New Nationwide Permit 48 (NWP 48) for Shellfish Aquaculture
PCSGA Talking Points
∑ NWP 48 is a new Army Corps of Engineers permit specifically to cover shellfish aquaculture activities.
∑ Corps notes benefits of shellfish culture in the permit preamble: "Since shellfish improve water quality and increase food production, we believe that there is generally a net increase in aquatic resource functions in estuaries or bays where shellfish are produced."
∑ Previously, most shellfish farming activities were presumed covered under Nationwide Permit 4. (Changes in that permit over the past few years and strange terminology had caused some confusion regarding what activities were and werenít covered under the previous permit, therefore the Corps determined that a new permit specific to shellfish aquaculture was in order.)
∑ The new permit covers ALL EXISTING shellfish aquaculture activities, including all culture methods currently used in oyster, mussel, scallop, clam (including geoduck) farming.
∑ Activities NOT COVERED under NWP 48 include:
a. New operations
b. Expansion of project area
c. Stockpiles, staging areas
∑ Permit Conditions include:
a. REQUIREMENT for all shellfish farms to report their activities to the Army Corps District Engineer (for their region)
b. There are two different types of reporting requirements, triggered by type of activity. (See details below)
c. Must notify applicable Coast Guard office regarding the project and comply with applicable Coast Guard regulations (GC-1).
d. No activity may "substantially disrupt the necessary life cycle movements of those species of aquatic life indigenous to the waterbody." (GC-2)
e. Avoid (to maximum extent practical) activities in spawning areas, not authorization for activities that destroy spawning areas. (GC-3)
f. Avoid (to maximum extent practical) activities in areas that serve as breeding areas for migratory birds.) (GC-4)
g. Authorized structures or fills must be properly maintained. (GC-14)
h. No activity resulting in jeopardy of listed species allowed. Any activity that "may affect" listed species can proceed unless Section 7 consultation completed. If project is located in designated critical habitat (or may effect habitat or species), must notify District Engineer that ESA requirements are met before proceeding (and must obtain "no effect" determination or complete Section 7 consultation). The Preconstruction Notification (discussed in more detail below) must include names of potentially affected species, and DE makes effects determination with 45 days. (GC-17)
i. Individual 401 certification must be obtained from or waived by state. (GC 21)
j. CZMA consistency concurrence must be obtained from or waived by state. (GC-22)
k. Regional Conditions may be included and must be complied with. (GC-23)
NWP 48 covers ALL EXISTING OPERATIONS, including:
a. Installation of buoys, floats, racks, trays, nets, lines, tubes, containers and other structures necessary for the continued operation of the existing commercial aquaculture activity. (Rafts also included by implication)
b. Discharges of dredge or fill material necessary for shellfish seeding, rearing, cultivating, transplanting and harvesting activities.
c. Use of gravel or other materials for substrate enhancement (see definition of "shellfish seeding")
Activities NOT COVERED under NWP 48:
a. "New" operations are not covered by the NWP
b. "Expansion of project area" not covered by NWP
c. "Stockpiles, staging areas" not covered by NWP
New Reporting Requirements:
There is a new requirement to submit notification to the Corps for ALL activities. There are two types of notification, depending on the type of activity:
1. Pre-Construction Notification (PCN): A PCN is required when:
a. Project area is greater than 100 ACRES
b. There is reconfiguration of aquaculture activity (e.g. relocation into new areas)
c. There is a change in species being cultivated
d. There is a change in culture methods (e.g. from bottom to off-bottom)
e. DREDGE HARVESTING, tilling or harrowing occurs in areas with SAV
If filing a PCN, growers may use form ENG 4345 OR provide the following information:
a. Name, address, phone of permittee
b. Location of project
c. Description of project, direct and indirect adverse environmental effects
d. Delineation of special aquatic sites
e. List of threatened or endangered species or critical habitat
Upon receipt of a PCN, the District Engineer reviews the information and determines whether the activities discussed in the PCN are within the scope of the NWP 48 coverage. If no response in 45 days, the District Engineer is deemed to concur that the activities are within the scope of NWP 48ís coverage.
2. Report: For those activities that do not trigger a full PCN, the following information must be provided to the Army Corps District Engineer:
a. size of project area
c. brief description of culture and harvest methods
d. names of cultivated species
e. whether canopy predator nets are used
Important terms, definitions
∑ The requirement to submit a pre-construction notification does not mean that an individual permit is required. Instead, it means that a district office will review the project, in coordination with appropriate resource agencies, within a 45-day timeframe and respond to the applicant with either a verification of the applicability of the NWP or a determination that an individual permit, or other type of DA permit, is required." The PCN is "a brief document" and need not include "detailed studies or analyses."
∑ "Shellfish Seeding:" The placement of shellfish seed and/or suitable substrate enhancement to increase shellfish production. Shellfish seed consists of immature individual shellfish or individual shellfish attached to shells or shell fragments (i.e. spat on shell). Suitable substrate may consist of shellfish shells, shell fragments, or other appropriate materials placed into waters for shellfish habitat.
∑ "Existing operation:" An operation that has been granted a permit, license or lease from a state or local agency specifically authorizing commercial aquaculture activities and which has undertaken such activities prior to the date of issuance of the NWP (March 19, 2007).
∑ "Project area:" The area of waters of the United States occupied by the existing operation. In most cases, the project area will consist of the area covered by the state or local aquaculture permit, license or lease. The project area may consist of several sites that are not contiguous. The project area may include areas in which there has been no previous aquaculture activity and/or areas that areas that periodically lie fallow as part of normal operations.
"Submerged aquatic vegetation:" The Corps indicates in the Federal Register Notice that macroalgae are not included in the definition of SAV and that the Corps does not intend to provide protection for noxious or invasive species such as Zostera japonica.