Army Corps permitting of shellfish culture, harvest and restoration Bill Dewey, Taylor Shellfish Company Shelton, Washington www.taylorshellfish.com

Historic Industry Farming oysters since the 1830’s Late 1800’s: San Francisco gold-rush created huge demand for oysters

Army Corps of Engineers permitting USACE authority Rivers & Harbors Act Section 10 Structures and work that interfere with navigation Clean Water Act Section 404 Discharge of dredged or fill material (pollutants)

Army Corps of Engineers permitting 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 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 4) Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities

Evolution 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 NWP4 1982 added “duck blinds, clam and oyster digging” after lobster traps 1986 no changes

Evolution 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 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 happen

Problem: SAV and shellfish happen

Problem: SAV and shellfish happen

Problem: SAV and shellfish happen

Nationwide Permit 4 (NWP 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 awakening Coast Seafoods, Humboldt Bay, California required to get individual permit Process, consultation, studies, conditions, operational changes cost company ~ $1 million Two new Washington State shellfish farms required to get heavily conditioned individual permits

Consultation triggered Corps permit = federal nexus Consultation required under ESA if threatened or endangered species in area. Consultation required for impact to Essential Fish Habitat under Sustainable Fisheries Act Conditions imposed on permits

Corps responds to industry alarm National review of consistency of regulating shellfish culture practices Jurisdictional review of authority under CWA section 404 and RHA section 10 Commitment to efficient permitting through NWP and/or Regional General Permits

New NWP D – shellfish aquaculture Published in federal register 9/26/06 for public comment (by November 27th) Intended to permit existing commercial shellfish culture activities in the U.S.

Pre-construction notification (PCN) Project area is > 25 acres > than 10 acres of the “project area” is occupied by (SAV) The permittee intends to relocate existing operations into portions of the project area not previously used for aquaculture activities Dredge harvesting is conducted in areas inhabited by SAV

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

Changing species on a facility NWP D does not authorize switching to a new species that has not previously been cultivated by the existing commercial shellfish culture (activity or) facility New species will require permitting under an RGP or IP

Regional conditions NWP D as well as other NWPs can be conditioned by individual Districts Proposed conditions announced through District Public Notice (PN) process

Regional General Permits (RGPs) Corps is developing Regional General Permits for activities that fall outside of NWP D Beginning with West Coast then plan to work their way around country

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

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

NWP 4 changes previously addressed shellfish harvest and seeding activities continues to cover “clam and oyster digging”. removing the old text authorizing shellfish seeding, since that activity would be authorized by proposed NWP D (if the activity is an existing commercial shellfish aquaculture operation) or NWP 27 (if it is conducted for restoration)

NWP 27 Aquatic 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 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? Little scrutiny or regulation when shellfish culture done with tax dollars to improve water quality and provide habitat Tremendous scrutiny and regulation when same shellfish cultured for food and profit. Crops are providing same ecological services at no cost to tax payers!

Restoration gone awry!