Non-federal applicants for commercial shellfish projects must submit a pre-construction notification (PCN) to the District engineer if the NWP activity might have the potential to cause effects to properties listed, or eligible for listing, in the National Register of Historic Places. Such an activity is not authorized until the requirements of Section 106 of the National Historic Preservation Act (NHPA) have been satisfied.

The PCN must state which historic properties might have the potential to be affected by the proposed NWP activity or include a vicinity map indicating the location of the historic properties or the potential for the presence of historic properties. The prospective permittee will be notified by Baltimore District within 45 days of receipt of a complete PCN whether NHPA Section 106 consultation is required. If more than 45 days, work still cannot begin until notification has been received. 

Assistance regarding information on the location of, or potential for, the presence of historic properties can be sought from the State Historic Preservation Officer, Tribal Historic Preservation Officer, or designated tribal representative, as appropriate. 

The Maryland Historical Trust (MHT) web site provides instructions on how to submit a project for MHT review and encourages consultation during preliminary project planning. Early consultation allows time to successfully complete the review in advance of construction and may help facilitate permit decisions. 

Baltimore 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 is 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. More complex or larger projects use Individual Permits that require a public notice and have an issuance goal of 120 days from receipt of a federally complete application.

Two primary factors that cause delays in the permit review process are incomplete information and lack of legible plans within the application.

Permit decisions are made on a case-by-case basis , as no two permits are alike.  Each application has specific issues and impacts that must be objectively considered in relationship to weighing the potential benefits and detriments to the Chesapeake Bay and its users. Some of the most common issues that arise include potential impacts to navigation, recreation, endangered species, historic features and Tribal rights, as well as adjacent property owner concerns, conflicting water-use location, etc. 

The District’s review and approval timeframes may be longer 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 and Maryland DNR processes may or may not be completed at the same time, depending on the application and any issues that may be raised during review. 

We work cooperatively with our partners to identify trends that affect permit processing times in order to understand what we can do to provide more efficient and effective decision-making for aquaculture projects in Maryland.

An interaction is defined as an entanglement or capture of a listed species or a strike/direct contact between vessels or equipment used for the project and a listed species.

Any interaction between a sea turtle or any species listed now or in the future under federal law and the vessels associated with the project must be reported to the National Marine Fisheries Service as follows:

(1) If the animal appears alive and uninjured (i.e., breathing normally, no visible wounds, movement uninhibited), the permittee or its representative must report the incident to the National Marine Fisheries Service Northeast Region Marine Mammal and Sea Turtle Stranding and Entanglement Hotline at 866-755-6622 within 24 hours of the return trip from which the discovery was made;

(2) If the animal requires assistance, the call to the hotline must be made immediately;

(3) If the animal appears to be injured (i.e. bleeding, gasping for air, etc.) or dead, the permittee or its representative must also immediately call the hotline, so the appropriate rehabilitation or stranding network representative can be contacted. The applicant shall also notify the Corps of all correspondence and coordination with the National Marine Fisheries Service within two calendar days. Additional information about any federally threatened or endangered species may be obtained through NOAA's Fisheries web site. 

• The cultivation of a nonindigenous species unless that species has been previously cultivated in the water body;
• The cultivation of an aquatic nuisance species as defined in the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990;
• Attendant features such as docks, piers, boat ramps, stockpiles, or staging areas, or the deposition of shell material back into waters of the United States as waste.; or
• Activities that directly affect more than 1/2 an acre of submerged aquatic vegetation beds in areas that have not been used for commercial shellfish aquaculture activities during the past 100 years;
• Activities located in mapped anadromous fish spawning habitat. The applicant may refer to MERLIN or other reliable sources for this information;  
• Activities associated with the cultivation and/or introduction into tidal waters of shellfish species that are not indigenous to the Chesapeake Bay and its tributaries, or the Maryland coastal bays;
• Activities associated with the mining of sub-tidal fossil shell deposits in waters of the Chesapeake Bay and its tributaries for use as cultch for a shellfish cultivation operation;
• No work may extend into anchorage areas; customary boating channels; navigation fairways; marked, lighted, or charted channels; or State or Federal Navigation Channels;
• Activities that adversely affect ingress to and egress from neighboring properties;
• Commercial aquaculture activities for crustaceans or finfish;
• Shellfish habitat restoration activities, including shellfish seeding that are conducted to restore populations of shellfish in navigable waters of the United States. Shellfish habitat restoration activities may be authorized by another form of Department of the Army permit (e.g., Nationwide Permit 27 or individual permit);
• Activity or vehicular access to the project site that has more than a minimal adverse impact on coastal or wetland vegetation;
• Oyster gardening activities;
• The establishment of Aquaculture Enterprise Zones or pre-approved areas of the Atlantic Coastal Bays;
• Activities that impound water;
• Predator control devices (i.e., mesh fences, mesh nets, mesh tents) suspended or erected vertically or obliquely in the water column used to surround or enclose shellfish/containment gear. This condition does not preclude the use of cages for shellfish containment;
• Activities that use unsuitable materials for shellfish seeding (e.g., asphalt, bituminous concrete, slag, tires, wallboard, plastic, wood, metal, crushed glass, trash and garbage);
• Activities that will 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;
• Activities that result in the physical destruction (e.g., through excavation, dredging, mining, fill or significant downstream sedimentation by substantial turbidity) of an important spawning/nursery habitat.

1. The project does not have a valid authorization from the Corps in effect as of Aug. 15, 2016; or
2. The activity involves any change in the aquaculture type (bottom culture, floating structures, or structures suspended in the water column) from which was previously authorized by the Corps; or
3. The activity will include a species that has never been cultivated in the water body; or
4. The activity occurs in an area that has not been used for commercial shellfish aquaculture activities during the past 100 years.

Though both Baltimore and Norfolk Corps districts 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 goal is to 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.

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.

 

Section 7(a) (2) of the Endangered Species Act (ESA) requires USACE to ensure any action it authorizes, such as for a proposed aquaculture project, is not likely to jeopardize the continued existence of any federally listed species or result in the destruction or adverse modification of its designated critical habitat. The 2017 NWP, general condition 18, requires applicants to identify in their application whether the proposed activity might affect listed species or designated critical habitat and include the name(s) of the endangered or threatened species that might be affected by the proposed work or that use the designated critical habitat that might be affected by the proposed work.

Baltimore District issued a special public notice Jan. 29, 2016, to provide information regarding the NWP program and ESA. 

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 or critical habitat. 

NOAA Fisheries hosts a web site with species maps that show where listed species are likely to be present based on geographic factors, time of year and biology. These maps provide technical assistance, but do not replace the Section 7 consultation process. They are intended to help determine if listed species or critical habitat may be affected by a proposed action, such as authorizing an aquaculture project. The presence of listed species and/or critical habitat, in combination with the nature of the activity, will help determine if consultation is needed. USACE uses the best available scientific and commercial information as well as best professional judgment to determine if consultation is required, even if a map indicates a listed species is not currently present, or if there is no anticipated effect on the species or habitat. USACE is required to come to this determination and notify the applicant of this determination within 45 days of receipt of a complete permit application. 

Additional information on listed species can be viewed on NOAA Fisheries marine life web page and their Greater Atlantic Regional Fisheries Office’s (GARFO) Protected Resources Division web page.

Questions on the proposed activity on a listed species should be directed to Baltimore District. 

The applicant cannot begin work until USACE has provided notification the proposed activities will have “no effect” on listed species or critical habitat, or until Section 7 consultation has been completed.

In April 2017, USACE, North Atlantic Division and GARFO finalized a programmatic agreement for compliance with Section 7 of the ESA. This agreement provides a streamlined process for verification of proposed projects, including shellfish aquaculture. 

Baltimore District has made the following “effect determinations” generally for purposes of Section 7 of the ESA regarding whether activities authorized may affect ESA-listed species and for purposes of critical habitat. These are not definitive. Determinations are dependent on each project. 

Aquaculture Type	Federally listed threatened or endangered species	Determination
Shell on bottom on existing soft bottom (e.g., soft sand, mud)	Sturgeon	May affect, but is not likely to adversely affect
	Turtles	May affect, but is not likely to adversely affect (Beneficial effect)
Shell on bottom on existing hard bottom (e.g., mixed shell, shell hash, hard sand, existing shell)	Sturgeon	May affect, but is not likely to adversely affect
	Turtles	May affect, but is not likely to adversely affect (Beneficial effect)

Installation of Cages, Floats, Buoys, Lines, or Other Markers within the Water Column at or near the water surface	Sturgeon	May affect, but is not likely to adversely affect (Beneficial effect)
	Turtles	May affect, but is not likely to adversely affect
Installation of Cages on the Bottom with Buoys, Lines, or Other Markers	Sturgeon	May affect, but is not likely to adversely affect (Beneficial effect)
	Turtles	May affect, but not likely to adversely affect

 

To qualify for NWP authorization, the prospective permittee must comply with the following regional conditions and any case-specific special conditions imposed by the Corps. The general conditions are located in the 2017 NWPs as published in the Federal Register. Baltimore District added “Regional Conditions” to the 2017 NWP 48 to require the application/Pre-construction Notification (PCN) to the Corps (Regional General Condition 32) include the following information in addition to information required by General Conditions:

1. A copy of the lease or permit issued by the appropriate state government agency if a lease or permit has been issued at the time of PCN submittal;
2. 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;
3. 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 SAV data (derived from the Virginia Institute of Marine Science (VIMS) SAV aerial surveys), and showing local water depths (bathymetry) of the project area, and other important ecological features of the site (e.g., native tidal marsh) that may be affected by project activities;
4. Detailed project description, with the following information:
   3. Description of proposed activities, including site preparation and 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;
   3. Types of aquaculture gear to be used, including anchoring devices, maximum number of vertical and horizontal lines, and buoys;
   3. Acreage of project footprint affecting bottom and water column;
   3. 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;
   3. Substrate type of bottom affected by proposed activities (particularly for on-bottom activities) (e.g., soft sand, hard sand, mud, shell.).
5. Cross-sectional view of proposed aquaculture structures and all associated apparatus that represent the proposed operations of the activity (on- bottom, suspended, or floating);
6. 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 (click to view fillable example letter), return receipt requested. In addition, the applicant may include any statement of no objection or comments from the adjacent property owner(s). 
7. The PCN must include details that clearly identify how adverse effects to navigation and ingress to and egress from neighboring properties have been avoided.