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HomeMy WebLinkAboutRock Island Shellfish’s Response to CommentsPacific Northwest Office 1218 3rd Ave, Suite 2000 Seattle, WA 98101 206.588.4188 Gulf Coast Office 1110 River Rd S, Suite 200 Baton Rouge, LA 70802 225.256.4026 August 29, 2025 Via Email: carolyn@co.jefferson.wa.us; AFMcKnight@co.jefferson.wa.us Gary N. McLean Hearing Examiner for Jefferson County 1820 Jefferson Street Port Townsend, WA 98368 Re: File No. SDP2024-00006 Rock Island Shellfish’s Response to Comments Recommended Conditions of Approval Dear Examiner McLean: This letter is being submitted on behalf of Rock Island Shellfish in relation to the above-referenced application for a small oyster farm located on the applicant’s private tidelands. This letter contains two sections. Section I responds to written and oral public comments provided on the farm.1 Section II addresses four recommended conditions of approval that were discussed in Rock Island Shellfish’s letter dated August 18, 2025 (Ex. RI06) and during the August 29, 2025 hearing in this matter.2 I.Response to Comments Public Notice Posting: Commenters state that they did not see the notice of application (“NOA”) that was posted on the project site or otherwise raise concerns with the amount of public notice, and they contend additional postings or public notice must have occurred, including on Shine Road. Ex. 49 (J. Simpson, M. Schwendiman, S. Corbett, N. Anderson and N. Tooloee, S. Aos, C. and P. Marquis, S. and E. Davis, E. Brenna, K. Lopilato, R. Corbett, S. Dittmar, C. Eagan, W. and C. West, J. Fabian); Ex. 52 (K. Patterson, T. Brenna); Ex. 54 (S. Corbett, C. and P. Marquis); Ex. AP19; Ex. AP23; M. Showalter hearing comments; J. Wold hearing comments. Response: This issue is fully addressed in the Staff Report, DCD and Rock Island Shellfish Motion to Dismiss, Joint Response to Appellants’ Motion to Dismiss, Respondents’ Reply on Motion to Dismiss, Jefferson County and Applicant’s Joint Response to MDNS Appeal, and supporting declarations (First Declaration of Donna Frostholm, First Declaration of Robert Carson, Second Declaration of Donna 1 Comments are grouped by topics with individual commenters identified, and collective responses are provided. 2 Additionally, a listing of documents that Rock Island Shellfish requests be admitted as part of the record in this matter is included at Attachment A (documents identified in highlighting are requested to be made part of the record). Jefferson County Hearing Examiner 2 Frostholm, Third Declaration of Donna Frostholm). Ex. CA08; Ex. CA10; Ex. CA11; Ex. CA14; Ex. CA15; Ex. CA17; Ex. CA26; Ex. CA27; Ex. CL02; Ex. CL07; Ex. CL10.3 The Appellants in the farm’s SEPA appeal sought summary judgment regarding alleged noncompliance with the posting procedures that were used for the farm, and that motion was properly denied. As discussed more fully in the foregoing documents, posting complied with the requirement in JCC 18.40.210(2)(a) that “A single notice board shall be placed at the midpoint of the site road frontage or as otherwise directed by the county for maximum visibility, where it is completely visible to vehicle traffic and pedestrians.” While additional notice boards may be required in certain circumstances (including where a site does not abut a public road), this is at the discretion of DCD. That residents in a neighborhood to the west did not see the posting is not evidence that the posting violated JCC 18.40.210(2). Rather, it is evidence that the proposed farm is in a relatively isolated area that will not impact residents in nearby areas. This is confirmed by the substantive contents of public comments, which raised concerns with the farm’s aesthetic and recreational impacts but failed to demonstrate that the farm would adversely impact their interests in any concrete or tangible manner. Contents of Public Notice: One commenter criticizes typographical errors and other items in the NOA and other project documents. Ex. AP19; Ex. AP23. Response: The commenter’s complaints regarding typographical and other errors in the NOA and other project documents were also fully addressed in the documents identified in the immediately above response. Any typographical and other errors were minor, corrected, and non-prejudicial. Staff Report Availability: One commenter contends the Staff Report was not available 14 days prior to the public hearing and requests that the hearing be delayed. Ex. AP23. Response: This concern was fully addressed in Ex. CL09. As discussed there, the Staff Report was timely filed. Commenter’s previous request that the hearing be delayed due to alleged failure to timely file the Staff Report was appropriately denied. Access to the property: Commenters express concern over access to the property, including by fire trucks. Ex. 49 (S. Aos); Ex. 52 (K. Patterson, T. Brenna); Ex. 54 (P. Tripp). Response: The farm will not adversely impact access to the property. Upland structures are not authorized as part of this farm’s shoreline permit and will be addressed through a separate permitting process. Rock Island Shellfish will use Killapie Beach Road to access the property for purposes of walking down to the farm. This presents no risk of fire, and as discussed below, Rock Island Shellfish is willing to obtain a right-of-way permit or other approval from Public Works if required. Commenters raise concerns with other individuals starting fires in this area. Once the farm is installed, Rock Island Shellfish will have a strong incentive to keep a close eye on activities in the area and will 3 One commenter contends that fact the notice of hearing was posted along Shine Road somehow demonstrates the posting for the NOA was deficient. Ex. AP19. This comment is a perfect example of the saying “no good deed goes unpunished.” DCD exercised its discretionary authority to post notice of the hearing on Shine Road after being notified by residents in this area that they were interested in the application. This demonstrates good faith and diligence by DCD and in no way invalidates the posting of the NOA, which fully complied with JCC 18.40.210(2). Jefferson County Hearing Examiner 3 therefore help mitigate against the concern that other individuals may engage in dangerous or harmful activities such as starting fires. Use of Boat Ramp: One commenter criticizes Rock Island Shellfish’s use of a public boat ramp, contending potential use of the ramp required posting the NOA at the ramp and further evaluation in the farm’s application materials. Ex. AP19. Response: The commenter is incorrect. Rock Island Shellfish’s potential use of a public boat ramp does not transform the ramp into “the site” for purposes of application posting or other purposes. JCC 18.40.210(2). Use of public facilities including boat ramps is governed by JCC 18.25.440(4)(e)(xi), which states: “Where aquaculture use and development are authorized to use public facilities, such as boat launches or docks, the county shall reserve the right to require the applicant/proponent to pay a portion of the maintenance costs and any required improvements commensurate with the applicant’s/proponent’s use.” A recommended condition of approval, which Rock Island Shellfish does not oppose, ensures compliance with this code section. Ex. CL10 p. 14 (condition #9). Completeness of Application Materials: One commenter contends the farm’s shoreline permit application materials are inadequate. Ex. AP19. Response: The commenter’s claims of inadequacy are primarily premised on the incorrect assertion that the application must address upland development, other potential future farms that Rock Island Shellfish may pursue in the future, and use of public boat ramps. As discussed at the hearing and elsewhere in this response letter, upland development may be separately permitted, Rock Island Shellfish has no concrete plans for other farms (such farms are dependent on future contingencies), and use of the boat ramp was disclosed in the application materials and addressed in permit conditions. B. Carson hearing testimony; Ex. 2; Ex. CL10. Commenter’s claim that other farms must be more thoroughly addressed is conclusory and speculative. Cumulative impacts, including from other shellfish farms in Hood Canal, are addressed in the Habitat Management Plan. Ex. 2 pp. 72-76. High winds: Commenters express concern over high winds dislocating gear and creating marine debris. Ex. 52 (E. and S. Davis, K. Patterson); Ex. 54 (S. Corbett, C. and P. Marquis); Ex. 55; Ex. AP19; M. Showalter hearing comments; J. Wold hearing comments. Response: The farm will utilize marine-grade plastics and other gear specifically manufactured for the marine environment. The farm’s rack system will consist of rebar secured into the substrate. The oyster bags and attaching clips that will be secured to the rack system are produced by SEAPA – a company that specializes in producing oyster baskets for shellfish farmers throughout the world. SEAPA oyster baskets and accessories/attachments are designed to withstand harsh and active marine conditions.4 Notably, the prior farm that operated in this location (Sea Garden) also used rebar and baskets, and they remained in place at the farm site despite the allegedly active conditions. Rock Island Shellfish has removed much of Sea Garden’s prior system as part of getting its farm project ready for installation and will complete removing Sea Garden’s gear during farm installation. 4 More information on SEAPA is available at the company’s website: https://seapausa.com/ Jefferson County Hearing Examiner 4 While high winds may be experienced in the general area, the farm site specifically is relatively protected compared to the Hood Canal Bridge area because of its location around the southwest corner of the peninsula. Winter storms typically come from the southwest, and this orientation will maintain gear on the shoreline. Conditions of permit approval will require Rock Island Shellfish to ensure that the farm’s gear is properly installed, routinely maintained, regularly monitored (including within 24 hours after storm events), inventoried, collected, and reported to the County. Ex. 2 pp. 36 (weekly evaluation of site and culture gear), 126-27 (conservation measures 19 and 22); Ex. CL10 p. 13 (condition 28). Aside from needing to comply with permit conditions, Rock Island Shellfish has a strong motivation to ensure gear is secured and does not break free or become damaged. The farm’s cultivated shellfish will be grown in the oyster bags, and the company will lose product and revenue if bags and oysters are lost. While commenters speculate that the farm’s gear will become loose and produce litter, they fail to provide any evidence or analysis demonstrating that this is likely to occur given the farm’s permit conditions and Rock Island Shellfish’s need to keep the gear in place to ensure the farm remains productive and viable. See also Attachment B. Aquaculture Gear Debris: Commenters note that aquaculture gear from other operations has become loose and washed up on residents’ beaches. Ex. 54 (S. Corbett); Ex. 55; Ex. AP19; Ex. AP22. Response: Rock Island Shellfish takes gear management concerns very seriously. The farm’s application materials include numerous measures that the company will employ to ensure that appropriate type of gear is used, secured to the farm site, maintained, monitored, and removed. Ex. 2 pp. 35-37. Numerous conditions of farm approval impose effective gear use and management requirements. Id. pp. 124-128; Ex. CL10 pp. 12-14. Most of the gear identified by commenters was of a different type than that proposed at Rock Island Shellfish’s farm. Additionally, no information is provided by commenters that other farms from which gear is alleged to have escaped follow the same conditions of approval that Rock Island Shellfish will employ. Given much of that gear was not labeled, it would appear that those farms are not following the same measures. Commenters do not provide any information demonstrating that the farm, as proposed and conditioned, will result in marine debris. Additionally, Rock Island Shellfish has and will continue removing gear left from the prior operator, Sea Garden. Ex. CL10 p. 12. Additionally, Rock Island Shellfish has, and will continue, to remove marine debris that washes up on the farm’s tidelands, which is predominantly non-aquaculture in origin. Thus, this farm will result in a net decrease of marine debris. See also Attachment B Amount of Gear: Commenters raised questions regarding the amount of gear to be used at the farm. Ex. 54 (S. Corbett); M. Showalter hearing comments. Response: This issue is addressed in recommended condition 28. Ex. CL10 p. 13. Jefferson County Hearing Examiner 5 Recreational impacts: Commenters express concern over the farm’s gear adversely impacting recreational opportunities. Ex. 52 (K. Patterson, T. Brenna, K. Lopilato); Ex. 54 (C. and P. Marquis); Ex. AP19; Ex. AP24. Response: While commenters express concern that their use of the overlying water may be limited with the gear in place and contend the general areas is used for recreation, they provide no documentation demonstrating that the farm site is used for recreation. The farm is located on relatively isolated, private tidelands. The footprint of the farm is limited to approximately ½ acre. Most of the property’s tidelands will be uncultivated. There is more than enough room around the farm site for individuals to recreate without being restricted in their recreational opportunities. The farm’s gear protrudes a few feet above the substrate, and buoys will be used to notify users of the farm’s presence. Additionally, large rocks are well known to be found throughout the area; Rock Island Shellfish is named after Rock Island, which is a large rock that is located just north of the farm site. Thus, individuals recreating in this area know that they need to take care when recreating and operating watercraft. Responsible boaters and other recreationists would be able to use the overlying water when there is sufficient depth and be able to see and avoid the gear during shallow conditions. Even if a recreationist were to encounter the farm’s gear, commenters provided no concrete information demonstrating it poses a threat. As shown in Ex. 2 (p. 32), the rack and basket system consists of a rebar rack with plastic SEAPA baskets attached. The rebar is bent and does not have sharp points or edges. The baskets also have rounded edges. If someone were to encounter this system while paddling a kayak, nothing would happen aside from the kayaker noticing that they encountered a solid feature. There are no suspended nets, lines, or other features that could even hypothetically pose an entanglement risk to swimmers and other recreationists. While the farm itself will not adversely impact recreation, it also bears emphasizing that Rock Island Shellfish is, as part of the farm proposal, removing gear left from the prior operator. In contrast to Rock Island’s gear, the prior operator’s gear is in poor condition. Rock Island Shellfish’s removal of that gear therefore represents a benefit to recreational users and the natural environment. For these reasons, the farm will not adversely impact recreation, and it will comply with all permit issuance criteria, including JCC 18.25.440(4)(e)(vii) (“Aquaculture use and development shall not materially interfere with navigation, or access to adjacent waterfront properties, public recreation areas, or tribal harvest areas”). See also Attachment B. Aesthetics: Commenters express concerns over the aesthetic impact of the farm, noting that at least a portion of the farm will be visible for a majority of daylight hours during the summer. They also contend the farm does not have a natural aesthetic. Ex. 52 (K. Patterson, T. Brenna); Ex. 54 (P. Tripp, C. and P. Marquis); Ex AP19; Ex. AP24. Response: The farm’s visibility will differ depending on the time of the year and daily tides. When the tide is in, the farm will not be visible. During daylight minus tides, the entire farm will be visible. Ex. AP 24 p. 2. During other times, part but not all of the farm will be visible. Daylight low tides occur during a limited portion of the year (primarily June, July, and August), so much of the year the farm will have no aesthetic impact. Id. Jefferson County Hearing Examiner 6 Even when the farm’s gear is visible, however, it will have a minor aesthetic impact, in large part due to the setting. The farm is located on tidelands owned by Robert Carson, the president of Rock Island Shellfish. There are no residences on these or nearby properties. While residents on Shine Road complain about the farm’s aesthetic impacts, they do not allege let alone establish that they will even be able to see the farm from their properties. While commenters complain that the farm’s cultivation equipment does not look “natural,” that is not a standard for permit issuance. Commenters do not provide any information or analysis demonstrating that the farm does not meet permit issuance criteria on account of the farm’s alleged aesthetic impacts. In fact, no such information or analysis exists. See also Attachment B. Upland Structures: Commenters raise concerns over upland structures and contend permitting requirements for upland structures must be addressed as part of the farm’s permit process. Ex. 52 (T. Brenna); Ex. 54 (C. and P. Marquis); Ex. AP19; Ex. AP23; M. Showalter hearing comments. Response: As discussed in the project file, DCD and Rock Island discussed development on the uplands of the project’s three parcels. The uplands contained buildings from the prior shellfish operator, Sea Garden, and Rock Island Shellfish understood that similar or smaller replacements could be installed without additional approvals. The farm, as originally submitted, was limited to substantial development below the ordinary high water mark (“OHWM”). During the permit process, Rock Island and DCD discussed including upland development within the permit. However, this proved infeasible, and hence Rock Island decided to keep the permit limited to substantial development below OHWM. Ex. 30 p. 1. While commenters contend that the County should or must address upland permitting during this permit process, they cite no authority that supports that proposition. At most, their arguments simply support the position that a permit or other approval is required for upland development. E.g., Ex. AP23 p. 10 (quoting JCC 18.25.250 and 18.22.660, which address restoration and mitigation standards but do not require all permitting matters for parcels to be handled collectively in one proceeding). As stated in the project file, “[w]hile there would be operational efficiencies with utilizing the upland containers and trailer as part of this operation, Rock Island Shellfish will make alternative arrangements for meeting any needs, including contracting or otherwise coordinating with other growers and/or processors in the Hood Canal/Puget Sound region. No new development within Jefferson County would be undertaken as part of such contracting or coordinating.” Ex. 30 p. 1. Commenters’ contentions that there is upland development that requires, but lacks, shoreline permit approval constitute allegations of code violations. The County has authority to enforce the Code under Title 19. Nothing in Title 19, the SMP, or elsewhere in the County Code requires alleged upland code violations to be addressed as part of the farm’s shoreline permit. Further, as discussed below, upland development permitting is being addressed through a recommended condition of approval (#37). Jefferson County Hearing Examiner 7 Impacts to Fish, Wildlife, and Habitat: Commenters contend that the farm may or will cause adverse impacts to fish, wildlife, and habitat (in particular, eelgrass), including through impacts to the food web. Ex. 54 (C. and P. Marquis, J. Wold); Ex. AP19; J. Wold hearing comments. Response: The farm’s anticipated impacts to fish, wildlife, and habitat are exhaustively analyzed in the Confluence Environmental Habitat Management Plan submitted as part of the farm’s permit application and in the Code Consistency Analysis. Ex. 2 pp. 21-141. As discussed in those documents, the farm will not have unacceptable negative impacts, and it will have beneficial impacts to water quality, providing structured habitat, and increasing prey resources. Ex. 2 pp. 61, 62, 70. 74. As discussed in the attached technical report from Confluence Environmental (Attachment B), commenters do not provide information demonstrating that the farm will have unacceptable impacts to fish, wildlife, and habitat. Rather, the farm is utilizing appropriate measures to avoid and minimize impacts, and impacts are anticipated to be negligible to minor. Cumulative Impacts and No Net Loss: Commenters raise questions about no net loss and cumulative impacts, or contend cumulative impacts and no net loss must be more thoroughly addressed. Ex. 52 (T. Brenna); Ex. 54 (J. Wold); Ex. AP19; J. Wold hearing comments. Response: Cumulative impacts and no net loss are addressed in the farm’s application materials, including the Habitat Management Plan. Ex. 2 pp. 72-76. As summarized there: The proposed Project is consistent with the policies of the Jefferson County SMP, incorporates effective avoidance and minimization measures, and will result in a no net loss of ecological functions. There are other shellfish activities in Hood Canal. There are no interactions with these other activities for water quality, sediment quality, fish and wildlife habitat, invertebrates, kelp and eelgrass, or navigation and public use that would result in cumulative impacts. While there are minor impacts that can occur during shellfish aquaculture operations, these impacts are well within the natural variability of the system and still maintain the natural functioning of that system. Standard BMPs and the conservation measures in the Corps (2015) PBA, which the Project will follow, help to avoid or minimize potential impacts, thereby eliminating the need for further mitigation. Overall, the proposed Project in North Hood Canal would result in no cumulative impacts and a no net loss of ecological functions. Id. p. 76. Commenters’ claims that cumulative impacts are not addressed in the farm’s application materials are false. And the contention that additional farms that might be proposed by Rock Island Shellfish must be addressed at this time are baseless, given Rock Island Shellfish has no current plans and the viability of additional farms is contingent on future events. B. Carson hearing testimony. As further discussed in the attached report from Confluence Environmental Company (Attachment B), commenters do not provide any information demonstrating that the farm would cause adverse cumulative impacts or result in a net loss of ecological functions. Jefferson County Hearing Examiner 8 Threatened and Endangered Species: Commenters note that the farm is located in areas where threatened and endangered species are present and contend the farm will harm listed species and habitat. Ex. AP19; Ex. 54 (J. Wold). Response: The farm’s anticipated impacts to threatened and endangered species, and their habitat, are fully evaluated in the Habitat Management Plan. Ex. 2 pp. 21-128. As discussed in Attachment B, commenter’s claim that a programmatic Endangered Species Act and Essential Fish Habitat consultation for shellfish farming in Washington State is outdated or expired, is false. The farm is using all appropriate measures to avoid and minimize potential impacts to ESA-listed species, critical habitat, and essential fish habitat. Compliance with Permit Issuance Criteria: One commenter provides annotations to the Staff Report, contending the farm does not comply with various permit issuance criteria. Ex. AP19. Response: The commenter’s specific concerns are addressed in the above responses. The commenter does not provide any information demonstrating the farm, as proposed and conditioned, does not satisfy permit issuance criteria. The commenter’s conclusory arguments that the farm does not comply with issuance criteria provide no basis for denying or further conditioning the farm’s permit. E.g., Ex. AP19 p. 4 (conclusory assertions that the farm does not comply with several code sections). Permit Conditions: One commenter annotated the recommended conditions of approval in the Staff Report and provided various recommendations as to how the conditions should be modified. Ex. AP19. Response: The commenter’s requested revisions to approval conditions are conclusory. No information or analysis is provided by the commenter that the requested revisions are necessary or appropriate to ensure compliance with the County’s SMP or the SMA.5 Hence, they should be rejected. Other Operations: Commenters contend a different shellfish farm, located along Shine Road, has caused problems and argue that Rock Island Shellfish’s farm will increase these problems. Ex. 52 (H. Cowing). Response: Complaints regarding other operations are irrelevant to Rock Island Shellfish’s farm proposal and must instead be separately raised with the County. Personal Attacks: Commenters launch personal attacks against Rock Island Shellfish’s owner, Robert Carson. Ex. 52 (H. Cowing); Terry Benson hearing comments; Tracy Benson hearing comments. Response: Commenters’ personal attacks are inappropriate and irrelevant to the farm’s permit application. Rock Island Shellfish has worked hard over the course of many years to diligently pursue all required approvals for the farm, and it has hosted or permitted multiple site visits by County personnel to ensure all issues are appropriately addressed. The Farm Is Properly Designed and Is in the Broader Public Benefit: Two commenters strongly supported the farm’s permit application, stating the farm is properly designed, will provide numerous 5 Two comments, addressing recommended conditions of approval #1 and #37, reference JCC 18.25.250. That code section does not stand for the proposition for which it is cited (permitting for upland development must be addressed as part of the farm’s shoreline permit). Jefferson County Hearing Examiner 9 benefits, and is in the broader public interest of Jefferson County. One of these commenters stressed the need for permit conditions to be reasonable and emphasized that requiring to reestablish eelgrass buffers on a continuing basis would be exceedingly burdensome. E. Ewald hearing comments; G. King hearing comments. Response: Rock Island Shellfish agrees with these comments. The farm will provide important ecological, economic, and social benefits. It is in the broader public interest, as recognized by the SMP, the SMA, and numerous state and federal laws and policies. See also Ex. RI06. One commenter suggested that the two supportive comment were provided on account of financial or business relationships between the commenters and Rock Island Shellfish. M. Showalter hearing comments. This suggestion was proven false. B. Carson testimony. II.The Project’s SDP Should Be Approved Subject to Revised Recommended Conditions. As discussed in Rock Island Shellfish’s August 18 response to the Staff Report, and as set forth in the Staff Report and above, the farm satisfies all permit conditions and accordingly its requested shoreline permit should be issued. Ex. CL 11; Ex. RI06. As further discussed in Ex. RI06 and at the hearing in this matter, Rock Island Shellfish has reviewed and is comfortable with the vast majority of the 37 recommended conditions of approval in the Staff Report. It would, however, respectfully request revisions to recommended conditions 8, 20, 27, and 37, as set forth below.6 Note that the recommended revisions below differ from those in the August 18 letter, to reflect input provided by the Hearing Examiner during the August 19 hearing. Note also that Rock Island Shellfish coordinated with DCD regarding these recommended revisions. Responses to DCD’s position on these recommended revisions are provided below, and Rock Island Shellfish understands that DCD will submit a brief memorandum separately articulating its position. Revision to Recommended Condition 8 Recommended condition 8 should be modified as follows: Rebar racks and SEAPA baskets shall be installed at least 16.5 feet from any native eelgrass bed or patch. Eelgrass patches may migrate over time and it is the responsibility of the Permittee to ensure that no aquaculture operations occur within 16.5 feet of native eelgrass. If any expansion beyond the cultivation footprint approved by this permit is proposed, and more than three years have expired beyond the project’s original eelgrass survey, a new eelgrass survey shall be performed to ensure that any expanded footprint is installed at least 16.5 feet from any native eelgrass bed. As discussed in the August 18 letter, recommended condition #8 is based on Conservation Measure #6 from the Programmatic Consultation, which Rock Island Shellfish has committed to following. Ex. 2 pp. 6 Requested deletions are shown in strikethrough and additions are shown in underline. Jefferson County Hearing Examiner 10 72, 124. Conservation Measure #6 requires the eelgrass buffer to be established based on an eelgrass delineation to occur during a specific time of the year (June 1-Sep. 30, during times of peak above- ground biomass). Id. p. 124. A copy of this survey, overlaid with the shellfish activity locations and dimensions, must be provided to the Corps documenting where the project is to be installed so as to maintain the 16-foot buffer. Id. Eelgrass beds naturally expand and contract over time, but Conservation Measure 6 does not require shellfish farmers to continually monitor for changes in eelgrass beds and move their cultivation footprint accordingly because this would be incredibly disruptive and burdensome for farmers and it is not necessary to protect eelgrass. E. Ewald hearing comments. The Corps and Services did not develop the 16-foot buffer because they determined that covered shellfish activities adversely impact eelgrass 16 feet away from shellfish production. Rather, impacts to eelgrass are limited to “the footprint” of the shellfish cultivation, and the 16-foot buffer is designed to “accommodate natural expansion and contraction of eelgrass.” Ex. RI02 p. 72. In other words, the 16-foot buffer itself accommodates natural changes in eelgrass movement, and therefore it is not necessary to adjust the footprint of cultivation activities in response to changes in eelgrass distribution to avoid adverse effects to eelgrass. DCD has identified no scientific or technical justification for requiring eelgrass beds to be resurveyed and for buffers to be reestablished over time. Instead, at hearing DCD offered a legal justification for requiring this, arguing that it is consistent with special area reports required for other types of critical areas, which are valid for a period of five years. DCD therefore suggested that eelgrass beds at this farm’s site should be resurveyed and reestablished every five years. Considering how special reports for critical areas are utilized by analogy, however, only underscores the inappropriateness of DCD’s proposed approach for the farm’s eelgrass buffers. Special reports identify critical areas and buffers, assess potential impacts, and identify any needed mitigation. JCC 18.22.905. Special reports are typically valid for five years. JCC 18.22.905. See also JCC 18.22.550 (geotechnical reports valid for five years). This means that they can be used to support a development permit application for up to five years, such as a commercial or residential development near a wetland. A permit issued for a project near a wetland will require a buffer consistent with the location of the wetland and the buffer identified in the special report. The development will then be built. If the wetland subsequently expands closer to the development, the owner is not required to demolish and reconstruct the building commensurate with the wetland expansion. Yet that is exactly what DCD is proposing to require of Rock Island Shellfish’s farm. This would impose severe and unjustified burdens on the farm compared to other types of development. E. Ewald hearing comments. It would be inappropriate to uniquely burden any type of shoreline activity in this manner, but it is particularly improper to do so for the farm given it is a preferred, water-dependent use that is in the broader public interest and advances numerous federal and state policies supporting increased shellfish production. Ex. RI06. The second sentence of DCD’s recommended condition #8 is scientifically, technically, and legally inappropriate and should not be included in the farm’s permit conditions.7 7 Rock Island Shellfish attempted to resolve this issue with DCD subsequent to the public hearing, noting that DCD’s reliance on critical area special reports is misguided and only underscores the inappropriateness of recommended condition 8 as drafted in the Staff Report. Aside from rearticulating a general desire for eelgrass buffers to be reestablished, DCD did not offer any cogent reasoning or analysis in support of condition 8 as presented in the Staff Report, yet DCD continues to oppose Rock Island Shellfish’s proposed revisions to this condition. Jefferson County Hearing Examiner 11 That said, Rock Island Shellfish is willing to complete a new survey and maintain a 16.5-foot buffer for any expansions, including expansions that do not require a new permit. JCC 18.25.440(4)(b)(i). This will ensure any farm expansions do not harm native eelgrass, avoid inappropriately burdening the farm compared to other activities, and maintain consistency with eelgrass protection standards and requirements utilized for shellfish farms across the state. Revision to Recommended Condition 20 Recommended condition 20 should be modified as follows: Vessels motors shall be used in deeper water (greater than four feet of water depth) to minimize the potential for propellor scour. The concern underlying this condition is substrate scour caused by running propellors in shallow water. Rock Island Shellfish previously recommended omitting “in deeper water.” Upon further evaluation, the company feels comfortable using motors in only deeper water – defined as greater than four feet of water depth. When it needs to get closer to the shore, the company can stop running propellors and instead use poles to pull vessels in to shore and then push vessels out. Four feet is considered an appropriate depth to feasibly “pole in” and “pole out” from shore and effective at minimizing, if not entirely preventing, propellor scour. Rock Island Shellfish understands that DCD is agreeable to the above language revisions. Revision to Recommended Condition 27 Recommended condition 27 should be modified as follows: Use of Killapie Beach Road shall not be used in support of shellfish operations shall be at the Permittee’s own risk. The Permittee shall obtain any permits or approvals (e.g., right of way agreement) required by Public Works for use of Killapie Beach Road. As discussed in Ex. RI06 and at hearing, while Killapie Beach Road was temporarily closed, it provides the only land access to the subject property, and the public and property owners along Killapie Beach Road are allowed to use it without any restraints. While the farm’s permit application limits substantial development to areas below the ordinary high- water mark (“OHWM”), walking across the uplands to access the farm for management and maintenance purposes does not constitute development. Ex. 30; JCC 18.25.100(4)(g), (19)(tt). Moreover, upland access to the property is required to ensure the operations remain viable, particularly given vessel operations are prohibited at night, and night-time work is required during some parts of the year. Ex. RI06. The County’s Public Works Department is responsible for Killapie Beach Road and does not prohibit these property owners or others from using the road. In fact, the County recently issued an address for a nearby property that is located on Killapie Beach Road – Parcel ID 965100002 (site address 130 Killapie Beach Road), which is under common ownership with a neighboring property to the west that had a large travel trailer recently installed near the shoreline. The County’s decision to issue an address for a Jefferson County Hearing Examiner 12 nearby parcel owned by a different owner, on the one hand, while seeking to prohibit Rock Island Shellfish from even using this road on the other, raises serious concerns about disparate treatment of similarly situated individuals. Regardless, given Public Works has jurisdiction over the road, it would impermissibly usurp Public Works’ authority to prohibit use of the road in the farm’s shoreline permit. Additionally, any such prohibition would be impermissible because it would be untethered to the farm’s anticipated impacts. Moore v. City of Seattle, SHB No. 204 (Final Findings of Fact, Conclusions of Law and Order) (May 26, 1976). As discussed in Ex. 21 and at hearing, Public Works may require Rock Island Shellfish to obtain a right- of-way permit or similar approval for using the road. If so, Rock Island Shellfish will obtain such a permit, and conditioning the shoreline permit to require Rock Island Shellfish to comply with other agency requirements is reasonable. A prohibition on use of the road, however, is impermissible and should not be included in condition 27. Revision to Recommended Condition 37 Recommended condition 37 should be modified as follows: The Permittee shall implement the Voluntary Compliance Agreement, which addresses the unpermitted submit a schedule for obtaining required “after-the-fact” permit(s) for development on three upland parcels associated with this shoreline application, which schedule shall not exceed two years. The schedule shall be submitted to the Department of Community Development 21 days prior to farm installation. While the schedule may allow for up to two years to address permitting of features such as containers, trailer, and rock walls, it shall also identify other materials to be removed or permitted on a more immediate basis (e.g., aquaculture gear and equipment removed from the tidelands left by Sea Garden, boat anchors, plastic barrels, water holding tank, marine debris collected from the beach by Rock Island Shellfish, etc.). The Permittee shall comply with such schedule, and failure to do so may constitute grounds for suspension or revocation of the permit. These suggested revisions build upon those set forth in Rock Island’s response to the Staff Report, in light of discussion at the public hearing. Ex. RI06. As discussed at hearing, it is anticipated to require up to two years to address permitting of certain features on the uplands, given additional resources need to be obtained and permitting processes navigated. Other features, however, such as those listed in the above revisions, may be removed on a more immediate basis. Rock Island Shellfish is committed to obtaining all required permits and/or removing items as quickly as possible. For reasons set forth in the Staff Report response and at hearing, addressing upland permitting requirements is best addressed through a shoreline permit condition, rather than a Voluntary Compliance Agreement (“VCA”), which is reserved for normal cases where a property owner is not undertaking significant restoration activities. Rock Island understands that DCD still views a VCA as the appropriate vehicle. Rock Island respectfully submits that its suggested approach set forth above is preferable, as it will achieve the same substantive result as envisioned in a VCA, includes protections to ensure Rock Island Shellfish will follow through with its commitments, and avoids concerns that the company has regarding vague or overly broad language in the VCA. Jefferson County Hearing Examiner 13 * * * * * Rock Island Shellfish greatly appreciates your time and consideration of it’s shoreline permit application. As discussed above and in earlier project submittals, the company’s small, proposed oyster farm has been carefully reviewed by technical consultants and the County, incorporates appropriate practices and measures to avoid and minimize potential adverse environmental impacts, and will provide important benefits to Jefferson County. The farm satisfies all permit issuance criteria, and Rock Island Shellfish respectfully requests issuance of the farm’s shoreline permit with the recommended revisions in the Staff Report as modified above. Respectfully, Jesse DeNike Enclosures Attachment A EXHIBIT LIST SDP2024-00006 ROCK ISLAND SHELLFISH KEY for this exhibit list: A = Application, C = Comments, G = General, S = SEPA, L = Maps, N = Notices, R = Reports AP = Appellant, RI = Applicant, CL = County legal Item No: Item/description Date Type 1 Pre-application meeting notes/submittal 4/26/2024 G 2 Application 6/3/2024 A 3 Email with representative, re: Schedule Notice of Application 7/1-2/2024 G 4 Notice of Application 7/9/2024 N, S 5 Affidavit of Posting 7/9/2024 N, S 6 Comment - Public Works 7/10/2024 C 7 Photos - Site Visit 080724 8/7/2024 G 8 Email from representative 8/14/2024 G 9 Email follow up - Public Works 8/14/2024 G 10 Comment - Showalter 8/29/2024 C 11 Request for Additional Information and Applicant Response 8/16-30/2024 G 12 Communications with representative 9/13-27/2024 G 13 Communications with representative 10/8-17/2024 G 14 Communications with representative 11/12-26/2024 G 15 Photos - Site Visit 120424 12/4/2024 G 16 Email - Showalter 11/13/2025 C 17 Communications with Public Works 12/16/2024 G 18 Communications with representative 12/6-23/2024 G 19 Communications with representative 1/8-13/2025 G 20 Communications with representative (Request for Add'I Info, Applicant Response, and Scheudule On- site Meeting) 1/15-24/2025 G 21 Communications with Public Works 1/22/2025 G 22 Photos - Site visit 012725 1/28/2025 G 23 Communications with representative 1/29-2/5/2025 G 24 Site Visit Meeting Notes 2/3/2025 G 25 Letter from representative, re: rock gabions 2/27/2025 A 26 Phone call with representative - brief summary 2/6/2025 G 27 Phone call with representative - brief summary 3/12/2025 G 28 Phone call with representative - brief summary 3/18/2025 G 29 Phone call with representative - brief summary 3/24/2025 G 30 Communications with representative 4/17-21/2025 G 31 Communications with representative 5/5-12/2025 G 32 Email - Showalter 5/12-13/2025 G 33 Coordination with Office the Hearing Examiner - Public Hearing 5/15/2025 G 34 Threshold Determination 5/15-20/2025 N, S 35 Email - Corbett 5/20/2025 G 36 Email - Showalter 5/20/2025 G 37 Email - Office of the Hearing Examiner 5/22/2025 G 38 Email - Brenna 5/23/2025 G 39 Emails - Schedule Public Hearing 5/22-6/2/2025 G 40 SEPA Appeal 6/3/2025 S 41 Receipt by Email 6/9/-12/2025 G 42 Pre-hearing Issues 6/10/2025 G 43 Email to schedule pre-hearing conference 6/17/2025 G 44 Order Confirming Pre-hearing Conference 7/3/2025 G 45 Affidavit of Publication - Notice of Application 8/1/2024 N,S 46 Pre-hearing email 7/8/25 G 47 Photos: Notice of Public Hearing 7/29/25 N,S 48 Emails, re: Appellants’ Lists 7/30/25 G 49 Emails from Residents 7/24–29/2025 C 50 Notice of Public Hearing 7/30/2025 N,S 51 Email to representative, re: VCA 7/31/2025 G 52 Emails from Residents 8/13-17/2025 C 53 Email from Sue Corbett 8/11/2025 G 54 Emails from Residents 08/19/25 55 Emails from Residents 08/19/25 56 Wold Verbal Comment 57 Shold Letter CA-01 Email confirmation of SEPA-MDNS Appeal SDP2024-00006 Rock Island (Robert Carson) SEPA Appeal SPD2024-00006 CA-02 SDP2024-00006 Rock Island (Robert Carson) SEPA Appeal dated June 10, 2025 CA-03 SEPA Appeal – Appellants’ Motion for Continuance of SEPA/Public Hearing Date 6/3/2025 CA-04 SEPA Appeal – Appellants’ Motion for Adoption of Administrative Practices for this Case 6/3/2025 CA-05 Rock Island Shellfish’s Response to Appellants’ Motion for Continuance of SEPA/Public Hearing Date 6/24/2025 CA-06 Rock Island Shellfish’s Response to Appellants’ Motion for Adoption of Administrative Practices 6/24/2025 CA-07 Appellants’ Motion to Dismiss (Without Prejudice) Due to Erroneous Notice Procedures 6/25/2025 CA-08 Respondents’ Motion to Dismiss 6/25/2025 CA-09 [PROPOSED] Order Granting Respondents’ Motion to Dismiss 7/3/2025 CA-10 First Declaration of Robert Carson 7/15/2025 CA-11 First Declaration of Donna Frostholm 7/15/2025 CA-12 Certificate of Service 7/15/2025 CA-13 Appellants' Response to Respondents' Motion to Dismiss 7/15/2025 CA-14 Joint Response to Appellants' Motion to Dismiss 7/15/2025 7/22/2025 7/22/2025 CA-15 Second Declaration of Donna Frostholm 7/22/2025 CA-16 Certificate of Service 7/22/2025 CA-17 Joint Response to Appellants' Motion to Dismiss 7/23/2025 CA-18 Rock Island Shellfish Preliminary Witness and Exhibit Lists (Applicant) 072925 7/29/2025 CA-19 Programmatic Biological Assessment (Applicant 072925) 7/29/2025 CA-20 Shellfish NMFS Biop (Applicant 072925) 7/29/2025 CA-21 NMFSBiOp Errata Memo Revised (Applicant 072925) 7/29/2025 CA-22 Shellfish USFWS BiOp 2016 08 26 (Applicant 072925) 7/29/2025 CA-23 Certificate of Service (County 072925) 7/29/2025 CA-24 Witness and Exhibit List (County 07/29/25) 7/29/2025 CA-25 Certificate of Service (County 072925) 7/29/2025 CA-26 Respondents' Reply on Motion to Dismiss (County 072925) 7/29/2025 CA-27 Third Declaration of Donna Frostholm (County 072925) 7/29/2025 CA-28 Appellants Reply w att 072525 2024-00006 7/29/2025 AP CA-29 Second Declaration Marilyn Showalter 7/29/2025 AP CA-30 Appellants’ Index to Exhibits 7/29/2025 AP CA-31 NOTICE OF APPEAL SEPA Mitigated Determination of non-significance (MDNS) sdp2024-00006 073025 CA-32 Appellant's Index to Exhibits 073025Z 7/30/2025 AP 7/30/2025 AP AP01 Updated Google Earth map - parcel map sequence 8/5/2025 AP AP02 Gravel receipts 8/5/2025 AP AP03 Building Estimate 8/5/2025 AP AP04 Photo hearing notice poster 8/5/2025 AP AP05 Frostholm email re hearing 073025 8/5/2025 AP AP06 sdp2024-00006 Notice of Hearing 07-30-2025 8/5/2025 AP AP07 12-16-2024 Frostholm email 8/5/2025 AP AP08 Ltr DeNike to Frostholm 12-21-2023 8/5/2025 AP AP09 Ltr re Abandonment 01-24-2024 8/5/2025 AP AP10 AP10 Notice of Appeal SEPA mitigated Determination of non-significance (MDNS) MLA19-00008 BDN Smersh Application 8/5/2025 AP AP11 AP11 SEPA Environmental Checklist 05-05- 2025 8/5/2025 AP AP12 Index to Compendium Document 8/5/2025 AP AP13 AP13 Notice of Appeal SEPA mitigated determination - Robert Carson 8/5/2025 AP AP14 Appellants List of Exhibits 8/5/2025 AP AP15 Appellants REQUEST FOR SITE VISIT 8/5/2025 AP AP16 Showalter Obj No Staff Rpt w att SDP 2024- 00006 08/09/25 AP AP17 Showalter Reply to Cnty Response re Staff Report 08/11/25 AP AP18 Showalter SMA Cmts SDP 2024-00006 08/14/25 AP AP19 Showalter Annotated Staff Report SDP 2025- 00006 08/14/25 AP AP20 Showalter Request to Examine SDP 2024- 00006 08/15/25 AP AP21 Showalter Request for Documents Order SDP 2024-00006 08/15/25 AP AP22 Photos of Oyster Gear that has washed up on DNR Public Beach 59 08/15/25 AP AP23 CORRECTED Showalter SMA Cmts SDP 2024-00006 08/18/25 AP AP24 Showalter Basket Visibility 08/18/25 AP RI01 Shellfish_PBA_30_Oct_2015 - Applicant Rock Island (RI) 8/5/2025 RI RI02 Shellfish_NMFS_Biop_2016_09_02 8/5/2025 RI RI03 NMFSBiOpErrataMemoRevisedITS 8/5/2025 RI RI04 Shellfish_USFWS_BiOp_2016_08_26 8/5/2025 RI RI05 Applicant Final Witness and Exhibit Lists - Rock Island RI 8/5/2025 RI RI06 l.Response Staff Report 08/19/25 RI CL01 2025 08 05 Certificate of Service 8/5/2025 RI CL02 CL02 - 2025 08 05 JC and Applicant's Joint Resonse to MDNS Appeal Brief FINAL 8/5/2025 RI CL03 2025 08 05 Witness and Exhibit List 08/05/25 CL CL04 2025 08 05 JeffCo Response to Site Visit 08/05/25 CL CL05 2025 08 05 1st Amended Witness and Exhibit List 08/05/25 CL CL06 2025 08 05 Certificate of Service 08/05/25 CL CL07 2025 08 05 Respondents Response to MDNS Appeal Brief FINAL 08/05/25 CL 08/11/25 CL 08/11/25 CL CL08 2025 08 05 Witness and Exhibit List 08/11/25 CL CL09 2025 08 11 County Response to Allegation of No Staff Report 08/11/25 CL CL10 2025 08 11 STAFF REPORT.pdf Signed 08/11/25 CL CL11 2025 08 18 Jefferson County Update to Hearing Examiner Prior to Hearing 08/18/25 CL Attachment B 146 N Canal Street, Suite 111  Seattle, WA 98103  www.confenv.com August 29, 2025 Jesse DeNike Partner Plauché & Carr 1218 3rd Avenue, Suite 2000 Seattle, WA 98101 Re: Response to Comments on Rock Island Shellfish (SDP2024-00006) Dear Mr. DeNike: The following table provides responses by topic to comments received related to environmental impacts of Rock Island Shellfish’s proposed in Hood Canal farm (Jefferson County SDP2024- 00006). The relevant comment letters for each of the topics are listed in the second column. Where necessary, references are provided to support the responses. A complete list of references is included after the table. INTRODUCTION The Project is a proposal to farm oysters on private tidelands in North Hood Canal owned by Robert Carson, the owner of Rock Island Shellfish Company, on Jefferson County parcel numbers 965100009, 965100010, and 965100011. These tidelands have been subject to commercial shellfish aquaculture since the 1950s using a variety of on- and off-bottom cultivation methods. The purpose of the Project is to grow oysters in intertidal waters using a near-bottom culture system called SEAPA® baskets. The proposed Project involves installation, maintenance, and operation of a SEAPA basket system in North Hood Canal. SEAPA baskets will be stocked with seed oysters and raised to full growth prior to harvesting and selling commercially. A detailed project description, avoidance and minimization measures, as well as an analysis of project impacts can be found in the Habitat Mangemenet Plan (Confluence Environmental Company 2024). Jesse DeNike August 29, 2025 www.confenv.com page 2 of 10 Respectfully, MARLENE MEADERS Principal Marine Biologist 206.724.5781 marlene.meaders@confenv.com Jesse DeNike August 29, 2025 www.confenv.com page 3 of 10 Table 1.Table 1. Responses to Comments on Rock Island Shellfish SDP2024-00006 Topic Relevant Comment Letters Comment Summary/Response Trash and Pollution Concerns, extreme weather causing derelict gear Sara Davis, Kerri Patterson, Tony Brenna, Sue Corbett, Charles and Patricia Marquis, Micheal Tripp Multiple commenters raised concern over the ability for the SEAPA baskets and associated gear to withstand extreme weather events. There is little belief that the baskets will remain attached to rebar during these weather events, and that the baskets will end up on the neighboring beaches as litter. They bring up how past operations have not had good maintenance records, and it often becomes the community’s burden to collect trash that has washed up on beaches due to aquaculture operations. Although this area does experience high winds, the farm is protected compared to the Hood Canal Bridge area because of its location around the southwest corner of the peninsula. Winter storms typically come from the southwest and that orientation would maintain gear on the shoreline. The farm will adhere to typical best management practices (BMPs) outlined in the Corps (2015) programmatic consultation that require the farm and neighboring beaches to be monitored every 3 months and immediately (within 24 hours) after storm events. Additionally, the SEAPA basket technology has been developed over several decades both on the west coast and internationally. That has led to improvements in maintaining gear in various types of conditions, including high wind-wave areas. Use of this technology is suitable for this location. Public safety, displacement of recreational uses Kerri Patterson, Tony Brenna, Karen Lopilato, Heethe Cowing, Charles and Patricia Marquis Multiple commenters believe the shellfish farm presents a public safety issue for the local community’s recreational use of the Squamish Harbor Tidelands as kayakers, paddleboarders, or swimmers may come into contact with shellfish gear and injure themselves. Other public safety concerns include concerns over increased traffic from shellfish aquaculture activities, and damage to the easement from increased traffic and the trailering of boats that poses safety concerns. As per the HMP, the farm will be adequately marked with buoys to warn mariners, kayakers, and other boaters of potential navigational hazards. Farm equipment is made of durable materials suitable for use in the marine environment and is properly secured, maintained, and regularly inspected by farm crews. The farm is also located in areas that are not frequented by the public either in terms of beach combing in the upper intertidal or by boats in the shallow intertidal. Proposed farm elevations range from +4 feet to -4.2 feet MLLW. Major navigational routes are located outside of shellfish aquaculture farms and occur primarily in North Sound or deeper in Hood Canal. Avoidance and minimization measures are used to avoid potential conflicts. These include buoys, channel and bed corner markers, and responsible use of farm areas in terms of placement and orientation of gear. There are additional ancillary benefits from the presence of shellfish aquaculture operations within a region, including boater assistance, shellfish seed for private or community use, beach cleanups, and donated materials or land for restoration Jesse DeNike August 29, 2025 www.confenv.com page 4 of 10 Topic Relevant Comment Letters Comment Summary/Response efforts. Rock Island Shellfish is highly incentivized to avoid conflicts with navigational and recreational activities since there are also negative consequences to their gear and shellfish products should conflicts occur. Visual Impacts Kerri Patterson, Heethe Cowing, Tony Brenna, Penny Tripp, Charles and Patricia Marquis, Michael Tripp Commenters raised concern over how the aquaculture farm would impact the natural beauty of the shoreline, citing that the farms large size and visibility would take away from the natural beauty of the area, and the value of their properties. The farm is located in a cove that does not have residential houses along the shoreline. All views are from above the farm on higher areas, and the viewshed is not impacted based on the location of the farm. Cumulative Impacts/No net loss Kerri Patterson, Tony Brenna, Charles and Patricia Marquis, Janet Wold Multiple commenters claim that the project may be overlooking cumulative environmental impacts that may occur from the increase in shellfish aquaculture activity in Hood Canal by the proposed project. The commenters do not provide any concrete or credible information demonstrating that the project would result in cumulative adverse impacts or net loss of ecological functions. Cumulative impacts and no-net-loss were evaluated in the HMP that was included in the application. The farm will not result in cumulative impacts to the environment. According to the HMP: “There are approximately 1,351 acres of continuing shellfish aquaculture in Hood Canal based on values presented in the Corps (2015) PBA. Intertidal culture in Hood Canal includes up to 12% of available intertidal areas (a total of 9,951 acre), including fallow culture areas. Most of the culture activities are in the North Hood Canal region with mostly on-bottom culture methods, in-substrate Manila clam culture, and a small amount of near-bottom culture. The Corps (2015) also estimated reasonably foreseeable commercial shellfish aquaculture activities, or new culture, as 438 acres in Hood Canal. The proposed Project is included in this “new” culture estimate already assessed by the Corps (2015), notwithstanding that the Project is within an historic shellfish farming location, due to apparent lack of coordination between the prior operator and the Corps.” The HMP then considers this additional acreage with existing shellfish aquaculture operations and other activities in Hood Canal, and examines effects to water quality, sediment quality, fish and other wildlife, invertebrates, kelp and eelgrass, navigation and public use to examine no net loss of ecological functions and cumulative impacts. Overall, it was determined that the project incorporates effective avoidance and minimization measures and will have no interactions with other activities for water quality, sediment quality, fish and wildlife habitat, invertebrates, kelp and eelgrass, or navigation Jesse DeNike August 29, 2025 www.confenv.com page 5 of 10 Topic Relevant Comment Letters Comment Summary/Response and public use that would result in cumulative impacts. Therefore, the project would result in no cumulative impacts and no net loss of ecological functions. Eelgrass Charles and Patricia Marquis, Janet Wold, Tony Brenna Commenters expressed concern that the proposed project would damage sensitive eelgrass habitats in the area. The Project works to avoid eelgrass beds using a 16.5-foot buffer from existing eelgrass resources that were mapped in a 2023 survey by Marine Surveys and Assessments (MSA 2023). This buffer is based on a conservation measure identified in the programmatic consultation (Corps 2015) and a buffer distance from eelgrass and kelp identified under Jefferson County Code (JCC) 18.22.630(5)(b)(iii) with buffer reduction identified under JCC 18.22.640(1)(b). Effects reviewed by the federal resource agencies to determine an appropriate buffer distance included activities such as mechanical harvest of shellfish and disturbance of sediment that are not part of the proposed Project. Only minor to negligible sedimentation is expected as a part of the project. Impacts to the local community and their recreational use of the area Heethe Cowing, Penny Tripp, Kerri Patterson, Karen Lopilato, Charles and Patricia Marquis Commenters cite concerns over increased traffic, damage to roads, and increased use of the shared boat launch due to aquaculture operations. There are concerns that further development would put access to recreational uses of the area at risk (i.e., aquaculture gear preventing paddleboarding, kayaking, boating and swimming). Based on the long culture cycle (~2 years), the site would be accessed relatively infrequently to accomplish maintenance, check growth of the organisms, and harvest of organisms. These activities would not result in significant burden on public resources. These concerns were addressed in the State Environmental Policy Act (SEPA) checklist created for the project. Food Web/Carrying Capacity Janet Wold Commenters raised concerns that introducing a high density of an organism to the marine environment can impact the local food web, specifically salmon, orcas, and the abundance of phytoplankton and zooplankton in the area. They cite an example in the San Francisco Bay where the invasive Asian clam changed the plankton community structure in the bay. While there is some evidence of bivalve aquaculture leading to local decreases in phytoplankton (see references in Tan et al. (2024)), these effects are dependent on site-specific conditions and the extent of shellfish aquaculture in relation to the carrying capacity of the system. The 0.5 additional acres of shellfish aquaculture project would only represent a 0.04% increase in the total amount of shellfish aquaculture in Hood Canal and is included in the Corps (2015) estimate of 438 acres of reasonably foreseeable commercial shellfish aquaculture activities, or new culture, in Hood Canal. This additional acreage will not produce measurable effects on the abundance of phytoplankton in Hood Canal. There has been no evidence of reduced food availability for listed salmonids or other organisms in Hood Canal. Growth of shellfish and natural sets of other filter feeders are both good indicators for the system, and growth of shellfish and presence of barnacles has been consistent. Total primary production (a proxy for phytoplankton abundance) has not changed in the Puget Sound over the last 100 years and there is more evidence that too many nutrients are present in Jesse DeNike August 29, 2025 www.confenv.com page 6 of 10 Topic Relevant Comment Letters Comment Summary/Response most water bodies of Puget Sound, which can lead to problems with eutrophication rather than food limitation (Johannessen et al. 2021). Banas and Cheng (2015) suggest that aquaculture help prevent eutrophication; however, this benefit is likely negligible given the limited size and extent of the shellfish aquaculture operation.. Overall, if there was a problem with food limitation there would be other signs such as poor growth of the shellfish. This has not been seen in other shellfish operations in the area and Hood Canal supports healthy native populations of cockles and manila clams (Hood Canal Coordinating Council 2025). Salmon Janet Wold Commenters raise concern over growing amounts of shellfish aquaculture in Washington State while salmon populations continue to decline. They claim that shellfish aquaculture has negative effects that contribute to the decline of salmon, and that shellfish aquaculture gear displaces salmon from their habitat and that the high density of shellfish present in farmed areas lowers the abundance of food for salmon. Effects on salmon and their habitat were evaluated in the HMP that was included in the application materials. Overall, effects to salmon and their habitat are considered minor for several reasons: The proposed Project is sited away from the upper portions of the shoreline at depths ranging from +4 feet to - 4.2 feet MLLW and includes rows of gear where fish can swim through. Documented impacts to migratory fish are associated with structures that extend out from upland into intertidal areas – such as docks and piers (Ward et al. 1994; Burdick and Short 1999) – rather than gear that is in intertidal areas that do not significantly change the ultimate functions or use of the area for fish. Adult salmon and green sturgeon typically remain in deeper water and the deepest portion of tidal channels where they are unlikely to encounter activities or gear related to shellfish aquaculture (Kelly et al. 2007; Dumbauld et al. 2015; Kagley et al. 2017). Chum salmon and juvenile salmonids use shallow intertidal areas where shellfish farms are located where the gear can provide structured habitat that is used as a nursery area. For example, multiple studies have reported higher densities of important salmonid prey items in areas with oyster culture compared to bare mudflats (Simenstad et al. 1991; Brooks 1995; Suhrbier et al. 2017). There is no documented forage fish spawning habitat associated with the Project site (WDFW 2024). There are conservation measures in place that identify and avoid Pacific herring spawn if it occurs on culture gear. The proposed Project is below spawning elevations for surf smelt and sand lance. Therefore, effects to forage fish that salmon feed on are not expected. Benthic foraging species, such as flatfish, crabs, and sea stars, will congregate below oyster longline culture gear due to the additional structured habitat (D’Amours et al. 2008). One of the ancillary benefits of a higher abundance of crabs in farm areas is the presence of crab larvae, which is an important prey resource for salmonids (Wild and Tasto Jesse DeNike August 29, 2025 www.confenv.com page 7 of 10 Topic Relevant Comment Letters Comment Summary/Response 1983; Brodeur et al. 2007; Bollens et al. 2010; Duffy et al. 2010). For example, Bollens et al. (2010) reported that crab larvae become especially important for juvenile Chinook salmon in nearshore areas in the summer. Therefore, shellfish aquaculture does not displace salmon from their habitat or migratory corridors and does not negatively affect the availability of food available for juvenile and adult salmon in Puget Sound and Hood Canal. Programmatic Endangered Species Act and Essential Fish Habitat Consultation for Shellfish Activities in Washington State Janet Wold The commenters suggest that the application relies on outdated information from the Corps (2015) PBA and NMFS (2016) and USFWS (2016) biological opinions to assert that the project will have no impact on listed species. The programmatic consultation issued in 2016 is intended to provide ESA and EFH coverage for a 20-year period, therefore it is still valid and has more years of applicability. There are several triggers that will result in a Programmatic Consultation to expire earlier and/or require reinitiation of ESA consultation: o the amount or extent of incidental taking specified in the incidental take statement is exceeded, o new information reveals effects of the agency action that may affect listed species or critical habitat in a manner or to an extent not considered in this opinion, o the agency action is subsequently modified in a manner that causes an effect on the listed species or critical habitat that was not considered in this opinion, or o a new species is listed or critical habitat designated that may be affected by the action. No triggers for reinitiation have been met. Additionally, the Programmatic Consultation provides conservation measures to effectively avoid and minimize impacts to ESA species and critical habitats. The proposal will fully comply with the Programmatic Consultation, and the HMP and the application appropriately relies on it for the effects analysis. Jesse DeNike August 29, 2025 www.confenv.com page 8 of 10 REFERENCES Banas, N. S., and W. Cheng. 2015. An oceanographic circulation model for south Puget Sound. Page 92 pp Shellfish Aquaculture in Washington State, Final Report to the Washington State Legislature. Bollens, S. M., R. vanden Hooff, M. Butler, J. R. Cordell, and B. W. Frost. 2010. Feeding ecology of juvenile Pacific salmon (Oncorhynchus spp.) in a northeast Pacific fjord: Diet, availability of zooplankton, selectivity for prey, and potential competition for prey resources. Fishery Bulletin 108(4):393–407. Brodeur, R., E. Daly, M. Sturdevant, T. Miller, J. Moss, M. Thiess, M. Trudel, L. Weitkamp, J. Armstrong, and E. Norton. 2007. Regional comparisons of juvenile salmon feeding in coastal marine waters off the West Coast of North America. American Fisheries Society Symposium 57:183–203. Brooks, K. 1995. Long term response of benthic invertebrate communities associated with the application of carbaryl (Sevin) to control burrowing shrimp, and an assessment of the habitat value of cultivated Pacific oyster (Crassostrea gigas) beds in Willapa Bay, Washington, to fulfill requirements of the EPA carbaryl data call in. 69 pp. Burdick, D. M., and F. T. Short. 1999. The effects of boat docks on eelgrass beds in coastal waters of Massachusetts. Environmental Management 23(2):231–240. Confluence (Confluence Environmental Company). 2024. Rock Island Shellfish: Habitat Management Plan. Prepared for Plauché & Carr, Seattle, Washington, by Confluence, Seattle, Washington. Corps. 2015. Programmatic biological assessment: shellfish activities in Washington State inland marine waters. U.S. Army Corps of Engineers Regulatory Program, Seattle, WA. D’Amours, O., P. Archambault, C. McKindsey, and L. Johnson. 2008. 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