HomeMy WebLinkAboutJEFFERSON COUNTY’S CLOSING 2025 08 29 Jefferson County Closing Statment.pdf signed
JEFFERSON COUNTY’S CLOSING
STATEMENT
Page 1 of 10
Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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BEFORE THE HEARING EXAMINER
FOR JEFFERSON COUNTY
In the Matter of:
ROCK ISLAND SHELLFISH; ROBERT
CARSON
Project File No. SDP2024-00006
JEFFERSON COUNTY’S CLOSING
STATEMENT
I. CONDITIONS
Jefferson County respectfully takes this opportunity to affirm its recommendations for
proposed conditional language in the Shoreline Substantial Development Permit. During the
public hearing on August 19, 2025, there were four conditions identified to which the Applicant
requested alternative language. DCD responds to those requests below.
Recommended Condition 8: Eel Grass.
DCD requests the Hearing Examiner adopt the recommend language as is reflected in the
Staff Report:
“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.”
In addition to the reasons stated in the Staff Report, and Ms. Donna Frostholm’s
testimony provided during the public hearing, the reasoning for this recommended condition is
JEFFERSON COUNTY’S CLOSING
STATEMENT
Page 2 of 10
Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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the need to protect the critical area once the farm becomes operational. While DCD appreciates
the opportunity to review the alternative language proposed by the Applicant, DCD is not
confident the proposed alternative language provides the required level protection.
DCD relies on JCC 18.22.630 Protection Standards, which provides for minimum buffer area
requirements. See Table 18.22.630(2): Buffers for Other FWHCAs below. DCD’s proposed
conditional language already allows for a deviation from the normally required 22-foot buffer
required for eel grass beds, as allowed under JCC 18.22.640(1)(b).
Table 18.22.630(2): Buffers for Other FWHCAs
FWHCA Type Buffer Requirement
Areas where federally listed
(endangered and threatened)
species or state-listed
(endangered, threatened, and
sensitive) species have a primary
association
Buffers shall be 150 feet; provided, local and site
specific factors shall be taken into consideration and the
buffer width based on the best available information
concerning the species/habitat(s) in question or the
opinions and recommendations of a qualified
professional with appropriate expertise.
Commercial and Recreational
Shellfish Areas
Buffers shall extend 150 feet landward from ordinary
high water mark of the marine shore.
Kelp and Eelgrass Beds Buffers apply to areas where native kelp and eelgrass
species occur only, and buffers shall extend 22 feet from
each patch. There is no buffer for nonnative kelp and
eelgrass beds.
Surf Smelt, Pacific Herring, and
Pacific Sand Lance Spawning
Areas
Buffers shall extend 150 feet landward from ordinary
high water mark of the marine shore.
Natural Ponds and Lakes (along
with any submerged aquatic
beds serving as fish or wildlife
habitat)
Ponds under 20 acres – buffers shall extend 50 feet from
the ordinary high water mark.
Lakes 20 acres and larger – buffers shall extend 100 feet
from the ordinary high water mark; provided, where
wetlands are associated with the shoreline, the wetland
buffer requirements shall also apply.
Natural Area Preserves Natural
Resource Conservation Areas
Buffers shall not be required adjacent to these areas.
These areas are assumed to encompass the land required
for species preservation.
JEFFERSON COUNTY’S CLOSING
STATEMENT
Page 3 of 10
Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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Table 18.22.630(2): Buffers for Other FWHCAs
FWHCA Type Buffer Requirement
Game Fish Planted by a
Governmental or Tribal Agency
(lakes, ponds, streams, and
rivers)
Ponds under 20 acres – buffers shall extend 50 feet from
the ordinary high water mark.
Lakes 20 acres and larger – buffers shall extend 100 feet
from the ordinary high water mark; provided, where
wetlands are associated with the shoreline, the wetland
buffer requirements shall also apply.
Streams and rivers – see Table 18.22.630(1).
Designated Habitats of Local
Importance
The need for and dimensions of buffers for other locally
important species or habitats shall be determined on a
case-by-case basis.
At the public hearing, Ms. Frostholm testified that the goal of the condition was not to be
unduly burdensome. She referenced possible flexibility regarding the frequency of reports, so
long as they were consistent with applicable code. For example, per JCC 18.22.905(3), special
reports are valid for five (5) years.
Special reports shall be valid for five years from the date the report was prepared and
report validity may be extended by the administrator; provided, critical area conditions,
including buffer conditions, have not changed since the special report was written. The
administrator shall have the authority to require a revised special report, as needed, to
satisfy all the provisions of this chapter. [Ord. 5-20 § 2 (Appx. A)]
JCC 18.22.905(3).
DCD and the Applicant were not able to reach mutually acceptable language on this
particular condition and respectfully defer to the Hearing Examiner.
Recommended Condition 20: Propellor Scour.
DCD has reviewed Applicant’s proposed alternative language for this condition and
agrees 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.”
JEFFERSON COUNTY’S CLOSING
STATEMENT
Page 4 of 10
Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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Recommended Condition 27: Use of Killapie Beach Road.
DCD requests the Hearing Examiner adopt the recommend language as is reflected in the
Staff Report:
“Use of Killapie Beach Road shall not be used in support of shellfish operations.”
In addition to the reasons stated in the Staff Report, and Ms. Donna Frostholm’s
testimony provided during the public hearing, the reasoning for this recommended condition is
a concern that the Applicant’s proposed alternative language may be inconsistent with the
underlying application for development below the Ordinary High Water Mark. To be clear, DCD
has no intention of prohibiting the property owner from accessing his property. However, DCD
has a responsibility to ensure access for the purpose of shellfish operations is properly permitted.
DCD believes the record will reflect its attempts to correspond with Public Works and
that Applicant was encouraged to consult directly with Public Works as part of the application
process. For additional reference, please see DCD Exhibit Numbers 6, 9, 17, and 21 referencing
email communications between DCD and Public Works identifying safety concerns and DCD’s
attempts to connect the Applicant directly with Public Works to help problem-solve a mutually
agreeable solution.
DCD and the Applicant were not able to reach mutually acceptable language on this
particular condition and respectfully defer to the Hearing Examiner.
Recommended Condition 37: Voluntary Compliance Agreement.
DCD requests the Hearing Examiner adopt recommended language as reflected below,
which is similar to statements made by DCD during the hearing:
“The Permittee shall sign the Voluntary Compliance Agreement (VCA) that is the same
or substantially similar to the version dated July 31, 2025, which addresses the
unpermitted development on three upland parcels associated with this shoreline
JEFFERSON COUNTY’S CLOSING
STATEMENT
Page 5 of 10
Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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application. The agreement shall include specific timelines for demonstrating
compliance, which as stated in the VCA would not exceed two years to obtain ‘after-
the-fact’ permits or remove existing unpermitted development. Shellfish operations
shall not begin until DCD has received the signed VCA and has reviewed and agreed to
the proposed compliance timelines. This shoreline permit does not authorize use of the
shorelands for aquaculture operations and any aquaculture shellfish farming activity
proposed on the adjacent shorelands must be properly permitted.”
In addition to the reasons stated in the Staff Report, and Ms. Donna Frostholm’s
testimony provided during the public hearing, the reasoning for this recommended condition is
DCD has identified unpermitted development on the adjacent shorelands. In this particular
case, DCD expended significant time and effort trying to better understand the Applicant’s
needs and sought to reach a mutually beneficial solution that would allow the Applicant a
productive path forward within the framework of applicable County code. While DCD
appreciates the opportunity to review the Applicant’s proposed alternative language, especially
the additional specificity and timelines, DCD unfortunately does not find it adequately protects
the County’s interests or sufficiently advances meaningful compliance given these unique
circumstances. DCD will still honor the VCA that was previously offered and is willing to
accommodate the Applicant’s requested two-year time frame. However, if the VCA is not
signed and returned to DCD with a mutually agreeable timeframe for addressing the code
violations, DCD would respectfully request a condition be imposed that requires Applicant to
refrain from initiating any work on the shellfish farm until the requirements of the VCA are
met.
DCD appreciates this is a difficult issue and despite good faith efforts, unfortunately
DCD and the Applicant were not able to reach mutually acceptable language on this particular
condition and respectfully defer to the Hearing Examiner.
II. EXHIBIT LOG
The County respectfully requests the following exhibits be entered into the record:
• All 57 exhibits logged in by DCD;
• CA-08, CA-10 through CA-12, and CA-14 through CA-27;
• RI-01 through -06; and
• CL-01 through -011.
JEFFERSON COUNTY’S CLOSING
STATEMENT
Page 6 of 10
Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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The Exhibit Log below is from Laserfiche, using the file path: Jefferson\Board of
Commissioners\Boards & Committees\Hearing Examiner\2025\Rock Island.
Item No: Item/Description Date Typ
e
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 Schedule 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
JEFFERSON COUNTY’S CLOSING
STATEMENT
Page 7 of 10
Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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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-08 Respondents’ Motion to Dismiss 6/25/2025
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-14 Joint Response to Appellants’ Motion to Dismiss 7/15/2025
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
JEFFERSON COUNTY’S CLOSING
STATEMENT
Page 8 of 10
Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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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
07/29/25)
7/29/2025
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 2025 08 05 JC and Applicant’s Joint Response to
MDNS Appeal Brief FINAL
8/5/2025 RI
CL03 2025 08 05 Witness and Exhibit List (County) 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
(County)
08/05/25 CL
CL06 2025 08 05 Certificate of Service (County) 08/05/25 CL
CL07 2025 08 05 Respondents’ Response to MDNS Appeal
Brief FINAL
08/05/25 CL
CL08 2025 08 05 Witness and Exhibit List (County)1 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
1 Appears to be a duplicate of CL 03.
JEFFERSON COUNTY’S CLOSING
STATEMENT
Page 9 of 10
Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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III. CONCLUSION
For the foregoing reasons, the County respectfully requests that the Hearing Examiner
adopt DCD’s proposed conditional language and add all of the identified exhibits into the record.
Dated this 29th day of August 2025.
JAMES KENNEDY
Jefferson County Prosecuting Attorney
Ariel Speser, WSBA #44125
Civil Deputy Prosecuting Attorney
JEFFERSON COUNTY’S CLOSING
STATEMENT
Page 10 of 10
Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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CERTIFICATE OF SERVICE
The undersigned declares under penalty of perjury, under the laws of the
State of Washington that the following is true and correct:
I hereby certify that on the 29th day of August, 2025, I caused to be served the
foregoing JEFFERSON COUNTY’S CLOSING STATEMENT on the following
parties via E-Mail:
Jefferson County Office of the
Hearing Examiner:
Attorney for Applicants
Rock Island Shellfish:
Carolyn Gallaway
Hearing Examiner Clerk
Carolyn@co.jefferson.wa.us
Jesse DeNike
Plauché & Carr LLP
jesse@plauchecarr.com
Adiel F. McKnight
Deputy Clerk of the Board, CMC
afmcknight@co.jefferson.wa.us
Aimee Muul
aimee@plauchecarr.com
Ariel Speser