(1) A person who engages in aquaculture activities must have an aquaculture permit. To qualify for an aquaculture permit approved by the department, the person shall comply with the NSSP Model Ordinance Chapter 6 - Shellfish Aquaculture.

(2) The department shall approve an operation for aquaculture activities in prohibited and unclassified areas if the following requirements are met:

(a) The person has a valid shellfish operation license;

(b) The operation has an aquaculture plan of operations and aquaculture permit approved by the department;

(c) Shellfish must not exceed the defined maximum seed size. The person shall limit the production of seed larger than maximum seed size commingled with the smaller seed to less than five percent of the total number of seed in the lot. Depletion of the shellstock above maximum seed size is required if more than five percent of the seed lot is above maximum seed size;

(d) The beginning of the minimum grow-out period for a lot is the moment when the entire lot is added to the grow-out site;

(e) Shellfish are moved to approved or conditionally approved areas for a minimum of 120 days in open status; and

(f) The initial and grow-out sites are listed on the shellfish dealer's harvest site certificate.

(3) If the person intends to harvest oyster seed, other than Kumamoto and Olympia, that have a seed size greater than one inch and less than one and one-half inches, from a prohibited or unclassified area, the operation must:

(a) Begin the lot minimum grow-out period the moment when the entire lot is added to the grow-out site; and

(b) Keep records for each lot of shellfish that show the species, location, date, and quantity moved from the initial site; the grow-out location; and the date of first harvest of any of those shellfish from the grow-out site.

(4) The department may grant a waiver for a shellfish operation to use a measurement other than length when determining seed size if:

(a) It is consistent with the applicable standards and the intent of this section, as related to market size and 120-day grow-out time;

(b) Studies are completed that determine shellfish growth in the defined time period; and

(c) It provides a comparable level of public health protection to the requirement being waived.

(5) If the department approves a waiver request, the department shall notify the requestor of the decision in writing.

(6) Waiver approval will only be granted for the growing areas evaluated in subsection (4) of this section.

(7) If the department denies a waiver request, the department shall notify the requestor of the decision in writing stating the reasons for the denial.