable gametes into state waters need a permit. Those who do not undertake these specified activities do not need such a permit as long as they obtain their live fish and viable gametes from a Division fish health certified source, maintain records of fish acquisition, and provide their customers receipts for sale of live fish and viable gametes;
   4. d. To maintain the exemption from requiring a permit for those who hold live fish or viable gametes in closed aquaria or backyard ponds, including those facilities that are municipal, state, or federal facilities or any accredited zoological garden; and e. To clarify that persons transporting live fish or viable gametes that have been legally obtained for a non-commercial, personal use in aquaria or backyard ponds or as bait do not need a permit.
4. 4. To articulate and clarify the results of non-compliance with the provisions of the rule and to allow the Commissioner to set the time limit for disposal of live fish and viable gametes in the event that a permit is denied, suspended, or revoked.
5. 5. To establish record-keeping requirements of bait dealers who are exempt from the permitting requirements of the Aquaculture Act.
6. 6. To move this rule within the Code of Colorado Regulations from the Markets Division (8 CCR 1204-7) to the Animal Industry Division (8 CCR 1201-21) to reflect a reorganization of the Aquaculture Act to the Animals Division within the Colorado Department of Agriculture.
7. 7. To make general changes to language within the rule to ensure consistency with the newly proposed definitions, exemptions, and other changes.

Factual and policy issues The factual policy issues encountered when developing these rules include:

1. 1. The definitions of the rule are changed to provide more consistent, clear language to define that a permit is for an aquaculture facility as defined within the Aquaculture Act, § 35- 24.5-101, et seq.
2. 2. Section II.A is expanded to define more clearly who does and who does not need a permit pursuant to the Aquaculture Act. The previous definition broadly stated that no aquaculturist could engage in the described acts without a permit. The proposed language articulates five exemptions from permitting based upon a variety of factors, thus more clearly guiding the public.
3. 3. Throughout the rule, changes in language are incorporated to clarify intent, remove obsolete provisions, and to bring the rule as a whole into conformity with the newly proposed parts. _____________________________________________________ Editor’s Notes History Recodified from 8 CCR 1204-7. Entire Rule eff. 01/30/2009.