Coastal Resources Management Program
Excerpts relevant to aquaculture permitting:
1.3.1 In Tidal and Coastal Pond Waters, On Shoreline Features and Their Contiguous Areas
A. Category B Requirements
1. The requirements herein for a Category B Assent are necessary data and information for the purposes of federal consistency reviews. All persons applying for a Category B Assent are required to:
a. Demonstrate the need for the proposed activity or alteration;
b. Demonstrate that all applicable local zoning ordinances, building codes, flood hazard standards, and all safety codes, fire codes, and environmental requirements have or will be met; local approvals are required for activities as specifically prescribed for nontidal portions of a project in §§ 1.3.1(B), (C), (F), (H), (I), (K), (M), (O) and (Q) of this Part; for projects on state land, the state building official, for the purposes of this section, is the building official;
c. Describe the boundaries of the coastal waters and land area that is anticipated to be affected;
d. Demonstrate that the alteration or activity will not result in significant impacts on erosion and/or deposition processes along the shore and in tidal waters;
e. Demonstrate that the alteration or activity will not result in significant impacts on the abundance and diversity of plant and animal life;
f. Demonstrate that the alteration will not unreasonably interfere with, impair, or significantly impact existing public access to, or use of, tidal waters and/or the shore;
g. Demonstrate that the alteration will not result in significant impacts to water circulation, flushing, turbidity, and sedimentation;
h. Demonstrate that there will be no significant deterioration in the quality of the water in the immediate vicinity as defined by DEM;
i. Demonstrate that the alteration or activity will not result in significant impacts to areas of historic and archaeological significance;
j. Demonstrate that the alteration or activity will not result in significant conflicts with water dependent uses and activities such as recreational boating, fishing, swimming, navigation, and commerce, and;
k. Demonstrate that measures have been taken to minimize any adverse scenic impact (see § 1.3.5 of this Part).
2. Each topic shall be addressed in writing and include detailed site plans and a locus map for the proposed project.
3. Additional requirements are listed for specific Category B activities and alterations in the sections that follow.
K. Aquaculture
1. Policies
a. The CRMC recognizes that commercial aquaculture is a viable means for supplementing the yields of marine fish and shellfish food products, and shall support commercial aquaculture in those locations where it can be accommodated among other uses of Rhode Island waters. The CRMC recognizes that responsible shellfish aquaculture has a net positive effect on the environment, and therefore it is permissible in all water types. As any human activity can have adverse environmental effects, the Council recognizes the possibility of setting scientifically defensible limits on aquaculture leasing in any particular water body. The CRMC also recognizes that in the framework of adaptive management protocols, research into the ecology of coastal waters and our understanding of ecosystem carrying capacities is constantly evolving and improving.
b. The Council may grant aquaculture activities by permit only. The CRMC may grant aquaculture applicants exclusive use of the submerged lands and water column, including the surface of the water, when the Council finds such exclusive use is necessary to the effective conduct of the permitted aquaculture activities. Except to the extent necessary to permit the effective development of the species of animal or plant life being cultivated by the Permittee, the public shall be provided with means of reasonable ingress and egress to and from the area subject to an aquaculture lease for traditional water activities such as boating, swimming, and fishing. All plant and animal species listed for culture in an aquaculture lease are the personal property of the Permittee.
c. At the discretion of the Executive Director, leaseholders may be required to temporarily remove their aquaculture facilities, which may include all associated gear and cultured species. However, the Council may permit aquaculture facilities to remain if it determines that the temporary removal of these facilities would prove detrimental to coastal resources of the state. Report of such action by the Executive Director shall be made to the full Council at the next regularly scheduled meeting of the Council.
d. The Executive Director may order the removal of any aquaculture facility that is in an obvious state of disrepair or has been determined to be a navigation or public safety hazard. Report of such action by the Executive Director shall be made in writing to the full Council at the next regularly scheduled meeting of the Council.
e. Upon application to renew an existing aquaculture Assent, the Executive Director may administratively renew said Assent for a period not to exceed that period set forth in R.I. Gen. Laws § 20-10-3 for each renewable period, provided the applicant is in conformance with the terms and conditions of the Assent, the aquaculture lease, and with the Coastal Resources Management Program (RICRMP) in effect at the time of renewal provided, further, that the applicant is not seeking any amendments or modifications to the Assent or lease. Report of such action by the Executive Director shall be made in writing to the full Council at the next regularly scheduled meeting of the Council.
f. In the event that a CRMC approved aquaculture operation is determined by the Council to not be actively farmed for a period of one year, the assent and lease shall be deemed null and void and the site shall revert to the State’s public use upon order by the CRMC. Actively farmed may be defined by the yearly monetary investment in the farm (e.g., the purchase of seed and supplies and/or proof of sales). Three (3) consecutive years of no proof of sales shall be grounds for revocation of the Assent and lease. The Council may allow the Assent and lease to remain in effect for inactive aquaculture upon a showing by the Assent holder for good cause.
g. The Council may grant an aquaculture Assent for a period not to exceed that period set forth in R.I. Gen. Laws § 20-10-3.
h. It is the Council’s policy to prohibit private aquaculture activities in not-approved areas as defined by the National Shellfish Sanitation Program that contain significant shellfish stocks potentially available for relay into approved areas for free and common fishery.
(1) This prohibition shall not apply to the activities of a seed nursery or spat collection, or to the cultivation of scallops, or to private aquaculture operations conducted within the confines of a marina perimeter limit (as set forth in § 1.3.1(D) of this Part), or to projects which are designed, with Council approval, to enhance and restore the public resource.
(2) Aquaculture projects other than shellfish aquaculture proposed for conditionally approved waters that are not closed seasonally and prohibited waters that do not contain significant shellfish stocks potentially available for relay into approved areas for free and common fishery may be granted by the Council provided the applicant provides sufficient evidence that no harm to public health or safety will result. Such activities shall be prohibited unless the applicant provides a written statement from the director of the department of health certifying that the proposed activity will not result in product that is a public health or safety concern.
(3) Authorization may be granted by the Council for activities prohibited by this subsection provided the operation is for research purposes or public enhancement of the resource and the applicant provides written statements from the directors of the departments of environmental management and health certifying that the proposed activity is consistent with the requirements of the NSSP.
i. When the Council issues an authorization for aquaculture all wild shellfish stock, crustaceans, seaweed, and whelks existing within the authorized area shall remain the property of the state.
j. Applicants for aquaculture operations conducted at marinas using technologies such as an upweller unit may be reviewed as a Category A activity provided that the operation is conducted within a Council-approved marina perimeter.
k. Upweller units at CRMC permitted residential docks, piers and floats may be reviewed as a Category A activity provided that:
(1) Only current Council-approved aquaculture lease holders may propose to utilize upweller units at residential docks;
(2) The inclusion of an upweller is incidental to the permitted use of the dock, pier, or float, and the original use of the structure not be inhibited by the inclusion of an upweller;
(3) All shellfish from the addition of an upweller belong to a licensed CRMC aquaculture leaseholder and that the production from the upweller will go to the owner’s lease site; and
(4) All applicable Rhode Island Department of Environmental Management and Rhode Island Department of Health Regulations are followed.
l. A CRMC assent may be issued for upweller units at CRMC permitted residential docks for a period of up to five (5) years, but in no case longer than the length of time remaining on the approved aquaculture leaseholder’s permit.
2. Prerequisites
a. Prior to issuing a permit for marine aquaculture within tidal waters, the Council shall obtain and give appropriate consideration to written recommendations from the Director or his or her designee of the Department of Environmental Management and the chairman of the Marine Fisheries Council, as required by R.I. Gen. Laws § 20-10-5. The director or his or her designee of the Department of Environmental Management shall review the application to determine that the proposed aquaculture activity will not adversely affect including, but not limited to:
(1) Marine life adjacent to the proposed area and the waters of the state, and
(2) The continued vitality of indigenous fisheries.
(AA) The chairman of the Marine Fisheries Council shall review the application to determine that it is consistent with competing uses involved with the exploitation of marine fisheries.
b. Prior to submitting a formal Category B application to CRMC for aquaculture activities within tidal waters, applicants must first submit a Preliminary Determination application for the proposed project. A formal Category B application may be submitted only after the completed Preliminary Determination report has been issued by CRMC.
c. Applicants for aquaculture operations within tidal waters must submit with their application(s) all required information as specified in the most recent version of the CRMC aquaculture checklist.
d. At the time of filing a preliminary determination (PD), the applicant shall include a DRAFT operational plan that includes the following information:
(1) Name of the applicant and the company’s name;
(2) Contact information for applicant and/or company;
(3) Description of the design and activities of the aquaculture facility;
(4) Map depicting the specific location and boundaries of the aquaculture lease and facility, including the latitude and longitude points for each boundary point;
(5) Types and locations of structures (rafts, pens, tanks, etc.);
(6) Species to be cultured and source of these organisms (i.e., wild or cultured);
(7) Expected level of activity (seasonally, weekly and daily);
(8) Procedures to prevent contamination, program of sanitation and maintenance, description of the water source including details of water treatment, program to maintain water quality, maintenance of records; and
(9) How shell stock will be harvested.
(AA) The DRAFT operational plan may be modified during the PD review process and serve as the basis for the operational plan required below under § 1.3.1(K)(3)(b) of this Part.
e. In those cases where alterations to freshwater wetlands may occur, applicants for freshwater and land-based aquaculture operations must first obtain a permit from the DEM Division of Agriculture or DEM Freshwater Wetlands prior to applying with the Council.
f. Applicants for freshwater and land-based aquaculture structures and/or improvements must obtain local building official approval and zoning approval, where necessary, prior to submitting an application to the CRMC.
g. Applicants for aquaculture operations which result in discharges to waters of the state are required to obtain a Rhode Island Pollution Discharge Elimination System (RIPDES) review by the department of environmental management to determine if a RIPDES permit is required. Said permit must be obtained by the applicant prior to any aquaculture facility discharges to waters of the state.
h. At the time of application, the applicant must provide an operational plan that details methods and record keeping to ensure that seed product - prior to exceeding the size of the seed definition - will be transferred to a permitted aquaculture facility operating in approved waters, a scientific or educational institution, or a government agency.
i. Applicants who propose to introduce non-indigenous species into a CRMC-approved aquaculture facility or lease are required to design a protocol and submit it for review and approval by the CRMC and the RIDEM with the advice and consent of the Bio-Security Board in accordance with R.I. Gen. Laws § 20-10-1.2 prior to issuance of an assent. This review can occur concurrently with the aquaculture application process.
j. All freshwater aquaculture permits will be reviewed by and receive consent from the CRMC Biosecurity Board prior to issuance of an assent. This review can occur concurrently with the aquaculture application process.
3. Additional Category B Requirements
a. Applicants proposing to undertake any aquaculture project shall:
(1) Describe the location and size of the area proposed;
(2) Identify the species to be managed or cultivated within the permitted area and over which the applicant shall have exclusive right;
(3) Describe the method or manner of management or cultivation to be utilized, including whether the activities proposed are experimental, commercial, or for personal use; and
(4) Provide such other information as may be necessary for the Council to determine:
(AA) The compatibility of the proposal with other existing and potential uses of the area and areas contiguous to it, including navigation, recreation, and fisheries;
(BB) The degree of exclusivity required for aquacultural activities on the proposed site;
(CC) The safety and security of equipment, including appropriate marking of the equipment and/or lease area;
(DD) The projected per unit area yield of harvestable product;
(EE) The cumulative impact of a particular aquaculture proposal in an area, in addition to other aquaculture operations already in place;
(FF) The capability of the applicant to carry out the proposed activities; and
(GG) The impact of the proposed activities on the scenic qualities of the area.
b. Operational plan - In accordance with the permitting requirements set forth herein, the aquaculturist must submit a written operational plan as part of their Category B Assent application to be reviewed and approved by CRMC and DEM and maintained on file with the CRMC. Operational plans will be made available for review and inspection by CRMC, DEM and the U.S. Food and Drug Administration. The operational plan must be updated and resubmitted prior to any change(s) occurring in the aquaculture operation. Aquaculture must be practiced only in strict compliance with the provisions of the approved operational plan. At a minimum, each operational plan must include the following information:
(1) Description of the design and activities of the aquaculture facility;
(2) Specific location and boundaries of the aquaculture lease and facility;
(3) Types and locations of structures (rafts, pens, tanks, etc.);
(4) Species to be cultured and source of these organisms (i.e., wild or cultured);
(5) Expected level of activity (seasonally, weekly and daily);
(6) Procedures to prevent contamination, program of sanitation and maintenance, description of the water source including details of water treatment, program to maintain water quality, maintenance of records, and
(7) How shell stock will be harvested.
4. Prohibitions
a. Fish pen aquaculture operations are prohibited in all coastal ponds and nutrient sensitive shallow embayments and coves.
b. Private aquaculture leases are prohibited in uncertified waters (i.e., restricted areas as defined by the National Shellfish Sanitation Program), which contain significant shellfish stocks available for relay into certified public waters for the free and common fishery.
c. Upwellers at existing residential docks, piers, or floats in Type 1 waters are prohibited.
d. Introduction of non-indigenous species is prohibited unless protocols are in place to ensure that no accidental releases into the state’s waters may occur. These protocols must be submitted by the applicant for advice and consent by the CRMC Bio-Security Board and approval by the RIDEM Director before any permit is issued. Any proposed modifications to the permitted operation will be reviewed by the Bio-Security Board and the RIDEM Director before an assent modification can be issued. The issuance of a permit under these stipulations can be revoked if a release of non-indigenous species takes place during the term of the assent.
e. The harvest of wild bivalve molluscan shellfish, other than spat collection, naturally occurring in a CRMC permitted lease is prohibited. All wild shellfish within a lease area will remain the property of the State of Rhode Island and remain in place for the benefit of the public resource. This resource is not to be harvested by any person for commercial or recreational purposes. Any incidental catch by the lease holder within an aquaculture lease shall be returned immediately to the same waters.
f. In the coastal salt ponds, the area occupied by commercial aquaculture, shall not exceed five percent (5%) of the total open water surface area of the coastal pond below MLW.
g. Proposed aquaculture leases may not be sited where eelgrass (Zostera marina) or widgeon grass (Ruppia maritima) exists.
5. Standards
a. Marine aquaculture within tidal waters;
(1) In the event of revocation or termination of an Assent by order of the Council or expiration of any lease or Assent, the lessee or Assent holder is responsible for restoring the area to pre-existing conditions within ninety (90) days from the date of permit revocation, termination, or expiration. This shall include the removal of all structures, rafts, floats, markers, buoys, anchors, and other equipment brought to the site. Failure to comply with the Council’s order to restore the site may result in the removal of gear and forfeiture of the assent bond posted by the lessee.
(2) Any person who maliciously and willfully destroys, vandalizes, or otherwise disrupts aquaculture activities permitted by the Council shall be in violation of an order of the Council and libel to all fines and penalties under law.
(3) All Permittees shall mark off the areas under permit by appropriate buoys or stakes, as determined by the CRMC, so as not to interfere unnecessarily with navigation and other traditional uses of the water surface. The requirement for the agreed upon marking will be found in the lease requirements detailed in the assent. All authorized limitations upon the use by the public of areas subject to the permit shall be posted by the Permittee.
(4) The aquaculturist must notify CRMC of every shipment of aquatic plants and animals for culture entering this state at least five (5) working days prior to entry into the state and each shipment must be accompanied by a certificate of disease inspection from a recognized laboratory appropriate to the species received. A copy of the certificate of disease inspection must be provided to the CRMC. Prior to shipment the CRMC shall notify DEM Enforcement and DEM Division of Fish & Wildlife of the shipment.
(5) Shellfish seed cultured in prohibited or conditionally approved waters may be transferred, by the aquaculturist, to an approved aquaculture lease in Approved waters in accordance with the terms of an approved operational plan, and with notification to CRMC. If more than ten percent (10%) of the cultured shellfish within a lot or batch exceed the definition of seed (any quahogs that exceed 20 mm, and any oysters that exceed 32 mm), they cannot be moved from other than approved waters to an approved growing area without prior permission of the DEM Director and the Department of Health.
(6) All aquaculturists desiring to use seed that have been cultured in prohibited or conditionally approved waters must include in the operational plan to CRMC details on how he/she intends to track and document the growth and harvest of these shellfish. All aquaculturists must maintain accurate and complete records of all shellfish seed culture in prohibited or conditionally approved waters and removal of such shellfish seed to approved waters including, but not limited to, source, numbers transferred, size composition, time/dates of transfer, harvest and sale of the shellfish. These records must be maintained for a minimum of two years and must be available for inspection by agents of the CRMC, DOH, DEM Division of Law Enforcement, or DEM Division of Fish and Wildlife upon request. If record keeping and tracking protocols are inadequate, then the aquaculturist must only use seed from approved waters. No shellfish may be harvested until they have spent at least six (6) months in approved waters.
(7) Any permitted aquaculturist shall only harvest those species from the lease area as specifically authorized by the CRMC Assent.
(8) An aquaculture license issued by the DEM for the possession, importation, and transportation of marine shellfish species used in any aquaculture operation shall be obtained by the applicant from the Director or his or her designee of the Department of Environmental Management prior to beginning any aquaculture activities. The aquaculturist, upon receiving the DEM aquaculture license, shall file a copy of same with the CRMC within thirty (30) days of receipt of said DEM license. (Note: Any aquaculturist desiring to be a RI shellfish dealer must obtain the requisite license(s) from DEM and the RI Department of Health.)
(9) The Council may require the leaseholder for an aquaculture facility to post a performance bond in order to ensure the cleanup and removal of said facility upon either the termination or expiration of the lease.
(10) The Executive Director may approve the transfer of a lease from the lessee to another party provided the aquaculture operation remains the same, including size, species, gear, and methods of culturing. The full Council must approve any transfers that involve a deviation from the existing assented aquaculture operation.
(11) Permittees must demonstrate that they are fully utilizing an existing lease area to be eligible for an expansion as part of a preliminary determination application.
(12) For the area known as upper Narragansett Bay defined as the area north of latitude of 41 degrees 35 minutes, proposed aquaculture farms shall be limited to a maximum size of three (3) acres. Leases may be granted by authorizing an initial two (2) acre lease. Subsequently, the third acre may be granted when the Permittee demonstrates that the initial two (2) acre lease is being fully utilized.
(13) Experimental permits.
(AA) The Executive Director may issue an experimental aquaculture permit for operations which are expressly for the purpose of developing and testing new gear or techniques for aquaculture production. Applicants may be approved for three separate sites, with up to an area of one thousand (1,000) square feet for each site. Experimental sites shall not be within 500 feet of one another. Areas in excess of this may be approved by the full Council. Experimental aquaculture Assents shall be valid for a period not to exceed three (3) years. A lease may be required and the sale of any aquaculture product is not allowed. Report of such action by the Executive Director shall be made in writing to the full Council at the next regularly scheduled meeting of the Council.
(BB) Experimental aquaculture operations wholly contained within the confines of a council-approved marina perimeter area excluded from the five hundred (500) foot separation standard, as contained above, any may maintain a total of three thousand (3,000) square feet in any configuration for such operations.
(14) Commercial viability permit.
(AA) The Executive Director may issue a commercial viability aquaculture permit for operations which are expressly for the purpose of determining if a particular site is suitable for commercial aquaculture. The applicant may have one site, limited to a thousand (1000) square feet. Commercial viability permits shall be valid for a period not to exceed three (3) years. Permits for a commercial viability shall be subject to a two (2) step process:
(i) Issuance of a one-time administrative permit for the period of eighteen (18) months; followed by a one-time council-approved permit for an additional eighteen (18) months. A lease may be required. Report of such action by the Executive Director shall be made in writing to the full Council at the next regularly scheduled meeting of the Council.
(ii) Any continuation of the operation by the applicant beyond this permit length shall require a separate application which will be considered and reviewed by the Council as a Category B application and is subject to all applicable aquaculture policies and regulations.
(iii) The permittee may, on a one time basis, sell those products approved within the permit. Upon termination of the operation, or at the end of the three (3) year permit period, whichever comes first, the Permittee must terminate the operation.
(iv) The permittee must show that, in the case of a successful trial, there is sufficient potential area to expand to a commercial aquaculture lease in the same area that the commercial viability permit was granted. The Executive Director may require the Permittee to post a performance bond in order to ensure the cleanup and removal of said facility. Detailed economic reports shall be required for all commercial viability Permittees and included with the annual report that must be filed with the CRMC.
(15) Education/research permit. The Executive Director may issue an education/research aquaculture permit for operations which expressly for the purpose of using aquaculture for education or research. A lease may be required. Applicants may be approved for three separate sites, with up to an area of one thousand (1,000) square feet for each site. Education/research sites shall not be within five hundred (500) feet of one another. Areas in excess of this may only be approved by the full Council. Educational/research aquaculture assents shall be valid for a period not to exceed three (3) years. A lease may be required and sale of any aquacultured product is not allowed, report of such action by the Executive Director shall be made in writing to the full Council at the next regularly scheduled meeting of the Council. The Executive Director may grant extensions to these permits. Each extension shall not exceed three (3) years. Educational/research aquaculture operations wholly contained within the confines of a council-approved marina perimeter are excluded from the five hundred (500)-foot separation standard, as contained above, and may maintain a total of three thousand (3,000) square feet in any configuration for such operations.
(16) Aquaculture operations shall be located at sites and operated in such a manner as to not obstruct public access to and from tidal waters.
(17) Any new lease in a coastal salt pond shall be limited in size as follows:
(AA) A maximum three (3) acres for methods using gear including, but not limited to, racks, bags, and floating cages; or
(BB) A maximum of ten (10) acres for bottom planting.
(18) Leaseholder may not apply for any lease expansion until such time leaseholder can demonstrate to the CRMC a need for additional area.
(19) Recreational permits. The Executive Director may grant permits for recreational culture of shellfish by littoral landowners as follows:
(AA) Recreational permits shall be limited to a combined total volume of forty-eight (48) cubic feet;
(BB) This cage(s) shall be hung from an existing CRMC approved dock in a manner that it will not interfere with traditional navigation;
(CC) Recreational permit holders shall follow all existing seed importation regulations;
(DD) Recreational permit holders are required to complete a CRMC approved aquaculture educational program;
(EE) All gear used under an education permit will be legibly marked with the letters “CRMC” and the CRMC permit number; and
(FF) Recreational permits will be only in areas of approved waters as defined by the National Shellfish Sanitation Program.
(20) The maximum area occupied by aquaculture leases in the coastal salt ponds is five percent (5%) of the total open water surface area of the salt pond below MLW. This limit is established based upon the current knowledge of ecological carrying capacity models.
b. Freshwater aquaculture
(1) The Council shall require a permit for all freshwater and land-based aquaculture operations located within the coastal zone or in inland locations throughout the state.
(2) Permits for land-based aquaculture operations shall be granted by the CRMC for a term not to exceed fifty (50) years.
(3) When required, all species utilized for culture within land-based aquaculture operations must be approved by the DEM director or his or her designee. The aforementioned approval must be obtained prior to the Council issuing its assent, however, it may be concurrently processed with the Council’s review.