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In the matter of Adoption of the
Mystery Bay Management Plan
STATE OF WASHINGTON
County of Jefferson
RESOLUTION NO. 5„_,2
WHEREAS, The Jefferson County Comprehensive Plan has goals and policies to preserve the
long -term benefits of shoreline resources; and
WHEREAS, Jefferson County has a Shoreline Master Program as codified in Jefferson County
Code Chapter 18.25; and
WHEREAS, Jefferson County in collaboration with Washington State Department of Natural
Resources, Department of Health, Office of Regulatory Assistance and numerous tribal, agency
and citizen group stakeholders has prepared a Mystery Bay Management Plan to manage boater
usage in a manner that ensures continued, year -round harvest of commercial shellfish while
balancing that interest with the legitimate use of the bay for public recreation and other
commercial use; and
WHEREAS, the National Association of State Boating Law Administrators awarded the
Mystery Bay Management Plan with the 2012 Waterways Management Award designed to
recognize and honor exemplary commitment and best practices by an individual or team effort
by a federal, state or local government or an organization that facilitated navigation, public safety
or access in ways that reduced conflicts, enhanced the recreational boating experience for
waterway and shoreline users or minimized the risks to natural resources through education,
technical assistance, regulation, enforcement or other policies or programs; and
WHEREAS, approval of the Mystery Bay Management Plan by this Board falls within the
general police power granted to local governments such as Jefferson County by the Washington
State Constitution; and
WHEREAS, approval of the Mystery Bay Management Plan promotes and benefits the general
health, welfare and safety of the populace of Jefferson County,
NOW THEREFORE BE IT RESOLVED, that Jefferson County approves this Mystery Bay
Management Plan dated August 2, 2010.
APPROVED AND ADOPTED this I" day of October, 2012
SEAL:
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ATTEST:
JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
Jaair
Phil Johnson,-hble&ber
Q1444'&' 6\4�-
Jo It Austin, Member
-E�-- APPROVED AS TO n FORM-
Deputy Deputy Clerk of the Board � � _ - `� I
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David Alvarez
Deputy Prosecuting Attorney
Executive Summary
Background
Mystery Bay is located on the west side of Marrowstone Island in Jefferson County, in the northern
half of the Puget Sound, just inside Admiralty Inlet. Mystery Bay, like other areas of the Puget Sound,
has multiple and sometimes competing uses. Mystery Bay is a prolific shellfish area and is the site of
many tribal shellfish beds and commercial shellfish operations. Mystery Bay is also a popular
destination harbor for traveling boaters, visited almost continually since at least the late- 1700s. It
serves as a homeport for many upland landowners and other Marrowstone Island residents and
includes Mystery Bay State Park, a 10 -acre marine park. The number of boats using Mystery Bay has
increased over the past several years, to the point where they are impacting commercial shellfish
operations.
Shellfish
In 2009, the Washington State Department of Health (DOH) imposed a boating- season shellfish bed
closure over the majority of Mystery Bay due to the number of boats moored and anchored in the
bay. The number of boats exceeded National Shellfish Sanitation Program (NSSP) standards that
must be adopted by states that export shellfish commercially. Among other requirements, the NSSP
requires the closure of commercial shellfish areas when the number and density of boats exceeds
specified numerical limits called the "marina threshold levels."
Along with privately owned companies, western Washington's tribes are also active in commercial
shellfish operations and have treaty rights providing access to shellfish beds. Shellfish have been
harvested by northwest tribes for thousands of years and shellfish have been farmed commercially
for more than 150 years. The shellfish industry represents a significant portion of Washington State's
economy and provides thousands of family -wage jobs in coastal communities. Not only do shellfish
bed closures affect commercial companies, but are also a direct impact to the Treaty Tribes' ability to
access shellfish beds and infringes upon their treaty rights. To learn more about the specific issues
and concerns, a Question and Answer Factsheet on Mystery Bay was developed in 2008, and has been
recently updated (see Appendix A).
The Plan
To address the problem of too many boats anchored or moored near shellfish beds in the bay and the
threat of shellfish harvest closures, a group of stakeholders began to meet in 2008, to find a workable
and sustainable solution. The group's goal is to manage boater usage in a manner that ensures year-
Mystery Bay Management Plan August 2, 2010
round harvest of commercial shellfish while balancing that interest with the legitimate use of the bay
for public recreation. The stakeholder group includes local, state, and federal agencies; four treaty
tribes; commercial shellfish interests; and a local community organization (see Appendix B).
This management plan is the result of the collaborative efforts of the stakeholder group and provides
a unique model to help resolve multiple use conflicts in manner that may have broad application
throughout Puget Sound. The group was guided by and operates under the legal framework and
regulatory authority currently in place (see Appendix C).
The Mystery Bay plan contains the following major elements:
1. Permitting and managing future boat moorage to ensure that commercial shellfish beds do
not have to be closed.
2. Removal of buoys that are unpermitted by Jefferson County and unauthorized by the
Washington Department of Natural Resources (DNR).
3. Providing a method of exempting the boats (and mooring buoy) owned by shoreline property
owners toward the NSSP marina threshold level.
4. Manage transient boaters through voluntary "No Anchor Zone" and developing information
for transient boaters to direct them to dock or moor their boats in Mystery Bay State Park.
5. Establish long -term boat monitoring plan. Developing a monitoring plan to assure that the
numbers and densities of boats do not exceed the marina threshold counts.
6. Develop adaptive management to address ongoing changes.
In order to determine the success level of the plan, the stakeholder group will convene, at a
minimum, once in the fall of 2010, after the boating season ends and once in the spring of 2011,
before the boating season begins. The success of the plan will be ranked as follows:
• A complete success if there are no closures because of too many boats;
• A significant success if closures (due to boats) are no more than two and limited in duration to
no more than 14 days total and the bay is quickly re- opened to harvest.
Note - If closures (due to boats) number greater than two or if closures last longer than 14
days cumulatively, the stakeholder group will reconvene as soon as practical, but no later than
45 days after notification, to evaluate the problem and take action, if necessary.
As of January 2010, all of the following activities have begun:
• Numerous unauthorized buoys have already been removed.
• A draft notification plan is being developed to inform transient boaters of the importance of
docking or mooring within the State Park.
• DOH has developed a strategy for exempting shoreline residents' boats from the marina
threshold counts.
• Jefferson County and the DNR have developed plans to ensure that future mooring buoys are
properly permitted.
• The Jefferson County Marine Resource Committee and the stakeholder group have begun to
develop a monitoring plan.
Mystery Bay Management Plan August 2, 2010
Shellfish Protection
Objective 1- Maintain an "Approved" classification of the Mystery Bay shellfish
growing areas to allow continued harvest.
Because shellfish are filter feeders and can concentrate disease - causing organisms and because
they are commonly eaten raw or minimally cooked, the Washington Department of Health
(DOH), in accordance with the National Shellfish Sanitation Program (NSSP), maintains strict
sanitation standards for the areas where shellfish are grown. These standards include limits on
the presence of pollution sources such as boats. The NSSP is managed nationally by the US
Food and Drug Administration (FDA). The NSSP definition of a marina is any water area with a
structure (docks, basin, floating docks, etc.) which is used for docking or otherwise mooring
vessels; and is constructed to provide temporary or permanent docking space for more than
ten boats. The FDA has stated, "any area which has buoy moorage for at least 10 boats is also
considered a marina" under their marina definition.
When an area surpasses the marina threshold level, the surrounding waters cannot be
considered safe for shellfish harvesting. In interpreting the NSSP Guide marina definition, the
DOH uses a density threshold of one boat per acre as a screening tool to count boats towards
the marina threshold. The density threshold may need to be decreased in water bodies that
have poor dilution characteristics (like a shallow enclosed embayment). A map of current
locations and status of buoys and boats in Mystery Bay is included in Appendix D.
The DOH will consider exempting boats towards the marina threshold count if:
(1) The mooring buoy owner's residence is directly upland of the mooring buoy and a
home toilet can easily be used, and
(2) The owner submits a signed affidavit that any boat using their mooring buoy is under
their ownership or control and will not discharge wastewater or other substances into
Mystery Bay and will properly dispose of waste in an upland sewage system or boat
pump -out station (see Appendix E for affidavit form).
Mystery Bay Management Plan August 2, 2010 Page 1
Note - The DOH rationale for allowing an exemption under these criteria is that if the
mooring buoy owner is directly upland, they have control over and can easily monitor
boats attached to the buoy and any persons on the boat can access upland toilet
facilities. By using these exemption criteria, areas of Mystery Bay that would otherwise
be closed to shellfish harvest can remain open.
Management of transient boaters to ensure boat densities are below marina threshold levels,
as well as notification and response procedures when the threshold is exceeded are detailed in
a later section of this plan.
Mooring Buoy Management- Permitting and Enforcement:
Objective 2 - Continue necessary permitting and enforcement measures to
ensure the number of boats in Mystery Bay is below the marina threshold levels
by May 1, 2010.
Since February 2008, the DNR has stopped processing applications and registrations for
mooring buoys in Mystery Bay pending identification of a strategy to avoid future closures of
Mystery Bay to commercial shellfish harvest.
Since March 2008, the DNR and Jefferson County have collaborated to inventory boats and
mooring buoys in Mystery Bay. The List and Map showing the status of mooring buoys in
Mystery Bay can be found in Appendix C. Note —this information can frequently change.
On November 23, 2009, Jefferson County approved and adopted a moratorium on new
mooring buoy applications in Mystery Bay (see Appendix F). This moratorium effectively limits
the number of mooring buoys in Mystery Bay to those buoys that are already permitted or are
in the process of a permit decision under the Shoreline Management Program (SMP).
The U.S. Army Corps of Engineers (Corps) has honored the DNR stoppage of processing
applications and registrations for mooring buoys and has not verified the use of any Nationwide
Permit 10 (NWP 10) for mooring buoys in Mystery Bay. The Corps is also reviewing their
permitting process in Mystery Bay, for mooring buoys and moorage structures in particular, for
compliance with the tribal treaty rights, including the harvesting of shellfish. See Adaptive
Management section for more details regarding this review. The Corps should be notified of
any mooring buoy applications for compliance with their regulatory requirements pending the
outcome of this review.
Objective 2a - Proceed with authorization process for mooring buoys that have
been or will be permitted by the county under the SMP and can be authorized
by the DNR.
Mystery Bay Management Plan August 2, 2010 Page 2
Jefferson County will continue processing the applications that were submitted prior to
November 23, 2009, the effective date of the moratorium.
The DNR will move forward with processing applications or registrations that have been on
hold, assuming:
1. The applicant possesses a valid SMP permit or is otherwise in good standing with
Jefferson County,
2. The mooring buoy density remains below the threshold for which a DOH closure
would occur, and
3. The use meets all other conditions and criteria as required by DNR for
recreational buoys. For example, state law prohibits commercial use of the
buoy, as well as living on boats moored to the buoy. It also limits boats to sixty
feet or less in length.
Furthermore, if issuance of any one or more mooring buoy authorizations by DNR would cause
the number of boats to go above the marina threshold level and result in a closure of Mystery
Bay, then DNR would only issue authorizations up to the threshold number established by DOH.
For purposes of prioritization, if the number of buoy applications exceeds the threshold
number, DNR will process applications in the order in which they were received.
Objective 2b - Proceed with enforcement process for mooring buoys and boats
that have not been permitted by the county under the SMP, or otherwise
cannot be authorized by DNR.
For mooring buoys currently in Mystery Bay that cannot be authorized by DNR based upon the
criteria above, the following action will be taken:
Buoy owners who have applied to the DNR for an authorization, but cannot be
authorized, will be sent a letter denying their application. If the DNR determines that
any buoy owners with prior authorizations do not meet the criteria, DNR will send
notice revoking the authorization. These letters will provide 30 days for users to vacate
use of Mystery Bay. Failure to vacate would result in the DNR proceeding with trespass
actions. If the DNR is denying or revoking authorization due to the user having no
county permit; then the DNR and Jefferson County will collaborate on the enforcement
process.
ii. Vessels that have been anchored or moored to a buoy for longer than 30 days, and
whose owners are unknown, will be tagged with a 30 -day notice and will be reported to
the DNR's Derelict Vessel Program as an abandoned vessel. The DNR may proceed
under the Derelict Vessel statutes, or in some case file a trespass action. If the owner
fails to remove the boat, it may be removed as an abandoned vessel and sold at auction
Mystery Bay Management Plan August 2, 2010 Page 3
or disposed. The DNR, Jefferson County, and other stakeholders will collaborate in this
effort.
iii. Existing, unapproved mooring buoys whose owners are unknown would be tagged with
a 30 -day notice, after which time they will be removed. The DNR, Jefferson County, and
other stakeholders will collaborate in this effort.
Objective 3 - Identify process for future permitting and enforcement measures
to ensure number of mooring boats in Mystery Bay remain below the marina
threshold levels.
The primary permitting and authorizing agencies for mooring buoys in Mystery Bay are the
DNR, Jefferson County, the Washington Department of Fish and Wildlife (WDFW) and the US
Army Corp of Engineers (Corps). A description of the authority and responsibility of these
agencies can be found as the Mystery Bay Legal Framework document in Appendix C.
Future permitting process- Jefferson County will not accept new buoy permit applications until
the county lifts the moratorium on mooring buoys in Mystery Bay. At that time, the permitting
process would proceed in accordance with the standards and criteria set by the individual
permitting authorities. The DNR and Jefferson County will consider granting use authorizations
for new buoys if the proponents obtain all regulatory permits and do not cause the marina
threshold level to be exceeded.
Future enforcement actions- Jefferson County and other regulatory agencies, along with the
DNR, will work collaboratively using their individual authorities to address unpermitted and
unauthorized uses in Mystery Bay. Jefferson County and the DNR may, from time to time,
conduct surveys of boat use in the bay, but will predominately rely upon the monitoring
protocol of this plan for determining when enforcement action is needed in Mystery Bay.
Transient Vessel Management
Objective 4 - Minimize or eliminate transient anchoring in Mystery Bay, outside
of the State Park
Aquatic lands in Mystery Bay (outside the boundaries of the State Park) are managed by the
DNR and are subject to the Public Trust Doctrine, which gives the public the right to engage in
navigation. Navigation is construed by the DNR to include the temporarily anchoring of a
vessel. Transient boaters can legally anchor in the same area for periods up to 30 consecutive
days and for a total of up to 90 days in any 365 -day period, without needing to obtain
authorization from the DNR. Note - "in the same area" means within a radius of five miles of
any location where the vessel previously anchored.
Mystery Bay Management Plan August 2, 2010 Page 4
In determining whether the marina threshold level is exceeded, the DOH counts all boats —
both those moored as well as those temporarily anchored in the bay. This creates a
management challenge. In an effort to avoid promulgating and enforcing new regulations that
would formally designate Mystery Bay as a no anchorage zone, the Transient Vessel
Management section has been developed. Note - Vessels remaining in Mystery Bay longer than
30 days without an authorization are in trespass and subject to enforcement action.
Objective 4a - Establish a Voluntary "No Anchor Zone" In Mystery Bay, Outside
of the State Park and Direct Transient Boaters to the State Park.
The Jefferson County Marine Resources Committee (MRC) has
proposed implementing a voluntary "No Anchor Zone" in Mystery Bay,
to protect shellfish by keeping boat numbers below marina threshold
levels. This is similar to what has been successfully implemented along
the Port Townsend waterfront to protect eelgrass. This voluntary "No
Anchor Zone" will be established within the entire bay through the
placement of marker buoys, except for the designated area of the bay
that is within the State Park. Marker buoys designating the area as a
no anchorage zone will have a picture of an anchor in a circle with a
line through it to designate the area as a no anchorage zone and
would read, "Shellfish Protection Zone" and "Transient Moorage at
State Park" (see figure at right for an illustration of the marker buoy).
Five such marker buoys will be installed in the bay —two at the entrance,
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At Pwk
two in the central
portion of the bay just beyond the state park area, and one in the inner bay. These marker
buoys would be strategically placed to help define an informal navigation channel and where
transient vessels may otherwise be enticed to anchor their vessels.
Objective 4b- Mark the Corners of the State Park, Better Control Dinghy Storage,
and Enhance Transient Moorage at the State Park.
State Parks will place buoys at the southwest and southeast corner of the state park boundary
in order for boaters to understand where transient moorage is allowed in Mystery Bay. As
resources become available State Parks will enhance moorage for transient vessels in the park
boundaries, in order to maximize the number of transient vessel use. In addition, State Parks
will work to control long -term moorage of dinghies on the state park dock.
Objective 4c- Establish Interpretive Displays and Material and Conduct Outreach
for the Public to learn and Understand how the Bay is being Managed.
The Jefferson County Marine Resources Committee will establish interpretive displays on or
near the State Park dock and if permission is granted at the Nordland Store dock. Brochures
will also be available at these locations for distribution to the public. The display and brochures
will educate the public about Mystery Bay and explain how the bay is being managed. It will
Mystery Bay Management Plan August 2, 2010 Page 5
include a map showing the State Park, shellfish beds, mooring fields, and the voluntary "No
Anchor Zone." Additional outreach will be conducted through various means including bulletin
boards, local publications, applicable web sites, and direct outreach to relevant interest groups
such as boating clubs.
Monitoring Plan
Objective 5 - Monitor Mooring Buoy Usage and Transient Anchorage in Mystery
Bay to Determine if Marina Threshold Levels are Exceeded.
The monitoring should focus on anticipated high use periods during the boating season (May 1
— September 30), especially on weekends and known high use events (e.g., regattas and the
Wooden Boat Festival).
The WSU Beachwatchers, under the lead of the Jefferson County MRC, will conduct monitoring
and will coordinate monitoring with the following groups:
• Mystery Bay State Park Host — may do daily boat counts in State Park area
• DOH will count boats when conducting bi- monthly water quality sampling and may also
count boats during periods of concern
• State Park — will patrol conditionally approved (closed) areas, such as the area around
the State park, during the summer to prevent unauthorized harvest and assist with boat
counts in the bay.
• Tribal Surveys —site visits during summer to take boat counts from approved areas.
The WSU Beachwatchers, under the lead of the Jefferson County MRC, will focus their
monitoring efforts on weekends from May 1st through September 30th, but will also ensure
consistent monitoring by coordinating with the above mentioned groups to provide monitoring
during anticipated high use periods. WSU Beachwatchers will receive a training module from
the DOH during the annual spring classes to provide an overview of the purpose, need, and
methods for Mystery Bay monitoring. Using panoramic photographs and a map of Mystery Bay
with existing boat /buoy locations, the Beachwatchers will record boat counts on a standardized
data collection sheet. The WSU Beachwatchers' coordinator will be responsible for scheduling
and collecting data sheets which will be transmitted to DOH on a monthly basis from May 1
through September 30 and quarterly thereafter.
What Can the Average Citizen Do ?. —The public can also help in the monitoring and
enforcement process by voluntarily keeping records documenting transient vessel use in
Mystery Bay. As described above, if any vessel has anchored in the same area longer than 30
days, or for more than 90 days in any 365 -day period, without DNR authorization, they are in
trespass ( "in the same area" means within a radius of five miles of any location where the
Mystery Bay Management Plan August 2, 2010 Page 6
vessel previously anchored). The public can assist enforcement agencies by keeping written
records documenting:
1) identifying characteristics of the vessel,
2) the location it is anchored or moored, and
3) the dates the vessel is present.
Once the vessel has remained longer than the time allowed, the public may notify DNR or
Jefferson County of the unauthorized use. In the case of legal proceedings, it may be necessary
for volunteers to sign an affidavit attesting to the fact that the information is true and correct.
To facilitate monitoring efforts the following materials have been developed:
• A map of Mystery Bay with existing boat /buoy locations, annotated with number of
boats in each area which will necessitate a closure.
• Calendar to be developed with anticipated high boat use periods, volunteer monitoring
schedule.
• Boat count sheet template.
These monitoring documents are included in Appendix G.
Objective 6 - Provide immediate notification to the DOH when boat numbers
exceed marina threshold levels.
When a monitor discovers boat numbers that could exceed marina thresholds, WSU
Beachwatchers will contact the DOH Shellfish Program at (360) 236 -3330 during normal
working hours or the pager at (360) 786 -4183 outside of normal working hours. A map and
table showing how many boats are allowed in each area of Mystery Bay are included in
Appendix G. Monitors should include the following information:
• The date and time boat count was done,
• The number and location of transient boats (see Appendix G for area location map),
and
• A photograph of the area (if a camera is available).
Note - In counting boats towards the NSSP marina threshold level, only boats large enough
to accommodate a marine toilet will be counted; small boats that cannot reasonably
accommodate a marine toilet such as open skiffs, kayaks, etc. will not be counted.
Upon notification, the DOH will:
• Assess the necessity for harvest restrictions,
Mystery Bay Management Plan August 2, 2010 Page 7
• Attempt to contact the boat owner(s) responsible for the potential harvest restrictions
and attempt to convince them to move their boat(s). This may also be attempted by
local entities on behalf of the DOH.
If harvest restrictions are necessary, the DOH will:
• contact commercial shellfish operations as soon as practical and
• contact other stakeholders within 24 hours of notification by monitors, and
• if unauthorized moorage is long term ( >30 days), contact the DNR and Jefferson County
to notify them of unauthorized use so that they can begin the process of enforcement.
Adaptive Management and Effectiveness
In order to determine the success level of the Mystery Bay management plan, the stakeholder
group will convene, at a minimum, once in the fall of 2010, after the boating season ends and
once in the spring of 2011, before the boating season begins. Additional meetings will be
scheduled if necessary. The success of the plan will be ranked as follows:
• A complete success if there are no closures because of too many boats;
• A significant success if closures (due to boats) are no more than two and limited in
duration to no more than 14 days total and the bay is quickly re- opened to harvest.
If closures (due to boats) number greater than two or if closures last longer than 14 days
cumulatively, the stakeholder group will reconvene as soon as practical, but no later than 45
days after notification, to evaluate the problem and take action, if necessary. The request tc
reconvene must come from one (or more) of the stakeholders. The DOH will be the point of
contact for this request. Possible actions are, but not limited to, the following:
• Increase Public Outreach and Education
• Evaluation of monitoring data
• Try different voluntary strategies (see #1 below)
• Implementation of a mandatory "No Anchor Zone" (see #2 below)
• Impose Moratorium
• Increase Formal Federal Agency Action (see #3 below)
• Change County Enforcement Codes
• Seek Legislative Relief and /or State Agency Action
(1) As possible, move permitted and authorized mooring buoys into mooring field
areas around the perimeter of the boy and out of the central corridor to help demarcate
an informal navigation channel.
Moving mooring buoys to the perimeter of the bay and outside of the informal
navigation channel and into mooring field areas, would reduce the use of the bay by
transient vessels through displacement rather than by regulation. Transient users
Mystery Bay Management Plan August 2, 2010 Page 8
would be less likely to anchor within a mooring field area because they would not have
the space to anchor and they would be less likely to anchor in an area commonly used
for navigation out of courtesy toward other transient vessels. Note —this strategy may
actually tend to move buoys towards shellfish beds and the challenge will be to strike a
balance between protecting shellfish beds from transient boaters, while keeping buoy
densities within permissible limits.
It is recognized that achieving this objective is contingent upon finding additional
funding. Moving existing mooring buoys that are currently permitted and authorized
requires additional time and expense both in re- permitting and moving costs. Passing
these costs onto individual users would likely be unpopular and public funds to
implement this strategy are not readily available. It is recommended that existing buoys
be moved in accordance with these objectives as public funds become available or as
authorizations expire. This will be considered when authorizing new mooring buoys in
accordance with section on permitting above.
(2) if necessary, promulgate regulation that would designate Mystery Bay as a no
anchorage zone and formally establish a navigation channel.
Transient uses can be regulated by Jefferson County under local ordinance. DNR also
has the ability to promulgate no anchorage regulations. If the voluntary no anchorage
zone is not successful, then DNR and Jefferson County will coordinate to determine the
most appropriate regulatory options to institute a formal no anchorage zone.
(3) As described in Appendix C, the Corps' Regulatory Program requires permits for
the construction of any structure or the placement of any fill in the Nation's waters.
In Mystery Bay, the typical projects authorized in the past include the construction or
installation of moorage facilities, mooring buoys, bank protection, and aquaculture
related activities. The most common method for authorizing the installation of mooring
buoys is Nationwide Permit (NWP) 10, which does not always require notification to the
Corps. However, all permits issued by the Corps must not impact tribal treaty rights. In
the summer of 2009, the Corps was notified by the Treaty Tribes of concerns to tribal
treaty fishing rights related to the number of mooring buoys and moorage facilities in
Mystery Bay. After meeting with various Tribal, Federal, state, and local agencies, the
Corps issue a special public notice on Friday, January 22, 2010, regarding the use of
Nationwide Permit 10 in Mystery Bay and possibly other parts of Puget Sound. As
described in the public notice, the Corps has the option of leaving NWP 10 as is, adding
regional conditions such as pre- construction notification in all instances or in certain
areas, or revocation of NWP 10 completely or in certain areas. The Corps is currently
reviewing the comments received from the public notice and will make a final decision
based on the analysis of the issues. Future versions of this management plan could
include any changes made by the Corps.
Mystery Bay Management Plan August 2, 2010 Page 9
State Environmental Policy Act
If a lead agency sought to adopt this plan as an action under the State Environmental Policy Act
(SEPA), first the proposal or adoption of rules, regulations and resolutions of any plan or
program relating solely to governmental procedures containing no substantive standards would
be exempt under SEPA, see WAC 197 -11- 800(19). Along with this exemption and in
consideration of the programmatic overview provided by this management plan, the following
existing environmental documents could be incorporated by reference per WAC 197 -11 -600
and 635 being available at the Jefferson County Department of Community Development for
public inspection: Draft and Final Environmental Impact Statements (DEIS /FESIS) and addenda
prepared in anticipation of adoption of the Comprehensive Plan in 1998. The DEIS and FEIS,
dated February 24, 1997 and May 27, 1998, respectively, examined the potential cumulative
environmental impacts of land use alternatives at the non project level in preparation of a
comprehensive plan for Jefferson County. Finally, any proposals involving natural resource
management such as issuance of leases for, and /or placement of mooring buoys designed to
serve pleasure craft, are exempt from SEPA review under WAC 197 -11- 800(24).
Appendices
AppendixA Q &AFactsheet
Appendix B Introduction to Participating Stakeholders
Appendix C Mystery Bay Legal Framework
Appendix D Map(s) of Mystery Bay and List of Mooring Buoys
Appendix E DOH Affidavit Form
Appendix F Jefferson County Moratorium on new Mooring Buoys in Mystery Bay
Appendix G Monitoring documents
Mystery Bay Management Plan August 2, 2010 Page 10
Endorsements
The Mystery Bay Stakeholder Group has worked on this Management Plan since early 2008. Our goal
has been to work collaboratively to develop a strategy to avoid future closure of Mystery Bay to shellfish
harvesting while considering all uses of the bay. The undersigned acknowledge their participation in,
and contribution to, the development of the Mystery Bay Management Plan.
Brady Scott Date
Washington State Department of Natural Resources
Bob Woolrich Date
Washington State Department of Health
Mark Toy Date
Washington State Department of Health
Mike Zimmerman Date
Washington State Parks
Kelly Toy Date
Jamestown S'Klallam Tribe
Al Scalf Date
Jefferson County Community Development Director
Gabrielle LaRoche
Jefferson County Marine Resources Committee
Date
Mystery Bay Management Plan August 2, 2010 Page 11
Jake Johnson Date
Marrowstone Island Shellfish Company
Carl H. Johnson
Date
Carl H. Johnson Clams & Oysters
Hank Hazen
Date
Marrowstone Island Community Association
Rick Kirkwood
Date
Marrowstone Island Community Association
David Fyfe
Date
Northwest Indian Fisheries Commission
Alan Bogner
Date
Office of Regulatory Assistance
Robin Downey
Date
Pacific Coast Shellfish Growers Association
Amanda Stock Date
Plauche & Stock LLP
Randy Hatch Date
Point No Point Treaty Council
Mystery Bay Management Plan August 2, 2010 Page 12
Paul McCollum Date
Port Gamble S'Klallam Tribe
Jessica Coyle
Date
Port Gamble S'Klallam Tribe
Tamara Gage
Date
Port Gamble S'Klallam Tribe
Alison O'Sullivan
Date
Suquamish Tribe
Tom Ostrom
Date
Suquamish Tribe
Viviane Barry
Date
Suquamish Tribe
Michelle Walker
Date
US Army Corps of Engineers
Rich Childers Date
Washington State Department of Fish and Wildlife
Margie Schirato Date
Washington State Department of Fish and Wildlife
Mystery Bay Management Plan August 2, 2010 Page 13
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Pacific (oast
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Q&A Factsheet: Mystery Bay
Q. What is the issue and goal in Mystery Bay?
WPSNiHp , I ..:k M NI 04
Natural Resources
A. The issue is the threat of closure of shellfish harvesting in Mystery Bay
because of too many boats anchored or moored near shellfish beds.
The goal is to develop a strategy prior to May 1, 2010, that will avoid
closure of Mystery Bay to shellfish harvesting. The strategy must
consider all uses in the bay and include a long -term approach for the
whole bay that allows sustainable coexistence of commercial shellfish
operations, boat moorage, and other appropriate uses.
Q. Why the concern about shellfish safety?
A. Shellfish (oysters, clams and mussels) feed by filtering the water in which
they live. One oyster can filter 50 gallons in a day. These animals ingest
and concentrate whatever is in the water, which can include bacteria and
viruses when they are present. Because people often eat shellfish raw or
lightly cooked, shellfish harvested from polluted areas can be hazardous
to eat. Because of these factors, shellfish are a highly regulated food.
Q. Why are we protecting commercial shellfish operations in Mystery
Bay?
A. Mystery Bay shellfish operations are important to Jefferson County's
economy and the bay's ecology. Eleven of Jefferson County's 26 shellfish
companies do business in Mystery Bay. Operations include shellfish
farms, seed sales, harvest and processing, with estimated sales of $7
million annually — roughly 32 percent of the county's annual shellfish
sales. At least 37 individuals are employed through Mystery Bay shellfish
operations, not including local services providers or suppliers.
Environmentally, shellfish are a key species that graze down
phytoplankton as they eat, keeping marine waters clean.
Appendix A May 31, 2010 Page 1
Q: Why keep Mystery Bay open to shellfish harvest during the
summer when conflicts with increased boating traffic might
occur?
A. Summer is the busiest season for Mystery Bay shellfish farmers as this is
when the greatest number of tourists come to the area - tourists hungry
for fresh, local seafood! More than half of Mystery Bay's estimated $7
million annual sales take place during this busy boating season.
Q. What is the concern about boat discharges?
A. There are two concerns. (1) Septic or other discharges from boats
(intentional or unintentional) can concentrate in shellfish and, if ingested,
make people ill. The more boats present, the higher the likelihood of
discharges occurring. (2) Like all shellfish - producing states, Washington
must comply with the shellfish growing water standards of the National
Shellfish Sanitation Program (NSSP), as established by the US Food and
Drug Administration, and administered here by the Department of Health
(DOH).
Under the NSSP a "marina" is defined as any water area that is used for
temporary or permanent docking or mooring for more than 10 boats.
When an area meets this threshold, the DOH is required to develop a
management plan to assure that shellfish in the area or adjacent to it are
safe for consumption. The plan can include permanent or temporary
closures and other protective measures.
Q. Why are the Tribes concerned about Mystery Bay?
A. Historically, Tribes have harvested shellfish for ceremonial, subsistence,
and trade purposes. Commercial shellfish harvesting continues to be an
important source of income for many Tribal citizens.
Closures due to pollution or other environmental degradation are a direct
impact to the Tribes' ability to access shellfish beds and violate their
treaty rights. Treaty Tribes are also co- managers of fish and shellfish
resources, along with the State of Washington.
One of these co- management responsibilities is to ensure that shellfish
harvested is safe for human consumption by following the NSSP
guidelines.
Q. Water quality results have been fine. Why close the shellfish
beds?
A. NSSP determines health risks by the number and location of boats, not
water sample results. This is because marine toilets, as opposed to septic
Appendix A May 31, 2010 Page 2
systems, provide only limited or no treatment and the discharge can
reach shellfish quickly and with little dilution. Because the discharges are
sporadic, water samples rarely capture boating waste, especially
considering that marine water is sampled only once every 60 days.
Q. Does Mystery Bay meet the NSSP definition of a marina?
A. DOH has determined that, at times, parts of Mystery Bay meet the NSSP
definition of a marina. NOTE - DOH counts only boats that can
accommodate a marine toilet.
Q. Will DOH exempt some boats from being counted in Mystery Bay?
A. Yes, the DOH will exempt a boat if it belongs to a property owner that
lives immediately upland of their moored boat, and if the owner agrees
that the boat will not be used overnight and will not discharge wastewater
(documented by submission of a signed affidavit authorized by the DOH).
This is the first time DOH has considered exempting boats from being
counted.
Q. How many buoys /vessels are in Mystery Bay? How many of these
uses are authorized?
A. As of May 2009, there were 59 mooring buoys in Mystery Bay, not
counting the State Park buoys. There were 30 -40 vessels moored year -
round in the bay. Naturally, the bay sees increased uses in the spring and
summer and the exact number of vessels changes frequently during this
time.
Q. How many buoys /vessels are in Mystery Bay? How many of these
uses are authorized?
A. According to the DNR's May 2009 report, of the 59 buoys in the bay:
• 25 were fully authorized or have pending applications in good
standing
19 have been issued authorizations
or pending applications that have questionable standing.
5 no longer apply or are incidental to other uses not involving
mooring buoys
10 buoys not in good standing have been identified for removal.
As new information is received, these numbers will change.
Appendix A May 31, 2010 Page 3
f
Q. So, how many vessels can stay in Mystery Bay?
A. This has not been determined. This depends upon the long term plan for
the bay, including the number of boats DOH can exempt. Efforts will be
made to maximize the number of vessels while maintaining a viable
commercial shellfish operation. Other factors — including protecting
eelgrass, designating navigation channels, and controlling transient use —
also will be involved in determining the carrying capacity of the bay.
Q. What is the DNR's responsibility and how will they determine
what buoys remain in Mystery Bay?
A. The DNR is the land manager (in this case, the bedlands under Mystery
Bay) and, as such, is responsible for determining appropriate uses in the
bay on behalf of all citizens of the state. The other agencies and Tribes
involved with the stakeholder group act in a regulatory and stewardship
capacity.
DNR, in coordination with the County, has determined the authorization
status of buoys in Mystery Bay. Some are fully authorized, while others
are in various stages of the authorization process. Some buoys are simply
not authorized.
DOH regulations, along with other stakeholder input, will help determine
the authorization status of buoys in the bay. If there is an eventual
determination that there are too many buoys for non - exempt vessels,
DNR will develop an equitable process for buoy authorization.
Q. What authorizations are necessary in order to have a fully legal
mooring buoy in Mystery Bay?
A. The DNR requires either a registration, a license or a lease depending on
individual factors. Jefferson County requires a shoreline development
permit or exemption. WDFW requires a Hydraulic Project Approval. The
U.S. Army Corp of Engineers automatically covers permitting of mooring
buoys under Nation Wide Permit 10 if the use meets the terms and
conditions covered by that general authorization.
Appendix A May 31, 2010 Page 4
Introduction to Participatine Stakeholders:
• The Washington State Department of Natural Resources (DNR) manages state -owned aquatic lands on
behalf of the citizens of the state. DNR serves in a proprietary capacity as a landlord, requiring leases
or other authorizations for any exclusive use (e.g., mooring buoys) of submerged lands when such uses
exceed the scope of navigational activities.
• The Washington State Department of Health (DOH) serves in a regulatory capacity and monitors and
certifies both water quality and the suitability of shellfish harvested for human consumption.
• The Washington State Department of Fish and Wildlife (WDFW) serves in a regulatory capacity and
requires a hydraulic project approval (HPA) for any construction or other work in the water, including
mooring buoys.
• The Washington State Parks and Recreation Commission (State Parks) manages state parks for the
benefit of all citizens. State Parks operates Mystery Bay State Park, which includes a dock and
approved moorage area.
• Mystery Bay lies within Jefferson County and the County exercises all traditional land use authority
over the waters of the Bay. The County administers the Shoreline Master Program and has the
authority to regulate all uses of the surface waters to protect human health and safety.
• The Treaty Tribes are co- managers of fish and shellfish resources, along with the state of Washington.
The Jamestown S'Klallam, Port Gamble S'Klallam, Lower Elwha Klallam, and Suquamish Tribes exercise
treaty- reserved rights to harvest fish and shellfish in Mystery Bay.
• Jefferson County Marine Resources Committee - The Marine Resources Committee (MRC) is an
advisory group to the Board of County Commissioners and their mission is to protect Jefferson County
marine resources. The MRC members are citizen volunteers who are committed to work closely with
other community members - homeowners, business owners, recreational enthusiasts, and commercial
and sport fishers - to reduce or stop the decline of the marine habitat.
Pacific Coast Shellfish Growers Association (PCSGA) - Founded in 1930, the PCSGA represents growers
in Alaska, Washington, Oregon, California, and Hawaii. PCSGA works on behalf of its members on a
broad spectrum of issues, including environmental protection, shellfish safety, regulations, technology,
and marketing. The mission of PSI is to conduct research on shellfish and disseminate scientific and
technical information to growers, regulators and others in the research community.
• Office of Regulatory Assistance - ORA is a small government office with a big agenda— improve
regulatory systems and assist the citizens who work with those systems. ORA helps businesses and
citizens navigate complex permitting and licensing systems and works to improve those systems. As a
part of the Governor's Office, ORA is uniquely positioned to lead collaboration between agencies and
governments. ORA's success to date is due to strong support from partners who share Governor
Gregoire's vision of improved and simplified systems that achieve better results.
AppendixB )anuary27, 2010 Page 1 of 2
• Point No Point Treaty Council - The Treaty Council was created in 1974, shortly after the landmark
court decision, U.S. v. Washington, commonly called the "Boldt Decision" (see Legal Framework in
Appendix C) which restored harvest rights to western Washington treaty tribes. The Treaty Council
confirms the reserved rights established in the 1855 Treaty of Point No Point and implements the goals
set by member tribes for resource conservation, fisheries management, and protection of natural
resources.
The Treaty Council serves two federally recognized treaty tribes —the Port Gamble S'Klallam and the
Jamestown S'Klallam Tribes. The Treaty Council's primary purpose is to assist member tribes in
exercising their treaty- reserved rights to harvest finfish and shellfish. Treaty Council staff, including
finfish and shellfish biologists, wildlife biologists, habitat biologists, and fisheries planners work
together to ensure that treaty rights are preserved and treaty fisheries and harvests occur in a
biologically sound manner.
• Northwest Indian Fisheries Commission (NWIFC) - The NWIFC is a support service organization for 20
treaty tribes in western Washington. Headquartered in Olympia, the NWIFC employs approximately 65
people with satellite offices in Mount Vernon and Forks. The NWIFC was created following the U.S. v.
Washington ruling (Boldt Decision) that re- affirmed the tribes' treaty- reserved fishing rights and
established them as natural resources co- managers with the State of Washington. The commission is
composed of representatives from each member tribe who elect a chair, vice chair and treasurer. The
role of the NWIFC is to assist member tribes in their role as natural resources co- managers. The NWIFC
also provides a forum for tribes to address shared natural resources management issues and enables
the tribes to speak with a unified voice in Washington, D.C.
• Marrowstone Island Community Association (MICA) - The mission of MICA is to provide a common
meeting place for residents and landowners on Marrowstone Island, to assist in the orderly and
planned development of the Island, and to serve as a forum for education and information. MICA
meets about 6 times throughout the year at the Nordland Garden Club Building and has a broad range
of interests and projects, from hosting the yearly Strawberry Festival to petitioning the EPA Region 10
to designate Marrowstone Island as a Sole Source Aquifer.
• US Army Corps of Engineers (Corps) - The mission of the Corps Regulatory Program is to protect the
Nation's aquatic resources, while allowing reasonable development through fair, flexible, and balanced
permit decisions. The Corps evaluates permit applications for essentially all construction activities
occurring in the Nation's waters, including wetlands. The Corps has two main regulatory authorities.
Section 10 of the Rivers and Harbors Acts of 1899 covers the construction, excavation, or deposition of
materials in, over, or under navigable waters of the US, or any work that would affect the course,
location, condition, or capacity of those waters (this includes mooring buoys). Section 404 of the Clean
Water Act covers the discharge of dredged or fill material into waters of the United States, including
wetlands.
Appendix B January 27, 2010 Page 2 of 2
Mystery Bay Legal Framework
Treaties and Subsequent Court Decisions
Treaty of Point No Point, 1855
ARTICLE 4 - The right of taking fish at usual and accustomed grounds and stations is further
secured to said Indians, in common with all citizens of the United States; and of erecting
temporary houses for the purpose of curing; together with the privilege of hunting
and gathering roots and berries on open and unclaimed lands. Provided, however, that they
shall not take shellfish from any beds staked or cultivated by citizens.
Boldt Decision
On February 12, 1974, in U.S. v. Washington, Federal Judge George Boldt issued a ruling that
affirmed the right of most of the tribes in the state of Washington to continue to harvest
salmon up to 50% of the harvestable number of fish. Many opponents of this case couch it as a
"grant" of rights to the tribes. More accurately, the decision was simply affirming that when
the Tribes released their interest in the millions of acres of land in Washington State through a
series of treaties signed in 1854 and 1855, they reserved the right to continue fishing. For
example, the Treaty of Point No Point (1855) includes the following language: "The right of
taking fish at usual and accustomed grounds and stations is further secured to said Indians, in
common with* all citizens of the United States " Most of the treaties negotiated by Territorial
Governor Isaac Stevens included this, or very similar, language.
In 1979, the Ninth Circuit Court of Appeals upheld Boldt's ruling, and on July 2, 1979, the U.S.
Supreme Court largely affirmed it. Principles established by the Boldt Decision have since been
applied to other resources, including shellfish.
*To interpret this article of these treaties, United States District Court Judge Boldt
looked at the minutes of the treaty negotiations to determine the meaning of "in
common with" as the United States described it to the Tribes, and determined that the
United States intended for there to be an equal sharing of the fish resource between the
Tribes and the settlers. Of this, Judge Boldt wrote, "By dictionary definition and as
intended and used in the Indian treaties and in this decision, 'in common with' means
sharing equally the opportunity to take fish.
Appendix C February 26, 2010 Page 1 of 8
Rafeedie Decision
After hearing testimony from tribal elders, biologists, historians, treaty experts, as well as
testimony from private property owners and non - Indian commercial shellfish growers, Federal
District Court Judge Edward Rafeedie followed in the footsteps of the Boldt Decision. He ruled
the treaties' "in common" language meant that the tribes had reserved harvest rights to half of
all shellfish from all of the usual and accustomed places, except those places "staked or
cultivated" by citizens — or those that were specifically set aside for non- Indian shellfish
cultivation purposes.
"A treaty is not a grant of rights to the Indians, but a grant of rights from them," Rafeedie wrote
in his December 1994 decision, adding that the United States government made a solemn
promise to the tribes in the treaties that they would have a permanent right to fish as they had
always done. Rafeedie ruled all public and private tidelands within the case area are subject to
treaty harvest, except for shellfish contained in artificially created beds.
Since the U.S. Supreme Court's final refusal in 1999 to hear the case, several parties, including
the tribes and shellfish growers, have been working on an implementation plan under the
guidance of Seattle Federal Court Judge Robert Lasnik.
The Public Trust Doctrine
The Public Trust Doctrine is a legal principle derived from English Common Law that has been
adopted by Washington courts. The essence of the doctrine is that the navigable "waters of the
state" are a public resource owned by and available to all citizens equally for the purposes of
navigation, conducting commerce, fishing, recreation, and similar uses. This trust is not
invalidated by private ownership of the underlying land.
The doctrine limits private use of tidelands and other shorelands to protect the public's right to
use the waters of the state. The Public Trust Doctrine does not allow the public to trespass
over privately owned uplands to access the tidelands. It does, however, generally protect
public use of navigable water bodies below the ordinary high water mark.
Protection of the trust is a duty of the State, and the Shoreline Management Act (SMA) is one of
the means by which that duty is carried out. The doctrine requires a careful evaluation of the
public interest served by any action proposed. This requirement is fulfilled in large part by the
planning and permitting requirements of the SMA.
Local governments should consider public trust doctrine concepts when developing
comprehensive plans, development regulations, and shoreline master programs. There are few
Appendix C February 26, 2010 Page 2 of 8
"bright lines," however, as the Public Trust Doctrine is common law, not statutory law, the
extent of its applicability can only be determined by state court decisions.
Public Trust Doctrine — Navigational Uses
• The government has power to regulate the public's right to navigation and anchorage.
• The aquatic lands managed by the DNR are subject to the Public Trust Doctrine, which
gives the public the right to engage in navigation, together with incidental rights
regarded as corollary to navigation, without authorization from the DNR.
• The right to navigate includes the right to incidental anchorage. However, if a vessel
remains anchored in one place too long, it is no longer engaged in navigation.
Transient uses (e.g., anchorage zones) can be regulated under county ordinance. The DNR also
has the ability to promulgate regulation in this regard under the new Recreation WAC, although
the DNR's process is more cumbersome than the County process.
Jefferson County and the Shoreline Management Act
Shoreline Management Act (SMA)
Washington's SMA was passed by the Legislature in 1971 and adopted by the public in a 1972
referendum. The goal of the SMA is "to prevent the inherent harm in an uncoordinated and
piecemeal development of the state's shorelines."
The Act establishes a broad policy giving preference to uses that: protect the quality of water
and the natural environment, depend on proximity to the shoreline ( "water- dependent uses'),
and preserve and enhance public access or increase recreational opportunities for the public
along shorelines.
The SMA establishes a balance of authority between local and state government. Cities and
counties are the primary regulators but the state (through the Department of Ecology) has
authority to review local programs and permit decisions.
Shoreline Master Program (SMP)
Under the SMA, each city and county adopts an SMP that is based on state guidelines but
tailored to the specific needs of the community. More than 200 cities and all 39 counties have
SMPs. Local SMPs combine both plans and regulations. The plans are a comprehensive vision
of how shoreline areas will be used and developed overtime. Regulations are the standards
that shoreline projects and uses must meet. Note - On December 7, 2009, after 30 hours of
deliberations and weighing hundreds of public comments, Jefferson County commissioners
Appendix C February 26, 2010 Page 3 of 8
unanimously approved a an update to the SMP. The next step is submittal to Department of
Ecology for final review and approval.
Shoreline permits
Each local government has established a system of permitting for shoreline development.
Substantial Development Permits are needed for projects costing over $2,500, or those that
materially interfere with the public's use of the waters. Some projects and activities are simply
prohibited by local SMPs or under the policy of the Act. However, it is far more common that
the issue is how a development should be done - not whether or not it should be done.
Local governments may also issue Conditional Use or Variance permits to allow flexibility and
give consideration to special circumstances. Ecology must approve all conditional use and
variance permits. Local governments issue approximately 1,000 permits every year.
State Agency Responsibilities
Washington Department of Natural Resources (DNR)
Aquatic Land Ownership and Management Authority
Washington State took absolute title to the beds and shores of navigable waters under the
Equal Footing Doctrine when it was admitted to the Union in 1889 and the State Legislature has
delegated the proprietary authority over state -owned aquatic lands to DNR [RCW 79.105.010 —
030]. Anyone wishing to use state -owned aquatic lands in a way that will interfere with the use
by the general public will require authorization from the DNR by way of agreement, lease,
permit, or other instrument [WAC 332 -30 -122]. All uses must comply with statutory
requirements (RCW Chapters 79.105 through 79.140].
Point at which DNR Asserts its Proprietary Interest
The DNR asserts its proprietary interest against vessels at the point the vessel ceases navigating
and engages in long term moorage or anchoring over state -owned aquatic lands [WAC 332-30 -
122(1)(a)]. The DNR regards 30 days as the outer limit of transient moorage and anchoring —
stays longer than that requires authorization from the DNR by way of agreement, lease, permit,
or other instrument [See, e.g., WAC 332 -52 -155].
Leases and Licenses:
For leases and licenses, the DNR follows its general authority regarding authorizing uses of
state -owned aquatic lands. The general process after receiving an application is as follows:
Appendix C February 26, 2010 Page 4 of 8
1. The DNR considers:
• if the use is appropriate at the requested location,
• whether applicant has secured all regulatory permits, and
• if applicant addresses any other concerns
2. The DNR then decides whether to processor deny application.
3. If the application is NOT denied, then the DNR will issue an authorization contract.
NOTE - Licenses are revocable authorizations; Leases are not.
Registrations:
People may register their mooring buoy for a free use (RCW 79.105.430 below), if they meet
the following standards:
1. They are abutting (waterfront) residential landowners.
2. It is not in a harbor area and there are no prior rights to the land.
3. The boat moored is for private recreational use of the occupant of the abutting
waterfront property.
4. The boat is not used commercially or for a residence (i.e. a live- aboard).
5. The boat is not over 60 feet in length.
6. The use meets all other local, state and federal rules and regulations.
The general process after receiving a registration form (similar to Leases and Licenses above) is
as follows:
1. The DNR considers:
• if the use is appropriate at the requested location,
• whether applicant has secured all regulatory permits, and
• if applicant addresses any other concerns
2. If the above conditions are met, the DNR will assign an authorization number and
notify the user that the registration has been processed. The DNR does not issue
written lease or license documents for mooring buoys registered under authority of
RCW 79.105.430.
NOTE - Registrations can be revoked by the DNR through a "Finding of Public Necessity"
[RCW 79.105.430(3).
Excerpts from RCW 79.105.430 - Mooring buoys
The abutting residential owner to state -owned shorelands, tidelands, or related beds of
Appendix C February 26, 2010 Page 5 of 8
navigable waters, other than harbor areas, may install and maintain a mooring buoy without
charge if the boat that is moored to the buoy is used for private recreational purposes, the area
is not subject to prior rights, including any rights of upland, tideland, or shoreland owners and
the buoy will not obstruct the use of mooring buoys previously authorized by the department.
The buoy cannot be sold or leased separately from the abutting residential property. The buoy
cannot be used to moor boats for commercial or residential use, or to moor boats over sixty
feet in length.
The permission granted for installing a mooring buoy is subject to applicable local, state, and
federal rules and regulations governing location, design, installation, maintenance, and
operation of the mooring buoy, anchoring system, and moored boat.
The permission to install and maintain a recreational dock or mooring buoy may be revoked by
the DNR, or the DNR may direct the owner of a recreational dock or mooring buoy to relocate
their dock or buoy, if the DNR makes a finding of public necessity to protect waterward access,
ingress rights of other landowners, public health or safety, or public resources. Circumstances
prompting a finding of public necessity may include, but are not limited to, the dock, buoy,
anchoring system, or boat posing a hazard or obstruction to navigation or fishing, contributing
to degradation of aquatic habitat, or contributing to decertification of shellfish beds otherwise
suitable for commercial or recreational harvest. The revocation may be appealed. Nothing in
this section authorizes a boat owner to abandon a vessel at a recreational dock, mooring buoy,
or elsewhere.
Unauthorized uses:
The following process has been used to address unauthorized mooring buoys:
1. The DNR places tag on buoy, notifying owner that buoy is not authorized and that
the owner needs to contact the DNR to seek authorization or remove the buoy;
2. If the DNR receives contact, they proceed with the appropriate process as described
above; if the DNR does not receive contact, a second tag is placed that provides 30-
day notice of removal unless the owner makes contact with the DNR;
3. Proceed with enforcement, which may involve removal or trespass action in court.
Washington Department of Fish and Wildlife (WDFW) - Hydraulic Project
Approval (HPA)
WDFW review and approval is needed for all structures proposed and activities conducted in
the water, including mooring buoys. The WDFW reviews applications to ensure the protectior
of fish and shellfish and their habitats and has specific requirements for structures in or near
water through their HPA. The WDFW may require mitigation for damage to fish life or habitat
resulting from project installation and construction. Construction on your project can only
Appendix C February 26, 2010 Page 6 of 8
occur during designated timeframes or work windows. Contact the Area Habitat Biologist to
determine specific requirements for your location and to determine work windows. Note - If
your buoy has been installed longer than 2 years, you do not need an HPA from the WDFW.
Federal Agency Responsibilities
U.S. Army Corps of Engineers (Corps) — Section 10
The mission of the regulatory program of the U.S. Army Corps of Engineers (Corps) is to protect
the nation's aquatic resources, while allowing reasonable development through objective
permit decisions. The Corps permit evaluation process balances the need for proposed project
with protection of the nation's aquatic environment. The Corps evaluates permit applications
for essentially all construction activities occurring in the nation's waters under Section 10 of the
Rivers and Harbors Acts of 1899. Section 10 covers the construction, excavation, or deposition
of materials in, over, or under navigable waters of the U.S., or any work that would affect the
course, location, condition, or capacity of those waters. Under Section 10, the Corps also
maintains and protects navigation of the nation's waters and finally, Section 10 is the Corps
regulatory authority related to mooring buoys.
The level of the Corps permit evaluation is commensurate with the level of the environmental
impacts and the aquatic functions and values involved in the particular area being impacted. All
permit decisions made by the Corps follow an evaluation process involving avoidance,
minimization, and compensation for unavoidable losses of aquatic functions and values. All
permit decisions are subject to various other Federal laws and the Corps consults with other
agencies for compliance. Important among these other laws are the Endangered Species Act,
the National Historic Preservation Act, the Magnuson - Stevens Fisheries Conservation and
Management Act (involving protection of essential fish habitat), Water Quality Certifications,
Coastal Zone Management Consistency Determinations, and Tribal trust issues. Compliance
with each of these authorities often requires consultation with other agencies and results in
additional restrictions on the proposed work and compensatory mitigation for impacts to the
resources protected by these Federal laws.
The type of permit review process used by the Corps to issue a permit depends on the design
and location of the project. The different processes include standard individual, letter of
permission (LOP), nationwide (NWP), and regional general (RGP) permits, in order of most to
least complex and /or impacting project. The standard individual permit is for larger, more
complex or controversial projects and includes a 30 -day public notice comment period. The
LOP is for Section 10 -only projects that do not meet the terms and conditions of a NWP /RGP,
but are not controversial. Typically, this is for individual pier, ramp, or float moorage facilities.
NWPs and RGPs must be minimally impacting, both individually and cumulatively, and are
issued on either a national or regional basis. Projects must meet all the terms and conditions of
Appendix C February 26, 2010 Page 7 of 8
the NWP /RGP. Verification letters are issued for those requiring a pre- construction notification
to the Corps or for those projects submitted to the Corps for review. Most NWPs require
notification to the Corps because of the presence of ESA listed species or critical habitat.
Relative to mooring buoys, two common NWPs are the NWP 10 for construction and
installation of mooring buoys (non - commercial, single boat) and the NWP 3 for the repair,
rehabilitation, or replacement of any previously authorized, currently serviceable structure.
Note —The Corps' authorities also include Section 404 of the Clean Water Act that covers the
discharge of dredged or fill material into waters of the United States, including wetlands. As this does
not pertain to mooring buoys, please visit the Corps' web site for details regarding this authority.
Appendix C February 26, 2010 Page 8 of 8
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County of Jefferson
MOORING BUOY AFFIDAVIT
residing at
SS: Mystery Bay mooring
)
being first duly sworn on oath deposes and
says: that I own a mooring buoy in Mystery Bay with the following descript ion:
Location: Latitude
Longitude ,NAD 83
DNR Authorization No.:
Description of boat usually
moored there:
Type of toilet facilities on boat (check one):
❑
I have no toiletfacilities on the boat
El
I have a portable toilet
❑
a ho_
Ihave lding tank with a dye tablet
I ❑
I I have another type of toi let
I certify under pena Ity of perjury that any boat moored to this buoy will
• Not have overnight occupants
• Not discharge any toilet waste into Mystery Bay
• Not allow gray water (from showers, laundry or kitchen) or other substances to drain into Mystery Bay
• Dispose of all toilet waste and gray water properly in upland sewage systems or at a boat pump -out station
Name:
I certify that I know or have satisfactory evidence that is the
person who appeared before me, and is the owner of the mooring buoy described above. I further
certify that said person acknowledged the foregoing statement to be the free and voluntary act of
said person.
SWORN AND SUBSCRIBED before me this _day of
Notary Public Name:
In and for the State of Washington
My Commission expires:
by
Tag #
Appendix E January 27, 2010 Page 1 of 1
In the matter of a
Moratorium on new Mooring
Buoy's in Mystery Bay
STATE OF WASHINGTON
County of Jefferson
Ordinance #
The Jefferson County Board of County Commissioners enters the following findings of
fact:
1. Jefferson County has committed to planning under the provisions of the Growth
Management Act, codified as RCW 36.70A.
2. Jefferson County implements the Growth Management Act through a comprehensive
plan adopted in 1998 and updated in 2004.
3. The Comprehensive Plan of Jefferson County provides goals and polices on page 8-
36 of the Comprehensive Plan to implement the provisions of the Shoreline
Management Act found at RCW 90.58.
4. The Shoreline Management Act development regulations are implemented in
Jefferson County through the Jefferson County Code (JCC) in section 18.25.
5. Mooring Buoys are regulated by provisions of Jefferson County Code found at
JCC18.25. 380.
6. In 2009 the State Legislature added a new section to the shoreline management act
recognizing that counties have moratoria authority as an important aspect of complying
with environmental stewardship and protection requirements when implementing the
Act.
7. The amendment to the shoreline management act was brought forward and adopted
by the legislature with approval of the Governor through Engrossed substitute house bill
(ESHB) 1379.
8. ESHB 1379 provides that local governments may adopt moratoria provided that all
lawfully existing uses, structures and other development shall continue to be deemed
lawful.
9. A moratorium may be effective for up to six months if a detailed work plan is
prepared for remedying the issues and circumstances necessitating the moratorium,
and may be renewed for two six month periods. This ordinance shall not be effective for
more than six months, pending completion of the shoreline master program update
being prepared by Jefferson County as outlined in the work plan.
Appendix F Page 1 of 5
WHEREAS, Mystery Bay is a small bay located near Kilisut Harbor, near Port
Townsend Bay, Admiralty Inlet and the Strait of Juan de Fuca, all being marine waters
of the State of Washington;
WHEREAS, a small community named Nordland is located along Mystery Bay with rural
residential as the primary zoning designation and this area includes a one acre
commercial zone called a convenience crossroads;
WHEREAS, Mystery Bay, being a marine Shoreline of the State, is utilized by
residential, recreational and commercial uses, contains a small salt marsh, eelgrass
beds, spawning habitat for sand lance, and is an over wintering area for diving ducks;
WHEREAS, Mystery Bay has commercial shellfish beds, residential development with
docks, mooring buoys and active use by the boating public;
WHEREAS, in 2008 Jefferson County Department of Community Development (DCD)
in consultation with the Department of Natural Resources (DNR), Department of Health
(DOH), Department of Fish and Wildlife (WDFW) and local Tribes began an
investigation process to determine local circumstances as to the lawful installation of
mooring buoys in Mystery Bay;
WHEREAS, there are competing interests in Mystery Bay between shellfish growers,
boaters, near shore residential uses and upland uses;
WHEREAS, water dependent and related uses include recreational boating,
recreational shellfish harvesting, commercial shellfish harvesting, transient boaters,
moored vessels on mooring buoys, swimming docks, and a State Park on this water
body;
WHEREAS, the annual growing area review report issued by Washington State
Department of Health on December 31, 2008 noted the area is listed as "threatened"
due to the potential of pollution from a large number of boats that moor or utilize the
water areas of Mystery Bay;
WHEREAS, the Washington State Department of Health (DOH) Office of Shellfish and
Water Protection issued their annual growing area review report stating that Mystery
Bay meets water quality standards but is threatened with a downgrade in classification
due to the amount of boating activity;
WHEREAS, a increase in the number of boats within Mystery Bay may adversely
impact commercial shellfish harvesting operations;
WHEREAS, DOH has informed Jefferson County that under the National Shellfish
Sanitation Program (NSSP) parts of the Approved classification of Mystery Bay may
now meet the definition of a marina;
Appendix F Page 2 of 5
WHEREAS, if Mystery Bay is defined as a marina, it can not be approved under the
DOH commercial shellfish classification system;
WHEREAS, DOH reclassified a portion of Mystery Bay from approved to conditionally
approved on August 6, 2009 based upon a synopsis prepared by DOH staff;
WHEREAS, conditionally approved means a closure of shellfish harvesting during the
boating season generally May 1 — October 1 of each year:
WHEREAS, a commercial shellfish closure has adverse economic impacts on local
business;
WHEREAS, Jefferson County is currently updating their Shoreline Master Program
including provisions for permitting and placement of mooring buoys;
WHEREAS, Jefferson County is participating in a stakeholders' group of agencies,
tribes and shellfish growers in order prevent any closures of Mystery Bay;
WHEREAS, a bay management plan is one element of the work plan for the
stakeholders group;
WHEREAS, a bay management plan would examine the competing interests for using
Mystery Bay and would include evaluation of mooring buoy placements;
WHEREAS, permitting additional mooring buoys in Mystery Bay may exacerbate
problems associated with over use of the bay and lead to potential shellfish closures;
WHEREAS, it is in the public interest to protect commercial shellfish harvesting in
Mystery Bay;
NOW, THEREFORE, BE IT ORDAINED by the Board of County
Commissioners of Jefferson County as follows:
SECTION 1. A moratorium is placed on submittals of shoreline permit applications to
the Jefferson County Department of Community Development for placement of mooring
buoys in Mystery Bay, except when: 1) the state Department of Health notifies the
Jefferson County Shoreline Administrator that movement or placement of a mooring
buoy would contribute to preventing or lifting a shellfish harvesting closure; or 2) the
Jefferson County Shoreline Administrator determines that an application for the
movement or placement of a mooring buoy must be accepted and reviewed by
Jefferson County in furtherance of an adopted Mystery Bay Management Plan.
SECTION 2. Pursuant to the provisions of ESHB 1379 which amends and adds
sections to Ch. 90.58 RCW, the Shoreline Management Act, this moratorium does not
Appendix F Page 3 of 5
affect any lawful mooring buoys in place at Mystery Bay on or before the date this
Ordinance becomes effective.
SECTION 3. Severability.
If any provision of this ordinance or its application to any person or circumstance is held
invalid, the remainder of the ordinance, or the application of the provision to other
persons or circumstances is not affected.
SECTION 4. The work plan is hereby incorporated by reference, see Attachment A.
SECTION 5. Effective date.
This ordinance shall take effect immediately after passage and shall remain effective for
six months or until repealed by the BOCC.
APPROVED AND ADOPTED this 23`d day of November, 2009
SEAL:
JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
David Sullivan, Chair
Phil Johnson, Member
ATTEST:
John Austin, Member
Erin Lundgren
APPROVED AS TO FORM:
Deputy Clerk of the Board
David Alvarez
Deputy Prosecuting Attorney
Attachment A
Workplan
Issue: The issue is the threat of closure of shellfish harvesting in Mystery Bay because of too many boats
anchored or moored near shellfish beds.
Solution: Considering all uses, develop a Mystery Bay Management Plan to manage the placement and
location of boats, anchor /no- anchor zones, and mooring buoys and to protect water quality to resolve
and avoid closures of the bay to shellfish harvesting.
Strategy: Continue collaborative efforts between tribal, federal, state and local governments, including
local stakeholders; engage the public; promulgate new regulations for mooring buoys in the Jefferson
Appendix F Page 4 of 5
County Shoreline Master Program; and prepare a plan for Mystery Bay in partnership with stakeholders
that achieves the following:
a. Reduce the number of mooring buoys around shellfish harvest sites "below marina
threshold levels"
b. Make the entire bay a voluntary "No Anchor Zone" and direct transient boaters to the state
park in order to prevent emergency closures due to number of transient moorages. (Note —
this strategy would have the side benefit of maximizing the potential availability for
mooring buoys)
c. Remove mooring buoys and vessels not properly permitted or authorized. (Note —the
Stakeholder group is using the mooring buoys currently permitted by the county as a
baseline for authorized buoys)
d. Strategically relocate as many mooring buoys as possible to open up an area for navigation
and to further discourage transient use near shellfish beds, i.e., an array of mooring buoys in
front of shellfish beds would deter transient boaters from anchoring in that area.
e. Establish Community Monitoring/Education effort— Establish monitoring and reporting
process to document boat use in Mystery Bay in order to maintain levels of use consistent
with shellfish harvest regulations.
Calendar of events:
November 23, 2009 6 -month Moratorium on mooring buoys placed by BOCC
December 7, 2009 Stakeholder sub- committee meeting to begin drafting Mystery Bay
February 11, 2010
Management Plan
December 10, 2009
Stakeholder's group meeting
December 31, 2009
Jefferson County formally submits the locally approved Shoreline Master
March 11, 2010
Program (SMP) to Washington State Department of Ecology (DOE)
January 2010
DOE begins formal review process on the locally approved SMP
January 14, 2010
Stakeholder's group meeting to finalize and release draft Mystery Bay
May 23, 2010
Management Plan for public review (two weeks before public meeting)
January 28, 2010
Public Meeting at Fort Flagler State Park on the draft Mystery Bay Management
Plan
February 11, 2010
Stakeholder's group meeting to finalize Mystery Bay Management Plan
February 23, 2010
Board of County Commissioners adopt the Mystery Bay Management Plan
February 24, 2010
Agency action begins to implement plan and achieve solution
March 11, 2010
Stakeholder's group meeting
March 15, 2010
DOH public notice on proposed Mystery Bay growing area classification
May 1, 2010
Mystery Bay Management Plan implemented and boating season starts
May 23, 2010
Moratorium lifted or extended depending on status of SMP
The remedy of the issues and circumstances:
The moratorium is effective from November 23, 2009 through May 23, 2010 and would be extended for
a six month period and /or to the date that Ecology approves the SMP. Once Ecology approves the new
SMP and Jefferson County enacts the SMP locally, the moratorium would be lifted and applications for
mooring buoys would be processed under the new SMP to a decision point of approval or denial.
Appendix F Page 5 of 5
Consent Agenda
JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
REGULAR AGENDA REQUEST
TO: Board of County Commissioners
Philip Morley, County Administrator
FROM: Carl Smith, Director of DCD "
Stacie Hoskins, Planning Manager Vk
DATE: October 1, 2012
SUBJECT: RESOLUTION to adopt the Mystery Bay Management Plan
STATEMENT OF ISSUE:
Final adoption by resolution of the Mystery Bay Management Plan.
BACKGROUND /ANALYSIS /STRATEGIC GOALS:
The Mystery Bay Management Plan was prepared to manage boater usage in a manner that ensures continued,
year -round harvest of commercial shellfish while balancing that interest with the legitimate use of the bay for
public recreation and other commercial use. Washington State departments of Natural Resources (DNR) and
Health, the Governor's Office of Regulatory Assistance (ORA) and Jefferson County representatives worked
together to inventory boats and mooring buoys in South Port Townsend Bay and led a group of numerous
stakeholders in developing the plan.
The plan in full was presented to the Board and citizens in attendance at the presentation provided on August
27, 2012. The Board held a duly noticed public hearing on September 10, 2012 seeking comment on the plan.
FISCAL IMPACT:
The Jefferson county costs associated with developing, adopting and implementing the plans are included in
the 2012 annual budget approved for DCD.
RECOMMENDATIONS:
Staff recommends the Board approve the attached resolution adopting the Mystery Bay Management Plan.
REVIEWED BY:
T Morl y, ountyAdminis or Date
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