On the road to creating a sustainable aquaculture industry in Maryland, state officials have hit a big stumbling block.
The U.S. Army Corps of Engineers requires that Maryland oyster growers get an individual permit if they want to put oyster shells on the bottom of their lease - something nearly every oyster farmer must do to ensure the animals will grow.
The process of issuing those permits usually takes 120 days but can take more than a year, frustrating both the growers and the state officials who have tried to pave the way for a farm-raised oyster industry in Maryland's end of the Chesapeake Bay.
Virginia growers had the same problems until 1993, when the Virginia Marine Resources Commission and the Corps developed what is known as a regional general permit. It allowed for a joint permit application - the grower sent its request to the state, the state forwarded it to the Corps, and the Corps gave its approval provided the lease didn't impede navigation or interfere with underwater grass beds. Generally, growers only had to wait a few months, whether they sought permits for growing oysters in floats, in cages 12 inches from the bottom, or on the bottom itself.
In 2007, the Corps issued a nationwide aquaculture permit - a type of general permit - that allowed existing growers to continue their operations.
Both the regional general and nationwide permits only take 45 days to obtain, according to Peter Kube, chief of the Corps' Western Virginia regulatory section in Norfolk. It is, state and federal officials agree, a much-improved system.
"We've had aquaculture here for decades," Kube said. "Those individual reviews took up a lot of time for a project that usually didn't have any major impacts, and for a project that is beneficial."
That Virginia has a streamlined process and Maryland doesn't is unfair, according to Mike Naylor, director of the Maryland Department of Natural Resources' Shellfish program.
"The Maryland growers are at a competitive disadvantage with Virginia growers," he said.
The same federal statutes govern Maryland and Virginia. Under the Rivers and Harbors Act of 1899, all dredging activities in navigable waterways require a permit. The Clean Water Act of 1972 further amplified that provision: It required a permit for the discharge of fill material in all waters of the United States.
The Corps considers shell placed on the bottom as a "discharge," requiring the same type of permit one would seek for filling a wetland. But whereas the Corps' Norfolk office allowed the permit process to come under Virginia's authority, its Baltimore office has not done the same for Maryland.
"It doesn't matter if it's a subdivision, a road or aquaculture," said Bill Seib, chief of the regional branch of the Baltimore Corps' district. "If one of those is going to occur and the project is in the waters of the United States, you will need a permit."
Figuring out the type of Corps permit a grower needs requires a study of complex regulation. In Maryland, if the growers disturb more than an acre of aquatic bottom - and most will - they need an individual permit, because Maryland doesn't yet have the joint-permit system. The individual permit process requires a lengthy environmental assessment and a public hearing. The agency has completed most of those reviews in 120 days, although some have taken longer.
Any grower disturbing less than one acre would be eligible for a general permit, which includes a less rigorous review. And then there is the nationwide permit, which covers existing leases. Growers seeking to renew their leases would need a Corps nationwide permit, which could take 60 days.
The Baltimore District is developing a general permit similar to the one used in Virginia. But it won't happen quickly - a public notice will be published in the spring of 2011.
Beth Bachur, the Corps' Baltimore District branch program manager, said the agency recognized the need for change. "Maybe it's not quite there yet, but we are getting there."
Since 2005, Maryland officials have slowly stripped away the legislative barriers that have kept aquaculture from gaining a foothold. They created a coordinating council to streamline the application process, passed a law that did away with the bans on leasing in many Eastern Shore counties and have even created grant and loan programs.
Those efforts have helped to bring a half-dozen oyster farms to the state. Yet, nearly all of them have struggled with some part of the permit process. In addition to the Corps requirements, Maryland growers need permits from a variety of state agencies, including the Board of Public Works as well as the departments of the environment, health and natural resources.
Jon Farrington, an aerospace engineer who grows seed oysters in a small creek off the Patuxent River, said it took him about two months to get his aquaculture permit from the state when he began Johnny OysterSeed in 2005. But then he learned the Corps needed to sign off on a Tidal Wetlands License, so he filed for that, too.
"I handed in my two-pager, and then I started waiting," Farrington remembers. "I wondered, what's going on? Why is it taking four months, six months, eight months? So I started pinging people. And it was hard to get answers."
In the end, Farrington waited 14 months for the Corps' blessing, and he said no one ever came out to inspect. Without his savings, he wouldn't have survived it.
Such a situation would not happen in Virginia, said Doug McMinn, who leases 400 acres along the Rappahannock. His company, the Chesapeake Bay Oyster Co., also makes the permit-friendly bottom cages that many growers use.
"My heart bleeds for you," McMinn told an audience of about 150 would-be growers at an Annapolis aquaculture conference recently.
Don Meritt, who runs the University of Maryland's Horn Point Hatchery, was more blunt about the permit morass: "My first thought is, why the hell would anyone want to wade through this mess?"
Kube said the Corps is even talking about one regional permit to cover aquaculture on both ends of the Bay, which many in the industry would welcome.
Virginia appears to have some intrinsic advantages in Bay aquaculture. It has a 110-year history of leased bottom, a half-dozen private hatcheries that can offer competitive prices on larvae, and salty water that makes the oysters grow faster.
But DNR officials believe there's no reason Maryland can't be as competitive as Virginia if it removes the permit delays.
Maryland Natural resources Secretary John Griffin told the hopeful aquaculturalists at the conference that he is trying to make that happen.
"We're working very hard with the Corps of Engineers," Griffin said. "Why should there be a difference between Maryland and Virginia when it's one resource?"