Letter to USACE from Steve & Sallie Callanen

Frank J. Cianfrani, Chief, Regulatory Branch,

U.S. Army Corps of Engineers, Philadelphia District
Wanamaker Building
100 Penn Square East
Philadelphia, PA 19107-3390
ATTN: CENAP-OP-R

Subject: U.S. Army Corps of Engineers’ Public Notice No. CENAP-OP-R-Delaware Inland

               Bays Aquaculture, Jan. 21, 2015.

Ref.: Public Notice No. CENAP-OP-R-Delaware Inland Bays Aquaculture, Jan. 21, 2015.

Attachments:

1) Christopher Bason’s Final Report Letter to the CIB Board of Directors on deliberations of

      the Tiger Team, 3-22-2013.

2) Photo of irate citizens at Millville Fire House Meeting, 6 October 2014.

3) STAC Review Report Publication 13-005, Evaluation of the Use of Shellfish as a Method

      of Nutrient Reduction in the Chesapeake Bay, September 2013.

4) Photo of Channel Connecting Indian River Bay to Beach Cove at Low Tide, 12-18-2014.

Dear Mr. Cianfrani:

In accordance with the referenced public notice we wish to submit comments on the Corps decision whether or not to modify NWP 48 with the proposed regional conditions.  We are opposed to the Corps proposal to develop a regional condition for NWP 48 activities in the State of Delaware.  We appreciate the Corps desire to improve the efficiency of its PCN process and to expedite the review and approval of individual PCNS to the Philadelphia District of the U.S. Army Corps of Engineers; however, we do not believe that Delaware has thus far demonstrated a willingness or ability to undertake an equitable and environmentally beneficial screening process to address the suitability of the various SADA locations for Inland Bays oyster farming as proposed in this Public Notice.  The information provided herein demonstrates that Delaware’s Department of Natural Resources and Environmental Control (DNREC) can not be counted on to provide additional protection for the Inland Bays’ aquatic environment, by ensuring that the NWPS authorizes only those activities with minimal adverse effects on the aquatic environment.  Regional conditions are intended to help ensure protection of high value waters – something that takes a back seat to DNREC’s stated primary objective of creating an aquaculture industry in Delaware that “provides jobs and economic benefits” to the citizens of the state, while only potentially reducing nutrients in the Inland Bays.

Page 6 of Subject Public Notice states, “The decision whether to modify NWP 48 with the proposed regional conditions will be based on an evaluation of the probable impact including its cumulative impacts on the public interest and to assure that the activities authorized by NWP 48 remain minimal.  The decision will reflect the national concern for both protection and utilization of important resources.  The benefits which reasonably may be expected to accrue from this action must be balanced against its reasonably foreseeable detriments.  All factors which may be relevant to this action will be considered including the cumulative effects thereof; among those are conservation, economics, aesthetics, general environmental concerns, wetlands, cultural values, fish and wildlife values, flood hazards, flood plain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs and welfare of the people.”

Although the intention of Subject Public Notice apparently is not to have the Corps examine issues related to individual proposed oyster farming sites, such as Beach Cove (IR-B, 24 leasable acres) and Little Assawoman Bay (LA-B, LA-C & LA-D, 118 leasable acres total), it is necessary to conduct such an examination to expose the deficiencies in DNREC’s overall screening process addressing the suitability of the various SADA locations. 

We will identify the “probable” “cumulative” commercial oyster farming impacts on the “public interest” of residents living around Beach Cove and Little Assawoman Bay, including “reasonably foreseeable detriments.”  Factors relevant to this action, which will be identified are “economics,” “aesthetics,” “general environmental concerns,” “cultural values,” “navigation,” “recreation,” “water quality,” “safety,” and “welfare of the people.”

We intend to specifically document how the proposed Inland Bays Shellfish Aquaculture Regulations were developed by DNREC and the Center for the Inland Bays’ Shellfish Aquaculture Tiger Team with extremely limited public awareness.  The Tiger Team was comprised of multiple stakeholders and interests, including staff members from the Center for the Inland Bays, aquaculture interests, commercial clamming interests, recreational interests, representatives from the University of Delaware Sea Grant Program, the Sussex County Economic Development Office, the Shellfish Advisory Council, and DNREC’s Divisions of Water, Watershed Stewardship, and Fish and Wildlife.  The claim that recreational interests, such as sail boating, kayaking, windsurfing, waterskiing and paddle boarding, were represented for the Beach Cove and/or Little Assawoman Bay SADA locations is a misnomer.  Not a single member of the Tiger Team represented the hundreds of homeowners residing on or near the shores of Beach Cove (IR-B) and Little Assawoman Bay (LA-B, LA-C & LA-D).  This highly flawed Tiger Team representation discredits DNREC’s entire Shellfish Aquaculture proposal process.  As a matter of public fairness and equity this blatant oversight needs to be recognized as a primary reason for rejecting the Delaware Division of Fish and Wildlife’s proposed shellfish aquaculture program encompassing the eight shellfish aquaculture development areas (SADA) in Delaware’s Inland Bays.

Our names are Steve and Sallie Callanen.  We have been permanent residents at 38986 (formerly 300) Bayfront Drive for the past 18-years, since January 1997.  Our house fronts the Indian River Bay cove immediately adjacent to Beach Cove; hence, out the windows of our house we are constantly able to observe all manners of recreational boating activities traveling into and out of Beach Cove, plus the daily tidal water level changes that impact Beach Cove, including wind storm and ice events.

We have enjoyed sailing our Rhodes-18 sailboat in Beach Cove, a recreational activity that will be difficult or nearly impossible in the future if the proposed 24-acre oyster farm is permitted in this cove.  Our three adult children, their spouses, and our eight grandchildren have frequently enjoyed kayaking in beautiful Beach Cove.  The delightfully peaceful southern sandy public shoreline of the Cove will become off limits to future recreational kayaking if the proposed 24-acre oyster farm is permitted.  During recent years we have observed increasingly large groups of kayakers (10 or 12) paddling from Indian River Bay into Beach Cove.  Over the course of the 2014 summer alone a total of approximately 50-kayakers were observed heading to Beach Cove.  Every summer, since we moved to Bayfront Drive in 1997, we have observed hundreds of people power boating, sail boating, jet skiing, and water skiing in Beach Cove.  These activities will become difficult, if not unsafe and impossible, if the proposed 24-acre oyster farm is permitted in this cove.

The DNREC, Division of Fish and Wildlife, permit request to the U.S. Army Corps of Engineers, which resulted in the issuance of Subject Corps’ Public Notice is based on the findings, reasons and conclusions contained in the DNREC Secretary’s Order (No.: 2014-F-0013, RE: Approving Final New Regulations to 7 DE Admin. Code 3801, Shellfish Aquaculture, (Date of Issuance: July 15, 2014, Effective Date of the Amendment: August 11, 2014)).  Page 7 of this Order, under Findings & Conclusions (#4) states, “The Department’s Hearing Officer’s Report, including its recommended record and the recommended revised new regulations as set forth in Appendix A, and the Technical Response Memorandum as set forth in Appendix B, are adopted to provide additional reasons and findings for this Order.”

It is our intention to call the Corps attention to numerous statements contained in the DNREC Secretary’s Order and Appendix B of the Technical Response Memorandum, which raise serious questions about the wisdom of attempting to locate commercial oyster farms in the proposed Shellfish Aquaculture Development Areas (SADA) identified as Beach Cove (IR-B) and Little Assawoman Bay (LA-B, LA-C & LA-D).

The following statements were excerpted from the Secretary’s Order (The Order) and Appendix B of the Technical Response Memorandum (TRM).  They are listed for convenience, with only a few exceptions, in the same consecutive page order in which they appeared in the DNREC documents.

The Order (Page 1) claims: These new regulations provide for a shellfish aquaculture industry in Delaware`s Inland Bays that is compatible with commercial and recreational finfishing and shellfishing, boating navigation and public safety, public water access and use, and native biota.  These new proposed regulations fail to adequately provide for “boating navigation and public safety, public water access and use” in the shellfish aquaculture development areas (SADA) designated as Beach Cove and Little Assawoman Bay.

The Order (Page 2) states: The aforementioned regulations were developed by the Department with significant stakeholder input, beginning in 2012 with the establishment of the Center for the Inland Bays Tiger Team. This Tiger Team was comprised of multiple stakeholders and interests, including (but certainly not limited to) staff members from the Center for the Inland Bays, aquaculture interests, commercial clamming interests, recreational interests, representatives from the University of Delaware Sea Grant Program, the Sussex County Economic Development Office, the Shellfish Advisory Council, and the Department’s Divisions of Water, Watershed Stewardship, and Fish and Wildlife.  Obviously lacking is representation on the Tiger Team by any of the many homeowners residing on the shores of Beach Cove and/or Little Assawoman Bay.  It is significant and dismaying that of the 22 persons on this Tiger Team, only one represented “recreational interests” & he reportedly operates a bait & tackle shop.  This highly flawed representation on the Tiger Team serves to discredit the entire Shellfish Aquaculture proposal process.  As a matter of public fairness and equity this blatant Tiger Team oversight needs to be recognized and cited as a primary reason for disallowing DNREC’s Shellfish Aquaculture proposal.

The Order (Page 2) states: Between May l, 2012 and February 2013, the Tiger Team convened ten public meetings and two information gathering meetings.  This is a misleading statement.  The Tiger Team claimed it was supported by work of the Center for the Inland Bays (CIB), which reportedly held meetings to inform and hear concerns expressed by constituent groups, . . . held a working breakfast for federal, state and county decision makers on the goals and work of the Team, and educated thousands of individuals on aquaculture through presentations and materials developed with input from the Team.  (See Attachment #1)  Does it not seem peculiar that Tiger Team members would expend the time, energy and financial resources to hold “a working breakfast for federal, state and county decision makers on the goals and work of the Team,” and yet fail to reach out to any residents of nearby Beach Cove and Little Assawoman Bay?  Why were the ten public meetings and two information gathering meetings” not widely publicized and held in the Ocean View / Bethany Beach areas?  Furthermore, the claim that the CIB and Tiger Team educated thousands of individuals between May l, 2012 and February 2013 on aquaculture through presentations and materials is unsubstantiated.  Evidence that this claim was either untruthful or an abysmal failure was provided by the 200-irrate local citizens who gathered at the Millville Fire House on October 6, 2014, to voice their extreme displeasure with the State’s unknown plans for establishing a large commercial oyster farming industry in Beach Cove and Little Assawoman Bay.  (See Attachment #2)

The failure to contact any homeowners residing on the shores of Beach Cove or Little Assawoman Bay during this critical period between May l, 2012, and February 2013 is extremely significant because it deprived these homeowner citizens of an opportunity to communicate concerns to their State Legislators prior to House Bill 160 being introduced to the House Natural Resources Committee on Jun 4, 2013.

What made this failure especially disturbing is the July 2013 published admission by Tiger Team member John W. Ewart, Aquaculture and Fisheries Specialist with the University of Delaware’s Marine Advisory Service and the Delaware Sea Grant Program, that the Tiger Team was well aware that waterfront property owners may view shellfish farms as potentially restricting their riparian rights to utilize adjacent waters or they may object to the negative aesthetic of having a shellfish farm and the sights and sounds of daily operations interfering with waterfront views and the enjoyment of their property.  (Shellfish Aquaculture in Delaware’s Inland Bays Status, Opportunities, and Constraints, Page 35.)

(http://darc.cms.udel.edu/ibsa/Inland%20Bays%20Shellfish%20Aquaculture%20White%20Paper%202013.pdf)

In addition to the surprising fact that hundreds of Beach Cove and Little Assawoman Bay residents were unaware of the appearance and large acreage size of the oyster farms being proposed by the CIB and DNREC, State Senator Gerald Hocker, a cosponsor of the bill and a life-long nearby resident of the Beach Cove area, has publicly stated he was unaware of the locations and objectionable appearance of the proposed Inland Bays’ oyster farms when the permitting legislation was voted upon.  This large public ignorance factor creates legitimate concerns about the legislative process, which remarkably led to unanimous passage of House Bill 160.

It may not be appropriate for the U.S. Army Corps of Engineers to question the legitimacy and wisdom of Delaware’s legislative process; however, the Corps most certainly should question the validity of information contained in DNREC’s permit application.

A primary reason why so many Beach Cove and Little Assawoman Bay residents were totally unaware of the Tiger Team’s plan for the proposed many acres of ugly commercial oyster farming floats is because since 1998 all that has been heard or published about oysters has been CIB’s promotion of volunteer waterfront oyster gardeners who grow oysters at their docks and bulkheads in small 2-by-3-foot floating baskets on Rehoboth, Indian River, and Little Assawoman Bays in support of CIB’s underwater oyster reef creation efforts at James Farm.  The oysters grown by the volunteer waterfront gardeners reportedly were placed on riprap throughout the bays or were used to help mitigate oyster reef losses and maintain oyster reef populations.  Oyster reef restoration was publicized by CIB as it promoted the recycling of used oyster shells from local restaurants.  Based on this information, it was logical for a large percentage of the general public to incorrectly assume that commercial oyster farming in the Inland Bays would consist of harvesting oysters from underwater reefs, such as those at James Farm.

The Order (Page 3) states: The Department has recognized throughout the development of these proposed new regulations that there are numerous different perspectives on the issue of establishing shellfish aquaculture here in Delaware, and all such input was highly valued and taken into consideration during the regulatory development process. It should also be noted, however, that the decision to establish shellfish aquaculture in Delaware’s Inland Bays was made by the passage of House Bill 160 by the 147th General Assembly. The purpose of these proposed new regulations is to implement the intent of House Bill 160 by creating an aquaculture industry in Delaware that provides jobs and economic benefits to the citizens of this state, while potentially reducing nutrients in the Inland Bays.

If DNREC recognized throughout the development of these proposed new regulations that there are numerous different perspectives on the issue of establishing shellfish aquaculture here in Delaware, and all such input was highly valued, why did DNREC not seek input from residents living on Beach Cove and Little Assawoman Bay?  Failure to do so should be a disqualifying factor for this permit application.

If highly valued input was not sought from Beach Cove and Little Assawoman Bay residents, how could all the non-existent input from these residents been taken into consideration during the regulatory development process?

It is significant that, the decision to establish shellfish aquaculture in Delaware’s Inland Bays
was made by the passage of House Bill 160 by the 147th General Assembly.
  After passage of that Bill, DNREC admits its mandated purpose was simply to propose new regulations “to implement the intent of House Bill 160 by creating an aquaculture industry in Delaware that provides jobs and economic benefits to the citizens of this state, while potentially reducing nutrients in the Inland Bays.  It is interesting and disappointing that although the primary admitted intent of House Bill 160 was to provide jobs and economic benefits, that no comprehensive cost benefit analysis was conducted by DNREC to demonstrate the validity of the expectation of achieving these objectives.  The Corps should require such a cost benefit analysis.

The Corps should require DNREC to conduct a valid comprehensive cost benefit analysis that takes into account the negative financial impact of the unsightly visual clutter and limitations on all forms of recreational boating that will result from commercial oyster farming in Beach Cove and Little Assawoman Bay, including the potential reduction of property values and southern Delaware’s tourism-based revenues.

A realtor in the Ocean View, DE, area has estimated that a reduction of 15-20% in the value of property around Beach Cove will result from commercial oyster farming in the Cove.  The oyster farming industry has been estimated to be worth a total of $2-$5 million (for farmers who may not even be Delaware residents); however, lost property values for Beach Cove area homeowners are estimated to equal $33,750,000.  Already, the sale of a home in Quillen's Point reportedly fell through because of the proposed Beach Cove oyster farm.

DNREC has chosen not to be guided by the fundamental purpose of Delaware’s Coastal Zone Act (CZA), which expresses the State’s desire to protect the natural environment of its bay and coastal areas and safeguard their use primarily for recreation and tourism.  The CZA acknowledges that, While it is the declared public policy of the State to encourage the introduction of new industry into Delaware, the protection of the environment, natural beauty and recreation potential of the State is also of great concern.”  DNREC does not believe aquaculture activities are subject to the Coastal Zone Act and Regulations because aquaculture fails to meet the definition of heavy industry.  It is interesting that heavy industry use means a use characteristically involving more than 20 acres,” and that the proposed Inland Bays oyster farms will visually degrade 442 acres.  It seems highly doubtful that the Delaware legislators, who drafted the Coastal Zone Act, or many of those who passed House Bill 160, ever took into consideration the need to curb the large acreage of visual pollution that could be introduced by commercial oyster farming in the Inland Bays.

We believe it is a violation of the public trust to convert 442 individual one-acre plots of the Inland Bays’ freely used public waters into restricted areas for the sole benefit of private (for profit) use – including by out-of-state commercial entities.

By unanimous vote the Tiger Team’s final report recommended annually renewable oyster farming leases for a period of 15-years.

(http://www.inlandbays.org/wp content/documents/Tiger_Team_Report_Full.pdf)

(Pages 36 & 37)  We submit that this is a totally irresponsible excessively long time period for the State to allow private business entities to harm the recreational boating uses and pristine appearance of Beach Cove and Little Assawoman Bay, even if it could be guaranteed that nutrient levels in these waters would be significantly reduced.

The 442-acre areas of commercial oyster farm floats will limit the amount of sun light that reaches the bottom of the Bays and hence inhibit the growth of aquatic vegetation, such as eel grass.

The last mentioned intent of House Bill 160 is to potentially” reduce nutrients in the Inland Bays.  No credible scientific evidence is presented by DNREC to substantiate the hoped for success of this potential objective.  

In September 2013 the Scientific and Technical Advisory Committee (STAC), which provides scientific and technical guidance to the Chesapeake Bay Program (CBP) on measures to restore and protect the Chesapeake Bay, prepared a report entitled, Evaluation of the Use of Shellfish as a Method of Nutrient Reduction in the Chesapeake Bay.  (See Attachment #3)  (http://www.chesapeake.org/pubs/307_Luckenbach2013.pdf)

On the subject of Nutrient Removal Efficiencies, Pages 10 & 11 of this STAC report state, Nutrient removal efficiency in the sense that it is generally applied to terrestrial BMPs cannot readily be assigned to the role of oysters in nutrient removal from estuarine and coastal waters.  Oysters capture phytoplankton above 6 μm in diameter with near 100% efficiency in the water that they pump through their siphons, but estimating how much water within a region actually gets pumped through the siphons of a particular group of oysters requires site-specific, high resolution, 3-D hydrodynamic models.  Once filtered and ingested, reasonable estimates can be made for the percentage of nutrients that are incorporated into oyster tissues, though this may vary seasonally.  Nutrients deposited to the bottom in oyster biodeposits may be removed via burial and denitrification.  As described above, we do not have estimates of burial rates and denitrification is highly variable depending on environmental conditions and the resident microbial community.  Under some conditions much of the nitrogen in oyster biodeposits returns to the water column where it can fuel further phytoplankton growth.  With these constraints in mind, it is evident that reliable, comprehensive, nutrient removal efficiencies cannot be assigned to oysters at this time, although partial nutrient reductions can be based on harvested amounts of tissue and shell.

DNREC did not provide high resolution, 3-D hydrodynamic models to estimate how much water within Beach Cove and Little Assawoman Bay will actually get pumped through the siphons of oysters in these areas.

Participants who participated in the Chesapeake Bay Oyster Workshop (STAC Report Page 31) included:

Steve Allen, Oyster Recovery Partnership

Iris Anderson, Virginia Institute of Marine Science

Suzy Ayvazian, U.S. Environmental Protection Agency, Atlantic Ecology Division

Peter Bergstrom, NOAA Chesapeake Bay Office

Bonnie Brown, Virginia Commonwealth University

Steven Brown, The Nature Conservancy

Mark Brush, Virginia Institute of Marine Science

Ruth Carmichael, University of South Alabama

Susan Conner, US Army Corps of Engineers – Norfolk District

Jeff Cornwell, University of Maryland Center for Environmental Science

Philine zu Ermgassen, University of Cambridge

Robinson Fulweiler, Boston University

Boze Hancock, The Nature Conservancy

Troy Hartley, Virginia Sea Grant

Lisa Kellogg, Virginia Institute of Marine Science

Doug Lipton, University of Maryland and Maryland Sea Grant

Mark Luckenbach, Virginia Institute of Marine Science

Fredrika Moser, Maryland Sea Grant

Annie Murphy, Virginia Institute of Marine Science

Mike Owens, University of Maryland Center for Environmental Science

Ken Paynter, University of Maryland

Mike Piehler, University of North Carolina – Institute of Marine Science

Kevin Sellner, Chesapeake Research Consortium

B. K. Song, Virginia Institute of Marine Science

Angie Sowers,* US Army Corps of Engineers – Baltimore District

Howard Townsend,* NOAA Chesapeake Bay Office

Bruce Vogt, NOAA Chesapeake Bay Office

Eric Weissberger, Maryland Department of Natural Resources

Jim Wesson, Virginia Marine Resources Commission

Stephanie Westby, NOAA Chesapeake Bay Office

*Participant joined by phone”

We believe the public has been misled by CIB’s simplistic overselling of the “potential” water quality benefits of commercial oyster farming.

The Corps should require DNREC to conduct a credible oyster farming environmental benefit analysis, such as was conducted by the Scientific and Technical Advisory Committee for the Chesapeake Bay.   

Delaware deserves a comparable independent study to evaluate the potential environmental benefit of commercial oyster farming in the Inland Bays before the Corps grants permission for this activity.

The Corps should question the validity of “potential” environmental benefit claims crafted by those highly biased Tiger Team members who have diligently worked for several years to promote commercial oyster farming in the Inland Bays and who stand to obtain financial benefits from this new industry for their employers and/or themselves.

On October 3, 2014, U.S. Senator Thomas R. Carper joined local and State officials in Delaware to announce two federal grants awarded to support the development of shellfish farming in the Inland Bays.  The first grant included $164,000 from the U.S. Department of Commerce for the University of Delaware to study the economics of shellfish aquaculture in Delaware.  The second grant from USDA Rural Development awarded $28,000 to the University of Delaware’s Sustainable Coastal Communities Initiative to assist farmers as they market shellfish products to customers and restaurants.

The Order (Page 3) states: At the same time, these proposed new regulations also serve to ensure the compatibility with Delaware’s boating and fishing uses of the Inland Bays.  The proposed new regulations fail to ensure compatibility with recreational boating activities in Beach Cove and Little Assawoman Bay.

The Order (Page 4) states: House Bill 160 also provided the Department with some
constraints to work within, including (but not limited to) that leases must be compatible
with both commercial and recreational finfishing and shellfishing, boating navigation and safety, public water access and use,
and native biota
.  The proposed new regulations are not compatible with “boating navigation and safety, public water access and use” in Beach Cove and Little Assawoman Bay.

The Order (Page 5) states: Throughout the regulatory development process regarding this particular promulgation, the Department received numerous public comments, as noted in the Report.  After the hearing record closed with respect to public comment on June 5, 2014, an exhaustive review of the same was undertaken by the Department’s Division of Fish & Wildlife.  This comprehensive review subsequently yielded a formal Technical Response Memorandum, dated July 7, 2014, which the Hearing Officer then expressly incorporated into her Report.  It is important to note that the public comments contained in DNREC’s Technical Response Memorandum were received at a public hearing held on May 21, 2014, after House Bill 160 had been signed into law by Governor Markell on August 28, 2013.

One of the primary reasons DNREC received so few public comments of concern, after House Bill 160 became law, resulted from the misleading reassurances contained in a State web site posting, dated August 28, 2013, which quoted Governor Markell as saying, Due to the hard work of Speaker Schwartzkopf, Center for Inland Bays and its partners, DNREC, and the Department of Agriculture, we are establishing shellfish aquaculture in a responsible and beneficial way that respects the other activities in our bays.”  Furthermore, it declares that DNREC will be charged with ensuring aquaculture takes place in areas where it does not conflict with other activities, such as boating and recreation.”

(http://news.delaware.gov/2013/08/28/governor-signs-law-bringing-economic-and-environmental-benefits-of-aquaculture-to-delaware/)

The Order (Page 6) states: With the adoption of this Order, Delaware will be enabled to implement the intent of House Bill 160 by creating an aquaculture industry here in Delaware that provides jobs and economic benefits to the citizens of this state, while potentially reducing nutrients in the Inland BaysAt the same time, these proposed new regulations also serve to ensure the compatibility with Delaware’s boating and fishing uses of the Inland Bays.”  It is significant that Bill 160 only intends to “potentially” reduce nutrients in the Inland Bays.  Based on this statement, it appears questionable that environmental benefit will result from converting 442-acres of recreational public access Inland Bays waters into restricted areas for the sole benefit of private (for profit) use.  No environmental benefit is promised.

The Order (Page 6) states, under Findings & Conclusions #2: The Department provided adequate public notice of the proposed new regulations, and provided the public with an adequate opportunity to comment on the same, including at the public hearing held on May 21, 2014.  The fact that so few people were aware of the locations of the proposed commercial oyster farms in Beach Cove (24-acres) and Little Assawoman Bay (118-acres), and the visual pollution they will create, strongly refutes DNREC’s contention that the public was provided with an “adequate opportunity” to comment on the proposed new regulations.

The Order (Page 7) states, under Findings & Conclusions #5: The recommended revised new regulations should be adopted as final new regulations because Delaware will be able to (1) provide for a shellfish aquaculture industry in Delaware’s Inland Bays that is compatible with commercial and recreational finfishing and shellfishing, boating navigation and public safety, public water access and use; (2) provide a structured process and set conditions for leasing of subaqueous bottom within Delaware’s Inland Bays for the culture of bivalve shellfish; and, lastly, because (3) the revised new regulations are well supported by documents in the record.  The claims in the above paragraph certainly are not valid in relation to recreational boating navigation and public safety, public water access and use in Beach Cove and Little Assawoman Bay.

The Order (Page 3) states: Public comment was received by the Department regarding this proposed promulgation, and the same was thoroughly addressed and responded to by the Division of Fish & Wildlife in its formal Technical Response Memorandum dated July 7, 2014.

The Order (Page 7) states, under Findings & Conclusions #4: The Department’s Hearing Officer’s Report, including its recommended record and the recommended revised new regulations as set forth in Appendix A, and the Technical Response Memorandum as set forth in Appendix B, are adopted to provide additional reasons and findings for this Order.

We submit that the revised new regulations are NOT well supported by documents in the record, as evidenced by the following commentary excerpted from the Technical Response Memorandum, Appendix B of the Hearing Officer’s Report, dated July 7, 2014, which was prepared by Stewart Michels, Program Manager II, and passed through David E. Saveikis, DNREC Division of Fish & Wildlife Director, and John H. Clark, Fisheries Administrator.

 The 14 individuals cited in the Technical Response Memorandum as providing comments and questions about the proposed oyster farming are identified as:

JT - Josh Thompson (Tiger Team Member representing Shellfish Aquaculture Interests)

(22 comments or questions cited)
CIB - Chris Bason (Tiger Team Member & Executive Director of the Center for the

Inland Bays) (20 comments or questions cited)
SF - Steve Friend (Tiger Team Member representing Commercial Clamming Interests)

(2 comments or questions cited)
GR - Greg Rosner (1 comment or question cited)
MK - Mike Kynett (1 comment or question cited)
JWE - John Ewart (Tiger Team Member representing the University of Delaware Sea

Grant Program) (30 comments or questions cited)
JB - John Buono (1 comment or question cited)
DB - Donna Buono (1 comment or question cited)
WM - Walter Mitchel (1 comment or question cited)
BK - Robert Kotowski (5 comments or questions cited)
RC - Robert Collins
LA - Lisa Arni (1 comment or question cited)
RC (+62) - Ross Cropper (2 comments or questions cited)
JB - James Bourke (1 comment or question cited)

Of these 14 individuals, four are members of the Tiger Team.  The Tiger Team Members dominated the cited comments and questions arguing for relaxed regulations on commercial oyster farmers so the industry can get started more quickly at reduced costs.

The number and specific nature of private citizen comments strongly objecting to the location of proposed oyster farms in Little Assawoman Bay were not identified in the Secretary’s Order, but rather their “numerous different perspectives” were dismissed with the brief catch-all statement,The Department has recognized throughout the development of these proposed new regulations that there are numerous different perspectives on the issue of establishing shellfish aquaculture here in Delaware, and all such input was highly valued and taken into consideration during the regulatory development process.”  The apparent primary reason why DNREC couldn’t or wouldn’t take the sensible action of relocating the proposed objectionable oyster farming sites in Little Assawoman Bay and Beach Cove is revealed in the Secretary’s following statement, which admits and concedes, It should also be noted, however, that the decision to establish shellfish aquaculture in Delaware’s Inland Bays was made by the passage of House Bill 160 by the 147th General Assembly.

The Corps attention is called to the following Questions/Comments and Responses from, and related to, the Technical Response Memorandum (TRM):

TRM (Page 2), Robert Kotowski (BK), As a kayaker, stand-up paddleboarder and small-boat sailor, I am submitting this in opposition to the proposed aquaculture leases on Rehoboth Bay, Indian River Bay and Little Assawoman Bay.”  Rather than acknowledging the substance of Robert Kotowski’s opposition, the Technical Response Memorandum simply dismisses his opposition with the following response: “The passage of H.B. 160 without opposition clearly established Delaware’s desire to develop a shellfish aquaculture industry in the Inland Bays.”

TRM (Page 2), It is significant that in responding to “Timeline” comments from Josh Thompson (JT) & John Ewart (JWE), the DNREC Division of Fish and Wildlife (DFW) states, The regulatory process is designed to ensure a fair and open public process which includes careful consideration of public comment.

TRM (Page 3), DFW again states, The regulatory and permitting processes are designed to provide a deliberative review process that ensures an opportunity for public review and input on proposed measures, permits and programs.  This critically important claimed fair and open public process which includes careful consideration of public commentand isdesigned to provide a deliberative review process that ensures an opportunity for public review and input on proposed measures is not specifically mentioned in the Secretary’s Order.  This oversight is disturbing.

TRM (Page 4), On the subject of “Navigation Corridors & Lease Configuration,” Robert Kotowski (BK), commented, They also will discourage paddlers from using the bay because they will replace the pristine natural sites with (a) forest of ugly PVC pipes and the potential, at low tide, of exposed cages.” The Technical Response Memorandum fails to respond to Robert Kotowski’s critical comment.

TRM (Page 6), In the section on “Lease Applications,” Josh Thompson (JT), Tiger Team Member representing Shellfish Aquaculture Interests, acknowledges, The established shellfish areas have already been extensively reviewed for potential user conflict issues within the Tiger Team meetings and the public workshops.  This is a significant admission.  If the Tiger Team “extensively reviewed” the established shellfish areas “for potential user conflict issues,” it means the Tiger Team can not duck responsibility for selection of the controversial proposed oyster farming areas in Beach Cove and Little Assawoman Bay.

TRM (Page 8), In the section on “Lease & Gear Marking,” Robert Kotowski (BK), commented, “For small-boat sailors who normally are not restricted to just the narrow channel that power boats use, the aquaculture areas will add a navigational hazard to an area that at present has none.”  “Another hazard will exist for all recreational paddlers and sailors by the added presence of commercial power vessels that will be there on a regular basis to check on their oyster flats, wash them down and harvest them.”  “They also will discourage paddlers from using the bay because they will replace the pristine natural sites with (a) forest of ugly PVC pipes and the potential, at low tide, of exposed cages.  The Technical Response Memorandum fails to respond to the basic hazard issue that oyster farming apparatus will create for all recreational paddlers and sailors; however, it is significant that the DFW responded with the statement, We remain concerned about the “visual pollution” created by gear marking; however, public safety and property protection (aquaculture gear, boats, etc.) are paramount.  DFW’s acknowledgement of the visual pollution" caused by oyster farming in the Inland Bays is significant.  It also is noteworthy that DFW expresses paramount concern about protection of the property (“aquaculture gear, boats, etc.”) of commercial oyster farmers, yet DNREC expresses no concern about protection of the real property values of residents who will be adversely impacted by the proposed unsightly oyster farming industry.  This is wrong. 

TRM (Page 9), DFW also responded with the statement, The tremendous number of non-resident boaters and novice boaters and personal watercraft users and shallow depths of the Inland Bays is a particular concern.”  DFW’s expressed, particular concern” for the tremendous number of non-resident boaters and novice boaters and personal watercraft users and shallow depths of the Inland Bays” represents a compelling argument for why proposed commercial oyster farming is not compatible with primary recreational activities in the Bays.

TRM (Page 10), It is significant that in responding to questions on “public interest” from Tiger Team members Josh Thompson (JT) & John Ewart (JWE), in the section on “Lease Renewal/Termination,” the DFW states, DNREC's Wetlands and Subaqueous Lands Section protects the public interest as it pertains to Delaware’s subaqueous lands (7 DE Admin Code 7504).  "Public Interest" means demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would exceed all demonstrable environmental, social, and economic costs of the proposed action. In determining the public interest in a request for use, sale, lease, or transfer of interest in subaqueous lands, the Department shall consider the ultimate project and purpose to be served by said use, sale, permit, lease, or transfer of lands or materials.”  Based on the above definition, proposed commercial oyster farming in Beach Cove and Little Assawoman Bay clearly violates "Public Interest."  A comprehensive cost benefit analysis would be required to establish and demonstrate the environmental, social, and economic benefits which would accrue to the public at large, and exceed all demonstrable environmental, social, and economic costs, as a result of proposed commercial oyster farming in Beach Cove and Little Assawoman Bay.  We believe it is the State’s legal duty to "conserve and maintain" the public trust asset.

The Delaware Bay, the Inland Bays, their tributaries, and other tidal and non-tidal water bodies are all considered to be public resources that are classified as waters of the State for regulatory and management purposes in accordance with maintaining the public trust.  According to the National Sea Grant Law Center, the Public Trust Doctrine is a historic element of common law that “provides that public trust lands, waters, and living resources in a state are held by the state in trust for the benefit of all the people”... It establishes the right of the public to enjoy fully public trust lands, waters, and living resources for a wide variety of public uses.” The most commonly cited uses include navigation, recreational boating and sailing, recreational and commercial fishing, and other forms of commerce which would include temporary leasing of the water column or bay bottom for shellfish aquaculture. State resource agencies have the responsibility to identify and manage the proper balance among these “conflicting uses” in a manner that best benefits the overall public interest. (Shellfish Aquaculture in Delaware’s Inland Bays Status, Opportunities, and Constraints, Ewart, Page 35)  We believe the “proper balance” of benefit of all the people” is not achieved by allowing proposed commercial oyster farming in Beach Cove and Little Assawoman Bay.

TRM (Page 10), DFW also states, Wetlands and Subaqueous Lands is providing DFW a permit waiver for SADAs, and will issue permits for areas outside of the SADAs.  DFW, working under the authority of this Wetlands waiver, must maintain the charge governing the use of subaqueous lands, including protecting the public interest.”  Is any aspect of the public interest” compromised by the issuance of this Wetlands waiver and why will permits be issued “for areas outside of the SADAs”?  How unusual or precedent setting is the granting of this Wetlands waiver?

TRM (Page 11), In the section on “Hard Clam Field Assessment,” DFW comments that, In developing the hard clam density thresholds and associated sampling the Department gave serious consideration to the enabling legislation which directs the Department to, ...provide for the conservation, preservation and improvement of the wild shellfish resources... and to, ...identify areas where shellfish aquaculture leases may be established that are compatible with commercial and recreational ...shellfishing...and native biota.  This statement is especially noteworthy because it identifies that the enabling aquaculture legislation was comprehensive enough to specifically protect the Inland Bays’ wild shellfish resources, as it should, and yet it failed to protect the interests of the hundreds of residents living on or near bay waters that will be adversely impacted by the commercial oyster farm industry.  According to Bill 160, the State’s wild shellfish resources (clams) apparently are considered more important and valuable and deserve more consideration than the people living on Beach Cove and Little Assawoman Bay.

TRM (Page 13), In the section on “Gear,” Tiger Team member Josh Thompson (JT) asked, Is there a potential threat to Delaware’s natural resources if the cage sits lower than 4-inches from the bottom?  DFW responded, “Cages lower than 4-inches from the bottom will not only endanger the shellfish within them by raising the potential for smothering from feces and psuedofeces, especially in low flow systems like the Inland Bays, but also pose problems that could extend beyond the individual cage.  A four inch space beneath the cage allows for water flow under the cage, which is important to allow both nutrients and oxygen in the water to pass through the SADA, especially since the Inland Bays' shellfish aquaculture leases may be close together, with high densities of shellfish in the water column.  Other shellfish growers in the area, as well as the native biota, benefit from the water flow.” 

Maintaining cages more than 4-inches from the bottom likely will represent a serious problem in Beach Cove because a recent bathymetric survey indicates that the Cove’s water depth at mean low tide ranges between 1.3 feet to 2.8 feet.  Most soundings in SADA IR-B are around 2.2 feet.  Getting power boats into this area to service the oyster cage floats will be extremely difficult if not impossible without stirring up and disturbing the sediment and benthic communities beneath the cages.  (See Attachment #4, showing a typical Low Tide condition in the channel connecting Indian River Bay to Beach Cove)

TRM (Page 13), In the section on “Gear Storage,” Tiger Team member Chris Bason, Executive Director of the Center for the Inland Bays, commented that, “Empty gear is heavy enough to remain on bottom, and floating gear must be properly anchored no matter what's inside of them.”  TRM (Page 14), DFW responded that, The DFW disagrees with the generalization that empty gear is heavy enough to remain on bottom, as even gear containing product often gets moved by storms and ice (in northern climates). . . . In consideration of the heavy boat traffic, public safety and property protection, the DFW contends that immediate removal of empty gear is a reasonable and prudent requirement.”  DFW’s concern about oyster farming gear being heavy enough to remain on the bottom during storms and ice conditions is significant, as is DFW’s consideration for heavy boat traffic and public safety.

TRM (Page 14), In the section on “Gear Size,” DFW states that, The Inland Bays are low-flow systems and the probability that gear of larger capacity would sink into the bottom is increased with increased gear capacity.  Larger containers may restrict or obstruct water flow to an extent that it may impact others in the immediate area whose shellfish also depend on water flow and the associated nutrients and oxygen.  The fact that the Inland Bays are identified as “low-flow systems” represents another reason why Beach Cove and Little Assawoman Bay are poor sites for oyster farming.

TRM (Pages 15 & 16), In the section on “Seed Importation,” DFW responds that, “Shellfish and the shellfish aquaculture industry are susceptible to a host of pathogens.  Tests for pathogens continue to be developed and refined and the discovery of new threats continues (e.g. Attachment D). Dealing with the host of shellfish aquaculture industry pathogen problems, as related to the Inland Bays, is not addressed in the Secretary’s Order.

TRM (Page 16), In the section on “Species Cultured,” Tiger Team member Chris Bason, Executive Director of the Center for the Inland Bays, comments that, DNREC has not demonstrated credible evidence as to why clams should not be grown in all three Bays.  DFW responds, “In order to best protect the natural hard clam resources, and to efficiently provide for a viable shellfish aquaculture industry in Delaware, the Department has determined that limiting the culture of hard clams to Little Assawoman Bay will reduce the risk of exposing the natural clams (and the associated fisheries) in Indian River and Rehoboth Bay to disease and poaching.”  This DFW response identifies a potential hard clam disease issue related to proposed aquaculture.

Tiger Team member, John Ewart, Aquaculture and Fisheries Specialist with the University of Delaware’s Marine Advisory Service and the Delaware Sea Grant Program, documents on Page 13 of his comprehensive July 2013 report, entitled, Shellfish Aquaculture in Delaware’s Inland Bays Status, Opportunities, and Constraints, that: A general consensus among state resource managers has been that since the demise of the Inland Bay oyster industry in the 1970s, high salinities, predation, and the potential for disease outbreaks made the bays an unsuitable environment for oysters.”  The history of disease outbreaks related to demise of the Inland Bays’ oyster industry in the 1970s is not addressed in the Secretary’s Order.

TRM (Page 19), In the section on “SADA Locations - Little Assawoman Bay,” the following citizen comments were submitted:

Lisa Arni (LA), “Our home is bay front at 35548 Coastal Hwy, Fenwick Island, DE 19944 and we are opposed to the placing of markers in the bay.  This will greatly impact our wonderful view and be a deterrent to future buyers and a devaluation of our property value.”
John Buono (JB), “I'm completely in favor of an oyster bed project but question the location of some of the beds.  I frequent Fenwick Island State Park a lot and find it very convenient to go right across the street to Coastal Kayak when I want to enjoy the bay.  Are you going to force them to close and/or move?”
Walter Mitchel (WM), I would like to express my opposition to the current location of the SADA leases.  LA-D and LA-C would have an immediate and direct negative impact on our existing business of providing non-motorized water craft rentals on Little Assawoman Bay. … Our customers typically paddle once or twice a year and are definitely not experienced enough to maneuver through all of these obstacles.”
Ross Cropper (RC (+62)), “Be advised that, with regard to aquaculture rules, regulations, and lease locations, locations of proposed beds in Little Assawoman Bay, specifically LA-C and LA-D, pose a hazard to navigation from sailboats and paddle craft from Coastal Kayak, Inc.  As such, they represent a negative economic impact to the coastal community.”

Ross Cropper (RC (+62)), “My concern about the administration of this program is about the locations of the proposed oyster beds. . .  it shows their locations only on the most easterly side of the [Little Assawoman] bay.  These locations unfairly impact the views and enjoyment of the bay to those residing on the barrier island.  There are other uninhabited waterfront areas not limited to but including locations in front of Assawoman Wildlife Refuge, for placement of the beds.  Furthermore, consideration should have been given to sending a formal letter to property owners being impacted by this program.  Before leases are granted for farming of oysters, I feel more public hearings (with direct notification to property owners prior to the hearing) should be held.  Let us move forward with this program with support and input from all !”
Donna Buono (DB), “The location of the proposed SADA in the Little Assawoman Bay for LA-C and LA-D (map attached) are way too close to the shore line with a Kayak business named Coastal Kayak that has been there for 15 years.”
James Bourke (JB), “I have just been informed that there is to be aquaculture leases for the purpose of oyster farming in the Little Assawoman Bay. . . As a kayaker, paddleboarder, and sailor of this area, I am against the use of this area for that purpose.  This area is a heavily used recreation location, with three launch sites available to put in (Fenwick Island and two in the state parks).”
Robert Collins (RC), “It would be my recommendation that a minimum semi-circular area with a radius of .33 miles, with a preferable radius of .5 miles, be left free of aquaculture operations.  Otherwise, aquaculture would cause a severe limitation on Coastal Kayak's operations.  This would rule out using all of LA-D and significantly reduce the area of LA-C.”

TRM (Page 20), DFW responded to the above concerns as follows:

Citing of the address 35548 Coastal Hwy, Fenwick Island, DE on an aerial image and using an approximation of the area covered by LA-B (the closest area), there would probably be some view of the aquaculture areas and associated marking; however, there is a fair distance between the two (Attachment E).”
“Little Assawoman Bay is shallow, and has many diverse users.”
“Unfortunately, the available acreage for shellfish aquaculture is limited by extensive closed shellfish areas due to bacteria levels exceeding human consumption standards.
“It is impossible to find areas in Delaware’s Inland Bays where shellfish aquaculture leases would not impact other users, either sharing a physical area, or being able to be seen from a location.”
“The DFW understands that the Inland Bays are densely populated and heavily used areas, and finding locations for shellfish aquaculture requires some give and take from the diverse users including potential aquaculturists.
“The CIB’s Tiger Team proposed and the DFW adjusted the SADAs based on numerous (12) public Tiger Team meetings, input received at two DFW workshops, consideration of boat traffic, native biota, commercial and recreational fishing, and shellfish closures, and other considerations.”  The referenced “(12) public Tiger Team meetings” were not widely publicized.
The DFW will not require any business to close and/or move as a result of shellfish aquaculture.
“Much of the water surrounding Assawoman Wildlife Refuge is currently, or expected based on current testing to be classified as unsuitable for raising shellfish for consumption (due to bacteria levels and current FDA regulations).
“The western areas of Little Assawoman Bay are much more likely to have bacteria levels that are too high to allow shellfish aquaculture for human consumption.
The DFW is requiring extensive markings in order to prevent other users of the bay from accidentally running into or becoming entangled in shellfish aquaculture gear or the markings.
“The required markings are intended to be highly visible to avoid navigation hazards.

TRM (Page 20), In the section on “Health Considerations,” Greg Rosner (GR), commented, I’ve been following this process but DNREC has never clarified which state agency will safeguard human consumption standards by certifying quality of the oysters.  TRM (Page 21), DFW responded, Delaware's Division of Watershed Stewardship - Shellfish Sanitation Program is responsible for protecting public health by minimizing the risk of food borne illness from the consumption of shellfish.  If the available acreage for shellfish aquaculture in Little Assawoman Bay is limited by extensive closed shellfish areas due to bacteria levels exceeding human consumption standards, it would seem that trying to conduct 118-acres of commercial aquaculture in this Bay would involve elevated public health risks and therefore require greater oversight by DNREC’s Shellfish Sanitation Program

The Citizens Advisory Committee of the Center for the Inland Bays, on November 20, 2014, passed a resolution recommending:

1. DNREC structures aquaculture Implementation into Phase I and Phase II, prioritizing selected sites for each phase. Monitor the initial Phase I operation, developing guidelines for the leased sites and assessing ongoing water quality improvements.

2. At the end of Phase I activity, DNREC analyzes all aspects of commercial aquaculture procedures, including other water-related activities and scenic impacts to surrounding communities.

3. As recommended by CIB: “DNREC should establish an Advisory Council to provide advice concerning the regulation of the shellfish aquaculture industry.” (May 21, 2014) Utilize advisory council to communicate directly with affected businesses, HOA’s and other citizen groups.

4. CIB implements a “public aquaculture demonstration project” on a smaller scale (James Farm or other location), reassuring the public and showing in advance, the composition and design of the aquaculture lease sites.

The Board of Directors of the Center for the Inland Bays, which created the Inland Bays Shellfish Aquaculture Tiger Team on March 30, 2012, voted unanimously on December 12, 2014, to not forward these sensible CAC recommendations to DNREC, thus “officially” thwarting an attempt by local citizens to convey their legitimate concerns and constructive ideas on this important matter to DNREC via the CIB Board.

The CIB Board voted down this Citizens Advisory Committee’s Resolution despite the fact that,As a National Estuary program, the CIB is charged with providing a neutral forum where issues affecting water quality in the Inland Bays can be discussed and where all interested stakeholders can participate in the management of this valuable public resource.”  And, that the CIB’s Comprehensive Conservation and Management Plan (CCMP), states as its #3 Objective: “Communicate with stakeholders through a variety of media and to promote public involvement and influence behaviors, attitudes and actions to foster stewardship.”

DNREC failed to identify the impact on oyster growth, which results from the radically different flushing characteristics of Beach Cove and Little Assawoman Bay.  Beach Cove is relatively close to Indian River Inlet and thus benefits from the huge daily tidal exchange (tidal prism volume) through the Inlet, which in 1993 was determined to approximate “1.7 billion cubic feet,” which equals 12,716,000,000 gallons.  Due to the considerable amount of self-scouring that has occurred at the Inlet since 1993, this tidal prism volume is now considerably greater.  As of 1993, no flushing estimates were available for Little Assawoman Bay, which derives some flushing action from the Assawoman Canal and some from the Ocean City, MD, Inlet, which is located approximately 13-miles to the south.  The flushing characteristics of each bay significantly impacts the relative potential filtering benefits derived from oysters in Beach Cove and Little Assawoman Bay.

A January 4, 2015, Washington Post article touted a new oyster farming initiative on Tangier Island in the middle of the Chesapeake Bay.  It is significant that the oyster beds are suspended just beneath the surface under pontoonsin over 12 feet of water and hundreds of yards from shore." 

DNREC fails to identify the size and depth of the water bodies from Maine to Florida where shellfish aquaculture reportedly is currently being successfully conducted.   DNREC should be required to indicate if successful aquaculture in these states is being conducted in bays as small in area, as shallow, and as close to residential shorelines as proposed in Beach Cove and Little Assawoman Bay.

The January 4, 2015, Washington Post article raises the issue of preferred water salinity for growing oysters.  Although oysters reportedly can survive at considerably different salinity levels, the article points out that the lower salinity of water in brackish creeks or close to the shore tends to result in oysters without as much of the briny flavor that some aficionados prefer.  In the center of the Chesapeake Bay, higher salinity makes a brinier-tasting oyster.”

DNREC failed to identify the salinity levels in Beach Cove and Little Assawoman Bay, and how salinity differences in these Bays might be expected to impact commercial oyster farming.  It has been reported that high salinities, predation, and the potential for disease outbreaks made the bays an unsuitable environment for oysters.(Shellfish Aquaculture in Delaware’s Inland Bays Status, Opportunities, and Constraints, Ewart, Page 13) 

A February 11, 2015, Washington Post article reported new research by the Smithsonian Environmental Research Center, which shows that low oxygen “dead zones” caused by nutrient pollution show up every night in shallow waters near the shores of creeks and rivers.  “Research shows dead zones plaguing waters as low as 20 feet, but little is known about their presence at night near the water’s edge, and their impact on oysters.  Oysters fight to breathe, and that struggle compromises their immune systems long enough to make them vulnerable to the attack of a second nemesis, a disease called dermo. . . The younger oysters are more likely to struggle to breathe and fight off disease, the study found. Oysters 1 year in age and older also suffered in field observations and experiments, but better withstood the assault.”  According to Mark Bryer, director of the Chesapeake Bay program for the nonprofit Nature Conservancy. “The shallow-water habitats, while they’re not without oxygen for a long period of time, are out of oxygen long enough to do damage.”  . . . “In the wild, spots with both low oxygen and higher salinity had a more deadly effect on oyster populations.” 

We submit that the large expanses of Delaware Bay are far better suited for Delaware’s commercial oyster farming industry than the extremely shallow confines of the poorly flushed and heavily used recreational areas in the Inland Bays.

For the many reasons cited, it is requested that the U.S. Army Corps of Engineers take the following actions:

1)    Reject the proposal to develop a regional condition for NWP 48 activities in the State of Delaware.

2)    Prohibit DNREC from creating commercial oyster farming activities in the SADA locations designated as Beach Cove (IR-B) and Little Assawoman Bay (LA-B, LA-C & LA-D).

3)    Hold a public hearing in the Bethany Beach / Ocean View area on DNREC’s permit application.

Yours truly,

Steve & Sallie Callanen