Maryland's top government officials are working hard to plant the seeds of a robust oyster aquaculture industry. But the bureaucratic hurdles applicants need to clear when applying for permits to lease the Chesapeake's bottom seem to be multiplying faster than the shellfish.
Senior Maryland Department of Natural resources officials had a meeting with the Army Corps of Engineers the last week in January and agreed that a draft general permit would go out for public comment on Valentine's Day. The ideal is that the permit will be in place by May 1, according to DNR assistant secretary Frank Dawson. Bob Orth, of VIMS, was at the meeting as well, and Dawson said the National Marine Fisheries Service has a "significantly greater appreciation" for Orth's work than before, when they questioned how comprehensive it was.
Dawson said the department is taking steps to become the clearinghouse for aquaculture permits, much like the Virginia Marine Resources Commission is in Virginia. So, no matter what kind of lease a farmer was seeking, the DNR would be the agency to grant it. Currently, the departments of environment, agriculture, natural resources, public works and health all have a hand in permit approval.
Gov. Martin O'Malley is requesting the change, but it must go through a legislative process and won't be finalized for several weeks. In the meantime, Dawson wasn't sure the fate of the many permits stuck in limbo because they are not yet under the general permit.
At least six federal and state agencies have a role in approving permits for aquaculture, and each has its own paperwork. As a result, applicants often have to wait more than a year for a permit-if they get one at all. Sometimes, all they get after a long wait is a letter saying one of the agencies needs more information about an ongoing issue, whether it's submerged aquatic vegetation or the exact location of a highway bridge.
The agencies insist they want to encourage oyster aquaculture, which is considered a clean industry that helps filter the water and create jobs in coastal communities. Aquaculture has long been a priority of the National Oceanic and Atmospheric Administration and its National Marine Fisheries Service. The Army Corps of Engineers has also been supportive.
But, officials say, they have statutory obligations to make sure aquaculture doesn't interfere with navigation, Bay grasses, habitats and public uses. Researching those issues takes time.
"We want to see people get into this business, for sure," said Peter Colosi, Fishery Management Officer for NOAA Fisheries' Habitat Conservation Division in the Northeast Region, which includes Maryland. But, he added, "We're sitting at the table with our own obligations."
Jay Sakai, director of the agency's department of water administration, acknowledges the communication and coordination between the agencies could be better.
"What we often find is we do a poor job of explaining why there is a regulation in place," Sakai said. "I'm the first to admit that the process can always be improved."
Those statements, though, are of little comfort to applicants who have been waiting a year or more for permits.
"We're talking about putting out cages and creating reefs that will do nothing but help the Bay, and we have to jump through all kinds of hoops," said Johnny Shockley, a Hooper's Island waterman who has been waiting 10 months for the various agencies to approve his lease application.
Shockley and his partner, Ricky Fitzhugh, figured their lease would come through in December; instead, they received a letter from the Maryland Department of the Environment, asking them for more information. MDE officials said Shockley's reviewer was new to her position, but the time lag was normal.
In Southern Maryland, Jon Farrington feels their pain. The former aerospace engineer had to wait more than a year to get an approval from the U.S. Army Corps of Engineers to put an upweller system in his backyard to nurture his seed oysters. His business is up and running now, but Farrington is back in the waiting game; he has applied for more bottom to lease, and hasn't heard back.
Maryland Gov. Martin O'Malley has been bullish on aquaculture ever since 2008, when he took a tour of the Coastal Bays and learned that Virginia had a robust oyster industry. Since then, natural resources officials have worked hard to strip away Maryland's barriers to entry. Two years ago, the Maryland legislature passed a law overturning century-old bans on leasing bottom in many Eastern Shore counties as well as provisions against individuals having more than one lease and corporations leasing Bay bottom. After a century, aquaculture had a chance.
Many entrepreneurs jumped in. At least 24 have applied and, like Shockley and Fitzhugh, are waiting for word. The Department of Natural Resources is working with another agency to provide more than $2 million in low-interest loans for those who want to transition into aquaculture. And six aquaculture businesses are already thriving in the state, having braved the bureaucratic hurdles and restrictions before the new laws were passed.
Despite this interest, Maryland natural resources officials worry that the remaining bureaucratic hurdles will derail the process.
One stumbling block is the Army Corps of Engineers, which considers each piece of shell placed on the bottom as "fill" instead of a beneficial substrate. The Corps requires applicants to obtain an individual permit to place shell on the bottom, just as it does for anyone who wants to fill a wetland. Nearly every operation will want to put down shell to help the oysters grow. The approval process requires a lengthy environmental assessment and a public hearing process and can take four months or longer, Corps officials say. The Corps gets their jurisdiction through the Clean Water Act and the Rivers and Harbors Act.
In Virginia, Corps officials decided aquaculture was a beneficial use and agreed 17 years ago to let the state issue the permits, with a quick Corps review. In Virginia, most aquaculture permits are issued in 90 days.
Maryland Natural Resources Secretary John Griffin said one Bay should have one set of rules. He would like to have a joint permit process in Maryland by April, but the Corps said that is unlikely. Before it can change its rules, it needs to put out a public notice-something that won't happen until the spring of 2011.
The National Marine Fisheries Service also has a statutory role in aquaculture, and it comes through the aptly named Fish and Wildlife Coordination Act. Its main concern is the clash of aquaculture and underwater Bay grass beds, which provide important habitat for many species.
That agency, part of NOAA, has two main issues: the regulation of aquaculture in less than 6 feet of water and the quality of Maryland's underwater grass bed data. It also serves as a scientific resource for the Corps. The fisheries service has a similar role in Virginia, but there the Corps has signed off on the state's permit process. The fisheries service hasn't raised questions about Virginia's Bay grass data, which comes from the same Baywide surveys as Maryland's. That is in part because Virginia has only a few species of Bay grasses, whereas Maryland has more than a dozen, according to fisheries service officials.
Those issues are major because many aquaculture operations may be in less than 6 feet of water-that way, the farmers won't need expensive boats to reach their crops and they can keep an eye on the product. Most underwater grass beds are found in shallow water.
Since 1984, Bob Orth of the Virginia Institute of Marine Science has been conducting annual aerial surveys as well as in-the-water inspections of Bay grasses. His research is available online, complete with maps and density, and is regarded as one of the most comprehensive surveys done anywhere on underwater grasses.
Colosi acknowledges the survey has an excellent reputation and that his agency uses the Orth data in other areas of its work. But, he said, "we want to know how comprehensive it is." In a couple of cases, Colosi said, his agency has wanted to make certain no grasses are present that are not apparent in Orth's survey. As a result, it has asked for the applicants to provide more information.
Such questions don't sit well with Maryland natural resources officials. They have been using Orth's data to screen for Bay grass occurrence in the last five years. If they find evidence of the grasses, that area will be off-limits to leasing. Maryland also has a law prohibiting damage to underwater grass beds, and the state can revoke a lease if any violations occur. Between those laws and Orth's data, natural resources officials say, the Bay grasses are well-protected.
Orth was also unhappy to learn that federal fisheries officials, who use his data for many projects, were questioning it in relation to aquaculture.
"I don't know where these people are coming from with regards to the interpretation of our data. No one has ever challenged us," Orth said. "These people do not get their feet in the water. They sit behind a desk."
While no survey can capture "every blade of grass," Orth said, his includes most of the beds that are relevant to the Bay.
The Maryland Department of the Environment also has a statutory role that can lead to delays, as Shockley learned. It is the review agency for the Board of Public Works, which issues the water-column leases for cages and floats. It is looking for the same conflicts as the Corps and NMFS-interaction with SAV and hazards to navigation-albeit under a state wetlands law instead of a federal one. In addition to the 10 months it often takes to review and approve applications, the MDE requires 18 months of water-quality monitoring data. If that process doesn't happen concurrently with the Corps' process, an applicant can wait a very long time.
Sakai, Colosi and Corps officials all say they would like to streamline the process, but that it will take time. Rhode Island spent nearly nine years sorting out its aquaculture system, and other states have had to wait even longer.
That's not much comfort to Shockley, who suspects other applicants won't be as patient as he and Fitzhugh have been.
"Most people aren't going to do what we've done here. They will be deterred after the first two or three obstacles, let alone 10 or 12," Shockley said. "We need to fix this."