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Aquaculture in Maryland

The U.S. Army Corps of Engineers, Baltimore District, and the Maryland Department of Natural Resources are accepting the Joint State/Federal Application for a Commercial Shellfish Aquaculture lease and Federal permit Joint Application for State Commercial Shellfish Aquaculture Lease and Corps of Engineers Federal Permit in the Chesapeake Bay, its tributaries and the Coastal Bays. The joint permit application should be submitted to Maryland Department of Natural Resources, Fisheries Service, Aquaculture Division C-2, 580 Taylor Avenue, Annapolis, MD 21401. The applicant can also send to the U.S. Army Corps of Engineers for concurrent review, as the Corps must issue a permit before shellfish aquaculture activities can be conducted on a lease from DNR. Download The Joint State/Federal Application for a Commercial Shellfish Aquaculture lease and Federal permit (currently in process of being revised). Application and instructions, along with additional information, can be found at Maryland's Department of Natural Resources web page on the Shellfish Aquaculture Program.

Additional Resources

About the Permit Process

Maryland's aquaculture program was approved in 2011. 

Click here for the full Special Public Notice regarding the reinstatement of the 2012 NWP #48

Nationwide permits provide a streamlined process for obtaining Department of the Army authorizations for activities that will result in minimal adverse effects individually and cumulatively on the aquatic environment. 

Permit process includes: 

Removal of the limits on project acreage for aquaculture activities. Previously, to qualify for the Regional General Permit, projects were limited to 50 acres for shell-on-bottom, five acres for cages-on-bottom, and three acres for floating aquaculture activities. Proposed projects greater than these size limits had to undergo an individual permit process, which includes a public notice and comment period, and takes more time to process. Based on project location, there are still regional conditions the project must comply with to include minimizing effects on endangered species, navigation, and historic resources. 

Streamlining the joint state/federal aquaculture review process with Maryland DNR. The process requires applicants to receive an aquaculture lease from Maryland DNR and a permit from the Corps. Previously, the joint application was submitted by the applicant to Maryland DNR for review, and then forwarded to the Baltimore District after DNR completed its survey and plans. Baltimore District proposed DNR forward the application shortly after receipt so both agencies can concurrently review and continue to coordinate throughout the process. Alternatively, the applicant can send the application to both DNR and the Baltimore District. This enables Baltimore District to see the application and initiate its review sooner.

Requirement of additional information in the application to ensure the proposed activities have minimal impacts on navigation and endangered species. These details include a description of structure spacing; the number and spacing of vertical and horizontal lines and buoys; information identifying how adverse effects to navigation and neighboring properties have been avoided; and notification to adjacent property owners.

Removal of the geographic exclusion lines that made projects upstream of those lines ineligible for authorization. Previously, these projects were subject to the Individual Permit process. Removal of the lines opens up more acreage for potential projects. The lines were intended to protect fish spawning habitat, but Baltimore District is coordinating with the National Marine Fisheries Service to determine how to best address this concern.

Aquaculture Permit Process Q&As

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Sheathing lines is not included as a regional condition to NWP #48 for aquaculture. In the past, during certain project-specific informal consultations, NMFS (pursuant to Section 7 of the Endangered Species Act) has recommended that vertical lines be sheathed to reduce the risk of entanglement with endangered sea turtles. The Corps has advanced these recommendations to applicants as a best practice, and applicants have indicated their willingness to sheath vertical lines for their projects.

 

All aquaculture activities that received prior written project-specific authorization from the Corps under the RGP-1, and where the authorized work was initiated or under contract to commence by Aug. 15, 2016, continued to be authorized until Aug.15, 2017, under the terms and conditions of the RGP-1. Since the grandfathering period has ended, ongoing aquaculture activities previously verified under the RGP-1 must obtain a new Department of the Army authorization under the terms and conditions of NWP #48 or an Individual Permit if the activity involves any change in the aquaculture type (bottom culture, floating structures, suspended structures) from what had been previously authorized by the Corps.

No. The expiration of Regional General Permit - 1 in August 2016 was the driving factor to re-evaluate the process. 

Baltimore District listened to feedback over the 5-year timeframe when RGP-1 was active, and has incorporated changes with the intent to make the process more efficient.   

The district has requested that Maryland DNR forward any applications received by them to the Corps within 7 to 10 days after receipt so both agencies can concurrently review and coordinate throughout the process. Alternatively, the applicant can send the application directly to the district. This will enable the district to initiate its review sooner in order to come to a permit decision, provided the application is complete. Previously, the joint application was submitted by the applicant to Maryland DNR for review, and then forwarded to Baltimore District after DNR completed its survey and plans.   

The district is required to determine if an application under NWP #48 is complete within 30 days from the date of receipt and must also notify the applicant of any mandatory missing information within this timeframe. The goal has been and remains for the district to come to a permit decision (or issuance) within 60 days of receipt of a federally-completed application for a qualifying project under a general or nationwide permit. The district expects that these process changes will result in meeting this goal more often. 

The district’s review and approval timeframes may be longer than 60 days when consultation with other agencies is required to comply with laws such as Section 7 of the Endangered Species Act (ESA) and Section 106 of the National Historic Preservation Act. The district is continuing to work cooperatively with NOAA/National Marine Fisheries Services to ensure that ESA reviews do not unduly delay aquaculture permit decisions, and has developed a programmatic agreement with NMFS to expedite the ESA review process.

Baltimore District has implemented several changes to make the process more efficient in Maryland such as allowing for unlimited project acreage.   

Though both Baltimore and Norfolk Corps districts can use NWP #48 to regulate aquaculture activities, there are still differences between Virginia and Maryland state permitting processes, due in part to differences in state laws, rules, and regulations regarding aquaculture. These variables result in differences in how aquaculture projects are reviewed within each state.   

The district’s expectation is that these changes will strike a balance between allowing oyster aquaculture to the fullest extent possible – recognizing aquaculture’s contributions to the health of the Chesapeake Bay and the regional economy - while ensuring that projects do not have a negative effect on other natural resources, navigation, or generally on the public interest.

One of the changes to the permit process is requiring additional information from the applicant in the application to ensure the proposed activities have minimal impacts on neighboring properties, navigation and endangered species. These details include information identifying how adverse effects to navigation and neighboring properties will be avoided by the applicant and notification to adjacent property owners. These changes will hold applicants more accountable for working through some of the anticipated impacts and potential objections and should enable a more efficient permit review process. Members of the public and stakeholders will continue to be able to provide comments to Maryland DNR through their leasing process.

In the Chesapeake and Coastal Bays in Maryland, there are two species of endangered sturgeon (Atlantic and short-nose) and four species of threatened or endangered sea turtles (green, leatherback, loggerhead and Kemp’s ridley).The Endangered Species Act requires federal agencies to consult with the National Marine Fisheries Service or the U.S. Fish and Wildlife Service on actions that may affect threatened or endangered species. 

 

The district now requires additional information in the application, listed below, to ensure that proposed activities have minimal impacts on navigation and endangered species. These details include a description of structure spacing; the number and spacing of vertical and horizontal lines and buoys; information identifying how adverse effects to navigation and neighboring properties have been avoided; and notification to adjacent property owners. The district previously had requested this information after receiving the permit application, which frustrated some applicants. Having more information on the project up front will help the district work through the process more efficiently. 

 

·         Legible project vicinity map (black line on white background), to scale, and depicting the footprint of project area relative to prominent land/water geographic features, including approximate latitude/longitude coordinates of the project footprint.

 

·         Legible overview plans (black line on white background), to scale (100’:1”, or 50’:1”), depicting the entire project footprint and adjacent waters overlaid on composite mapping of the five most recent years of submerged aquatic vegetation (SAV) data (derived from the Virginia Institute of Marine Science (VIMS) aerial surveys), and showing local water depths of the project area, and other important ecological features of the site (e.g., native tidal marsh) that may be affected by project activities.

 

·         Detailed project description, with the following information:

 

o    Description of proposed activities, including site preparation, harvest activities (e.g., dredging, harrowing and dragging of bottom substrate, tonging), and a description of how structures and vertical and horizontal lines would be arranged throughout the project area, spacing of rows and spacing between structures;

 

o    Types of aquaculture gear to be used, including anchoring devices, maximum number of vertical and horizontal lines, and buoys;

 

o    Acreage of project footprint affecting bottom and water column;

 

o    Impacts (temporary and/or permanent) to aquatic areas required for access to the aquaculture facility/gear, and remedial measures proposed to restore temporarily affected aquatic areas;

 

o    Substrate type of bottom affected by proposed activities (particularly for on-bottom activities);

 

o    Cross-sectional view of proposed aquaculture structures and all associated pieces of apparatus that represent the proposed operations of the activity (on-bottom, suspended, or floating);

 

·         If the applicant proposes work in waters adjacent to property owned by others, the applicant must provide proof of notification to adjacent property owners via certified mail, return receipt requested. In addition, the applicant may include any statement of no objection or comments from the adjacent property owner(s);

 

·         The application must include detailed information that clearly identifies how adverse effects to navigation and/or ingress to and egress from neighboring properties have been avoided. These items will be considered during the public interest analysis as part of the permit decision.



 

·      Activities that propose work located within areas that support greater than ½ acre of submerged aquatic vegetation (SAV).

·      Activities that cause interference with navigation. No work may extend into anchorage areas; customary boating channels; navigation fairways; marked, unmarked, lighted, charted or uncharted channels; or private, state, or federal navigation channels.

·      Activities that adversely affect ingress to and/or egress from neighboring properties.

·      Predator control devices (i.e., mesh fences, mesh nets, mesh tents) suspended or erected vertically or obliquely in the water column to surround or enclose shellfish containment gear.

·      Activities that have more than minimal individual and/or cumulative adverse impact.

·      Activities that have more than minimal adverse effects on existing or naturally-occurring beds or populations of shellfish, marine worms, or other invertebrates that could be used by man, other mammals, birds, reptiles, or predatory fish.

Baltimore District worked with federal and state partners to develop a path forward to make this process more efficient. Over the years, the district has received formal and informal feedback from oyster farmers and other stakeholders in the region. District staff also participate in Aquaculture Review Board meetings chaired by Maryland DNR and attended by other agencies, including Maryland Department of the Environment, U.S. Coast Guard, National Marine Fisheries Service and Maryland Historical Trust, and have worked in cooperation with these agencies to identify trends that affect permit processing times. In March 2016, and again in October 2016, a special workshop was held among representatives from the Corps North Atlantic Division; Norfolk and Baltimore districts; Maryland DNR; and NOAA/NMFS in order to discuss shellfish aquaculture and ways to further improve and streamline our decision-making processes. Representatives from Norfolk shared information regarding their practices and procedures for aquaculture activities in Virginia.
Both Regional General Permits and Nationwide Permits are reserved for only the most minor impacts to waters of the United States regulated by the Corps. Nationwide Permits are authorized by the U.S. Army Corps of Engineers Regulatory Headquarters (HQ) and apply to the entire nation. Corps districts can implement Regional Conditions on Nationwide Permits to address specific concerns within their respective areas of responsibilities. In 2012, Nationwide Permit #48 (NWP #48) was revised to include existing and proposed aquaculture activities/locations (previous versions of NWP #48 only allowed existing). One requirement under NWP #48 is that all existing and proposed aquaculture sites must be authorized or licensed. Bottom line is that using NWP #48 with regional conditions will accomplish the same goals as the expired Shellfish Aquaculture RGP-1.   

Corps HQ authorizes Nationwide Permits and provides all the documentation. We still propose a joint application with Maryland DNR, which helps keep the process a “one-stop-shop” for applicants.  

The Regional General Permit-1 was effective for five years and expired Aug. 15, 2016. Baltimore District’s Regulatory Branch reinstated Nationwide Permit #48, Aug. 16, 2016, for authorizing aquaculture activities with the goal of making the permit process more efficient.    

Maryland's aquaculture program was approved in 2011. The reason Baltimore District created a regional general permit as opposed to using nationwide permit NWP #48 in 2011 was because NWP #48 did not authorize new aquaculture projects at that time. In 2012, NWP #48 was ultimately approved by Corps HQ to authorize new work, however, by that time, RGP-1 was already effective. The expiration of RGP-1 provided an opportunity to receive public comments and to reinstate NWP #48.   

The limits on how many acres a project can be under RGP-1 were removed for aquaculture activities under NWP #48. This means that less projects will have to go through an individual permit process, which includes a public notice and comment period and takes more time to process.   

Under the previous RGP-1, projects that proposed more than 50 acres for shell on bottom, five acres for cages-on-bottom, or three acres for floating aquaculture activities had to undergo the individual permit process.

In order to be approved for an aquaculture project in Maryland, an applicant must receive both a permit from the Corps and a lease from Maryland DNR. The Corps has set parameters that must be considered during a permit evaluation. The current Maryland DNR process for authorizing aquaculture leases does not address all the environmental, navigational and other issues the Corps must consider through laws and regulations. The level of information required is dependent on the size of the project. If the proposed work complies for authorization under a general permit (An NWP is a type of general permit), then that authorization is used.

General Permits by definition authorize minor activities that have minimal aquatic impacts both individually and cumulatively. NWP #48 does not have any impact thresholds provided the applicant complies with the special and general conditions. The Corps cannot allow Maryland DNR to issue permits on its behalf without the proper regulatory review process to ensure projects do not have a negative effect on other natural resources, navigation, or generally on the public interest. Maryland DNR would need to develop a regulatory review process consistent with the Corps program in order for them to issue permits on behalf of the Corps. Currently, the Corps can determine if certain aquaculture activities can be considered non-reporting under NWP #48. This means that for some very minor activities, permittees do not have to come to the Corps for verification that their activities are authorized.  

By actively participating in meetings and pre-applications, both agencies assist in streamlining the review process. The agencies also use a joint application, hold joint meetings/hearings, and issue joint Public Notices when needed to minimize duplication and increase program efficiency. 


While the district removed the project acreage limits that had been in place under the RGP-1, there are still certain regional conditions that must be complied with including minimizing effects on endangered species, historic resources and navigation. The idea was not to limit a project from the start but to scale the project back, if necessary, based on special factors within the proposed location of the project. In addition, the applicant still needs an aquaculture lease from Maryland DNR in order to work in the waterway. Under Maryland’s leasing program, there is a requirement for the leased area to be actively worked, regardless of its type or size.