PN16-04 (Wisner, Eric/Aquaculture Lease #267) - 2015-01561 - Wicomico County

Published Jan. 11, 2016
Expiration date: 2/11/2016

                                                Public Notice                                               

U.S. Army Corps              In Reply to Application Number                                 

of Engineer                       CENAB-OP-RMS (Wisner, Eric /Aquaculture  Lease #267)

Baltimore District             2015-01561



PN 16-04                           Comment Period:  January 11, 2016 to February 11, 2016



The Baltimore District has received an application 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:

APPLICANT:     Mr. Eric Wisner

                          26400 Nanticoke Road

                         Salisbury, Maryland  21801

LOCATION:  The project is proposed in Ellis Bay, Wicomico County, Maryland.

DESCRIPTION OF WORK:  To establish, operate, and maintain an aquaculture operation within a total of 69.9 acres by depositing oyster shell with spat on the bottom a maximum of 4 inches, without predator controls (e.g. nets, etcetera), on the bottom substrate. The site is composed of a mixture of shell and mud substrate throughout the project area and would be used for purposes of culturing native Eastern Oyster (Crassostrea virginica) on the proposed bottom lease site.  This bottom lease site is also regulated by the Maryland Department of Natural Resources (MD DNR) and has been identified by lease application number 267.

The applicant has advised that the proposed submerged land lease area would be subject to periodic harrowing, dragging and additional deposition of oyster shells, as needed, as described above, to maintain the site.  Harvesting would be accomplished by dredging or other harvesting means as approved by the MD DNR.  Staging would be at the owner’s property at 26400 Nanticoke Road, Salisbury, Wicomico County, Maryland and off-loading would be at the Nanticoke Harbor, 20411 West 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 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.

The bottom lease site is an approximate 69.9 acre area located a minimum of 1,836 feet channelward of the approximate mean high water (MHW) shoreline and a maximum of 4,521 feet channelward of the approximate MHW shoreline.  Coordinates # 9 of the lease site are N 38° 13’ 52.0” and E -75° 52’ 26.0” and located approximately 365 feet from the

edge of the Federal Navigation Channel.  Water depths within the project site varies from  -6.3 feet to -10.8 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 -6.0 feet at MLLW above the finished grade/elevation of the oyster shell after deposition. The coordinates for this lease in Wicomico County are as follows:





38°  13’  47.1” N

75°  52’ 32.8” W


38°  14’  01.8” N

75°  52’ 51.4” W


38°  14’  08.4” N

75°  52’ 39.9” W


38°  14’  10.5” N

75°  52’ 29.6” W


38°  14’  11.5” N

75°  52’ 24.8” W


38°  14’  09.3” N

75°  52’ 23.7” W


38°  14’  03.4” N

75°  52’ 19.7” W


38°  13’  59.1” N

75°  52’ 32.0” W


38°  13’  52.0” N

75°  52’ 26.0” W

The purposes of the proposed project are to establish an area 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.  This area was 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 operation for years 2009 through 2013.  No mitigation measures are proposed by the applicant.


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

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 site lies 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 project does not have the potential to adversely affect EFH or the species of concern by the alteration of spawning, nursery, forage and/or shelter habitat. The project 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.

WATER QUALITY CERTIFICATION:  The applicant is required to obtain a water quality certification 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 certification 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 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 (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 applicant must obtain any State or local government permits which may be required.

A preliminary review of this application 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.  As the evaluation of this application 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 site

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 request permit.

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 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.


                                                            KATHY B. ANDERSON

                                                            Chief, Maryland Section Southern