PN-20-13 NAB-2020-00039-P05 (Barnette & Barnette/Aquaculture Lease #531)

Published Feb. 19, 2020
Expiration date: 3/20/2020

                    Public Notice
U.S. Army Corps             In Reply to Application Number
of Engineers                    NAB-2020-00039-P05 (Barnette & Barnette/Aquaculture
                                            Lease #531)
Baltimore District                     
PN-20-13                         Comment Period: February 19, 2020 to March 20, 2020

This District has received an application for a Department of the Army permit pursuant to Section 10 of the Rivers and Harbors Act (33 USC 403) and Section 404 of the Clean Water Act (33 USC 1344),as described below:

APPLICANT:        Mr. John and Mrs. Denise Barnette
                              13250 Pruitt Lane
                              Princess Anne, Maryland  21853

WATERWAY AND LOCATION OF THE PROPOSED WORK:  The proposed project is located in the Wicomico River, near Princess Anne, Somerset County, Maryland.  (Latitude:   38.25382639, Longitude:  -75.81786181)

OVERALL PROJECT PURPOSE: See HQ SOP, July 2009, Section 12 and 33 CFR 325 App B 9(b)(4)  The Corps makes the determination of overall project purpose using the information provided by the applicant.  The overall project purpose is more specific than the basic project purpose and will help establish the geographic scope of the alternatives review.  The overall project purpose should be specific enough to define the applicant’s needs, but not so restrictive as to preclude all discussion of alternatives. . To establish and maintain a shell on bottom aquaculture operation.

PROJECT DESCRIPTION:  To establish, operate, and maintain a 3.5-acre oyster aquaculture operation on the bottom substrate for purposes of culturing native Crassostrea virginica (Eastern Oyster) by depositing a maximum of 3-inches of shell and/or spat on shell, on the bottom, without predator controls. The site is composed of mud, sand, silt and shell substrate throughout the project area, and the current water depths within the project location vary from -6.0 feet to -7.0 feet at mean low water, depending on the location within the project area. With the placement of 3” of shell on bottom, the resulting minimum vertical clearance will vary from 5.75-feet to 6.75-feet mean low water, depending on the location within the project area.  The project area is located a minimum of 400-feet channelward of the approximate mean high water shoreline.  The project corners would be marked with bamboo stakes with an 8” x 12” sign having the lease name and number and 3” PVC Float markers with chain affixed to a cement weight with reflective tape.  A maximum of four corner markers will be used in the project area.

The applicant has advised that the proposed submerged land lease area would be subject to periodic bag less dredging methods and additional deposition of spat on shell, as needed to maintain the site.  Products would be staged at the applicant’s property (address listed above) and offloaded in upland locations at Webster Cove Harbor 13110 Dorsey Road, Princess Anne, Maryland.  The primary source for oyster seed would be Horn Point and the Ward Oyster Company in Matthews Virginia or other sources as approved by the Maryland DNR. 

The project does not qualify for authorization under a general permit because it is proposed in an area that has been identified as Essential Fish Habitat (EFH) for spawning striped bass.


Activity (i.e. culvert)

Stream Impact (lf)

Wetland Impact (Sq. Ft.)

Authority (Section 10/404/408)

Shell on bottom aquaculture



10 & 404


LEAD FEDERAL AGENCY:  The U.S. Army Corps of Engineers, as the lead federal agency, is responsible for all coordination pursuant to applicable federal authorities.

APPLICANT’S PROPOSED AVOIDANCE, MINIMIZATION, AND COMPENSATORY MITIGATION:  The proposed lease area was a pre-existing lease.  No compensatory mitigation is proposed.

CORPS EVALUATION REQUIREMENTS:  This project will be evaluated pursuant to Corps Regulatory Program Regulations (33 CFR Parts 320-332).  The decision whether to issue a permit will be based on an evaluation of the probable impacts, including cumulative impacts of the proposed activity on the public interest.  That decision will reflect the national concern for both protection and utilization of important resources.  The benefit, which reasonable may be expected to accrue from the proposal, must be balanced against its reasonably foreseeable detriments.  All factors, which may be relevant to the proposal will be considered, including the cumulative effects thereof; among those are conservation, economic, aesthetics, general environmental concerns, wetlands, cultural values, fish and wildlife values, flood hazards, flood plain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, and consideration of property ownership and in general, the needs and welfare of the people.  The evaluation of the impact of this project will also include application of the Clean Water Act Section 404(b)(1) Guidelines promulgated by the Administrator, U.S. Environmental Protection Agency.

ENDANGERED SPECIES: The lead federal agency is responsible for Endangered Species Act coordination.   A preliminary review of this application indicates that the proposed work is not likely to adversely affect Federally-listed threatened or endangered species or their critical habitat, pursuant to Section 7 of the Endangered Species Act, as amended.  As the evaluation of this application continues, additional information may become available which could modify this preliminary determination.

ESSENTIAL FISH HABITAT:  The lead federal agency is responsible for Essential Fish Habitat coordination.  The Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA), as amended by the Sustainable Fisheries Act of 1996 (Public Law 04-267), requires all federal agencies to consult with the National Marine Fisheries Service on all actions, or proposed actions, permitted, funded, or undertaken by the agency that may adversely affect EFH, including species of concern, life cycle habitat, or Habitat Areas of Particular Concern.  The project site lies in or adjacent to EFH as described under MSFCMA for managed species under the MSFCMA.  The Baltimore District has made a preliminary determination that the project will have no adverse effect on EFH.  The Baltimore District has made a preliminary determination that mitigative measures are not required to minimize adverse effects on EFH at this time.  This determination may be modified if additional information indicates otherwise.

HISTORIC RESOURCES:  The lead federal agency is responsible for historic resources coordination.   Pursuant to Section 106 of the National Historic Preservation Act of 1966 and applicable guidance, the Corps has reviewed the latest published version of the National Register of Historic Places and initially determined that no registered properties listed as eligible for inclusion, therein, are located at the site of the proposed work.  The Corps has made the preliminary determination that the proposed project would have no effect on historic properties. The Corps final eligibility and effect determination will be based on coordination with the State Historic Preservation Office as appropriate and required, and with full consideration given to the proposed undertaking’s potential direct and indirect effects on historic properties within the Corps’ identified permit area.

TRIBAL RESOURCES:  Section 106 of the National Historic Preservation Act also requires federal agencies to consult with federally-recognized American Indian Tribes that attach religious and cultural significance to historic properties that may be affected by the agency’s undertaking.  The lead federal agency is responsible for tribal coordination. Corps Tribal Consultation Policy mandates an open, timely, meaningful, collaborative, and effective deliberative communication process that emphasizes trust, respect, and shared responsibility.  The policy further emphasizes that, to the extent practicable and permitted by law, consultation works toward mutual consensus and begins at the earliest planning stages, before decisions are made and actions taken.  The Corps final eligibility and effect determination will be based on coordination with interested tribes, in accordance with the Corps current tribal standard operating procedures as appropriate and required, and with full consideration given to the proposed undertaking’s potential direct and indirect effects on tribal resources.

MODIFICATION OF CIVIL WORKS PROJECTS:  33 USC 408 (SECTION 408):  All Section 408 proposals will be coordinated internally at USACE.  The Section 408 decision will be issued along with the Section 404 and/or Section 10 decision.  Please see the following link for more information regarding Section 408:

WATER QUALITY CERTIFICATION:  The applicant is required to obtain a water quality certification in accordance with Section 401 of the Clean Water Act.   

COASTAL ZONE MANAGEMENT PROGRAMS:  Where applicable, the applicant has certified in this application that the proposed activity complies with and will be conducted in a manner consistent with the approved Coastal Zone Management Program.  By this public notice, we are requesting the state concurrence or objection to the applicant’s consistency statement.

The applicant must obtain any state or local government permits which may be required.

SUBMISSION OF COMMENTS: The Corps of Engineers is soliciting comments from the public; federal, state, and local agencies and officials; Indian Tribes; and other interested parties in order to consider and evaluate the impacts of this proposed activity.  Any comments received will be considered by the Corps of Engineers to determine whether to issue, modify, condition or deny a permit for this proposal.  To make this decision, comments are used to assess impacts on endangered species, historic properties, water quality, general environmental effects, and the other public interest factors listed above.  Comments are used in the preparation of an Environmental Assessment and/or an Environmental Impact Statement pursuant to the National Environmental Policy Act.  Comments provided will become part of the public record for this action and are subject to release to the public through the Freedom of Information Act.  Comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity. 

Written comments concerning the work described above related to the factors listed above or other pertinent factors must be received by the U.S. Army Corps of Engineers, Baltimore District within the comment period specified above through postal mail at the address below or electronic submission to the project manager email address below. Written comments should reference the Application Number NAB-2020-00039-P05.

PUBLIC HEARING REQUESTS:  Any person who has an interest which may be adversely affected by the issuance of this permit may request a public hearing.  The request, which must be in writing, must be received within the comment period as specified above to receive consideration.  Also it must clearly set forth the interest which may be adversely affected by this activity and the manner in which the interest may be adversely affected.  The public hearing request may be submitted by electronic mail or mailed to the following address:

Marion Gall
U.S. Army Corps of Engineers, Baltimore District
Regulatory Branch
1631 South Atherton Street, Suite 102
State College, Pennsylvania 16870

It is requested that you communicate this information concerning the proposed work to any persons known by you to be interested, who did not receive a copy of this notice.

General information regarding the Corps’ permitting process can be found on our website at  This public notice has been prepared in accordance with Corps implementing regulations at 33 CFR 325.3.  If you have any questions concerning this specific project, or would like to request a paper copy of this public notice, please contact Marion Gall, 814-235-1761,  This public notice is issued by the Chief, Regulatory Branch.