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Regular Agenda
JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
AGENDA REQUEST
TO:
Board of County Commissioners
Philip Morley, County Administrator
DATE:
Stade Hoskins, Interim Dlr~ref Community Development, Planning Manager and
Shoreline Administrator 0....' ~
Michelle McConnell, Associate Plann~
December 19, 2011
FROM:
SUBJECT:
Review Ecology feedback on Formal Jefferson County Response to Ecology on Changes to
the Locally Approved Shoreline Master Program re: finfish aquaculture provisions (MLA08-
475)
ATTACHED:
12-7-11 Letter from Ecology
STATEMENT OF ISSUE: The Board shall consider options for how to proceed given WA Department of
Ecologyfs recent feedback regarding the finfish aquaculture provisions In the 10/31/11 Formal Jefferson
County Response to Ecology on Changes to the Locally Approved Shoreline Master Program that they
cannot support the provisions as written.
ANALYSIS/STRATEGIC GOALS/PROS and CONS:
Ecology's approvalls regarding the December 7, 2009 Locally Approved SMP, submitted to Ecology on
March 1, 2010 as exhibit A of Jefferson County Resolution 77-09 (erroneously referenced In Ecology
documents as 'Ordinance Number 77-09') as the proposed amendments to the Jefferson County
Comprehensive Plan and Jefferson County Code. This SMP Comprehensive Update (MLAOS-475) Is
required by law and must be completed by December 1, 2011.
In March 2010, the County submitted a Locally Appraved Shoreline Master Program (SMP) to the
Washington Department of Ecology (Ecology) for final review and approval, per RCW 90.58 al)d WAC
173-26. After a public review process, Ecology reviewed the County's proposed SMP update for
consistency with state statutory and rule reqUirements.
On January 26, 2011 Ecology determined that the County has met the procedural and policy
requirements of the Shoreline Management Act and the SMP Guidelines, pending some required
changes. A letter from Ecology's director with three attachments outlines their conditioned approval,
findings and conclusions, required and recommended changes. The County needs to consider the
required changes and respond as to whether to accept or propose alternatives to those changes as part
of the process for final adoption by the state and by local ordinance.
The Board considered Ecology's conditioned approval and after thoughtful deliberation proposed
alternatives to some of the required and recommended changes. The Draft County Response was
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Regular Agenda
created and made available for review and comment. In sum, 63 possible changes are under
consideration for the Locally Approved SMP.
On July 11, 2011, the Board of County Commissioners held a public hearing to solicit public review and
comment on the DRAFT Jefferson County Response to Ecology on Changes to the Locally Approved SMP
(Draft County Response). The comment period opened June 22 and closed July 25, 2011. More than 60
written comments were received by the Board, and 19 people provided testimony to the Board at the
public hearing. The Board considered public input and deliberated the issues on September 19 and 26,
and October 3, 2011 prior to directing staff to prepare the County's formal response, including final edits
as discussed.
The Formal Jefferson County Response to Ecology on Changes to the Locally Approved Shoreline Master
Program was prepared and released on October 31, 2011. Prior to starting preparation of the
ordinance package for adoption of the revised SMP via local ordinance, staff requested consultation
from Ecology on the issue of finfish aquaculture to ensure there would be no problems upon submittal
of the locally adopted SMP to the State for final adoption. Ecology convened a team of policy and
technical experts and met in-house to discuss the 10/31/22 finfish provisions. Ecology has sent a letter
providing their feedback that, in short, they will not support a complete prohibition of in-water finfish
aquaculture as a limitation of a water-dependent use without adequate scientific analysis that shows
there Is nowhere in Jefferson County the use could be allowed with mitigation.
FISCAL IMPACT/COST-BENEFIT ANALYSIS:
Grant funding for the SMP Update ended in June 2009. Department of Community Development staff
work is covered by the department's annual budget.
RECOMMENDATION:
Staff recommends the Board:
1. Provide staff direction on scheduling a workshop session with Ecology in January 2012;
2. Consider options for discussion with Ecology.
Id'r;/I
Date
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STATE OF WASHINGTON
DEPARTMENT OF ECOLOGY
PO Bolt 47775 . Olympia, Washington 'J85Q4-7775 . (360) 407.6300
December 7, 2011
Ms. Michelle McConnell
Jefferson County Department of Community Development
621 Sheridan Street
Port Townsend, W A
Dear Michelle:
Our recent conversations focused on whether prohibition of in-water finfish aquaculture was
appropriate in all areas through the Shoreline Master Program for Jefferson County. Ecology
reviewed and considered the materials you provided on October 31, 2011. Our discussion led to
the following conclusions. While this letter does not constitute a formal decision from the
agency, it indicates how the SEA Program would likely advise the Director were Jefferson
County to maintain its position favoring an across-the-landscape prohibition of net pen fecilities
in marine waters.
Our March 18, 2011 memo to you was also reviewed (copy attached for your convenience.) The
County's proposed finfish lan8\lllge was reviewed in relation to the Shoreline Management Act
and WAC 173-26 requirements. The Connty relies in part on WAC 173-26-201 (3)(g) as the
justification for the prohibition on net pens in Jefferson County. While this Section does refer to
the "precautionary principle.. ." it is not determinative on whether finfish aquaculture should be
prohibited throughout Jefferson County. The Guidelines also state that:
"For development projects that may have tmanticipatable, or uncommon impacts that cannot be
reasonably identified at the time of master program development, the master program policies
and regulations should use the pennltting or conditional use permitting processes to ensure that
all impacts are addressed and thaY there is no net loss of ecological function of the shoreline
'qfter mitigation." See WAC 173-26-201(3)(dXili).
The County also argues that net pen aquaculture is not a water dependent use, and should only be
allowed in upland areas. Net pen aquaculture is a prererred water dependent use as defined in the
SMA and the Shoreline Guidelines. Under the SMA, the County is obligated to identify suiteble
(from both an ecological and fuasibility perspective) locations, within the jurisdiction where this
activity might be allowed to occur.
Conversely, the County should also identify those areas of the shoreline where it Would be
Inappropriate to allow net pen aquaculture. Areas should be identified where the shoreline is
particularly sensitive or otherwise requires heightened protection, or where net pen operations
,~
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would conflict with other authorized uses, and these should be designated for protection. Along
with materials recently gathered, Ecology expects that these designations would be informed by
the shoreline inventory and characterization.
Ecology appreciates the compiling and careful considemtion of the scientific litemture on finfish
aquaculture done by Jefferson County over the past seveml months. The updated bibliogmphy
that resulted should be a helpful resource here and for other jurisdictions.
However, Ecology does not conclude from the materials cited that net pen aquaculture cannot be
allowed, in some limited fashion and with appropriate mitigation, without jeopardizing shoreline
resources in Jefferson County.
As part of Ecology's consideration of the County's materials, Ecology also consulted with
resource agencies with expertise on net pen aquaculture, including WDFW and NOAA. The
input of these agencies generally supports Ecology's conclusion about the use. The regulatory
progmms of other state and federal programs should be taken into account as they contribute to
protecting ecological resources. The requirements of a Shoreline Master Progmm are only one
part of the legal framework for regulating such activities.
Ecology would like to continue to work with Jefferson County toward achieving aquaculture
provisions in its SMP with appropriately limited allowance for such water-dependent uses, and
with necessary, effective safeguards for the protection of ecological resources.
It's our hope we are very close to a mutuslly agreeable conclusion on this one remaining issue,
and that our coopemtive efforts to refine this aspect of the SMP will get Jefferson County "across
the finish line" for this comprehensive update.
Yir-
-----."
Jef'freiStewart
Shoreline Specialist
co: Gordon White, Ecology
Tom Clingman, Ecology
Peter Skowlund, Ecology
Paula Ehlers, Ecology
Brian Lynn, Ecology
Lori Levander, Ecology
Nicholson, Donna (ECY)
Subject:
FW: Net Pen Aquaculture
From: Stewart, Jeff R. (ECY)
Sent: Frlday, March 18, 2011 5:00 PM
To: 'Michelle McConnell'
ee: Skowlund, Peter (ECY); Ehlers, Paula (ECY)
Subject: Net Pen Aquaculture
HI Michelle
This follows up on our conversations and correspondence about various ways Jefferson County could provide altematlve
language for net pen aquaculture that will be consistent with RON 90.58 and the Guidelines at WAC 173-26. Sending now
so you have It for your meetlng..wJ1l follow up with a letter next week, and send the documents you requested.
Jefferson County's Locally Adopted SMP (2010) Included an outright ban (prohibition) of net pen aquaculture throughout
the jurlsdlctfon. Ecology review determIned there was Insufficient science basls presented for an outrIght prohIbition of a
water-dependent use. Our requIred changes $UCk the prohibItion language and replaced It with across the board
requirements for Conditional Use reView and approval. Jefferson County Commfssloners wanted Instead to Include more
particular guIdelines or constraInts. Ecology was asked If we would approve the same language that was adopted In
Whatcom County's (2008) update.
Ecology convened a polIcy discussion on 15 March 2011 about when It may be appropriate to use prohibition language In
reference to water dependent uses such as net pen aquaculture. We talked about the Whatcom SMP, where Barry
Wenger explalned how local condltlons and science were applIed to specified prohlbltlon language beIng adopted. The
broad context of aquaculture and food productfon was reviewed, with NOM and Ecology Water QualIty and other
agendes roles beIng noted.
The appropriateness of regulating through the permit process versus banning a water-dependent use outright was talked
about. The dIfficulty of legaUy defending an outright prohibition was discussed. With the InformatIon we have seen, an
outrIght ban In Jefferson County would be hard to defend. Peter Skowlund noted the Whatcom approach Is not an
outright ban. The outright prohibition Is limited only to commerdal salmon net pens, and, It does allow temporary net
pens for certain not for profit/restoration type operatlons.
The followIng concluslons from our discussIon today may be useful to Jefferson County as It conslders altematlve
language:
The criteria are application of strIcter standards to specified geographic areas, and consistency with Guidelines
provlslons.
There needs to be some evaluation of the sites proposed for prohlbItlon that demonstrates a need for protectlon.
Local governments can apply stricter standards than those outlined In the GuldeDnes, IncludIng limited
prohlbltlons of water dependent uses, but only where such a prohibitIon can be shown necessary. ThIs Is more
likely appropriate In smaller jurlsdIctfons or those with relatively few shoreline areas.
Jurlsdlctfons like King or Jefferson County, whIch have dIVerse and large water bodies and a wide range of
conditions, would requIre a high showing of eVidence to support an outright ban throughout the Jurisdiction.
It Is appropriate to Identify areas where conditions warrant prohibIting an activity, showing the science basIs for
doing so. .
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It Is not approprfate to use the Environment Daslgnatlon system as a ~back door" or de facto means of
prohibition (e.g. allowlng net pens only In areas where exIsting shoreltne condltlons are not approprfate for such
uses or only tn upland ED's where In-water net pens aren't practical anyway).
It Is appropriate to apply the purpose statements for dlfferent Environment Designations as a rationale for
Ilmltlng, and for spedfY!ng restrfctlons or conditions that are consistent with those purpose statements.
Ecology and Jefferson Counly's SMP provisions relating to AQ must be supported by and allgned WIth the pcillcles of RCW
90.58.020, effectively apply the ~preferred use" prforltles of WAC 173-26-201(2)(d) In the order listed, first reserving
approprfate areas for protectlng ecological processes and functlons, then reserving shore1lne areas for water-dependent
AQ..., and provide rationale accordingly based on analysis and SMP provisIons should recognize shoreline conditions and
technologies will evolve.
I hope some of this may help In your contInuing discussions.
Look forward to talking with you soon-
Jeffree stewart
Shoreline Specialist
Washington Department of Ecology
360-407-6521
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