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HomeMy WebLinkAbout025 Letter from representative, rock gabionsDonna Frostholm From: Jesse DeNike <jesse@plauchecarr.com> Sent: Thursday, February 27, 2025 2:44 PM To: Donna Frostholm Subject: RE: Rock Island Shellfish Follow Up Flag: Follow up Flag Status: Flagged ALERT: BE CAUTIOUS This email originated outside the organization. Do not open attachments or click on links if you are not expecting them. Thanks for getting back to me, Donna. I don't have anytime to add for right now in terms of the content of the letter, although certainly if the County (or Ecology) has a different perspective on anything covered in the letter I would want to explore that further and potentially provide additional information to address any specific points. In terms of coordinating with Ecology, you are certainly free to do that. However, given the language at issue is from the County's SMP rather than more broadly applicable and guiding state laws (e.g., the SMA or Ecology's guidelines), I'm not sure that Ecology would have additional insight. I'm not aware of Ecology previously addressing this topic more generally as part of aquaculture permitting. Also, the permit at issue is a SDP rather than a CUP, which would require approval from Ecology. I'm also concerned about the additional delays involved here, as you will be out of town and presumably the Ecology coordination will take some time. For these reasons, we would prefer to work through any remaining questions directly with the County, even if it is after you return to the office rather than tomorrow morning. Thanks. Jesse From: Donna Frostholm <DFrostholm@co.jefferson.wa.us> Sent: Thursday, February 27, 2025 1:27 PM To: Jesse DeNike <jesse@plauchecarr.com> Subject: RE: Rock Island Shellfish Jesse, I have reviewed the letter and I think the next step is for me to check in with Department of Ecology since that agency reviews or approves aquaculture proposals. That department would be able to provide some insights into past precedence for aquaculture permitting. If you have anything to add that was not in the letter, I can be available tomorrow morning at about 9:00 AM (after tomorrow morning, I will be out all of next week); otherwise, I will check in with Ecology during the week of March 10. Regards, Donna Frostholm Jefferson County DCD From: Jesse DeNike <lesse plauchecarr.com> Sent: Tuesday, February 25, 2025 10:42 AM To: Donna Frostholm <DFrostholm coJefferson.wa.us> Subject: RE: Rock Island Shellfish ALERT: BE CAUTIOUS This email originated outside the organization. Do not open attachments or click on links if you are not expecting them. Hi Donna, I'm checking in to see if you have had a chance to review this yet. Please let me know when you are ready to discuss. Thanks. Jesse From: Jesse DeNike Sent: Tuesday, February 18, 2025 10:09 AM To: Donna Frostholm <DFrostholm@co.iefferson.wa.us> Subject: Rock Island Shellfish Hi Donna, Please see the attached letter, following up on the rock gabions to be used as part of Rock Island Shellfish's aquaculture operations. I'm out of town through Thursday of this week, but I'll be back and available Friday and next week if you'd like to discuss this further. Thanks. Jesse Jesse DeNike Plauche & Carr LLP 1218 3rd Avenue, Suite 2000 Seattle, WA 98101 (206) 588-4188 0esse lauchecarr.com ---------------------------- This e-mail is intended only for the use of the individual or entity to whom it is addressed and may contain confidential, privileged information. If the reader of this e-mail is not the addressee, please be advised that any dissemination, distribution or copying of this e-mail is strictly prohibited. If you receive this communication in error, please call 206 588-4188, return this email to Jesse DeNike at the above e-mail address, and delete this e-mail from your files. Thank you. PLAUCHE & C A R R LLP February 18, 2025 Pacific Northwest Office Gulf Coast Office 1218 3rd Ave, Suite 2000 1110 River Rd S, Suite 200 Seattle, WA 98101 Baton Rouge, LA 70802 206.588.4188 225.256.4026 Via Email: dfrostholmna,co L fferson. wa. us Donna Frostholm, PWS Associate Planner - Lead/Wetland Specialist Jefferson County Department of Community Development 621 Sheridan Street Port Townsend, WA 98368 Re: SDP2024-00006 Rock Island Shellfish Aquaculture Activities Dear Ms. Frostholm: I am writing you this letter on behalf of Rock Island Shellfish regarding SDP2024-00006, following up on the January 27, 2025, visit attended by you and other Department of Community Development ("DCD") representatives at the site of this project.' One of the items that we discussed during the visit was the rock gabions at the site. As you saw during the visit, and as depicted in project plans, there are two sets of rock gabions at the site. One gabion ("Gabion I") is located to the south of Container B and to the north of the trailer (unit "C" on the site plan). The second ("Gabion 2") is located directly to the north of Container A. The purpose of this letter is to provide you with additional information regarding the rock gabions used as part of the aquaculture operations. As previously discussed, this site was used for aquaculture by another operator, Sea Garden Inc., from 1953 through 2017. Sea Garden farmed shellfish on the site's tidelands and used the upland areas as part of the aquaculture operations (e.g., equipment and product storage, staging, etc.). Sea Garden transitioned out of shellfish farming in 2017, and the site's parcels were sold to Farrell Property. Mr. Carson's family (of Rock Island) acquired them soon after. After taking over ownership, Mr. Carson investigated the site and discovered significant equipment and structures left behind, both on the tidelands and uplands. The tidelands contained rebar racks and other equipment remaining from Sea Garden's operations. The uplands contained multiple structures and areas that had been cleared for paths and driveways. As illustrated in the attached aerial overlay (Attachment A), Sea Garden left remnants of two buildings on the site —one cabin containing an office and living room (Building D) and another large cabin used for sleeping and refrigeration (Building E). Sea Garden developed a footpath near the western edge of the site and another trail that looped the entire site. More significantly, Sea Garden constructed a driveway from Killapie Beach Road ' Jefferson County parcel numbers 965100009, 965100010, and 965100011. Plauche & Carr LLP to the lower shelf of the site and near the loop trail. The driveway was approximately 15 feet wide and cut into the hillside through the area where Gabion 1 and Rock Island's upper work area is located. Sea Garden's development activities were more extensive than Rock Island's and harmed native vegetation and the slope, creating areas that were infested with invasive species and unstable or otherwise unsuitable for performing safe and effective work at the site. Mr. Carson commenced restoring degraded areas of the site and rendering them suitable for Rock Island's aquaculture operations. Mr. Carson repaired and restored the northern area of the site where the driveway had previously been constructed. He installed Gabion 1 to repair the dangerous and unstable condition presented by the driveway. This stabilized the area and provided Mr. Carson with a critical parking and work area at the northern edge of the site, where Container B is presently located. Container A and the trailer were installed in suitable, stable areas lower on the site using a crane that was positioned in the work area north of Gabion 1. All these features and work qualify as "aquaculture" and "aquaculture activities," as these terms are defined in the Jefferson County Shoreline Master Program ("SMP"). "Aquaculture" is broadly defined and includes structures used as part of the process of farming or culturing shellfish. JCC 18.25.100(1)(bb). The only activity excluded from the definition of "aquaculture" is the harvest of wildstock geoducks. "Aquaculture activity" is similarly broadly defined to include anything directly pertaining to either growing, handling, or harvesting aquaculture produce. JCC 18.25.100(1)(cc). Covered activities include, but are not limited to, stocking, development of structures, sorting, storage, and staging. The only activities excluded from the definition of "aquaculture activity" are related commercial or industrial uses such as wholesale and retail sales, final processing, and freezing. Rock Island's containers and rock gabions qualify as aquaculture activities. As described previously, Containers A and B are used as part of the farming operations to store gear and keep harvested oysters at suitable temperature during certain periods of the year in compliance with Department of Health requirements. The trailer is outfitted with a solar panel, and energy from this solar panel will be used to run the air conditioning unit cooling oysters.2 The rock gabions are critical components of the aquaculture operations. Gabion 1 is necessary for providing a safe and flat area near the northern end of the site where sorting, storage, staging, and other aquaculture activities take place, and development of the GabionI structure is itself an aquaculture activity. JCC 18.25.100(1)(cc). The work area provided by Gabion 1 contains Container B. Further, this stable and flat work area was required to install Container A and the trailer at lower elevations on the site, and it will be necessary to remain in place so that Container A and the trailer may be removed by similar means at the conclusion of aquaculture operations at the Site. Gabion 2 is necessary to protect and provide access to Container A. This gabion is thus also a critical feature of the aquaculture operations and development of this structure qualifies as an aquaculture activity. JCC 18.25.100(1)(cc). Without the rock gabions, the trailer and Containers A and B could not have been installed or continue to remain in place, and there would not be a safe and flat work area at the site for conducting sorting, storage, staging, and other aquaculture z DCD has already recognized that Containers A and B qualify as components of the proposal's aquaculture activities. DCD has also previously recognized that historic buildings on the site associated with Sea Garden's operations could be repaired, possibly without even requiring new permits. See Attachment B (note from DCD records for the site, discussing prior owner interested in constructing buildings on the site and stating, in relevant part: "Existing shed roof and siding can be repaired without permits. Rebuild of other shed will need permit because it is more than 200 square feet, but if used as ag building, perhaps a permit could be avoided"). Notably, Rock Island's containers and trailer are each less than 200 square feet. Plauch6 & Carr LLP activities. The rock gabions also must remain in place until conclusion of aquaculture activities to provide a stable location for Container B and so that Container A and the trailer may be removed if and when operations conclude. None of the aforementioned structures or work fall under exclusions from the "aquaculture" and "aquaculture activities" definitions. Regarding "aquaculture," no wildstock geoduck harvest or supporting activities are proposed as part of this proposal. Regarding "aquaculture activities," no commercial or industrial uses are proposed. No sales (wholesale or retail) are proposed at the site. There will also be no final processing. In the context of oyster aquaculture, "final processing" refers to activities such as shucking and packing oyster meat for placement in containers or smoking shucked oyster products. No such activities are proposed by Rock Island. Finally, Rock Island will not freeze harvested oysters. At most, oysters will be cooled to 50 degrees Fahrenheit (or less) during certain months of the year (approximately May through September) in compliance with Department of Health requirements. Table 18.25.220 of the SMP identifies permitted, conditional, and prohibited uses by Shoreline Environment Designation. The site's upland areas are designated Natural and areas below ordinary high water mark ("OHWM") are designated Aquatic. All aquaculture activities other than geoduck, in -water finfish, and upland finfish, are allowed as Permitted uses in the Natural and Aquatic SEDs. JCC Table 18.25.220. No geoduck, in -water finfish, or upland finfish activities are included within Rock Island's proposal. Hence, all Rock Island's aquaculture activities are Permitted uses under the SMP. This includes both the cultivation activities below the OHWM as well as the upland activities included within Rock Island's aquaculture operations such as development and use of the structures such as the containers, trailer, and rock gabions, and the sorting, storage, staging, and other activities conducted in and around these features. JCC 18.25.100(1)(bb),(cc), Table 18.25.220. Because Rock Island structures and activities at the site qualify as "aquaculture and "aquaculture activities," they are subject to the aquaculture policies and regulations of the SMP, rather than more general provisions. This is particularly true in the event of conflict between aquaculture and other regulations. Wark v. Washington Nat. Guard, 87 Wn.2d 864, 867, 557 P.2d 844 (1976) ("It is a fundamental rule that where the general statute, if standing alone, would include the same matter as the special act and thus conflict with it, the special act will be considered as an exception to, or qualification of, the general statute, whether it was passed before or after such general enactment"). Regulating Rock Island's upland aquaculture operations under the SMP's aquaculture policies and regulations also advances broader County- and state-wide interests. Shellfish aquaculture is classified as a preferred, water -dependent use under the Shoreline Management Act ("SMA"). RCW 90.58.020. Ecology's SMA Guidelines further recognize that aquaculture is of statewide interest, can result in long-term over short-term benefits, and can protect the resources and ecology of the shoreline. WAC 173-26-241(3)(b)(i)(A). The Jefferson County SMP also acknowledges these benefits and further emphasizes that aquaculture is a use "of regional and statewide interest that is important to the long-term economic viability, cultural heritage and environmental health of Jefferson County." JCC 18.25.440(1). For these reasons, the SMP allows upland structures to be located within shoreline buffers if they have a functional relationship to the water. JCC 18.25.440(4)(e)(iii). "Functional" is a broad term, including anything "used to contribute to the development or maintenance of a larger whole." Merriam -Webster Plauchd & Carr LLP 4 Dictionary (online), "functional." 3 As discussed above, the containers, trailer, and rock gabions all qualify as "aquaculture activities," and they all have a functional relationship to the water because they contribute to the development or maintenance of Rock Island's water -dependent oyster farming operation. For the foregoing reasons, Rock Island's rock gabions are regulated under the SMP's aquaculture, rather than filling and excavation, regulations. However, even if the rock gabions were subject to the filling and excavation regulations, they would still be permitted because they are essential components of Rock Island's work to restore the site from the degraded condition that it was in when Rock Island took over ownership. JCC 18.25.370(2)(c) (authorizing filling and excavation when part of an approved shoreline restoration project). Gabion 1 is located in an area that was degraded by a 15-foot driveway Sea Garden constructed through the area, which significantly harmed native vegetation and created unstable and unsafe conditions. Gabion 1 stabilizes the area, providing a safe work environment for Rock Island and allowing for the recovery of native vegetation. As DCD witnessed during the site visit, Rock Island has been removing invasive vegetation (primarily, Himalayan blackberries) that infested the area during its prior, degraded, state and planting native vegetation in its place. Similarly, Gabion 2 stabilizes the slope and creates safe work areas and protection for Container A. Rock Island plans to continue removing invasive species and replanting the areas around Gabions 1 and 2 with native vegetation as part of its stewardship of the site. If Rock Island were not able to maintain the rock gabions, it would not be able to use the uplands as part of the company's aquaculture operations, and the site would return to its prior, degraded condition with less stable slopes and a vegetation community primarily characterized by invasive species. And given the uplands are critical to Rock Island's aquaculture operations (the company does not have any alternative locations to conduct upland aquaculture work), the company would be prevented from using the site for aquaculture. This would be a worse outcome for both the environment and the broader community of Jefferson County, which as recognized in the SNIP significantly benefits form the positive environmental, cultural, and economic impacts that operations such as Rock Island's oyster farm provides. JCC 18.25.440(1)(a). Thank you in advance for your time and attention to this letter. If you have any questions or differing perspectives as to its contents, please let me know so that we can further discuss. We look forward to continuing working with you to conclude the permitting process Sincerely, Jesse DeNike Enclosures ' https://www.merriam-webster.com/ Attachment A t. . n-r 1= old foot trail to ladder 2= upper cliff loop trail 3= driveway from killapie beach rd to lower shelf on lots 9, 10 & 11 4= upper cliff beach loop trail D = office/ living room cabin E = refrid eration/ sleepinq cabin Attachment B Customer walked in with more detailed plan. His spouse is wetland biologist and repairing reports for changingladding onto someof the existing structures. She believes there are Class III and Class IV wetlands. Portions of the new development are partially within the buffers. 25% admin buffer reduction may be possible with wetland report and compensatory migitation consistent with Chapter 18.22 ARticle VII. There will also be a 5-foot construction setback added to the reduced buffer.Applicant plans to remove some of the existing structures in the buffer and asked if there was any mitigation credit given for this activity. Existing shed roof and siding can be repaired without permits. Rebuild of other shed will need permit because it is more than 200 square feet, but if used as ag building, perhaps a permit could be avoided. Demo of permit exempt buildings does not require a demo permit. Remodel permit needs to show asbestos cert. from ORCAA.