Q1. Will the Corps host a public workshop explaining permit application requirements and permit procedures? Where will the workshop(s) be held?
A1. A virtual public outreach event was held October 22, 2020.
Q2. The judge issued an order in October of 2019. Why has the Corps not shared the order and what it means with permitees and the public?
A2. The documents filed in the litigation, including the judge’s orders, are public records. Interested members of the public can download the judge’s orders for a fee after registering for an account at https://pacer.uscourts.gov. Court opinions can also be found for free using other resources such as Court Listener (https://courtlistener.com). The cases are Center for Food Safety v. U.S. Army Corps of Engineers, No. 2:17-cv-01209 and Coalition to Protect Puget Sound Habitat v. U.S. Army Corps of Engineers, No. 2:16-cv-00950. Litigation concerning 2017 NWP 48 is still on-going and the Corps does not comment on on-going litigation.
Q3: How will district be prioritizing permit application review?
A3: The District is prioritizing review of permit applications in the following manner:
While the District is processing current volume of commercial shellfish aquaculture applications, the following will impact the processing timeline of your permit:
- Applications for previously verified operations which have no proposed changes and do not involve modifications or new work are generally faster to process. Applications for new work generally require more time to process. Applications which qualify for a Letter of Permission (LOP) will generally be faster to process than applications which require a Standard Individual Permit (SP). Taking the above factors into consideration, the District is attempting to prioritize applications on a first received manner.
- You may wish to consider these factors when determining what type of shellfish aquaculture activities you will propose in your application. You may work with your project manager at any time to discuss whether revisions to your application might reduce the processing timeline. Generally, revisions to an application can occur after the date of original submittal and will not result in a change of the original submittal date. The applicant guidebook available is a good source to understand what is involved in processing LOPs and SPs .
Q1. In the absence of NWP 48, what permitting mechanism will be used to authorize commercial shellfish aquaculture? What are the requirements?
A1. At this time, the Corps is processing all aquaculture permit applications as individual permits. The commonly used application form in the State of Washington, the JARPA, can be found on the Forms, Templates, & Info Papers page. Should alternative processing pathway(s) be developed in the future, additional Special Public Notices will be published.
Q2. As the judge held the use of 2017 NWP 48 is unlawful does that mean a Standard Individual Permits or Letters of Permission permitting pathway will be used? What are the differences and what does that mean to me?
A2. There are two types of individual permits, a standard individual permit (SIP) and a Letter of Permission (LOP). The Corps will determine the appropriate permit processing pathway on a case-by-case basis after reviewing the permit application. At this time, an LOP only covers work regulated under Section 10 of the Rivers & Harbors Act. Activities requiring authorization under Section 404 of the Clean Water Act will be processed as SIPs. Please see the Permit Guidebook for information regarding this application process.
Q3. Will the Corps use information and analysis from previous authorizations?
A3. Some of these existing operations have already been reviewed and authorized one or more times and we have substantial information in the file. The Corps will utilize this information to the maximum extent possible.
Q4. Could the requirement for a standard individual permit requirement change? I don’t want to expend resources on a cumulative effects assessment or alternatives analysis if it may no longer be required.
A4. Currently, the only means by which the Corps can authorize commercial shellfish aquaculture operations in Washington State is by individual permit. Under the individual permit process, the Corps is required to assess cumulative effects and consider alternatives. Please see the Permit Guidebook for information regarding this application process.
Q5. Is the Corps coordinating with Ecology for 401 certification requirements?
Q5. The Corps is currently coordinating with Ecology regarding the potential to issue a joint public notice for each individual permit application. Any questions regarding the Section 401 Water Quality Certification requirements should be directed to Ecology.
Q6. How is the Corps streamlining the permitting process?
A6. The Corps will use existing project information to the maximum extent possible. The Corps is also evaluating other potential permitting pathways and will update the public as decisions are made.
Q7. Does the Corps have the staffing and funding resources to permit operations under the individual permit process? How long will it take?
A7. This is a significant workload increase for the District and the Corps is aware of resource demands. The District received additional funds to address aquaculture permit workload. The District is also evaluating its current processes and practices, not only for aquaculture, but also overall, to improve efficiency.
Q8. What if there’s a lapse in my permit coverage?
A8. Operators are responsible for ensuring they have the appropriate authorizations and conduct their work in accordance to the terms and conditions of those authorizations. For those actions needing Corps authorization please see the Permit Guidebook for information regarding the application process. The commonly used application form in the State of Washington, the JARPA, can be found on the Forms, Templates, & Info Papers page.
Q9. What aquaculture activities are regulated under Section 10 of the Rivers and Harbors Act (RHA) of 1899?
A9. Under the RHA, the Corps regulates structures and work in navigable waters of the United States (33 CFR 322.2(b) & (c)). The following provides some examples of aquaculture-related structures and work typically subject to Section 10, although a fact-based decision will need to be made on a project-specific basis. Structures related to aquaculture include, but are not limited to, racks, cages, bags, lines, nets, and tubes. These structures may be floating, suspended in navigable waters, or on the bottom of a waterbody. Work would include, but is not limited to, such activities as dredging for harvesting and bed preparation and placing fill material such as shell or gravel to provide suitable growing substrate.
Q10. What aquaculture activities are regulated under Section 404 of the Clean Water Act (CWA)?
A10. Under the CWA, the Corps regulates the discharge of dredged or fill material into waters of the United States (33 CFR 323.2(d) & (f)). The following provides some examples of aquaculture-related activities typically resulting in a discharge, although a fact-based decision will need to be made on a project-specific basis. The placement of fill material such as shell or gravel in waters of the United States to provide suitable growing substrate, i.e., frosting. Placement of dredged or excavated material on clam netting to bury the edge or anchor the net. The use of mechanical equipment during bed preparation to grade and level the site before or between planting.
Q11. Has the Corps changed their policy as to what is regulated under Section 10 and/or Section 404?
A11. Previously issued verifications made under NWP 48 covered activities under both Section 10 and Section 404 and therefore differentiating between the two authorities was not necessary. As the District is now proceeding with individual permits it is more important to differentiate between the two authorities. The District will be carefully reviewing on a case-by-case basis whether a proposed activity would result in the discharge of dredged or fill material into waters of the United States or would require structures or work in navigable waters. Activities that do not result in the discharge of dredged or fill material in waters of the United States do not require authorization under Section 404.
Q12. Will the proposed NWP 48 be available to be used in Washington?
A12. The Corps is proposing to use a new NWP 48 in the State of Washington. A public notice soliciting comments on the proposed set of revised nationwide permits, including NWP 48 for Commercial Shellfish Aquaculture was published in the Sept. 15, 2020, Federal Register. USACE will accept written comments through Nov. 16, 2020. Comments may be submitted by e-mail or through the Federal eRulemaking portal at www.regulations.gov at docket number COE-2020-0002. The current set of nationwide permits expire on March 18, 2022. The nationwide permits being proposed today will replace the existing set.
Q13. I submitted my application a while ago, and it has yet to be assigned to a Program Manager (PM)? When can we expect a PM has been assigned to my project review?
A13. This is a significant workload increase for the District and we are working as expeditiously as possible. You will be contacted by your Corps Program Manager once one is assigned. See also questions 6 and 7 under Processing FAQ.
Q14. Should I combine multiple sites into a single application or provide separate applications for each site?
A14. The Corps evaluates site-specific information for proposed impacts as it relates to our federal authority. Operators may consider combining previous projects that are geographically adjacent or in close proximity to other sites. Applicants should provide previous Corps reference numbers, parcel numbers, and revised project drawings. See also question 16 under Processing FAQ.
Q15. When submitting application, should I reference the previous Corps number for the site?
A15. Yes, Corps reference numbers should be provided with projects previously verified or authorized.
Q16. Please provide further information as to combining aquatic farms that are geographically adjacent or close in proximity into single application.
A16. Determining whether to combine farms into a single application should be made by the applicant on a case-by-case basis. Factors to consider include, but are not limited to, whether the sites are geographically adjacent (e.g., located in the same water body), the nature of the potential impacts (e.g., whether special aquatic sites will be impacted), tribal coordination, and land ownership (e.g., leased land versus operator-owned). Operators may contact their Corps Program Manager to discuss their specific situation.
Q17. If no changes are proposed for previously verified projects and JARPAs have already been provided can the Corps use those rather than having operators resubmitting the same application?
A17. The Corps will use the information from the previous permits or verifications to the maximum extent possible. If no changes are being proposed, the applicant can send a letter stating no changes are proposed and requesting the Corps proceed with processing their application based on the information previously provided. It would be beneficial if updated drawings were included with the letter to verify and ensure the most recent information regarding the proposed activities is provided, including latitude and longitude points, parcel numbers, Corps jurisdictional boundaries (e.g., high tide line or mean high water (MHW) line, eelgrass boundaries and buffers), etc. The Corps will contact the applicant should additional information be required.
Q18. Does a JARPA need to be submitted to Ecology for the Section 401 Water Quality Certification (WQC) and Coastal Zone Management Consistency Determination?
A18. Ecology should be contacted regarding their application requirements. Please note, new regulations go into effect on September 11, 2020 regarding Section 401 WQC and Ecology should be contacted regarding those requirements.
Q19. Do I need an individual Coastal Zone Management Act (CZMA) consistency determination from Department of Ecology?
A19. Yes, for individual Department of the Army permits individual CZMA consistency determinations are required. You will need to fill out and submit the Coastal Zone Management - Certificate of Consistency with the Washington State Coastal Zone Management (CZM) Program form developed by the state of Washington. Please submit the form as part of the application package to the Corps. Any Department of the Army permit will not be valid until Ecology makes a decision regarding CZMA. Ecology will have 6-months from receipt of the form to make their decision. Please consult with Ecology regarding any processing questions.
Q20. Do I need an individual Section 401 Water Quality Certification (WQC) from the appropriate certifying agency, most often Department of Ecology?
A20. As indicated in A18 above, new regulations went into effect on September 11, 2020, regarding Section 401 WQC. Only applications sent to the certifying agency before this date may be grandfathered under the previous regulations. Please see the Special Public Notice the Corps sent out on September 25, 2020 regarding these regulation changes. Information regarding areas of responsibility for the various certifying agencies in the state of Washington are described in the document. All applicants seeking a Department of the Army individual permit for commercial shellfish aquaculture after September 11, 2020 should submit a pre-filing meeting request to the certifying agency so the certifying agency can determine whether a Section 401 Water Quality Certification is required. For Department of Ecology, the most current version of their pre-filing meeting request form can be found on their website.
In accordance with EPA requirements under their new WQC regulations, applicants are required to do the following (independent of the Corps):
- Submit a Pre-Filing Meeting Request to the certifying agency 30 days in advance of the WQC request to ensure the certifying authorities receive early notification and have an opportunity to discuss the project and potential information needs with the project proponent before the statutory timeframe for review begins.
- Submit a WQC request to the certifying agency. That request requires 9 items. Please see the Special Public Notice for details.
Q1. Is there a 404(f) exemption for commercial shellfish aquaculture? What does that mean and how does it affect my permit?
A1. No. EPA has the final authority to interpret Clean Water Act Section 404(f) exemptions and to date EPA has not issued a definitive determination on the applicability of the Section 404(f) exemptions to shellfish aquaculture activities. Commercial shellfish aquaculture activities that result in discharges of dredged or fill material into waters of the United States require authorization under Section 404 of the Clean Water Act.
Q2. In the absence of 2017 Nation Wide Permit (NWP) 48, what steps should operators previously authorized under 2017 NWP 48 take to get their operations approved?
A2. The Corps is currently processing actions as individual permits. The Corps must receive an application from the operator to initiate the authorization process. Please see the Permit Guidebook for information regarding this application process. The commonly used application form in the State of Washington, the JARPA, can be found on the Forms, Templates, & Info Papers page.
Q3. If the Corps has a previous application and drawings for a 2017 NWP 48 verification, do operators need to submit additional information to initiate the process?
A3. Yes, the Corps must first receive an individual permit application from an operator to initiate the individual permit authorization process. The commonly used application form in the State of Washington, the JARPA, can be found on the Forms, Templates, & Info Papers page. If the operator proposes to make any changes, including combining project areas, new drawings will be required. If no changes are proposed, the Corps will review the existing information it has on file and contact the applicant if additional information is required.
Q4. Does my original eelgrass delineation need to be re-delineated under the individual permit process?
A4. Whether new eelgrass delineations are necessary depends on the age of your prior delineation and if a new delineation is needed to meet the conservation measure for Endangered Species Act programmatic coverage.
Q5. How do I combine previously verified operations? What if I’ve acquired new properties or leases which are not previously verified but included in the batch?
A5. Depending on the specific circumstances, operators may have the option of combining operations that had previously been verified separately into a single individual permit application. Operators should contact their Corps program manager if they have questions about whether combining previously verified operations into a single individual permit application would be appropriate.
Q6. Do I still have programmatic Endangered Species Act (ESA) coverage?
A6. The programmatic ESA coverage was not impacted by the recent court orders. Programmatic ESA coverage can be used for any proposal meeting the terms and conditions of the programmatic Biological Opinion regardless of permitting type (General Permit or Individual).
Q7. How will you conduct a cumulative effects assessment and what information do I need to provide?
A7. The Corps will conduct cumulative effects assessments (CEAs) in accordance with applicable laws, regulations, and guidance. At this time, the Corps will not be conducting a statewide or regional cumulative impact assessment but will be conducting them for each individual project. If the Corps needs additional information to complete a cumulative effects assessment, the Corps PM will contact the applicant and work with them to address any information requirements.
Q8. Will the applicant participate in the CEA?
A8. A cumulative effects assessment will be conducted on an individual project basis and the application may need to provide information to the Corps in order to complete this assessment. The Corps PM will contact the applicant and work with them to address any information requirements. The Corps will distribute draft cumulative effects assessments for public comment when so required by law, regulation, or guidance.
Q9. If I’ve completed Section 106 NHPA for a verified operation, do I need to do anything else to obtain permit coverage through the individual permit process?
A9. If there are no proposed changes to previously a verified operation and you’re not seeking permit coverage for a new operation, there is no additional action on your part. Should expansions or new operations be proposed, we will evaluate Section 106/NHPA information needs on a case-by-case basis.
Q10. Will previously authorized projects with proposed expansions be able to continue operating in the existing previously verified footprint while the Corps processes the application for the existing and the expansion?
A10. Operators are responsible for ensuring they have the appropriate authorizations and conduct their work in accordance with the court’s order and the terms and conditions of those prior authorizations.
Q11. Does my original eelgrass delineation need to be re-delineated under the individual permit process?
A11. Whether a new eelgrass delineation is necessary depends on whether your aquaculture activities or locations have changed, the age of your prior delineation and/or if a new delineation is needed to meet the conservation measure for Endangered Species Act (ESA) shellfish activities programmatic coverage. Generally, for previously authorized projects a new delineation would not be required. However, for new projects or modifications to previously authorized activities a new survey may be required.
If you are unsure of whether you require an eelgrass delineation or for further information regarding eelgrass delineations please contact the project manager assigned to your application.
Q12. Am I required to provide an eelgrass delineation where the entire project area has eelgrass present and the shellfish activities were previously authorized under NWP 48?
A12. No. Because the project area is entirely within an eelgrass bed, the application and drawings should describe and illustrate the project area is entirely within an eelgrass bed.
Q13. I’ve inspected my project area and do not see eelgrass or kelp and I’ve looked at the Coastal Atlas and eelgrass and kelp are not documented in the waterbody. Do I need to provide any further documentation?
A13. To determine if eelgrass has been documented in your waterbody, go to https://fortress.wa.gov/ecy/coastalatlas/tools/Map.aspx and select the ‘contents’ tab and check ‘eelgrass’ and ‘kelp’ box. You can also determine on this website if kelp is present for meeting the ESA programmatic for shellfish activities. Generally, documentation of the visual inspection and confirmation from the Coastal Atlas will be sufficient.
Q14. What if there is documented eelgrass in the waterbody, but there is no eelgrass at my site that includes both new work and continuation of existing work?
A14. Your application should include a Preliminary Eelgrass Survey. The Preliminary Survey can be prepared as detailed in the Components of an Eelgrass Delineation Report. This document can be found at: https://www.nws.usace.army.mil/Missions/Civil-Works/Regulatory/Forms/.
Q15. How do I delineate Kelp and/or other Submerged Aquatic Vegetation (SAV) to meet the ESA programmatic?
A15. The Components of an Eelgrass Delineation Report methodology may be used to conduct a survey and prepare a report for other SAVs other than eelgrass.