US Army Corps of Engineers
Baltimore District

Special PN #16-47

Published Aug. 12, 2016

Subject:  Reinstatement of 2012 Nationwide Permit #48 Authorizing New and Existing Commercial Shellfish Aquaculture Activities in Maryland

The purpose of this special public notice is to inform the general public of the Baltimore District, U.S. Army Corps of Engineers (Corps) decision to reinstate the suspended 2012

Nationwide Permit #48 (NWP #48) with revised regional conditions for new and existing commercial shellfish aquaculture activities in Maryland tidal waters.  NWP #48 will replace the expiring Regional General Permit-1 (RGP-1) for commercial aquaculture activities.  An enclosure to this public notice (Enclosure 1) lists the revised regional conditions applicable to NWP #48 activities in Maryland waters.  The reinstated 2012 NWP #48 with revised regional conditions will become effective in Maryland waters on August 16, 2016.

Background:

On August 15, 2011, the Corps issued a Regional General Permit (RGP-1) for new commercial, research, and educational bivalve shellfish aquaculture activities in tidal navigable waters of the United States within the State of Maryland.  The RGP-1 provided a streamlined form of Department of the Army (DA) authorization for new native oyster aquaculture activities that were expanding as a result of changes in State laws.   The RGP-1 was issued for a five year period and expires on August 15, 2016.

On April 28, 2016, the Corps issued Special Public Notice (SPN) #16-25 proposing to reinstate the currently suspended 2012 NWP #48 with revised regional conditions, in accordance with Corps regulations at 33 C.F.R. § 330.1(d), 330.4(e), and 330.5.     The reinstated NWP #48 will be effective from August 16, 2016 to the expiration of the 2012 NWPs on March 18, 2017.  The reinstatement of the 2012 NWP #48 will authorize new and existing commercial shellfish aquaculture activities within Maryland waters pursuant to Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act.

 Prior Corps Authorizations for Aquaculture

Aquaculture operations typically involve removing and replacing structures and/or performing work, such as the deposition of shell (with or without oyster spat) on bottom, within navigable waters of the United States on an on-going basis. These aquaculture activities must maintain a valid DA permit for the duration of the on-going work.

Written project-specific authorizations from the Corps (i.e., Individual Permit (IP), RGP-1, and NWP #48) for on-going aquaculture activities continue to be valid for a specific period subject to the terms and conditions of that project-specific DA authorization.  After expiration of the Corps authorization, the permittee must receive a new authorization from the Corps for on-going or new aquaculture activities under the terms and conditions of the NWP #48 that is in effect at the time of expiration or seek authorization under the IP process.  If you wish to continue with the operation of an approved aquaculture activity beyond the expiration date, you must notify the Corps, in writing, of your intentions at least 90 days prior to the expiration date to allow sufficient time for Corps review and determination regarding required authorizations. 

All aquaculture activities that have 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 August 15, 2016, will continue to be authorized until August 15, 2017 under the terms and conditions of the RGP-1.  After the grandfather period ending August 15, 2017, on-going aquaculture activities previously verified under the RGP-1 must obtain a new DA authorization under the terms and conditions of the 2017 NWP #48 or an IP.   We will issue a public notice when the NWPs are reissued. 

Aquaculture activities that have received written, project-specific RGP-1 verification and do not start work or get under contract by August 15, 2016 are no longer valid and must obtain a new Corps authorization under the terms and conditions of the reinstated 2012 NWP #48, or an individual permit, as appropriate, before initiating the aquaculture work.

A permittee must either seek a new DA authorization under the IP process or revise their project to meet the terms and conditions of the NWP #48 when a previously authorized shellfish aquaculture project does not comply with the terms and conditions of the 2012 NWP #48.  The new DA authorization will allow for the continued operation and authorization of the aquaculture project (removing and replacing structures and/or performing work, such as the deposition of shell (with or without oyster spat) on bottom, subject to the terms and conditions of the new DA permit (i.e., IP or NWP #48).  Aquaculture projects that do not obtain a valid DA permit will no longer be authorized by the Corps.

Comments received

In response to SPN 16-25, the Corps received comments recommending retention of the aquaculture acreage limits specified in the current 2012 NWP regional conditions and as provided by RGP-1 (50 acres for shell on bottom, 5 acres of cages on the bottom, and 3 acres of floating aquaculture structures).   These comments cited concerns that the size of some individual aquaculture operations may have adverse impacts on local water quality, aquatic resources, and natural sedimentation processes.  One commenter expressed concern that without acreage thresholds, a few single large aquaculture companies could dominate the remaining available leasing acreage and reduce aquaculture opportunities for more entrepreneurs.  Another commenter requested a public hearing citing concerns regarding aquaculture project reviews by the Corps going forward under NWP #48.

Comments were received in support of the proposal to eliminate the current acreage thresholds and reinstatement of NWP #48.  In addition, a commenter stated that aquaculture permit reviews in Maryland waters should mirror the aquaculture permit review processes as are done in Virginia.

Concerns were expressed regarding screening of applications with respect to avoidance of areas supporting submerged aquatic vegetation (SAV), and raised questions regarding the quality and resolution of the aerial imagery that would be used for such screening.  Other comments stated that the public trust doctrine needed to be considered during aquaculture reviews; that sterile oysters do not benefit the natural oyster population; that the proposal would lead to the end of the public fishing industry; and that leases should not be located on public bottom that is being worked or that is being used for wild fisheries.

Questions were received regarding the reasons for suspending NWP #48, whether adjacent property owners would be notified of proposed aquaculture applications, how the NWP #48 would compare to the RGP-1 process, and how on-going projects or those currently under review would be affected by reinstatement of the 2012 NWP #48.

The National Marine Fisheries Service, Habitat Conservation Division (NMFS HCD) expressed no concerns with removing the current acreage thresholds of the 2012 NWP #48 Regional Conditions.  The Environmental Protection Agency (EPA) stated that they had no comments.  The National Marine Fisheries Service, Protected Resources Division (NMFS PRD) provided comments on Endangered Species Act (ESA) consultation. The Corps has initiated informal programmatic Section 7 ESA consultation with the NMFS PRD.  If this consultation is not completed prior to the effective date of the 2012 NWP #48 reinstatement on August 16, 2016, the Corps will consult, as necessary on a case-by-case basis with the NMFS PRD in accordance with the 2012 NWP general condition 18, Endangered Species.  

Decision

The Corps has considered all comments received in response to this SPN, along with information gained from our experience reviewing aquaculture activities over the past five years.  After factoring in all of this information, the Corps has decided to reinstate the 2012 NWP #48 authorizing new and existing commercial shellfish aquaculture activities without acreage thresholds within Maryland waters pursuant to both Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act.  In addition, several changes are being made to the District’s aquaculture permit review processes.

This decision to reinstate the 2012 NWP #48 will allow the Corps to consider applications for new and existing commercial shellfish aquaculture activities within the State of Maryland that meet the revised regional conditions, all terms and eligibility criteria, limitations, and conditions specified in the NWP #48.  In order for the NWP #48 to be valid for a particular activity, a person or entity seeking verification under the NWP #48 must obtain all other Federal, state and/or local authorizations required by law prior to commencement of such work in waters of the U.S.  Activities that do not comply with the provisions of the NWP #48 will require alternate DA authorization (i.e., IP).

The Corps has decided to make changes to the current federal aquaculture review process to enable the District to receive the applications within 7 to 10 workdays from the Maryland Department of Natural Resources (MDNR) receipt date.  The District has also decided to require additional information to be submitted in the application package to ensure that the proposed activities will have minimal individual and cumulative impacts on the aquatic environment, navigation, endangered species, the overall public interest, and other relevant factors.

The Corps has also decided to eliminate the exclusion lines shown by the map attached to the SPN rather than limit the utility of NWP #48 based on the imprecise designations shown by this mapping. The Corps shall use MDNR’s anadromous fish spawning data layers, in the most current form that exists, during the PCN review, to ensure that any commercial aquaculture proposals are not located within any mapped anadromous fish spawning areas.  In addition, the Corps will provide to NMFS HCD and PRD copies of all commercial aquaculture applications that are received, as required by our revised regional conditions.

In consideration of the requests for a public hearing, the Corps has determined, given the scope and detail of the comments provided in response to SPN 16-25, and based upon information that has been received, that there is no need to convene a public hearing to assist the Corps in making the decision whether to reinstate the suspended 2012 NWP #48 with revised regional conditions for new commercial aquaculture in Maryland waters    since no additional information is needed to assist the Corps in making a decision on the reinstatement of NWP #48.  Accordingly, the District has denied these requests.

The regional conditions for existing commercial aquaculture activities covered under the 2012 NWP #48 in Pennsylvania, the District of Columbia, and military installations of northern Virginia remain unchanged as published in the District’s Special Public Notice, #12-32 dated March 19, 2012 located at:

http://www.nab.usace.army.mil/Missions/Regulatory/Public-Notices/Article/492646/spn-12-32-reissuance-of-nationwide-permits/.

The 2012 Nationwide Permits, the February 21, 2012 Federal Register, and the notice of corrections are available on the Corps home page at:

http://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Nationwide-Permits/

Coastal Zone Management Act (CZMA) Consistency Determination and Clean Water Act Section 401 Water Quality Certification (WQC):  The revised regional conditions for the reinstated 2012 NWP #48 issued herein will become effective on August 16, 2016.  The Maryland Department of the Environment (MDE) is expected to issue a WQC and a determination regarding CZMA consistency.  Accordingly, conditions from MDE regarding either CZMA consistency or WQC will be applicable to all authorizations issued by the Corps under NWP #48.  If MDE does not complete their CZMA consistency or WQC determinations by August 16, 2016, each 2012 NWP #48 verification will require that an individual State CZMA consistency concurrence or WQC be obtained or waived.

Copies of this public notice may also be found on the Baltimore District Regulatory website at: http://www.nab.usace.army.mil/Missions/Regulatory/PublicNotices.aspx

Information, including Q’s and A’s, regarding aquaculture is located at: http://www.nab.usace.army.mil/Missions/Regulatory/Aquaculture.aspx

Information on Maryland shellfish aquaculture is located at:

http://dnr2.maryland.gov/fisheries/Pages/aquaculture/shellfish.aspx

If you have any questions or need additional information, please contact Mr. Woody Francis, Regulatory Program Manager, U.S. Army Corps of Engineers, Baltimore District, Regulatory Branch, 10 South Howard Street, Baltimore, Maryland 21201, 410-962-5689 or email at woody.francis@usace.army.mil.

FOR THE DISTRICT ENGINEER:



BETH E. BACHUR
Acting Chief, Regulatory Branch