PN15-62 (HARRINGTON, PHILIP J./AQUACULTURE LEASES #225, #226, #227, #228, #236, #237 and #231) - Dorchester & Wicomico Counties

                                       Public Notice                       

U.S. Army Corps             In Reply to Application Number CENAB-OP-RM

of Engineers                     (Harrington, Philip J./Aquaculture  Lease #225) 2015-00780;

Baltimore District            (Harrington, Philip J./Aquaculture  Lease #226) 2015-00781;

                                        (Harrington, Philip J./Aquaculture  Lease #227) 2015-00782;

                                        (Harrington, Philip J./Aquaculture  Lease #228) 2015-00783;

                                        (Harrington, Phillip /Aquaculture Lease #236) 2015-01049;

                                          (Harrington, Phillip /Aquaculture Lease #237) 2015-01050 and

                                         (Wisner, Eric /Aquaculture Lease #231) 2015-00931                    

PN 15-62                           Comment Period:  October 1, 2015 to November 1, 2015

THE PURPOSE OF THIS PUBLIC NOTICE IS TO SOLICIT COMMENTS FROM THE PUBLIC ABOUT THE WORK DESCRIBED BELOW.  AT THIS TIME, NO DECISION HAS BEEN MADE AS TO WHETHER OR NOT A PERMIT WILL BE ISSUED.

The Baltimore District has received 7 applications for Department of the Army Permits pursuant to Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act as described below:

APPLICANTS:   Mr. Philip J. Harrington

                           3725 Sunnyside Road

                           Secretary, Maryland  21664

                           Mr. Eric Wisner

                           26400 Nanticoke Road

                           Salisbury, Maryland  21801

LOCATION:  The projects are proposed in the Nanticoke River near Fishing Bay WMA, Dorchester County and near Nanticoke, Wicomico County, Maryland.

DESCRIPTION OF WORK:  To establish, operate, and maintain an aquaculture operation within 7 oyster aquaculture cultivation sites totaling approximately  642 acres by depositing oyster or clam shell with or without spat on shell 3 inches in most areas and up to 6 inches in low spots within the proposed sites, without predator controls (e.g. nets, etcetera), on the bottom substrate. The sites are composed of a mixture of shell, sand, and mud substrate throughout the project areas and would be used for purposes of culturing native Eastern Oyster (Crassostrea virginica) on the proposed bottom lease sites. 

The applicants have advised that the proposed submerged land lease areas would be subject to periodic harrowing, dragging and additional deposition of oyster shells, as needed, as described above, to maintain the sites.  Harvesting would be accomplished by dredging or other harvesting means as approved by the MD DNR.  Staging and off-loading for the Harrington projects would be at Captain Phips Seafood, 100 Water Street, Secretary, Maryland.  Staging and off-loading for the Wisner project would be at the Nanticoke Harbor off Harbor Road in Nanticoke, Wicomico County, Maryland.  The primary source for the oyster seed would be supplied by the University of Maryland Center for Environmental Science (UMCES) Horn Point Laboratory in Dorchester County, Maryland.  The Harrington sites would be marked by 9 inch regulatory buoys anchored to the bottom at the corners with the name and lease number identified on an 8-inch by 12-inch board as

required by MD DNR.  The Wisner site would be marked by bamboo stakes at the corners with the name and lease number identified on a 8-inch by 12-inch board as required by MD DNR.

(Harrington, Philip J. /Aquaculture  Lease #225) 2015-00780

The bottom lease site is an approximate 68.3 acre area located a minimum of 480 feet channelward of the approximate mean high water (MHW) shoreline and a maximum of

2,668 feet channelward of the approximate MHW shoreline.  Water depths within the project site varies from -5.2 feet to -6.2 feet at mean lower low water (MLLW), depending on the location within the project area, and the applicant’s plans identify a minimum vertical clearance of -4.9 feet at MLLW above the finished grade/elevation of the oyster shell after deposition. The coordinates for this lease in Dorchester County are as follows:

(Harrington, Philip J. /Aquaculture  Lease #226) 2015-00781

The bottom lease site is an approximate 93.9 acre area located a minimum of 354 feet channelward of the approximate mean high water (MHW) shoreline and a maximum of 2,297 feet channelward of the approximate MHW shoreline.  Water depths within the project site varies from -4.7 feet to -11.2 feet at mean lower low water (MLLW), depending on the location within the project area, and the applicant’s plans identify a minimum vertical clearance of -4.4 feet at MLLW above the finished grade/elevation of the oyster shell after deposition. The coordinates for this lease in Dorchester County are as follows:

(Harrington, Philip J. /Aquaculture  Lease #227) 2015-00782

The bottom lease site is an approximate 99.3 acre area located a minimum of 322 feet channelward of the approximate mean high water (MHW) shoreline and a maximum of

1,938 feet channelward of the approximate MHW shoreline.  Water depths within the project site varies from -3.7 feet to -12.2 feet at mean lower low water (MLLW), depending on the location within the project area, and the applicant’s plans identify a minimum vertical clearance of -3.4 feet at MLLW above the finished grade/elevation of the oyster shell after deposition. The coordinates for this lease in Dorchester County are as follows:

(Harrington, Philip J. /Aquaculture  Lease #228) 2015-00783

The bottom lease site is an approximate 110.7 acre area located a minimum of 1,559 feet channelward of the approximate mean high water (MHW) shoreline and a maximum of 3,669 feet channelward of the approximate MHW shoreline.  Water depths within the project site varies from -5.7 feet to -6.2 feet at mean lower low water (MLLW), depending on the location within the project area, and the applicant’s plans identify a minimum vertical clearance of -5.4 feet at MLLW above the finished grade/elevation of the oyster shell after deposition. The coordinates for this lease in Dorchester County are as follows:

 (Harrington, Phillip /Aquaculture Lease #236) 2015-01049

The bottom lease site is an approximate 71.8 acre area located a minimum of 3,771 feet channelward of the approximate shoreline and a maximum of 5,905 feet channelward of the approximate shoreline.  Mapped water depths within the project site varies from 8.5 feet to 10.5 feet at mean lower low water (MLLW), depending on the location within the project area, and the applicant’s plans identify a minimum vertical clearance of 8 feet 3 inches at MLLW above the finished grade/elevation of the oyster shell after deposition. The coordinates for this lease in Wicomico County are as follows:

(Harrington, Phillip /Aquaculture Lease #237) 2015-01050

The bottom lease site is an approximate 135 acre area located a minimum of 381 feet channelward of the approximate mean high water (MHW) shoreline and a maximum of 2,541 feet channelward of the approximate MHW shoreline.  Water depths within the project site varies from -5.1 feet to -8.6 feet at mean lower low water (MLLW), depending on the location within the project area, and the applicant’s plans identify a minimum vertical clearance of 4 feet, 10 inches feet at MLLW above the finished grade/elevation of the oyster shell after deposition. The coordinates for this lease in Dorchester County are as follows:

(Wisner, Eric /Aquaculture  Lease #231) 2015-00931  

The bottom lease site is an approximate 63 acre area located a minimum of 367 feet channelward of the approximate mean high water (MHW) shoreline and a maximum of 1,945 feet channelward of the approximate MHW shoreline.  Water depths within the project site varies from -4.3 feet to -12.3 feet at mean lower low water (MLLW), depending on the location within the project area, and the applicant’s plans identify a minimum vertical clearance of -4.0 feet at MLLW above the finished grade/elevation of the oyster shell after deposition. The coordinates for this lease in Dorchester County are as follows:

The purposes of the proposed projects are to establish areas of suitable substrate for the commercial production of oyster shellfish to marketable size.  

As part of the planning process for the proposed project, steps were taken to ensure avoidance and minimization of impacts to aquatic resources to the maximum extent practicable.  These areas were chosen to minimize potential impacts to submerged aquatic vegetation (SAV) and navigation.  According to the Virginia Institute of Marine Science (VIMS) survey maps, there is no SAV mapped within the project footprint of the proposed aquaculture operations for years 2009 through 2013.  No mitigation measures are proposed by the applicant.

Note: In accordance with 33 CFR 325.3(a) (13), the Corps is providing the following additional information to assist agencies and the public in their review of these applications on factors affecting the public interest. The Corps is reviewing or has reviewed a total of 28 oyster aquaculture cultivation projects, (see overview plans) that involve approximately 1,394.2 acres in the Nanticoke River, including the ones proposed by these applications. The Corps has been reviewing and evaluating these 28 oyster aquaculture cultivation sites in the Nanticoke River under both the Aquaculture Regional General Permit -1 and Corps’ Individual Permit process.

All work will be completed in accordance with the enclosed plan(s).  If you have any questions concerning this matter, please contact Mr. Eugene Morgenthaler of this office at 410-820-8629 or by email at eugene.j.morgenthaler@usace.army.mil

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 (NMFS) on all actions, or proposed actions, permitted, funded, or undertaken by the agency that may adversely affect Essential Fish Habitat (EFH). 

The project sites lie in or adjacent to EFH as described under MSFCMA for Scopthalmus aquosus (windowpane flounder) juvenile and adult; Pomatomus saltatrix (bluefish) juvenile and adult; Paralicthys dentatus (summer flounder) larvae, juvenile, and adult; egg, larvae, juvenile, and adult of Scomberomorus cavalla (king mackerel), Scomberomorus maculatus (Spanish mackerel), Rachycentron canadum (cobia), and Sciaenops occelatus (red drum), all managed species under the MSFCMA.

The projects have the potential to adversely affect EFH or the species of concern by the alteration of spawning, nursery, forage and/or shelter habitat. The projects may have a minimal adverse effect on EFH as described under the MSFCMA for the species and life stages identified above.  This habitat consists of a mostly sand, shell, silt and mud substrate which does not support SAV. The Baltimore District has made a preliminary determination that site-specific impacts would not be substantial and an abbreviated consultation will be conducted with NMFS.  No mitigative measures are recommended at this time to minimize adverse effects on EFH.  This preliminary determination may be modified if additional information indicates otherwise and could change the Corps’ preliminary determination.

The applicants are required to obtain a water quality certifications in accordance with Section 401 of the Clean Water Act from the Maryland Department of the Environment.  Any written comments concerning the work described above which relate to water quality certifications must be received by the Wetlands and Waterways Program, Maryland Department of the Environment, Montgomery Park Business Center, 1800 Washington Boulevard, Suite 430, Baltimore, Maryland 21230-1708 within the comment period as specified above to receive consideration.  The Section 401 certifying agency has a statutory limit of one year from the date of this public notice to make its decision.

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 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.  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 District Engineer, U.S. Army Corps of Engineers, Baltimore District, P.O. Box 1715, Baltimore, Maryland, 21203 within the comment period specified above.

Where applicable, the applicants have certified in this application that the proposed activities comply with and will be conducted in a manner consistent with the approved Coastal Zone Management (CZM) Program.  By this public notice, we are requesting the State concurrence or objection to the applicant’s consistency statement.  It should be noted that the CZM Program has a statutory limit of 6 months to make its consistency determination.

The applicants must obtain any State or local government permits which may be required.

A preliminary review of these applications indicates that the proposed work may affect Federal listed threatened or endangered species or their critical habitat, pursuant to Section 7 of the Endangered Species Act, as amended.  The project location and vicinity is not mapped as critical habitat for any known Federally-listed threatened or endangered species; however, the waterway is known to be utilized by transient individuals of the following species: Loggerhead sea turtles (Caretta caretta); Kemp's Ridley sea turtles (Lepidochelys  kempii); Leatherback sea turtles (Dermochelys coriacea); Green sea turtles (Chelonia mydas); Shortnose sturgeon (Acipenser brevirostrum); and Atlantic sturgeon (Acipenser oxyrinchus).  The Baltimore District will initiate informal consultation under Section 7(a)(2) of the ESA.  As the evaluation of these applications continues, additional information may become available which could modify this preliminary determination.

Review of the latest published version of the National Register of Historic Places indicates that no registered properties listed as eligible for inclusion, therein, are located at the sites of the proposed work.  Currently unknown archeological, scientific, prehistoric, or historical data may be lost or destroyed by the work to be accomplished under the requested permits.

The evaluation of the impact of the work described above on the public interest will include

application of the guidelines promulgated by the Administrator, U.S. Environmental Protection Agency, under authority of Section 404 of the Clean Water Act.

Any person who has an interest which may be adversely affected by the issuance of these permits may request a public hearing. The request, which must be in writing, must be received by the District Engineer, U.S. Army Corps of Engineers, Baltimore District, P.O. Box 1715, 21203-1715, 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.

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

FOR THE DISTRICT ENGINEER:

                                                                        KATHY B. ANDERSON

                                                                        Chief, Maryland Section Southern