Army Corps permitting of shellfish culture, harvest and

restoration

Bill Dewey, Taylor Shellfish CompanyShelton, Washington

www.taylorshellfish.com

Historic Industry Historic Industry • Farming oysters Farming oysters

since the 1830’ssince the 1830’s

• Late 1800’s: San Late 1800’s: San Francisco gold-rush Francisco gold-rush created huge created huge demand for oystersdemand for oysters

Army Corps of Engineers Army Corps of Engineers permittingpermitting

• USACE authority•Rivers & Harbors Act Section 10­Structures and work that interfere with navigation

•Clean Water Act Section 404­Discharge of dredged or fill material (pollutants)

Army Corps of Engineers Army Corps of Engineers permittingpermitting

• Historically shellfish industry has obtained Section 10/404 permits for docks, piling, floating structures and dredging (channeling) of streams as they cross tideflats through shellfish beds

Nationwide PermitsNationwide Permits

• Programmatic permits for activities that cause only minimal adverse environmental effects when performed separately, and cause only minimal cumulative adverse effect on the aquatic environment

Nationwide Permit 4 (NWP Nationwide Permit 4 (NWP 4)4)

• Fish and Wildlife Harvesting, Enhancement,

and Attraction Devices and Activities

Evolution of NWP4Evolution of NWP4

• 1977 §322.4(d) Marine life harvesting devices such as pound nets, crab traps, eel pots, lobster traps, provided there is no interference with navigation

Evolution of NWP4Evolution of NWP4

• 1982 added “duck blinds, clam and oyster digging” after lobster traps

• 1986 no changes

Evolution of NWP4Evolution of NWP4

• 1991 “This nationwide permit authorizes shellfish seeding provided this activity does not occur in wetlands or vegetated shallows.”

• First assertion of CWA authority for shellfish seeding

Evolution of NWP4Evolution of NWP4

•1996 This nationwide permit authorizes shellfish seeding provided this activity does not occur in wetlands or sites that support submerged aquatic vegetation (including sites where submerged aquatic vegetation is documented to exist, but may not be present in a given year.). This nationwide permit does not authorize…or the use of covered oyster trays or clam racks.”

“SAV”

Problem: SAV and shellfish Problem: SAV and shellfish happenhappen

Problem: SAV and shellfish Problem: SAV and shellfish happenhappen

Problem: SAV and shellfish Problem: SAV and shellfish happenhappen

Problem: SAV and shellfish Problem: SAV and shellfish happenhappen

Nationwide Permit 4 (NWP Nationwide Permit 4 (NWP 4)4)

• Bulk of west coast industry predates NWP4

• Unaware that harvesting and seeding had come to be permitted activity under NWP4 or more recently specifically not

• Until recently no complaints about practices, no enforcement by ACOE, no reason to know otherwise

Rude awakeningRude awakening

• Coast Seafoods, Humboldt Bay, Coast Seafoods, Humboldt Bay, California required to get individual California required to get individual permitpermit– Process, consultation, studies, conditions, Process, consultation, studies, conditions,

operational changes cost company ~ $1 operational changes cost company ~ $1 millionmillion

• Two new Washington State shellfish Two new Washington State shellfish farms required to get heavily conditioned farms required to get heavily conditioned individual permitsindividual permits

Consultation triggeredConsultation triggered

• Corps permit = federal nexusCorps permit = federal nexus• Consultation required under ESA if Consultation required under ESA if

threatened or endangered species in threatened or endangered species in area.area.

• Consultation required for impact to Consultation required for impact to Essential Fish Habitat under Essential Fish Habitat under Sustainable Fisheries ActSustainable Fisheries Act

• Conditions imposed on permitsConditions imposed on permits

Corps responds to industry Corps responds to industry alarmalarm

• National review of consistency of National review of consistency of regulating shellfish culture practicesregulating shellfish culture practices

• Jurisdictional review of authority Jurisdictional review of authority under CWA section 404 and RHA under CWA section 404 and RHA section 10section 10

• Commitment to efficient permitting Commitment to efficient permitting through NWP and/or Regional through NWP and/or Regional General Permits General Permits

New NWP D – shellfish New NWP D – shellfish aquacultureaquaculture

• Published in federal Published in federal register 9/26/06 for register 9/26/06 for public comment (by public comment (by November 27November 27thth))

• Intended to permit Intended to permit existing commercial existing commercial shellfish culture shellfish culture activities in the U.S.activities in the U.S.

Pre-construction notification Pre-construction notification (PCN)(PCN)

• Project area is > 25 acresProject area is > 25 acres

• > than 10 acres of the “project area” is > than 10 acres of the “project area” is occupied by (SAV)occupied by (SAV)

• The permittee intends to relocate existing The permittee intends to relocate existing operations into portions of the project operations into portions of the project area not previously used for aquaculture area not previously used for aquaculture activitiesactivities

• Dredge harvesting is conducted in areas Dredge harvesting is conducted in areas inhabited by SAVinhabited by SAV

New NWP D – shellfish New NWP D – shellfish aquacultureaquaculture

• New commercial shellfish New commercial shellfish aquaculture activities or the aquaculture activities or the “substantial modification” of “substantial modification” of existing commercial shellfish culture existing commercial shellfish culture activities not covered by NWP D but activities not covered by NWP D but can be covered by Regional General can be covered by Regional General Permit (RGP) or Individual Permit Permit (RGP) or Individual Permit (IP).(IP).

Changing species on a Changing species on a facilityfacility

• NWP D does not authorize switching NWP D does not authorize switching to a new species that has not to a new species that has not previously been cultivated by the previously been cultivated by the existing commercial shellfish culture existing commercial shellfish culture (activity or) facility(activity or) facility

• New species will require permitting New species will require permitting under an RGP or IPunder an RGP or IP

Regional conditionsRegional conditions

• NWP D as well as other NWPs can be NWP D as well as other NWPs can be conditioned by individual Districtsconditioned by individual Districts

• Proposed conditions announced Proposed conditions announced through District Public Notice (PN) through District Public Notice (PN) processprocess

Regional General Permits Regional General Permits (RGPs)(RGPs)

• Corps is developing Regional Corps is developing Regional General Permits for activities that General Permits for activities that fall outside of NWP Dfall outside of NWP D

• Beginning with West Coast then plan Beginning with West Coast then plan to work their way around country to work their way around country

Individual PermitsIndividual Permits

• Individual permits will be required Individual permits will be required where activities fall out of both NWP where activities fall out of both NWP and RGPand RGP

SeedSeed

• Seed includes immature individual Seed includes immature individual shellfish attached to a shell or shell shellfish attached to a shell or shell fragment and shellfish shells and fragment and shellfish shells and shell fragments placed into waters shell fragments placed into waters for capturing larvaefor capturing larvae

NWP 4 changesNWP 4 changes• previously addressed shellfish harvest and previously addressed shellfish harvest and

seeding activitiesseeding activities

• continues to cover “clam and oyster continues to cover “clam and oyster digging”. digging”.

• removing the old text authorizing shellfish removing the old text authorizing shellfish seeding, since that activity would be seeding, since that activity would be authorized by proposed NWP D (if the authorized by proposed NWP D (if the activity is an existing commercial shellfish activity is an existing commercial shellfish aquaculture operation) or NWP 27 (if it is aquaculture operation) or NWP 27 (if it is conducted for restoration)conducted for restoration)

NWP 27NWP 27Aquatic Habitat Restoration,

Establishment, and Enhancement Activities

•adding shellfish seeding to the list of examples of authorized activities, since shellfish seeding is used to restore oyster populations

• replacing ‘‘values’’ with ‘‘services’’ because ecosystem services provide more objective measures of the importance of aquatic resource functions to human populations

NWP 27NWP 27

• requiring permittees to submit copies of:– Binding wetland enhancement, restoration,

or establishment agreements; – NRCS documentation for voluntary wetland

restoration, enhancement, or establishment actions; or

– Surface Mining Control and Reclamation Act (SMCRA) permits

•30 days prior to commencing activities

Double Standard?Double Standard?

• Little scrutiny or regulation when Little scrutiny or regulation when shellfish culture done with tax shellfish culture done with tax dollars to improve water quality dollars to improve water quality and provide habitatand provide habitat

• Tremendous scrutiny and Tremendous scrutiny and regulation when same shellfish regulation when same shellfish cultured for food and profit. Crops cultured for food and profit. Crops are providing same ecological are providing same ecological services at no cost to tax payers! services at no cost to tax payers!

Restoration gone awry!Restoration gone awry!