The U.S. Army Corps of Engineers has announced new nationwide permits for mariculture. While the Corps has been permitting shellfish aquaculture for years, it has added two new nationwide permits (NWPs) for mariculture in federal waters, including on the outer continental shelf.
(Mariculture refers to cultivation in marine waters, while aquaculture is a more general term.)
The new permits are NWP 55 for seaweed and NWP 56 for finfish operations. The announcement also described revisions to NWP 48 for commercial shellfish mariculture. NWP 48 can include operations in state marine waters, which are close to shore.
A nationwide permit is a method for streamlining the permitting process for common activities. According to the Corps, NWPs “regulate with little, if any, delay or paperwork certain activities in federally jurisdictional waters and wetlands, where those activities would have no more than minimal adverse environmental impacts.”
Many nationwide permits are related to the Corps’ duties under the Clean Water Act.
However, the Corps has a role in shellfish, finfish and seaweed mariculture pursuant to Section 10 of the Rivers and Harbors Act of 1899. That law requires permits for structures affecting the navigable waters of the United States. Mariculture operations under NWPs 48, 55 and 56 require attaching cages to the seabed.
The new permits are in response to an Executive Order issued in May 2020, directing federal agencies to streamline mariculture permitting in order to compete with foreign operations. According to that Order, the United States gets 85 percent of its seafood from imports, including from foreign mariculture.
The permits apply to those mariculture operations that would have minimal individual or cumulative adverse impacts. However, operations likely to adversely affect a species listed under the Endangered Species Act (ESA) would still require consultation with the National Marine Fisheries Service.
The decision to initiate ESA consultation will be made by a district engineer upon evaluating a project’s pre-construction notice. District engineers will also consider whether operations within a region cumulatively pose an adverse environmental impact. If so, additional review under the National Environmental Policy Act will be warranted. Otherwise, the Corps found the permits will have only a minimal adverse effect.
The fact that there’s an NWP, however, does not mean that mariculture operations can just begin. Even though the permits are intended to streamline the process for mariculture applicants nationwide, their terms can be modified based on the specific project. For example, the Corps’ district office will look at a project’s pre-construction notification to check for conflicts from commercial fishing, oil and gas production, or the military, and also will consider how a mariculture operation might affect the aesthetics of the area.
District engineers can add regional conditions and site-specific conditions to a permit. Additionally, both Mississippi and Alabama added conditions to the previous iteration of NWP 48 pursuant to the Coastal Zone Management Act, and may do so again with the new permit. (For more on consistency determinations for NWP 48, see Water Log.)
Many comments to the Corps’ proposal for expanded mariculture operations addressed concerns regarding pollution, including pathogens released from the concentrated growing areas. According to the Corps, growing seaweed improves water quality. Otherwise, the Corps said, generally, that any pollution or pathogen from mariculture is outside of its permitting process. The EPA and/or states will look at water quality issues for specific operations.
Activities already taking place under NWP 48 are authorized under the previous version of the permit until March 18, 2022. Otherwise, the three mariculture permits are valid for five years from March 15, 2021.
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