DNREC approves faster process for aquaculture leases

Date Published: 
December 30, 2016

Delaware can take its next step forward with shellfish aquaculture. The Department of Natural Resources and Environmental Control (DNREC) has finally approved an expedited process to approve aquaculture leases in the Rehoboth, Indian River and Little Assawoman bays. In 2017, aquaculturalists could begin growing oysters and clams on lease sites in the inland bays.

On Dec. 21, DNREC Secretary David Small approved a Statewide Activity Approval (SAA) that allows for speedy permitting in 343 pre-approved acres, rather than the original 442 acres designated as shellfish aquaculture development areas (SADAs) in 2014.

Little Assawoman Bay sites approved under the SAA process would also be limited to growing only hard clams.

“Approval of this process addresses concerns we have heard from waterfront property owners around the Inland Bays, and still allows certainty for small business interests who wish to pursue growing oysters and clams in the Inland Bays,” DNREC Sec. David Small stated.

Officially, the Division of Fish & Wildlife made the application to the Wetlands and Subaqueous Lands Section in February. At pubic request, a public hearing followed in June.

However, most of the public’s major concerns weren’t actually up for debate, DNREC stated. Most public comments were outside the realm of the SAA, instead focusing on the original Regulation 3801, which allowed shellfish aquaculture almost anywhere in the Inland Bays, but encouraged watermen to lease the 442 one-acre tracts within the eight original SADAs. (This month’s SAA allows for expedited permits, but limits those SADAs to 343 acres.)

Until DNREC amends the actual Regulation 3801, it’s not currently in the agency’s power to remove PVC markers or permanently restrict certain acreage from potential shellfishing.

In fact, watermen can still request almost any corner of the bays (minus those off-limits for high bacteria counts), if they’re willing to put the money and effort into individual permit requests.

“The Department finds that it is reasonable to expect that shellfish aquaculturalists should select the SAA SADA tracts before any other tracts,” since the SAA allows for an expedited permitting on 343 acres, the order states.

But DNREC will likely consider amending Regulation 3801 in the future, after cages are actually put in the bays, with at least one year to study actual practice.

However the original Regulation 3801 carries the weight of law. Recent SAA changes to the program can only discourage, but not change, the Regulations.

“DNREC had an obligation to develop a process for implementing the law allowing aquaculture, and this approach does so in an equitable manner,” Small stated. “This is a major step in moving the program forward.”

“Under today’s action, DNREC is also committed to a future review of the regulations, including the potential permanent removal of some SADA areas, and the requirement for marking the one-acre tracts with white PVC pipe,” the order states. “Both of these provisions are included in the regulation and unable to be addressed by the establishment of a SAA for shellfish aquaculture.

Watermen can expect to begin lease applications with the Division of Fish & Wildlife after the federal permitting process concludes in spring of 2017. Delaware already had permits, but the U.S. Army Corps of Engineers is streamlining its own nationwide aquaculture permitting process, when the current five-year cycle expires in spring.

The Corps also wanted Delaware to solidify its plans amidst the public controversy, said Ed Bonner of the Corps’ Philadelphia District.

Property owner associations and residents had protested creation of an aquaculture industry in the shallows where they paddleboard, waterski and sail. After the first round of complaints, DNREC’s has removed Beach Cove’s 24 acres (southeast of Indian River Bay) and 75 acres of the Little Assawoman, nearest to shore. Those SADAs were removed from the SAA’s expedited permitting process.

In 2013, Delaware State Legislature unanimously instructed DNREC’s Division of Fish & Wildlife to create an aquaculture industry and develop regulations. After the public process was complete and the regulations adopted in 2014, many property owners near Ocean View, Bethany Beach and Fenwick Island noticed the proposed maps and came out to protest in subsequent public hearings.

Now, near Fenwick Island, property owners appreciate the changes, but still want more. The Coalition for Little Assawoman Bay represents about nine housing developments in demanding a responsible approach to aquaculture. The homeowners won’t be comfortable until those 99 ignored SADA acres are permanently removed from consideration.

Moreover, they object to the physical property markers, calling the sea of PVC pipes a navigational hazard.

“Installation of up to 172 6-inch wide, PVC marker poles extending at least 5 feet above the water surface remains a possibility and a danger,” stated Diane Maddex, a coalition co-founder from Water’s Edge homeowner association. “Kayakers, paddleboarders and novice sailors can’t be expected to maneuver safely around obstacles like these.”

Coalition members felt those PVC pipes ignore DNREC’s own mandate to create minimal impact.

Some commercial fishermen had agreed, citing the expense of surveying and installing the poles.

But, earlier in the aquaculture process, DNREC “ultimately decided against changing the marking requirements out of concern for protecting human safety and property,” the Order states.

DNREC also needs to step up monitoring of water quality, the Coalition urged. Bacteria in the inland bays are coming to the forefront, especially after an Ocean City, Md., man died in September after an open wound became infected with Vibrio vulnificus, a flesh-eating bacteria in the nearby Big Assawoman Bay.

“Vibrio [vulnificus], a virulent flesh-eating bacteria occasionally found in shellfish, can cause serious illness if one ingests raw or undercooked clams or oysters,” stated Jack Neylan, a Coalition cofounder and former Environmental Protection Agency employee.

The Coalition for Little Assawoman Bay is online at www.saveourassawoman.org.

The DNREC Secretary’s Order is online at www.dnrec.delaware.gov/Info/Pages/SecOrders_Regulations.aspx.

DNREC’s aquaculture page is www.dnrec.delaware.gov/fw/Fisheries/Pages/ShellfishAquaculture.aspx.

For more information on the shellfish aquaculture SAA, contact DNREC’s Wetlands & Subaqueous Lands Section at (302) 739-9943. For more information on the shellfish aquaculture program, contact the Fisheries Section at (302) 739-9914.