Permit Review by the
U.S. Army Corps of Engineers
For the Coalition's complete comments, click on this link
Excerpts are below
U.S. Army Corps of Engineers
100 Penn Square East
Philadelphia, PA 19107-3390
The Coalition's letter to the Corps
January 30, 2015
U.S. Army Corps of Engineers
100 Penn Square East
Philadelphia, PA 19107-3390
Re: NWP 48 Proposed Regional Condition Request of Delaware Department of Natural Resources and Environmental Control (DNREC) for Shellfish Aquaculture in the Inland Bays
Dear District Engineer:
The regulations adopted by DNREC governing shellfish aquaculture in Delaware’s Inland Bays pose significant navigational, recreational, environmental, and related issues that will be harmful to Little Assawoman Bay. The program has been undertaken without adequate studies of and consideration for its impacts on navigation, the environment, longstanding recreational uses, health and safety, and the riparian rights of adjacent property owners. The differences in water quality among the three bays also must be taken into account.
The Coalition for Little Assawoman Bay, representing 240 home and business owners along this bay in Fenwick Island, makes the following recommendations to the U.S. Army Corps of Engineers about this regional condition request:
Withdraw DNREC’s current NWP 48 request based on the serious hazards posed by the department’s regulations (described fully beginning on page 4 of this submission).
Change the permitting process from a regional condition request to individual permits for each leaseholder or SADA, because the eight plot areas exhibit fundamentally disparate water flow and related characteristics. Little Assawoman Bay differs from the other bays in that it is much more inhospitable to shellfish because it is not deep or clean enough and is not flushed as they are (see pages 11–12).
Require DNREC to further modify the request by delaying the full proposed aquaculture program until all potential hazards are addressed with changes agreeable to all affected parties, including our Coalition.
Require DNREC to begin only with a limited pilot program (as outlined on pages 19–20).
Hold a public hearing, as provided for under the procedures of the Corps of Engineers, to “acquire additional information in connection with a permit application.” Please consider this letter the Coalition’s written request for such a hearing, to be held (1) with sufficient advance notice (by e-mail to the Coalition leaders named in the cover letter), and (2) in a place convenient to owners near Little Assawoman Bay, in or within five miles of Fenwick Island.
This hearing is required because neither the Center for the Inland Bays nor DNREC provided adequate advance notice to the parties most directly affected by the aquaculture program. No notification was posted near Little Assawoman Bay to alert residents of the planned changes to the bay’s uses, and none of them was directly invited to participate in public meetings. When the draft regulations were opened for comment, DNREC chose to ignore virtually every suggestion from the public and made very few changes to the regulations from draft to final. [See: http://www.dnrec.delaware.gov/Info/Documents/Secretarys%20Order%20No.%202014-F-0013.pdf]
At a Corps hearing, concerns and comments from the other hundreds of affected area residents and members of the public can be publicly discussed. Given that home and business owners along the Inland Bays were never provided direct notice of the impacts of the program by either the Center for the Inland Bays or DNREC, they are due a hearing even at this late date. Additional information on the notification and review process is presented in the following submission (see pages 17–18).
Despite passage of the aquaculture law by the Delaware General Assembly and the adoption of regulations by DNREC, if shellfish aquaculture poses insurmountable conflicts with existing uses of the Inland Bays, then the Corps of Engineers should withdraw or modify the permit for this activity as now planned. DNREC admits that the “tremendous number of non-resident boaters and novice boaters and personal watercraft users and shallow depths of the Inland Bays is a particular concern.” If the state wishes to sponsor an aquaculture program, it has other bodies of water, from the Atlantic Ocean to Delaware Bay, in which to place it where it will not produce such serious conflicts with the governing law and its own regulations, which require compatibility “with commercial and recreational finfishing and shellfishing, boating navigation and public safety, public water access and use, and native biota.”
The Inland Bays are part of two of Delaware’s state parks: Fenwick Island State Park and Delaware Seashore State Park. Proposals for inappropriate uses in such preserved areas deserve extra scrutiny if not outright rejection by public officials. Among these is the DNREC Secretary, whose department oversees both the state parks and the Division of Fish and Wildlife, which is designated to manage the aquaculture program. DNREC acknowledges that the bay contains “public trust areas with all the usual rights implied.” Public rights should not be so easily given away for private use such as shellfishing.
DNREC is empowered by the aquaculture law to “amend and repeal regulations,” as well as to adopt and promulgate them. It previously made several changes, including to minimize disturbance to nesting gulls and American oyster catchers in Rehoboth Bay and to close off seven acres that were too close to the navigation channel in Indian River Bay. Most of the recommendations herein are within the department’s discretionary powers to manage the aquaculture program, but if its regulations require legal amendment for the public good, it should request the Delaware General Assembly to do so as well.
Because the proposed shellfish aquaculture lease areas are in Section 10 waters of the United States, the program will be in an area of federal jurisdiction. We thus trust that the Corps of Engineers will do no less than ensure that the program does no harm to affected people, properties, and the public resources that these waters constitute.
King’s Grant Condominium Association
John J. Neylan, Vice President/Secretary
Water’s Edge Condominium Association
Diane Maddex, President
Seatowne Homeowners Association, Inc.
Fred C. Wetzelberger II, President
Salt Meadows Homeowners Association
John Carroll, President
Ross Cropper, President
Maisons sur Mer
Kenneth Arni, Homeowner
Amanda Randall, Homeowner
Edward M. Miller, Homeowner
Debbi Buniski, Homeowner
The Narrows Condominium Association
Raymond J. Buckley, President
Mitch Mitchell and
Jenifer Adams-Mitchell, owners
Comments to the Corps
According to the general evaluation criteria of the Decision Document for NWP 48, authorized activities must “not adversely affect navigation,” must have only “minor changes on the recreational uses of the area,” and must produce only “minimal adverse effects on the aquatic environment.” The regulations adopted by DNREC governing shellfish aquaculture in Delaware’s Inland Bays do not meet these standards and pose significant navigational, recreational, environmental, and related issues that will be harmful to Little Assawoman Bay. These issues, discussed in more detail in this submission, include impacts on:
Interference with the bay’s already limited navigation
Too large a percentage of the bay allocated to shellfish plots
Limited water access points for commercial work boats, creating conflicts with personal craft users over launch points
Placement of plots in water too shallow for work boats to safely navigate
Disruption of longstanding recreational and residential navigation in the bay
Interference with watersports rentals by a longtime tourist services provider
Excessive markers, narrow plot corridors, dangerous shellfish cages, and other navigation hazards for kayakers, paddleboarders, sailors, and all nonmotorized watercraft
Interference with the planned restoration of the wetlands at Seatowne
Selection of sites that may be too polluted to produce edible shellfish
Industrial-scale privatization of a public trust area (a Delaware state park)
Unknown impacts on the bay’s birds, sea turtles, and other wildlife
on the DNREC Program
The Coalition for Little Assawoman Bay recommends the following solutions to the problems posed by the DNREC shellfish aquaculture program in Little Assawoman Bay:
Stage One (Years 1–3)
Begin only with a pilot program:
Postpone all leasing in Little Assawoman Bay
Select a less affected and uncontested area of the Inland Bays, such as Rehoboth Bay or the IR-A SADA of Indian River Bay
Use test plots in this area to evaluate results, such as
- shellfish viability and health
- effectiveness of the shellfish in filtering the waters
- economic returns
- employment created
Create an advisory panel of “experienced stakeholders,” as recommended by the Center for the Inland Bays. This is one public suggestion to which DNREC did not object, adding only that such a group should “reflect a broad spectrum of the affected interests.” Property and business owners on Little Assawoman Bay are one such group of directly affected stakeholders and should be represented on any such panel.
Share with the panel and the public cost-benefit analyses of the aquaculture program, particularly of its impact on nearby residences, recreational businesses, and jobs.
Make public scientific studies on the realistic amount of nutrient pollution that shellfish are likely to cleanse and results of water sampling to ensure that the bay water is clean enough to produce healthful shellfish
Stage Two (Year 4+)
Slowly expand the program as conditions permit:
Ensure that the leasable area in Little Assawoman Bay, given its smaller size, remains less than or no more than the percentage used in the other two bays
Move plots away from recreational, residential, and commercial areas, and all piers. Avoid interfering with adjacent properties’ riparian rights and the private wetlands ownership by Seatowne and Maisons sur Mer
Correct other navigational conflicts the leases will impose. Among them are
- the danger of inexperienced recreational users having to navigate in and around leased plots and above cages or be pushed into hazardous powerboat channels
- the possibility that Coastal Kayakʼs sailing rental program and its other watersports rentals will be endangered, taking tourism and jobs with them
- water too shallow for work boats, whose size and number should be limited
Reduce significantly the number and size of markers and other fishing clutter, such as attached signage and floating gear.
Restrict cages to the bottom-level type and ban floating cages so that no cage is visible at low tide.
Set reasonable hours for work on the plots, so that harvesting of shellfish and maintenance of cages are restricted to from sunrise to sunset or less
Facilitate and monitor leaseholders in safely storing and transporting their catches and consider establishing an organic system to ensure healthy shellfish
Provide assurance that any damage to residential properties caused by commercial shellfishing equipment in the leased areas will be quickly and appropriately compensated
Amend the regulations to control malodorous operations, providing for the leaseholder to be fined or the lease to be terminated
Release regular reports to the public presenting factors for evaluating the program, such as
- number and type of leases
- residency of harvesters
- number of shellfish harvested
- water quality
- health of the shellfish
- jobs created
- sales and lease income