Summary of Army Corps NWP D Comments will be accepted through November 27, 2006.

As proposed, NWP 4, which previously addressed shellfish harvest and seeding activities, will cover only “clam and oyster digging,” but not seeding activities. That activity would be authorized by the proposed new NWP D (if the activity is an existing commercial shellfish aquaculture operation) or NWP 27 (if it is conducted for restoration).

What the new proposed NWP D will cover • Continued operation of existing commercial shellfish aquaculture activities that are less than 25 acres with less than 10 acres of submerged aquatic vegetation (SAV). • Authorizes installation of buoys, floats, racks, trays, nets, line and other structures necessary for the continued operation of aquaculture activity. • Authorizes discharges of dredged or fill material necessary for shellfish seeding, rearing, cultivating, transplanting, and harvesting activities.

What the new proposed NWD D will NOT cover: (These activities will require coverage under either an Regional General Permit (RGP) or an Individual Permit (IP). • Expansion or “substantial modification” of current project area. • Cultivation of new species (not previously cultivated by the existing commercial shellfish aquaculture activity). • New commercial shellfish aquaculture activities

What the NWP D MAY cover: (Pending approval of a Pre-Construction Notification (PCN) by the District Engineer • Project area greater than 25 acres • Project area where more than 10 acres is occupied by submerged aquatic vegetation • Relocation of existing operations into portions of the project area not previously used for aquaculture activities • Where dredge harvesting is conducted in areas inhabited by SAV

Coverage under NWP D is subject to a list of 27 GENERAL CONDITIONS (GC): Most notably: • GC #17: Endangered Species Consultation: If a permittee has listed species in their project area they are required to notify the District Engineer (DE) via a PCN that provides a list of all listed species that my utilize the work area. The DE has 45 days upon receipt of a complete PCN to determine whether the activity “may affect” or will have “no effect” on listed species and designated critical habitat. (See PCN provisions, GC #27, below) • GC #21: Water Quality Certification by state authority where project activity occurs. By law, the ACOE must incorporate ANY additional conditions placed on permit by state authority. • GC #22: Coastal Zone Management consistency concurrence must be obtained by state authority where project activity occurs. • GC #23: Regional and Case by Case Conditions: Division Engineers may approve the addition of specific conditions to the NWP D, as requested by District Engineers. • GC #27: Pre-Construction Notification (PCN) triggered as noted above. PCN may be submitted via Form ENG 4345 or by providing the following details in a document clearly indicating it is PCN: 1. Name, address, phone of permittee 2. Location of proposed project 3. Description of proposed project; project purpose; direct and indirect adverse environmental effects project would cause. Details must be sufficient to allow DE to determine adverse effects will be minimal. Sketches should be provided if necessary to clarify project. 4. Delineation of special aquatic sites and other waters of the US on site, in accordance with the current method required by the Corps. 5. Describe if project will result in loss of greater than 1/10 acre of wetlands and if so how it will be mitigated 6. If project may adversely affect listed species, include names of those species 7. If project may affect historic property listed in National Register of Historic Places, include map

The Corps is specifically soliciting comments on the following: • Limiting authorization on the expansion of existing commercial aquaculture activities or facilities • Whether to impose a limit on: 1. The quantity of dredged or fill material that could be discharged into navigable waters 2. The acreage of the facility as a whole or of submerged aquatic vegetation 3. The types of activities authorized, eg., discharges of dredged or fill material that may be necessary to prepare a suitable substrate for shellfish seeding. • Potential beneficial and adverse effects that commercial shellfish aquaculture activities have on the aquatic environment. • Proposed PCN threshold, including the appropriateness of attempting to quantify these aquatic operations in terms of acres, ecosystem health, shellfish productivity, or some other threshold to ensure minimal adverse effects.

DEFINITIONS: • Project area is defined as the area of navigable waters occupied by the aquaculture operation, as described through any existing permits or certifications (such as Health Cert.) It may include areas in which there has been no previous aquaculture activity and/or areas that periodically lie fallow as part of normal operation of the facility. • Definition of “Seed” includes immature individual shellfish attached to a shell or shell fragment and shellfish shells and shell fragments placed into waters for capturing larvae

PROCESS: • Anyone may request a Public Hearing on any of the proposed NWPs. Requests must be submitted in writing and state the reason why such a hearing would assist in making a decision on issuance of the proposed NWPs. If the Corps determines such a hearing is warranted, a 30 day advance notice must be published in the Federal Register and in the on-line docket at www.regulations.gov or http://www.usace.army.mil/inet/functions/cw/cecwo/reg/citizen.htm • Concurrent (or soon thereafter) with the Sept 26 Federal Register NWP notice, Corps district offices will issue Public Notices (PN) to solicit comments on REGIONAL CONDITIONS proposed by districts to be added to the NWPs. Comment periods for these district PNs will be 45 days. • After Fed. Register comment period ends (Nov. 27), Corps reviews comments and drafts final NWPs. Final drafts are subject to review by interested Federal agencies. Final NWPs will be published in the Fed. Register by January 2007. These become effective 60 days after publication. • During this 60 day period (from final Federal Register publication to NWP effective date), State authorities will determine consistency with CZM and WQ certification requirements. Supplemental decision documents by the state authorities can be added to NWP conditions. • PRELIMINARY WQ and CZM decision documents have been prepared by the Corps for each proposed NWP with Findings of No Significant Impacts (FONSI). These can be viewed at www.regulations.gov, Docket # COE – 2006 – 0005. Division engineers will consider the regional effects of each NWP and issue supplemental decision documents. While the District Engineer can propose modifications at the district level, the DIVISION Engineer must approve these conditions. • Districts (with the approval of the DIVISION) may elect to revoke a NWP entirely for their region, a specific geographic areas or on a seasonal basis. • ESA/EFH Consultation must take place on each NWP before they are in effect.

Of Special Note: Federal register notice notably acknowledges national aquaculture policies and states: “…Because shellfish require healthy ecosystems for their growth and productivity, in addition to providing the aquatic ecosystem services of improved water quality and increased food production, we believe that there is generally a net overall increase in aquatic resource functions in estuaries or bays where shellfish are produced.”

Comments can be submitted through the Army Corps website, via email, fax or postal service:

Docket # COE-2006-0005 and/or ZRIN 0710-ZAOZ

On-line: http://www.regulations.gov  (comments can also be tracked on this site)

Fax: 202-761-0140

Email: david.b.olson@usace.army.mil