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Home My WebLink About025 Application SubmittalDonna Frostholm From: Ken Sheppard <KSheppard@sksp.com> Sent: Monday, December 30, 2019 12:10 PM To: Donna Frostholm; Philip Hunsucker Subject: BDNLLC-MLA 19-0036 Attachments: Cumulative Impact Addendum - BDN LLC 12-30-19.pdf LOG [TEM CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders. Hello Donna and Phil — Attached please find the updated Cumulative Impacts Addendum, which now incorporates all of the materials we received from the Corps via our FOIA requests, and also references the impact of the Coalition to Protect Puget Sound Habitat, v. U.S. Army Corps of Engineers case. I have incorporated the Addendum and all of the referenced Appendices into one document, which I see is 17 MB. Please confirm if you have been able to receive and open this. I can send the base document and the attachments separately, by two or more emails if need be, and this should keep the file sizes down. It is my understanding that we have now fully addressed all matters raised in Donna's letter of July 10, 2019, and that this matter is now ready to be noticed. If that is not the case, or if you need anything else from me to complete the process, please let me know. Thank you, Ken Sheppard Kenneth A. Sheppard Simburg, Ketter, Sheppard & Purdy, LLP 999 Third Ave., Suite 2525 Seattle, WA, 98104 (206)382-2600 Fax: (206) 223 3929 www.sksp.com - CONFIDENTIALITY NOTE - The information contained in this electronic file is confidential information intended only for the use of the individual or entity named above and may be legally privileged. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this facsimile is strictly prohibited. If you have received this email in error, please immediately notify us by telephone or return email. Thank you. F _ � ... .� �! �j, '� r� ti LUG ITEM # ZS Paw Zor 27 BDN Inc. SMERSH FARM CUMULATIVE IMPACTS REPORT REVISED June 2018 DEC 3 0 2019 ADDENDUM 1 JEFFERSON COUNTY DC( i 4.0 CUMULATIVE EFFECTS FROM NEARBY CURRENT PROJECTS AND REASONABLY FORESEEABLE FUTURE PROJECTS. Conditional use permits require that consideration be given to the cumulative impact of additional requests for like actions in the area. The total impact of a proposal and like proposals should remain consistent with the policies of the Jefferson County Shoreline Master Program ("SMP") and should not produce substantial adverse effects to the shoreline environment. The SMP defines "Cumulative impacts" or "cumulative effects" as "the combined impacts of a proposed development action along with past impacts and impacts of reasonably foreseeable future development actions. (JCC 18.25.100(3)(aa)). "Reasonably foreseeable" is defined as "predictable by an average person based on existing conditions, anticipated build -out, and approved/pending permits." (JCC 18.25.100(18)(d)) 4.0.1 Other existing nearby projects On October 2, 2019, BDN submitted to the U.S. Army Corps of Engineers, Seattle District, ("USACE" or "Corps") a request for information concerning all USACE approved aquaculture projects within a 5 mile linear shoreline distance in either direction from the reference BDN project NWS -2013-1268. This request was assigned FOIA number FA -20-002. On October 31, 2019, and December 3, 2019 the USACE responded with materials identifying the following projects: 4.0.1.1 Former Wasbinaton Shellfish Farm 821334073. USACE Reference NWS -2017- 230. This parcel is a bit less than '/Z mile to the west of the proposed project. BDN acquired this parcel in 2014, which was associated with an existing geoduck farm operated by Washington Shellfish for several years and then operated by BDN pursuant to a lease from Washington Shellfish starting in 2013. Washington Shellfish had applied for coverage under the 2012 Nationwide Permit 48 for existing shellfish farms in October 2012 (NWS -2012-1210), and the Corps had confirmed such coverage. BDN applied for continuing coverage under the 2017 NEP 48,and on August 22, 2017 the USACE confirmed this coverage, and confirmed that BDN could continue to farm the parcel within the existing footprint previously farmed by Washington Shellfish. Similar to the current Smersh parcel, the Corps required updated eelgrass maps. By letter dated September 14, 2017, the Jefferson County Department of Community Development ("JCDCD") confirmed that the proposed continuing operations at this location had not expanded so as to require a County Conditional Use Permit. (See Appendix A) 4.0.1.2 BDN Parcel (821334011). USACE Reference NWS -2017-230. This parcel is a bit less than % mile to the west of the proposed project, and is adjacent to the west side of the property referenced in 4.0.1.1 above. BDN submitted its Corps application for this parcel at the same time as the Corps application for the current Smersh parcel. Farming on this parcel was approved by the Corps on August 22, 2017, and by letter dated September 14, 2017, the JCDCD confirmed that the BDN Cumulative Impacts Addendum — Page 1 LOG' I I SIA P, of proposed continuing operations at this location had not expanded so as to require a County Conditional Use Permit. (See Appendix A) A 410.>1.3Former Mocean Shellfish Farm (821334079). USACE Reference NWS -2017-230. This parcel is a bit less than '/z mile to the west of the proposed project, and is adjacent to the west side :6f the property referenced in 4.0.1.2 above. BDN acquired this parcel in 2014, which was associated with an existing geoduck farm operated by Mocean Shellfish. The parcel was approved by the`Coros for'gegduck'cultivation in 2012 pursuant to Corps approval NWS -2012-1099. The parcel was reverified by the Corps under Nationwide Permit 48 on August 22, 2017, and by letter dated September 14, 2017, the JCDCD confirmed that the proposed continuing operations at this location had not expanded so as to require a County Conditional Use Permit. (See Appendix A) 4.0.1.4 Rock Point Oyster Co. (721092001, 003). USACE Reference NWS -2010-1039. This project is located at Case Shoal, about 3.5 miles by shoreline from the BDN proposed Smersh project. While its primary activity is bottom cultivation of Pacific oysters and Manila clams, and cultivation of Pacific and Kumamoto oysters in flip bags on longlines and trays, the permit includes permission to cultivate up to 7.35 acres of geoducks on a 48 acre site in Thorndyke Bay. Farming on this parcel was approved by the Corps on August 18, 2017. However, as per telephone conference with Mr. David Steele of Rock Point Oyster Co. on December 23, 2019, only one acre of the potential geoduck planting area has been found to be suitable for commercial geoduck cultivation, and it is anticipated that about'/4 acre of geoducks will be harvested each year going forward. This project is visually and geographically isolated from that of applicant, being 3.5 miles by shoreline from the BDN proposed Smersh project. There is no physical or aesthetic interaction between these projects at all, and thus no cumulative impact results from their co -existence and simultaneous operation. (See Appendix B) 4.0.1.5 Deep Blue Seafood 721194010. USACE Reference NWS -2007-1152. This project is located at Thorndyke Bay, about 5 miles by shoreline from the BDN proposed Smersh project. The permit is to cultivate 3.8 acres of geoducks on a 6 acre site in Thorndyke Bay, with 2 acres of active cultivation, approximately 2 acres of fallow tidelands, and 2 acres with no aquaculture. Farming on this parcel was approved by the Corps on August 18, 2017. As per telephone conference with Mr. Jim Smith of Deep Blue Sea, LLC on December 23, 2019, less than two acres is currently planted in geoducks. This project is visually and geographically isolated from that of applicant, being three miles away at Thorndyke Bay. There is no physical or aesthetic interaction between these projects at all, and thus no cumulative impact results from their co -existence and simultaneous operation. (See Appendix C.) 4.0.1.6 Set & Drift LLC (954600122. 123). USACE Reference NWS -2015-5.68. This project is located in Thorndyke Bay, about 5 miles by shoreline from the BDN proposed Smersh project. It was approved by the Corps for the cultivation of up to 2.36 acres of a 3.5 acre project area with on bottom Manila clam and Pacific oysters in bags, harvested by hand, and installation of geoduck grow - out equipment, but no planting of geoduck seed, on a 15'x15' geoduck test tube plot. Farming on this parcel was approved by the Corps on March 14, 2017. This project is visually and geographically isolated from that of applicant. The presence of a 15' x15' geoduck tube test plot, containing no geoducks, is miniscule and insignificant. There is no physical or aesthetic interaction between these projects at all, and thus no cumulative impact results from their co -existence and simultaneous operation. (See Appendix D.) 4.0.1.7 Hood Canal Mariculture Project. USACE Reference NWS -2008-502. This project is operated by Hood Canal Mariculture, Inc., and is a floating farm located at Hood Head, about 2.5 BDN Cumulative Impacts Addendum — Page 2 *' 1 C)G ITEM L2 Ar miles from the subject project to the east of the Hood Canal Bridge. It primarily grows seaweed on suspended cultivation lines located over 2.64 acres of aquatic lands leased from the Washington Department of Natural Resources (Lease #20-1312535). There is some associated mussel and oyster production, also using suspended bags or trays, but no geoduck production This project is visually and geographically isolated from that of applicant. There is no physical or aesthetic interaction between these projects at all, and thus no cumulative impact results from their co -existence and simultaneous operation. (See Appendix E.) 4.0.2 Potential future nearby projects 4.0.2.1 Garten acid Tiemsland Parcels 821334078 82I334075 821334074 and 821334076). BDN submitted its Corps application for these parcels at the same time as the Smersh parcel. The Corps reference numbers are NWS -2013-1147 and NWS -2013-1223. These have not been approved by the Corps for planting. BDN currently has no plans to seek approval of the Corps or County to conduct any activities on these parcels, and could not do so without obtaining all necessary Corps or County approvals. 4.0.2.2. Other pending or approvedAWlications before CoMs of En ineers. On November 4, 2019, BDN submitted to the USACE a request for information concerning all submitted and pending applications before the USACE for aquaculture projects within a 5 mile linear shoreline distance in either direction from the reference BDN project NWS -2013-1268. This request was assigned FOIA number FA -20-023. On December 10, 2019 the USACE responded by letter indicating that there are no pending applications. (See Appendix F.) 4.0.2.3. Other pending or approved applications before Jefferson County. It is our understanding that there are currently no applications pending before Jefferson County for any similar aquaculture projects within a 5 shoreline miles of the Smersh project, and that no county permits have been granted for any other similar nearby projects that have yet to be constructed. 4.0.3 Cumulative Impacts Analysis. As noted above, The Jefferson County SMP defines "Cumulative impacts" or "cumulative effects" as applying only to impacts of reasonably foreseeable future development actions. (JCC 18.25.100(3)(aa)). The SMP then defines "Reasonably foreseeable" as projects "predictable by an average person based on existing conditions wWcipgtcd build -out and approved/pending permits.' (emphasis supplied.)( JCC 18.25.100(18)(d)). It is BDN's position that this analysis of the BDN projects and the projects identified in 4.0.1 and 4.0.2 above satisfy this requirement, since there are no known additional pending applications before either the USACE or Jefferson County. All of these projects are addressed below so as to demonstrate that their cumulative impacts will not produce substantial adverse effects to the shoreline environment. 4.0.3.1 Seattle District Corps of Engineers Approval of the Cumulative Impacts of the Relevant Projects. Aquaculture projects are required to secure permits from the USACE in addition to permits required by other state or local government agencies. NWP 48 is the nationwide permit developed by the USACE for Commercial Shellfish Aquaculture Activities. In connection with NWP 48, the Corps has developed a Programmatic Biological Assessment (PBA), which includes Programmatic Biological Opinions (PBGs) produced by the National Marine Fisheries Service and the U.S. Fish and Wildlife Service. These PBO's focus on impacts to listed species, critical habitat, and essential fish habitat (including eelgrass and forage fish), and are based on current baseline conditions and projected future shellfish activities in Washington waters. Effects regarding water quality, BDN Cumulative Impacts Addendum — Page 3 LOCA F F EM # 25 page--!LLOI substrate and sediments, vegetation, benthic community, fish and birds, contaminants, and noise are examined in these PBO's. The language in the National Decision Document Determinations also found generally that `...the issuance of this NWP will ... result in no more than minimal individual and cumulative adverse effects on the aquatic environment." (Decision Document, Nationwide Permit 48, December 21, 2016, pp 73-74) The Corp's NWP 48 authorizes the District offices to make individual assessment of the cumulative impact of historical conditions, current conditions, and future trends surrounding commercial shellfish aquaculture activities in the Hood Canal area. NWP 48, Paragraph 23 directs that "The district engineer will consider the following factors when determining appropriate and practicable mitigation necessary to ensure that the individual and cumulative adverse environmental effects are no more than minimal:" NWP 48, Paragraph 23 (b) then specifically requires the District office to ensure that "Mitigation in all its forms (avoiding, minimizing, rectifying, reducing, or compensating for resource losses) will be required to the extent necessary to ensure that the individual and cumulative adverse environmental effects are no more than minimal." As a condition of its approval of the BDN Smersh project (granted on December 19, 2016 under NWS -2013-1268, Appendix G) The Seattle District Office of the USACE required an extensive individual -analysis --all of the activities that would take place under the subject project prior to issuing its approval of the project under NWP 48. This included a detailed biological assessment, multiple exhaustive eelgrass analyses for the site, and a detailed gear management plan, all of which have been previously provided to the JCDCD. These studies resulted in permit conditions for the current proposed project that, among other things, ensured that the permitted project would not conduct operations in any native eelgrass areas, and that there would be no or minimal plastic pollution from the project. Based on this individual analysis process, and as a prerequisite to the NWP 48 approval, the Seattle District Office of the Corps concluded that there would be minimal cumulative impacts from permitting the BDN Smersh project. 4.0.3.3 Effect of Recent Ruling in The Coalition to Protect Puzet Sound Habitat, v. US. Army Corns afEngineers. Recently the Federal District Court, Western District of Washington reviewed the Corps of Engineers administration of its Nationwide Permit 48 in the case of The Coalition to Protect Puget Sound Habitat, v. U.S. Army Corps of Engineers, Case No 2:16 -CV -00950, and 2:17 -CV -1209. The court issued a ruling that found NWP 48 to be deficient in that it made nationwide generalized conclusions that all aquaculture activities meeting its general standards would have no cumulative impact on the environment in the areas of permitted activity. (Appendix H.) In particular, the court noted that while it did "not intend to suggest, and is not suggesting, that the general terms and conditions imposed on a nationwide, regional, or state permit cannot be relevant to and supportive of a finding of minimal impact,... [t]hey are simply too general to be the primary `data' on which the agency relies when evaluating the impacts of the permitted activities." (P.17) The court then went on to hold that "The Corps must analyze the individual and cumulative impacts of the proposed activity against the environmental baseline", (P.15), and that while NWP 48 allowed for the potential imposition at the District level of additional conditions or restrictions, it did not require that this take place: "The problems here are that the Corps' [nationwide] minimal impact determinations were entirely conclusory and the regional conditions that it assumed would minimize impacts were not in place at the time NWP 48 was adopted. The record is devoid of any indication that the Corps considered regional data, catalogued the species in and BDN Cumulative Impacts Addendum — Page 4 characteristics of the aquatic environments in which commercial shellfish aquaculture activities occur, considered the myriad techniques, equipment, and materials used in shellfish aquaculture, attempted to quantify the impacts the permitted activity would likely have on the identified species and characteristics, or evaluated the impacts of the as -yet -unknown regional conditions." P.18 In particular the court was concerned that there was no individual project analysis required under NWP 48 for the effects of projects on seagrass: "In some cases, such as when nets are placed over planted clam beds, any eelgrass is likely to be permanently smothered and not recover. This is because of the permanence of the nets, which are only removed between harvest and the next planting cycle." P.12. The court was also concerned that there would be no individual analysis required for such things as pesticides ("Having eschewed any attempt to describe the uses of pesticides in commercial shellfish aquaculture or to analyze their likely environmental impacts, the decision to permit such activities through NWP 48 cannot stand." P. 16) or plastics ("The Corps... relies on the fact that `[d]ivision engineers can impose regional conditions to address the use of plastics' in response to these concerns.") As can be seen below, the materials submitted with the BDN application demonstrate that the Seattle District Office of the Corps actually did make the exact detailed individual analysis of each of these issues as raised by the Coalition to Protect Puget Sound Habitat court in its decision. No operations in native eelgrass areas were permitted, and a very detailed gear management plan was required to control possible plastics pollution. Moreover, no use of nets or pesticides is proposed under the BDN operations plan. 4.0.4 Indivualized Cumulative Impacts Analysis 4.0.4.1 Cumulative Impact of Addition of Smersh Project on Hood Canal Generally. Hood Canal has 342.6 kilometers (212.9 mi) of shoreline and 42.4 square kilometers (about 10,500 acres) of tidelands. (Chapter 3 of the State of the Nearshore Report, King County Department of Natural Resources, Seattle, Washington, 2001) The addition of 5.15 acres of geoduck aquaculture along an additional 600 feet of Hood Canal would impact less than 1/20th of I% of Hood Canal tidelands acreage, and a bit more than the same 1/20th of 1% of Hood Canal shoreline. Thus on a quantitative basis, the cumulative impact of the proposed project is tiny. 4.0.4.2 Cumulative Impact of Addition of Smersh Project on All Existing Permitted 11roiccts Within Five Shoreline Miles. The cumulative cultivated area of all of the existing aquaculture projects within five shoreline miles of the proposed project is 11.02 acres, or less than 1/9th of 1% of Hood Canal tidelands, and .0006857% (a bit more than 1/15th of 1%) of Hood Canal shoreline. Adding the Smersh project to this total brings the cumulative impact of all of these operations to .00154% (less than 1/6 of 1 %) of Hood Canal acreage, and .00116% (less than 1/8`h of I%) of Hood Canal shoreline. Thus, even on a more local level specifically considering all other existing nearby aquaculture projects, adding the Smersh project makes no significant quantitative impact on the tiny overall percentage of Hood Canal acreage and shoreline devoted to aquaculture. 4.0.4.3 Cumulative Impact of Addition of Smersh Project on All Existing Permitted Jefferson Coun1y Projects Beyond Five Shoreline Miles. Appendix I is a listing of applications to or approvals granted by the USACE between 2007 and 2016 for aquaculture projects located anywhere in Jefferson County This listing was obtained from official court records for the case of The Coalition to Protect Puget Sound Habitat, v. U.S. Army Corps of Engineers, Case No 2:16 -CV -00950, pending in the Federal District Court, Western District of Washington. It includes the BDN proposed project. This BDN Cumulative Impacts Addendum — Page 5 LOG ATE: R 710` list contains projects involving 85.95 acres of Jefferson County tidelands. What this demonstrates is that in the 9 year period between 2007 and 2016, permits were granted by the USACE affecting less than I% of all Jefferson County tidelands. There is simply no evidence of explosive or dramatic cumulative growth of Jefferson County aquaculture projects in general, and geoduck related projects have been a small percentage of those approved aquaculture activities. 4.0.4.4 Possible Cumulative Impact of All Pending Aquaculture Applications. BDN has no current plans to seek a CUP for the Garten and Tjemsland projects, thus there are no applications pending. Therefore, because there are no "anticipated build -out, and approved/pending permits" for these parcels, they should not be included in the cumulative impacts analysis under JCC 18.25.100(18)(d). Even if they were included in the analysis, they would increase the acreage and shoreline impact numbers by .00027%, a miniscule amount. The Corps of Engineers indicates there are no pending applications for aquaculture operations within five shoreline miles of the Smersh project (See Appendix F.) Thus, there are no "foreseeable future actions" to be included in this cumulative impacts analysis under JCC 18.25.1009(3)(aa). 4.0.4.5 Potential future construction of residential in -water or over water appurtenant structures. There is no planned construction by BDN of in -water or over water appurtenant structures connected with the Project. All placement of any materials in or over the project will be on private tidelands entirely owned by applicant, and will protrude only a few inches above bottom. Thus, project activity would not impact construction of in -water or over water appurtenant structures by any adjacent property owners, to the extent that those property owners could otherwise meet the applicable permit requirements for such construction. 4.0.4.6 Cumulative Biological ic��act. In order for there to be substantial negative cumulative biological effects of the proposed project, there must be some significant demonstrated negative biological effect or effects flowing from it that can be cumulated with known or potential negative biological effects from other projects or sources. However, an objective consideration of the Biological Evaluation previously submitted with the application for the Smersh project simply does not support a conclusion of any significant negative biological effects of the proposed project. The biological area of most concern to the USACE has been eelgrass impact, and this has also been raised in discussions and contacts with the JCDCD. The multiple, detailed eelgrass surveys and analyses, coupled with the USACE requirement that no geoduck plantings take place in or near existing eelgrass beds, shows that this cannot realistically be a cumulative biological impact concern. The same is true as to fish and other marine organisms. There appears to be no realistic substantial negative impact on species at or near the project site. Simply voicing concerns that some type of biological impact might occur from the project is not a proper basis to conclude a negative cumulative biological impact from the project within the meaning of JCC 18.25.100. 4.0.4.7 Cumulative Marine. Vehicle and Pedestrian Cumulative Marine, and Pedestrian Impact. The project will not impede marine traffic at any time. Whenever the water is of sufficient depth in the surrounding areas for small boat traffic, those vessels will be able to traverse the planted tract area freely. The minimal use of vessels by BDN is addressed in the previously submitted annotated site plan (BDN004R). This tiny additional vessel usage will have minimal cumulative impact the area environment. By far the dominant vehicle traffic impact on the area is from the 24 -hour -per -day, seven - days -per -week vehicle traffic on Shine Road, which passes a few hundred feet from both the existing BDN Cumulative Impacts Addendum — Page 6 l..CC7 ITEM pag 91.9_0�v_ and proposed BDN projects. The addition of the few additional vehicle trips and parking activities as described in the annotated site plan (BDN004R) will have at most a tiny cumulative effect on the project area when compared to the constant visual and noise impact from Shine Road and the surrounding feeder roads, especially since non-public area parking will be provided for all beach workers as necessary. The cumulative impact on the use of W.R. Hicks County Park for recreational purposes is also de minimis (See BDN004R, Paragraph 3.) There will be no significant interference of any kind with public use of the park at any time. The existence of the Smersh project, both by itself and in conjunction with the other nearby BDN project, will have no substantial cumulative impact on pedestrian traffic along the area tidelands. A 50' to 100' wide strip of beach and tidelands at the north edge of both projects will remain undisturbed, and if the tide is out far enough to expose the planted areas, this northern edge strip will also be exposed and available for pedestrian traffic across the area of both projects. A beach walker crossing these private property areas might at worst have to alter their walking path slightly to go around the planted areas instead of over them. 4.0.4.8 Cumulative Visual Effects. Visual effects are similarly minimal, with the planned mesh tubes visible in the upper margins of the geoduck planting area a maximum of 16% of any single month, and the entire planted area visible a maximum of only 2% of any month (Smersh Farm Visual Assessment, Page 7.) Since mesh tubes will be present for only 2 years during a 6-7 year planting/harvest cycle (JARPA, Page 6), the period of visual impact would be only .0066% , or 2/3 of I% of that period. Again, this is a minimal cumulative visual impact. Similarly, harvest and beach maintenance activities will be visible to neighboring residents only for a limited time. Planting will take place over a period of 20-25 days, and harvesting activities will take place about 5 hours per day, averaging 3-4 harvest days per week during the one to two year harvest period. So for 84-98% of the time during the 6-7 year harvest cycle, there will be no mesh tubes visible at all, even at low or minus tides, and on most days during that cycle there will be no planting or harvesting activities at all. The Smersh Project is located about 2000 feet to the east of the existing BDN farm project. There are at most 25 homes between the two projects that might conceivably be able to see both projects simultaneously. But as can be seen from photos 9 and 10 of the previously submitted June 2018 Visual Impacts Assessment, even at a distance of a few hundred feet, the project is barely visible because the tubes extend only a few inches above the sand. As can also be seen from Photos 11 and 12, there are at most twenty houses that will be able to see the Smersh project at all. . The tubes on the Smersh project will only be visible for 2-16% of the time. This is also true of the existing BDN project. So tubes will exist on one farm or the other for at most 32% of the time. There are at most ten homes that could realistically see both projects at once, and those homes would be distant enough from one or both projects that someone at those properties would be barely able to distinguish the tubes on either project during the maximum 32% of the time the tubes would be in place. So the cumulative visual impact of the Smersh project would at most affect 25 adjacent properties 32% of the time, and the nature of that visual impact would be minimal. By far the dominant visual impact on the area is from the busy Shine Road highway, which adds far more visual disruption and noise from its 24 -hour -per -day, seven -days -per -week visual and noise impact than the BDN Cumulative Impacts Addendum — Page 7 ft 2� PAE..��.� tiny cumulative visual impact of dark 6" diameter tubes sticking up from the sand a few inches on both the existing BDN and proposed Smersh project. 4.0.4.9 Cumulative Debris, Plastics, and Chemical Impact. 4.0.4.9.1 Debris. Non -secured gear and equipment will be removed from the farm area when crews are not present. The HDPE mesh tubes that will be used on the project are, based on current BDN experience, less likely to come loose from their insertion points due to wave action or geoduck activity. But in order to control any potential beach pollution or other impact from dislodged tubes or other gear, BDN will implement a comprehensive program as follows: A. Geoduck mesh tubes will be marked to identify ownership, including an appropriate contact number. All gear installed in the project area will be kept neat and secure. B. Beaches within one-half mile of the farm will be patrolled by BDN on a weekly basis and within a day following a severe storm event. Any observed geoduck farm gear or equipment will be retrieved regardless of its source and will either be repaired and placed back into service or properly disposed of. If more than 20 mesh tubes are observed to have escaped from the project area, BDN will immediately contact the U.S. Army Corps of Engineers, Seattle District, Regulatory Branch ("Corps"). Upon notification, BDN will initiate actions to secure any untethered gear and resolve any navigational hazards, as appropriate, and will initiate an emergency inspection to document the incident and determine the cause of the failure (e.g.storm conditions, etc.). C. BDN will conduct semiannual cleanups in Squamish Harbor in coordination with other interested parties or organizations, and will conduct an annual diver survey of its farmed parcels and adjacent parcels, including photo and/or video documentation each parcel's appearance. BDN will have a full-time manager living near the farm to quickly respond to potential farm issues and implement the above maintenance tasks. The farm manager will maintain a log book of all such gear management activities. The BDN Gear Management Plan goes well beyond what is required by the Corps under NWP 48, which requires only that beaches be patrolled once every three months to retrieve aquaculture debris that escapes from the Project area. The Shorelines Hearings Board has also determined that monthly beach patrols of the type proposed by BDN adequately mitigate concerns associated with marine debris. See Coalition to Protect Puget Sound Habitat v. Pierce County, et al., SHB No. 14- 024, Findings of Fact, Conclusions of Law, and Order (May 15, 2015)("Longbranch"), Findings of Fact 41-47; Coalition to Protect Puget Sound Habitat v. Thurston County, et al., SHB No. 1 3-006c, Findings of Fact, Conclusions of Law, and Order (Oct. 11, 2013), Findings of Fact 37-38; Coalition to Protect Puget Sound Habitat v. Pierce County, et al., SHB No. 11-0 19, Findings of Fact, Conclusions of Law, and Order (July 13, 2012), findings of Fact 10. Thus, the immediate and cumulative impact of debris from the project on the surrounding environment will be minimal. There are no other nearby similar projects that are situated such that any gear or materials released from them would overlap with any of the materials that might be released from the proposed project. Thus there will be no cumulative debris impact from the proposed project on nearby areas. 4.0.4.9.2 Plastics impact. The mesh tubes used on the Project will be constructed of HDPE plastic. By and large, HDPE is reported to be one of the "good" plastics, BDN Cumulative Impacts Addendum — Page 8 LUG Film m approved for and widely used in food, beverage and potable water applications. The Pacific Northwest Pollution Prevention Resource Center found no evidence of any widespread health problems related to the use of HDPE. ("Is High-density Polyethylene (HDPE) a Good Choice For Potable Water?: https:Hpprc.org/2015/p2-rapid/is-high-density-polyethylene-hdpe-a-good-choice- for-potable-water/ June 2015.) Recent studies have concluded that to the limited extent HDPE leaches plasticizers, such as phthalates (PAEs), into seawater during that aging process, most of the PAEs produced are exhausted by marine prokaryotes within one month. (Andrea Paluselli et al., Phthalate Release from Plastic Fragments and Degradation in Seawater. Environmental Science & Technology, American Chemical Society, 2019, 53 (1), pp.166-175.) There are no known studies indicating that the amount of HDPE components that might be introduced into the environment through the use of HDPE mesh bags has any adverse effect, immediate or cumulative, on the marine environment. 4.0.4.9.3. Chemical Impact. No pesticide usage is planned for the project, and so there will be no chemical pesticide impact, either immediate or cumulative. Conclusion — Minor, Acceptable Cumulative Impacts. As noted above, the SMP defines "Cumulative impacts" or "cumulative effects" as "the combined impacts of a proposed development action along with past impacts and impacts of reasonably foreseeable future development actions. (JCC 18.25.100(3)(aa)). "Reasonably foreseeable" is defined as "predictable by an average person based on existing conditions, anticipated build -out, and approved/pending permits." (JCC 18.25.100(18)(d)) Similarly, the National Environmental Policy Act ("NEPA") requires the consideration of the cumulative impacts of the Project, which include both direct effects, defined as those impacts "caused by the action and occur[ing] at the same time and place" and indirect effects, which are impacts "caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable." 40 C.F.R. §1508.8. Note that although indirect effects may be removed in distance from the proposed action, they nonetheless must be caused by that action; i.e., there must be a "reasonably close relationship" between the environmental effect and alleged cause. Department of Transportation v. Public Citizen, 541 U.S. 752, 767 (2004). Adding the Smersh aquaculture project will not introduce any qualitatively new activity into the area. It would make only a small increase in the tiny amount of tidelands devoted to an aquaculture usage that is preferred under Washington law (RCW 90.58.020.) From a biological standpoint, the applicable biological data shows there is no evidence that adding the Smersh project, and even potentially the Garten and Tjemsland projects, would have any significant negative cumulative biological impact on the environment. In fact, the National Marine Fisheries Service and the U.S. Fish and Wildlife Service PBO's cite cumulative environmental benefits associated with shellfish aquaculture, including long term improved water quality, sequestration of carbon and nutrients, creation of habitat via culturing equipment and materials; nutrient enhancement that supports invertebrates, macroalgae, and seagrasses; and benefits to animal and plant life of minor benthic disturbances that expose infauna to predation and increase the depth of oxygenated sediments. Thus, consistent with the SMP, NEPA, and JCC 18.25 the above analysis shows that the Smersh proposal will not produce substantial adverse environmental effects, either individually or cumulatively. BDN Cumulative Impacts Addendum — Page 9 LOC;IiE:M P��,� APPENDIX A JCDCD letter dated September 14, 2017 �sON c, JEFFERSON COUNTY t� DEPARTMENT OF COMMUNITY DEVELOPMENT 621 Sheridan Street I Port Townsend, WA 98368 � 0 360-379-4450 1 email: dcd@co.jefferson.wa.us 9S'►�I www.co.jefferson.wa.us/commdevelopment September 14, 2017 Via email and regular mail Kenneth A. Sheppard Simburg, Ketter, Sheppard & Purdy, LLP 999 Third Ave., Suite 2525 Seattle, WA, 98104 Email: KSheppard@sksp.com Robert M. Smith Plauch6 & Carr, LLP 811 First Avenue, Suite 630 Suite 630 Seattle, Washington 98104 Email: Robert@plauchecarr.com LOG ITEM , �1 RE: BDN Shine Road Geoduck Aquaculture Farm — Decision on Requirement of an SMP Conditional Use Permit for Commercial Geoduck Aquaculture Started Before the Adoption of the County's 2014 SMP Update Dear Mr. Sheppard and Mr. Smith: This letter is written with the authority of the Jefferson County (the County) DCD Director. This letter provides the County's final decision whether or not geoduck farming operations that were ongoing as of February 21, 2014 on parcels now owned by BDN, namely parcels 821334011 (BDN Lease), 821334073 (BDN Lease, formerly Washington Shellfish) and 821334079 (BDN Lease, formerly Mocean) have increased sufficiently to require a new permit per Jefferson County Code ("JCC") 18.25.440(4)(b)(ii). As we have previously informed BDN, expanded pre -SMP operations require a Shoreline Conditional Use Permit if: (1) the physical extent of these prior geoduck farming operations has expanded by more than 25 percent or more than 25 percent of the facility/farm changes operational/cultivation methods compared to the conditions that existed as of the effective date of SMP; or, (2) the expansion or change in cultivation method exceeds 25 percent in any 10 -year period. JCC 18.25.440(4)(b)(i). Based upon evidence submitted after the County's April 28, 2017 code interpretation on which there is an appeal pending before the Hearing Examiner, the County has determined that the geoduck farming operations ongoing as of February 21, 2014 on parcels 821334011 (BDN Lease), 821334073 (BDN Lease, formerly Washington Shellfish) and 821334079 (BDN Lease, formerly Mocean) have not been impermissibly expanded and are exempt from the requirement of a Shoreline Conditional Use Permit. We have copied Marilyn Showalter and Sue Corbett, parties of record, who requested this determination. If you have any questions or comments, please let me know. Sincere) np f . David 0reetham Planning Manager cc: Marilyn Showalter via email at marilyn.showalter@gmail.com Sue Corbett via email at sue71@gmail.com LOG ITE A ' I 91-i APPENDIX B Rock Point Oyster Corps Approval fi R4 W rr=+ H t3 '•?Ijll.. �, i Regulatory Branch DEPARTMENT OF THE ARMY SEATTLE DISTRICT, CORPS OF ENGINEERS P.O. BOX 3755 SEATTLE, WASHINGTON 98124-3755 Mr. David Steele Rock Point Oyster Company, Inc. 1733 Dabob Post Office Road Quilcene, Washington 98376 Dear Mr. Steele: AUG 18 2011 ESSEP 0 7 201? LOG 11 -EV Pw Reference: NWS -2010-1039 Rock Point Oyster Company, Inc. (Case Shoal Aquaculture) We have reviewed your permit file to cultivate 44.35 acres of Pacific oyster and Manila clam bottom culture, Pacific and Kumamoto oysters in flip bags on longlines and trays, and geoduck, on a 48 acre site, with 3.65 of no aquaculture in Case Shoal, Hood Canal near Port Ludlow, Jefferson County, Washington verified under the 2012 Nationwide Permit (NWP) 48. Your proposal as depicted on the enclosed drawings dated December 2, 2016 and as verified on December 13, 2016 under the 2012 NWP 48 (hereinafter "activity") is eligible for verification under the 2017 Nationwide Permit (NWP) 48 for Commercial Shellfish Aquaculture Activities (Federal Register January 6, 2017, Vol. 82, No. 4). The activity will be verified under the 2017 NWP 48 upon return of this letter, bearing your signature, to the Seattle District in conformance with the instructions below. If you would like to seek verification under NWP 48 for any proposed work outside of the activity for which you were verified under the 2012 NWP 48 on December 13, 2016, please contact the Project Manager listed in the cover letter accompanying this letter. In order for this authorization to be valid, you must ensure the work is performed in accordance with the enclosed NWP 48, Terms and Conditions and with the Services Biological Opinions - National Marine Fisheries Service (NMFS) Biological Opinion (BO) and Errata dated September 2, 2016 and September 30, 2016, respectively (NMFS Reference Number WCR- 2014-1502), and U.S. Fish and Wildlife Service (USFWS) BO dated August 26, 2016 (USFWS Reference Number OIEWFW00-2016-F-0121). The BOs contain mandatory terms and conditions to implement the reasonable and prudent measures associated with the specified "incidental take". You are also required to comply with the special conditions listed below. L 0 G lTE.M 5- a. This U.S. Army Corps of Engineers (Corps) permit does not authorize you to take a threatened or endangered species. In order to legally take a listed species, you must have authorization under the Endangered Species Act (ESA) (e.g., an ESA Section 10 permit, or ESA Section 7 consultation Biological Opinion with non -discretionary "incidental take" provisions with which you must comply). The Programmatic Biological Opinions for Shellfish Activities in Washington State Inland Marine Waters (BOs) - the National Marine Fisheries Service (NMFS) and Errata, dated September 2, 2016 and September 30, 2016, respectively (NMFS Reference Number WCR-2014-1502), and the U.S. Fish and Wildlife Service (USFWS), dated August 26, 2016 (USFWS Reference Number 01EWFW00-2016-F-0121), contain mandatory terms and conditions to implement the reasonable and prudent measures associated with the specified "incidental take". The authorization under this Corps permit is conditional upon your compliance with all of the mandatory terms and conditions associated with incidental take of the BOs. These terms and conditions are incorporated by reference in this permit. Failure to comply with the terms and conditions associated with incidental take of the BOs, where a take of the listed species occurs, would constitute an unauthorized take, and it would also constitute non- compliance with your Corps permit. The USFWS and NMFS are the appropriate authorities to determine compliance with the terms and conditions of its BO and with the ESA. b. In order to meet the requirements of the Endangered Species Act (ESA) and Magnuson - Stevens Fishery Conservation and Management Act (MSA), you must comply with the conservation measures in the Programmatic Biological Opinions for Shellfish Activities in Washington State Inland Marine Waters (BOs) - the National Marine Fisheries Service (NMFS) and Errata, dated September 2, 2016 and September 30, 2016, respectively (NMFS Reference Number WCR-2014-1502), and the U.S. Fish and Wildlife Service (USFWS), dated August 26, 2016 (USFWS Reference Number OIEWFW00-2016-F-0121). These conservation measures are included in the enclosed document, Enclosure 1, Conservation Measures for Activities Covered under the Shellfish Activities Programmatic Consultation Biological Opinions. If you cannot comply with these conservation measures, you must, prior to commencing your activity, contact the U.S. Army Corps of Engineers, Seattle District, Regulatory Branch for individual ESA/MSA consultation. The USFWS and NMFS are the appropriate authorities to determine compliance with the ESA. c. Incidents where any individuals of fish species, marine mammals and/or sea turtles listed by National Oceanic and Atmospheric Administration Fisheries (NOAA Fisheries) under the Endangered Species Act appear to be injured or killed as a result of discharges of dredged or fill material into waters of the U.S. or structures or work in navigable waters of the U.S, authorized by this Nationwide Permit verification shall be reported to NOAA Fisheries, Office of Protected Resources at (301) 713-1401 and the Regulatory Office of the Seattle District of the U.S. Army Corps of Engineers at (206) 764-3495. The finder should leave the animal alone, make note of any circumstances likely causing the death or injury, note the location and number of individuals involved and, if possible, take photographs. Adult animals should not be disturbed unless circumstances arise where they are obviously injured or killed by discharge exposure or some 1-00 ITEM. -3- —� unnatural cause. The finder may be asked to carry out instructions provided by NOAA Fisheries to collect specimens or take other measures to ensure that evidence intrinsic to the specimen is preserved. Enclosed for your convenience is a Iist of the conservation measures and mandatory terms and conditions referenced in the above; special conditions. The complete Programmatic Biological Opinions, are available on our website at http:/Iwww.nws.usace.army millMissions/CivilWorks/Regulatory/Permit-Guidebook.aspx. The authorized activity complies with the Washington State Department of Ecology's (Ecology) Water Quality Certification (WQC) requirements and Coastal Zone Management (CZM) consistency determination response for this NWP. No further coordination with Ecology for WQC and CZM is required. You have not requested a jurisdictional determination for this activity. if you believe the Corps does not have jurisdiction over all or portions of your project you may request a Preliminary or approved jurisdictional determination (JD). If one is requested, please be aware that we may require the submittal of additional information to complete the JD and work authorized in this letter may not occur until the JD has been completed. modified, reissued, or revoked prior to that date. If the authorized work has not beOur verification of this NWP authorization is valid until March 18, 2022, unless the NWP is by that date and you have cornrnenced or are under contract to commence this actien completed vity before March 18, 2022, you will have until March 18, 2023, to complete the activity under the enclosed terms and conditions of this NWP. Failure to comply with all terms and conditions of this NWP verification invalidates this authorization and could result in a violation of Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act. You must also obtain all local, State, and other Federal permits that apply to this project. You are cautioned that any change in the activity's location or plans will require you to submit a copy of the revised plans to this office and obtain our approval before you begin work. note we may need to reinitiate consultation with the NMFS and/or USFWS in ordeDeviating from the approved plans and activity could result in an enforcement action. Please to au any work not already included in the enclosed pians. r thorize Thank you for your cooperation during the permitting process. We ace interested in your experience with our Regulatory Program and encourage you to complete a customer service survey form. This form and information about our program is available on our website at -4- _ _ E YFi SEP 0 T 20V www.nws.usace.army-mil, select "Regulatory Branch, Permit Information" and then "Contact Us." If you have any questions, please contact me at pamela.sanguinetti@usace.army.milp b. phone at (206) 764-6904. ITE'J 16G ; Sincerely, Aiv_ � /+ Pamela Sanguinetti, Project Manager Regulatory Branch Enclosures By signing below I certify the activity described in the enclosed drawings and descriptions as verified under the 2012 NWP 48 on December 13, 2016 accurately describes my proposed on- going activities For the period from March 2018 through March 2022 and constitutes a complete and accurate Pre, Construction Notification for authorization under the 2017 Nationwide Permit 48. By signing below I accept verification for the activity under the 2017 Nationwide Permit, as described and conditioned in this verification letter. I further acknowledge any changes to the activity from the enclosed drawings and descriptions require further coordination with the U.S. Army Corps of Engineers and are not authorized by this letter. J)at/f%of Sce_le. Print Applicant Name REFERENCE NUMBER: NWS -2010-1039 Applicant Signature and date Case Shoal Farm Tidal Datum: MLLW = 0.0' Parcels: 721092 001 & 721092 003 Latitude: 47.848304° N Longitude: 122.683619° W Shi: •Gri-Ln 1 Rock Point Oyster Company, Inc. Total area: 48 acres Case Shoal, Hood Canal Jefferson County, State of WA Section 9, T27N R1E, WM .jpographic & Driving Directions Map Sheet 1 of 4 Date: December 2, 2016 Port Ludlow V '� Stone S[j�( IV,��J -DOWa! Rock Island Route to Project From the West and of the Hood Canal Floating Bridge; head NW on WA -104 toward Shine Rd. for 2.9 miles; Tum off onto the South Point Road for 1.5 miles to skiers „d jot. with Thomdyke Road; continue straight to stay on 2' South Point Road for 0.3 miles to a private driveway g and gate on the left and entrance to the Project Area. 6� Walk south down gravel road for 0.2 miles to o tideland entrance. Case Shoo) �r Project Area ff / idgehaven fbIM SorR / , / / i / � N! OTiTlR PORl10R / Of STENAM LN Me Termination Pohl Hood Canal Brldp -1110A fA!/gKR."41 / 3 Valley •�;1aI. Sr / Four Corners / ai'M C4� = Wall bit Case Shoal Farm Rock Point Oyster Company, Inc. Farm Pacific Oysters, Manila Clams Tidal Datum: MLLW = 0.0' Total area: 48 acres & Geoduck Parcels: 721092 001 & 721092 003 f Case Shoal, Hood Canal 430 Latitude: 47.848304' N Jefferson County, State of WA NI S ��ID �!Q'� Sheet 2 of 4 Longitude: 122.683619° W Section 9, T27N 1111E, WM Scale 1" = 350' j Date: December 2, 2016 1 150• X10 b 1� ll�i3 31 a/"e's xkivf'L q$w4 }rYlantU- chum 1aoiiv"o LM 1+11 i, -p— �.{q,r+�7.n►:Y+� art Zd..{�S 47.e5370r N 122.6960U• W 0-05Gooduck wigs erre �-�— t7cg—?l Island 4ra5c34r N X122,581239' W ¢� 2014 can ■ �j 0 2 awes 2014 oyster send Wsler01pba0& \J tray area 1A acre gy, N R 'eAMRwlarfidefiMa.r In oN I N 430 b yeeducll arae 6.5 acres��`.�'��/`'`�`'�'�� D _� ecce: Pathr d d m, 724' 216' 94a 47.945287 N 47.902WN 122.6e5030• W enoW property lies 122.x51424' W MHHW +10.7' LOG ITEM Case Shoal Farre Rock Point Oyster Company, Inc. Farm Pacific Oysters, Manila Clams Tidal Datum: MLLW = 0.0' Total area: 48 acres & Geoduck Parcels: 721092 001 & 721092 003 Case Shoal, Hood Canal �.n Sheet 4 of 4 05 /Ivto �l day Latitude: 47.848304" N Jefferson County, State of WA Scale 1" = 350' Longitude: 122.683619" W Section 9, T27N RIE, WM Date: December 2, 2016 ■ 0C 3.(Os C(4, Ls O'D C"lom-h-Dn +5 -fit- trial eltviwliwii. 04 .W, Ve APPENDIX C Deep Blue Seafood Corps Approval �lyT UF. qty b�.n i'l,� •�lal �:� u1 Regulatory Branch Mr. James Addison Smith Deep Blue Seafood 4136 Meridian North Seattle, Washington 98103 Dear Mr. Smith: DEPARTMENT OF THE ARMY SEATTLE DISTRICT, CORPS OF ENGINEERS P.O. BOX 3755 SEATTLE, WASHINGTON 98124-3755 AUG 18 2017 LOG, 1-1 Reference: NWS -2007-1152 Deep Blue Seafood We have reviewed your permit file to cultivate 3.8 acres of geoduck with 2 acres of active cultivation and approximately 2 acres of fallow tidelands, and 2 acres with no aquaculture, on a 6 acre site in Thomdyke Bay, Hood Canal near Port Ludlow, Jefferson County, Washington verified under the 2012 Nationwide Permit (NWP) 48. Your proposal as depicted on the enclosed drawings dated December 13, 2016 and as verified on December 14, 2016 under the 2012 NWP 48 (hereinafter "activity") is eligible for verification under the 2017 Nationwide Permit (NWP) 48 for Commercial Shellfish Aquaculture Activities (Federal Register January 6, 2017, Vol. 82, No. 4). The activity will be verified under the 2017 NWP 48 upon return of this letter, bearing your signature, to the Seattle District in conformance with the instructions below. If you would like to seek verification under NWP 48 for any proposed work outside of the activity for which you were verified under the 2012 NWP 48 on December 14, 2016, please contact the Project Manager listed in the cover letter accompanying this letter. In order for this authorization to be valid, you must ensure the work is performed in accordance with the enclosed NWP 48, Terms and Conditions and with the Services Biological Opinions - National Marine Fisheries Service (NMFS) Biological Opinion (BO) and Errata dated September 2, 2016 and September 30, 2016, respectively (NMFS Reference Number WCR- 2014-1502), and U.S. Fish and Wildlife Service (USFWS) BO dated August 26, 2016 (USFWS Reference Number OIEWFW00-2016-F-0121). The BOs contain mandatory terms and conditions to implement the reasonable and prudent measures associated with the specified "incidental take". You are also required to comply with the special conditions listed below. a. This U.S. Army Corps of Engineers (Corps) permit does not authorize you to take a threatened or endangered species. In order to legally take a listed species, you must have authorization under the Endangered Species Act (ESA) (e.g., an ESA Section 10 permit, or ESA Section 7 consultation Biological Opinion with non -discretionary "incidental take" provisions with which you must comply). The Programmatic Biological Opinions for Shellfish Activities in Washington State Inland Marine Waters (BOs) - the National Marine Fisheries Service (NMFS) and Errata, dated September 2, 2016 and September 30, 2016, respectively (NMFS Reference Number WCR-2014-1502), and the U.S. Fish and Wildlife Service (USFWS), dated August 26, 2016 (USFWS Reference Number 0IEWFW00-2016-F-0121), contain mandatory terms and conditions to implement the reasonable and prudent measures associated with the specified "incidental take". The authorization under this Corps permit is conditional upon your compliance with all of the mandatory terms and conditions associated with incidental take of the BOs. These terms and conditions are incorporated by reference in this permit. Failure to comply with the terms and conditions associated with incidental take of the BOs, where a take of the listed species occurs, would constitute an unauthorized take, and it would also constitute non- compliance with your Corps permit. The USFWS and NMFS are the appropriate authorities to determine compliance with the terms and conditions of its BO and with the ESA. b. In order to meet the requirements of the Endangered Species Act (ESA) and Magnuson - Stevens Fishery Conservation and Management Act (MSA), you must comply with the conservation measures in the Programmatic Biological Opinions for Shellfish Activities in Washington State Inland Marine Waters (BOs) - the National Marine Fisheries Service (NMFS) and Errata, dated September 2, 2016 and September 30, 2016, respectively (NMFS Reference Number WCR-2014-1502), and the U.S. Fish and Wildlife Service (USFWS), dated August 26, 2016 (USFWS Reference Number OIEWFW00-2016-F-0121). These conservation measures are included in the enclosed document, Enclosure 1, Conservation Measures for Activities Covered under the Shellfish Activities Programmatic Consultation Biological Opinions. If you cannot comply with these conservation measures, you must, prior to commencing your activity, contact the U.S. Army Corps of Engineers, Seattle District, Regulatory Branch for individual ESA/MSA consultation. The USFWS and NMFS are the appropriate authorities to determine compliance with the ESA. c. Incidents where any individuals of fish species, marine mammals and/or sea turtles listed by National Oceanic and Atmospheric Administration Fisheries (NOAA Fisheries) under the Endangered Species Act appear to be injured or killed as a result of discharges of dredged or fill material into waters of the U.S. or structures or work in navigable waters of the U.S. authorized by this Nationwide Permit verification shall be reported to NOAA Fisheries, Office of Protected Resources at (301) 713-1401 and the Regulatory Office of the Seattle District of the U.S. Army Corps of Engineers at (206) 764-3495. The finder should leave the animal alone, make note of any circumstances likely causing the death or injury, note the location and number of individuals involved and, if possible, take photographs. Adult animals should not be disturbed unless circumstances arise where they are obviously injured or killed by discharge exposure or some unnatural cause. The finder may be asked to carry out instructions provided by NOAA Fisheries to collect specimens or take other measures to ensure that evidence intrinsic to the specimen is preserved. t? ITEM Enclosed for your convenience is a list of the conservation measures and mandatory terms and conditions referenced in the above special conditions. The complete Programmatic Biological Opinions, are available on our website at http://www.nws.usace.army.mil/Missions/Civil Works/Regulat.ory/Permit-Guidebook. aspx. The authorized activity complies with the Washington State Department of Ecology's (Ecology) Water Quality Certification (WQC) requirements and Coastal Zone Management (CZM) consistency determination response for this NWP. No further coordination with Ecology for WQC and CZM is required. You have not requested a jurisdictional determination for this activity. If you believe the Corps does not have jurisdiction over all or portions of your project you may request a preliminary or approved jurisdictional determination (JD). If one is requested, please be aware that we may require the submittal of additional information to complete the JD and work authorized in this letter may not occur until the JD has been completed. Our verification of this NWP authorization is valid until March 18, 2022, unless the NWP is modified, reissued, or revoked prior to that date. If the authorized work has not been completed by that date and you have commenced or are under contract to commence this activity before March 18, 2022, you will have until March 18, 2023, to complete the activity under the enclosed terms and conditions of this NWP. Failure to comply with all terms and conditions of this NWP verification invalidates this authorization and could result in a violation of Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act. You must also obtain all local, State, and other Federal permits that apply to this project. You are cautioned that any change in the activity's location or plans will require you to submit a copy of the revised plans to this office and obtain our approval before you begin work. Deviating from the approved plans and activity could result in an enforcement action. Please note we may need to reinitiate consultation with the NMFS and/or USFWS in order to authorize any work not already included in the enclosed plans. Thank you for your cooperation during the permitting process. We are interested in your experience with our Regulatory Program and encourage you to complete a customer service survey form. This form and information about our program is available on our website at www.nws.usace.army.mil, select "Regulatory Branch, Permit Information" and then "Contact Us." If you have any questions, please contact me at Pamela.sanguinetti@usace.army.mil or by phone at (206) 764-6904. Sincerely, AA* j + Pamela Sanguinetti, Project Manager Regulatory Branch Enclosures By signing below I certify the activity described in the enclosed drawings and descriptions as verified under the 2012 NWP 48 on December 14, 2016 accurately describes my proposed on- going activities for the period from March 2018 through March 2022 and constitutes a complete and accurate Pre -Construction Notification for authorization under the 2017 Nationwide Permit 48. 13y signing below I accept verification for the activity under the 2017 Nationwide Permit, as described and conditioned in this verification letter. I further acknowledge any changes to the activity from the enclosed drawings and descriptions require further coordination with the U.S. Army Corps of Engineers and are not authorized by this Ietter. JAr"Es Maptsop 5MrTN Print Applicant Name REFERENCE NUMBER: NWS -2007-1152 ` - 11 3 ?017 ppli ant Signature and date L 0 G # Port Hadlock PawSSC Discovery Day 104 P6ukbo .303' Vicinity Map Silverdale Bainbridge Island IMA. Port Ludlow Hansvllle Lelard Project Pon Gamble pul Location Lily F F F 4r, Wzar.: Kingston AL 4 00- Vmbald VS PL:' Y fi CON Indianola Poulsbo say Suquamish Bangor kk Bfinnon cc* ptympic vim Killyport Stabold Reference: NWS- 2007-1152 Application by: Deep Blue Seafood Waterbody: Thorndyke Bay, Hood Canal Project Description: Existing shellfish farm County: Jefferson County State: WA Location: 22 Groves Way, Port Ludlow Lat/Long: 47.81265, -122.72025 Date-' December 13, 2016 Sheet 1 of LCK, ITEM 0 5 �J "I—Y/S,alc 1 133.000 120 0 5 10 ..NORTH NUMBER 2 1 N 1 1 O \of v ti _ Co — IGHT-Or- .�, O 40JACFNT I a• � � ER S SHORT ES ARE PLACED E SU9O1- .NOOLPH AND EO, OECLAAE 1977 , JF M.62-%4-90% .. EVA ICODING Imr AG HER MENTIONED. ;TTEV. 0,9AWN BY' C.I. W. RZ Ar CNECK•aq FINAL CNCC&:.. 1 Ca H 1 r• , .:��.. SAI` . i � Aor CO m:::_�' ry� aid 4,, .r ...` s �� '.J Z N cv ,t 0 dar6� n I • II� , 4 � �J ! � Q 1 {aP J N {�i� 06 4P . �ilOT1 1 N le;l J $4 Is i p9r �T6 f /+ySe' Morz,= O N141t I PvcWors rr,!5,-,LAh00s ALVOINI.Or PP 0OO 0 CLARK & ASSOCIATES Rl Card Surveyors . Engineers . Manners Cunsrrucniaa Crmrd,'npliun . Metennls Teslrny # LOG ITEM Of i Reference: NWS -2007-1152 — -Applicant: Deep -Blue -Seafood December 13, 2016 Sheet 3 of 4 4W USING THE THE-JREOCAL PERFORMED IN X94 7025 & TL 94Ch.) H (NE 1/4 19-27N—IE) No aquaculture, 2 acres above +3 ft tidal elevation •'L R TL A6 � 1R.21'1,. ` C P �o� 1101, (NE 1/4 30 -27N -1E) Reference: NWS -2007-1152 Applicant: Deep -Blue -Seafood------- - December 13, 2016 Sheet 4 of 4 SE 1/4 SEC 19 TWP 27N RGE 1 E Project Area: 6 acres SCALE: 1 "=200' Geoduck cultivation area (3.8 acres) 2 acres active; 1.8 acres fallow 5/92 REMSIONS 7/29/92 88 1420 9/24/92 PP ]/10/95 DS 30 29 7/7/97 D5 e/1Vw PP JEFFERSON COUNTY ASSESSOR I 14/24/00 M0/1/99 MF F LOG iTEAR 5 P 6(n APPENDIX D Set & Drift Corps Approval 3 fNx OA-4� -14 Regulatory Branch Ms. Alice and Mr. Van Helker Set & Drift, LLC 9817 3l" Avenue Southwest Seattle, Washington 98126 Dear Ms. and Mr. Helker: DEPARTMENT OF THE ARMY SEATTLE DISTRICT, CORPS OF ENGINEERS P.O. BOX 3755 SEATTLE, WASHINGTON 98124-3755 AUG 19 2017 !r SEP 1 , 201? L.C.C.7" ITEM Pam Reference: NWS -2015-568 Set & Drift, LLC (Shellfish Farm) We have reviewed your permit file to cultivate up to 2.36 acres of a 3.5 acre project area with on bottom Manila clam and Pacific oyster in bags, harvested by hand, and installation of geoduck grow -out equipment, but no planting of geoduck seed, in Hood Canal near Port Ludlow, Jefferson County, Washington verified under the 2012 Nationwide Permit (NWP) 48. Your proposal as depicted on the enclosed drawings dated September 16, 2016 and as verified on March 16, 2016 under the 2012 NWP 48 (hereinafter "activity") is eligible for verification under the 2017 Nationwide Permit (NWP) 48 fbr Commercial Shellfish Aquaculture Activities (Federal Register January 6, 2017, Vol. 82, No. 4). The activity will be verified under the 2017 NWP 48 upon return of this letter, bearing your signature, to the Seattle District in conformance with the instructions below. If you would like to seek verification under NWP 48 for any proposed work outside of the activity for which you were verified under the 2012 NWP 48 on March 16, 2016, please contact the Project Manager listed in the cover letter accompanying this letter. In order for this authorization to be valid, you must ensure the work is performed in accordance with the enclosed NWP 48, Terms and Conditions and with the Services Biological Opinions - National Marine Fisheries Service (NMFS) Biological Opinion (BO) and Errata dated September 2, 2016 and September 30, 2016, respectively (NMFS Reference Number WCR- 2014-1502), and U.S. Fish and Wildlife Service (USFWS) BO dated August 26, 2016 (USFWS Reference Number OIEWFW00-2016-F-0121). The BOs contain mandatory terms and conditions to implement the reasonable and prudent measures associated with the specified "incidental take". You are also required to comply with the special conditions listed below. a. This U.S. Army Corps of Engineers (Corps) permit does not authorize you to take a threatened or endangered species. In order to legally take a listed species, you must have authorization under the Endangered Species Act (ESA) (e.g., an ESA Section 10 permit, or ESA L�'t . -2- Section 7 consultation Biological Opinion with non -discretionary "incidental take" provisions with which you must comply). The Programmatic Biological Opinions for Shellfish Activities in Washington State Inland Marine Waters (BOs) - the National Marine Fisheries Service (NMFS) and Errata, dated September 2, 2016 and September 30, 2016, respectively (NMFS Reference Number WCR-2.014.1502), and the U.S. Fish and Wildlife Service (USFWS), dated August 26, 2016 (USFWS Reference Number OIEWFW00-2016-F-0121), contain mandatory terms and conditions to implement the reasonable and prudent measures associated with the specified "incidental take". The authorization under this Corps permit is conditional upon your compliance with all of the mandatory terms and conditions associated with incidental take of the BOs. These terms and conditions are incorporated by reference in this permit. Failure to comply with the terms and conditions associated with incidental take of the BOs, where a take of the listed species occurs, would constitute an unauthorized take, and it would also constitute non- compliance with your Corps permit. The USFWS and NMFS are the appropriate authorities to determine compliance with the terms and conditions of its BO and with the ESA. b. In order to meet the requirements of the Endangered Species Act (ESA) and Magnuson - Stevens Fishery Conservation and Management Act (MSA), you must comply with the conservation measures in the Programmatic Biological Opinions for Shellfish Activities in Washington State Inland Marine Waters (BOs) - the National Marine Fisheries Service (NMFS) and Errata, dated. September 2, 2016 and September 30, 2016, respectively (NMFS Reference Number WCR 2014-1502), and the U.S. Fish acrd Wildlife Service (USFWS), dated August 26, 2016 (USFWS Reference Number OIEWFW00-2016-F-0121). These conservation measures are included in the enclosed document, Enclosure 1, Conservation Measures for Activities Covered under the Shellfish Activities Programmatic Consultation Biological Opinions. If you cannot comply with these conservation measures, you must, prior to commencing your activity, contact the U.S. Army Corps of Engineers, Seattle District, Regulatory Branch for individual ESA/MSA consultation. The USFWS and NMFS are the appropriate authorities to determine compliance with the ESA. c. Incidents where any individuals of fish species, marine mammals and/or sea turtles listed by National Oceanic and Atmospheric Administration Fisheries (NOAA Fisheries) under the Endangered Species Act appear to be injured or killed as a result of discharges of dredged or fill material into waters of the U.S. or structures or work in navigable waters of the U.S. authorized by this Nationwide Permit verification shall be reported to NOAA Fisheries, Office of Protected Resources at (301) 713-1401 and the Regulatory Office of the Seattle District of the U.S. Army Corps of Engineers at (206) 764-3495. The finder should leave the animal alone, make note of any circumstances likely causing the death or injury, note the location and number of individuals involved and, if possible, take photographs. Adult animals should not be disturbed unless circumstances arise where they are obviously injured or killed by discharge exposure or some unnatural cause. The finder may be asked to carry out instructions provided by NOAA Fisheries to collect specimens or take other measures to ensure that evidence intrinsic to the specimen is preserved. 1-004 PTM F'2 j Of Enclosed for your convenience is a list of the conservation measures and mandatory terms and conditions referenced in the above special conditions. The complete Programmatic Biological Opinions, are available on our website at http://www.nws.usace. army.mil/Missions/CivilWorks/Regulatory/Pennit-Guidebook.aspx. The authorized activity complies with the Washington State Department of Ecology's (Ecology) Water Quality Certification (WQC) requirements and Coastal Zone Management (CZM) consistency determination response for this NWP. No further coordination with Ecology for WQC and CZM is required. You have not requested a jurisdictional determination for this activity. If you believe the Corps does not have jurisdiction over all or portions of your project you may request a preliminary or approved jurisdictional determination (JD). If one is requested, please be aware that we may require the submittal of additional information to complete the JD and work authorized in this letter may not occur until the JD has been completed. Our verification of this NWP authorization is valid until March 18, 2022, unless the NWP is modified, reissued, or revoked prior to that date. If the authorized work has not been completed by that date and you have commenced or are under contract to commence this activity before March 18, 2022, you will have until March 18, 2023, to complete the activity under the enclosed terms and conditions of this NWP. Failure to comply with all terms and conditions of this NWP verification invalidates this authorization and could result in a violation of Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act. You must also obtain all local, State, and other Federal permits that apply to this project. You are cautioned that any change in the activity's location or plans will require you to submit a copy of the revised plans to this office and obtain our approval before you begin work. Deviating from the approved plans and activity could result in an enforcement action. Please note we may need to reinitiate consultation with the NMFS and/or USFWS in order to authorize any work not already included in the enclosed plans. Thank you for your cooperation during the permitting process. We are interested in your experience with our Regulatory Program and encourage you to complete a customer service survey form. This form and information about our program is available on our website at LW1 ITEM -4- �-- - www.nws.usace.army.mil, select "Regulatory Branch, Permit Information" and then "Contact Us." If you have any questions, please contact me at pamela.sanguinetti@usace.army.mil or by phone at (206) 764-6904. Sincerely, k* a �* Pamela Sanguinetti, Project Manager Regulatory Branch Enclosures By signing below I certify the activity described in the enclosed drawings and descriptions as verified under the 2012 NWP 48 on March 16, 2016 accurately describes my proposed on-going activities for the period from March 2018 through March 2022 and constitutes a complete and accurate Pre -Construction NotiIicatiosi fog• authorization under the 2017 Nationwide Permit 48. By signing below I accept verification for the activity under the 2017 Nationwide Permit, as described and conditioned in this verification letter. I further acknowledge any changes to the activity from the enclosed drawings and descriptions require further coordination with the U.S. Army Corps of Engineers and are not authorized by this letter. 1\ LC C V\ E cy— C', Print Applicant Name REFERENCE NUMBER: NWS -2015-568 SEP 1 1 2017 CQk"11,`=' ?tee. t-z� Applicant Signature and date Pull 4 +, ,Tpv►gsauH • , r r 111 f? � •,- �l Shelton , f • Jill'.... r Tacoma LOG ITEM c # ?.5, VICINITY MAP: Set & Drift LLC I nuq 2 .w� S 4 �. CORr�, = E: NWS -2015-568 SITE NAME: Sol &Drill LLC PROPOSED PROJECT' PARCEL ID/Owner: Expanded shellfish aquecuiture APPLICANT: Set & Drift LLC 954600122& 954600123 on private tidelands. 9792 Edmonds Way #243, Set & Drift LLC Edmonds, WA 98020 ADJACENT PROPERTY OWNERS: SITE ADDRESS: Sheet 1 of 2 954600121: MAURITZ LARSON 2691 Thomdyke Road, Port Ludlow, WA 98365 DATE: 09/16/2015 4817 S 144TH ST, TUKWILA WA 98168 In: Hood Canal N 721173002: ROBERT G WOODMAN Near. Port Ludlow Tidal datum: It MLLW 12093 VIEWCREST PL NE, County: Jefferson Coordinate System: BAINBRIDGE ISLAND WA98110-1311 Stale: WA Washington State Plane South (Feel) Scale: 1:70,000 Set & Droft LL6 Aquaculture Project Site Plan' & Habitat Survey Sumey date_ Ta 1.`15 L-agend _ D - ZM GPS Points I -q-10 to • -- MKed bed ZJ-ZR1 Z1.1 < 6 ZIA shoots in dsaete locations WM (11.4') ODnh"5 Z- marina bed begins Property boundary (est) �," • � . ,�, . r, ZM Bulfer 1ta NIP" + MiKedZJ/ZM bed F : A/ Chamels VAth ZJ k Clams and Oysters (2.39 acres) Geoduck Tube Test Plot (15' x 151. Courcy Parcel Data Species to be grown: Manila gains Pacific oysters Olympia oysters UVa off•'` O f i l =.1 '= iii • .. . 0 50 100 200 300 400 Feet CORFS REFERENCE: NWS -2015-568 S[ -= 1e=,IdE: Se: F LPift LLC F -RCEL IL:C-avr_p: APPLECANT: SEA & G ft LL,- Sf-453-3 122 & 5845.Dn.12S W512 Ednwmds W9Jay 2L�, Se, -k D7 LLC Edrnv-.d_ , VVA SU ,AC. ACENT PROPERTY C•W NERS : SITE ADDRESS: �.��v I�1: P:1r.liR[Tr L:..RSCi•e spa � o �:�a , -ihti `Tnd�{ F' Fc-tL� E 4817 S 144TK ST, T:�1K0iILA. "SV_Ae'81E'9 Ir.: r-!c_.a O-ar,al T--117300---: ROBERT i ViOIDC �b Pea. F.1rt Luck 120 93 V] EW -C R EST PL NE, C'r-,an y: Jeff sacr- BAINSRIC'GE ISL -,26'_ 'v",iA,x'8113-1'11 S1t-=: 8 L F°ROFOSED FROJECT_ Expandsh 3fchaquacuft-i _ SM pTroVate wd lands. Shs t 2 cT 2 .ATE: 89-1'=.,M 1 Tidal daturn1 ft N1LLV'a 1% Ccwdin;Ete Sy -.L -m: Nszhingtcn, Sfats Plar.e S-auth ;F ---i1 So-s1G: 1: p,' IF LOQ; iTEm APPENDIX E Hood Canal Mariculture Corps Approval DEPARTMENT OF THE ARMY PERMIT r Permittee: Hood Canal Mariculture, Inc. Attention: Jonathan P. Davis 10610 Northeast Manitou Park Boulevard Permit No: NWS -2008-502 Bainbridge Island, Washington 98110 Issuing Office: Seattle District NOTE: The term "you" and its derivatives, as used in this permit, means the permittee or any future transferee. The term "this office" refers to the appropriate district or division office of the U.S. Army Corps of Engineers (Corps) having jurisdiction over the permitted activity or the appropriate official of that office acting under the authority of the commanding officer. You are authorized to perform work in accordance with the terms and conditions specified below. Project Description: Construct a suspended algae and shellfish mariculture facility in accordance with the plans and drawings dated September 17, 2015, attached hereto which are incorporated in and made a part of this permit. A 500 -foot by 230 -foot (2.64 acres) seaweed array will be suspended and centered within the 1,000 -foot by 250 -foot (5.74 acres) lease area from Washington Department of Natural Resources. Oysters and/or rock scallops will be cultivated in grow -containers below and along the perimeter of the seaweed cultivation. Additionally, two proposed instrument buoys will be independently anchored at upstream and downstream locations within the lease area. The purpose of the project is to investigate seaweed cultivation as a potential mitigation strategy for ocean acidification in Puget Sound. The project will evaluate the potential of a commercial -scale seaweed mariculture demonstration to modulate carbon and nitrogen in the marine environment. An additional purpose of the project is to provide shellfish for human consumption. Project Location: In Hood Canal near Port Ludlow, Jefferson County, Washington. Permit Conditions: Genera! Conditions: MAR -1) 2 0 Z I 1. The time limit for completing the work authorized ends on If you find that you need more time to complete the authorized activity, submit your request for a time extension to this office for consideration at least 1 month before the above date is reached. 2. You must maintain the activity authorized by this permit in good condition and in accordance with the terms and conditions of this permit. You are not relieved of this requirement if you abandon the permitted activity, although you may make a good faith transfer to a third party in compliance with General Condition 4 below. Should you wish to cease to maintain the authorized activity or should you desire to abandon it without a good faith transfer, you must obtain a modification to this permit from this office, which may require restoration of the area. 3. If you discover any previously unknown historic or archeological remains while accomplishing the activity authorized by this permit, you must immediately notify this office of what you have found. We will initiate the Federal and State coordination required to determine if the! remains warrant a recovery effort or if the site is eligible for listing in the National Register of Historic Places. 4. If you sell the property associated with this permit, you must obtain the signature of the new owner in the space provided and forward a copy of the permit to this office to validate the transfer of this authorization. 5. If a conditioned water quality certification has been issued for your project, you must comply with the conditions specified in the certification as special conditions to this permit. For your convenience, a copy of the certification is attached if it contains such conditions. 6. You must allow representatives from this office to insngQt_t .e WhpjzedactMtyataay_time- eemed necessary to ensure that it is being or has been accomplished in accordance with the terms and conditions of your ` we Hood Canal Mariculture, Inc.P� �~� � NWS-2008-502 permit. 7. After a detailed and careful review of all the conditions contained in this permit, the permittee acknowledges that, although said .conditions were required by the Corps, nonetheless the permittee agreed to those conditions voluntarily to facilitate issuance of the permit; the permittee will comply fully with all the terms of all the permit conditions. Special Conditions: a. You must provide a copy of the permit transmittal letter, permit form, and drawings to all contractors performing any of the authorized work. b. The permittee understands and agrees that, if future operations by the United States require the removal, relocation, or other alteration, of the structure or work herein authorized, or if, in the opinion of the Secretary of the Army or his authorized representative, said structure or work shall cause unreasonable obstruction to the free navigation of the navigable waters, the permittee will be required, upon due notice from the U.S. Army Corps of Engineers, to remove, relocate, or alter the structural work or obstructions caused thereby, without expense to the United States. No claim shall be made against the United States on account of any such removal or alteration. c. You must implement and abide by the Endangered Species Act (ESA) requirements and/or agreements set forth in the Biological Evaluation for Informal ESA Consultation dated September 29, 2015, in their entirety. The National Marine Fisheries Service (NMFS) concurred with a finding of "may affect, not likely to adversely affect" based on this document on December 9, 2015 (NMFS Reference Number WCR-2015-3713), The U.S. Fish and Wildlife Service (USFWS) concurred with a finding of "may affect, not likely to adversely affect" based on this document on January 15, 2016 (USFWS Reference Number 01 EWFW00-2016-1-0147). Both agencies will be informed of this permit issuance. Failure to comply with the commitments made in this document constitutes non-compliance with the ESA and your U.S. Army Corps of Engineers permit. The USFWS/NMFS is the appropriate authority to determine compliance with ESA. d. Unsuitable material (e.g., trash, debris, car bodies, asphalt, tires) shall not be discharged or used as fill (e.g., used to secure nets, create berms, provide nurseries). e. A Pacific herring spawn survey shall be conducted prior to any in -water aquaculture or maintenance activities if any of these activities will occur outside the approved work window for the project area's Tidal Reference Area 13. The approved work window is April 15 through January 14. Between January 15 and April 14, vegetation and aquaculture materials (e.g., nets, lines) shall be inspected for Pacific herring spawn. If Pacific herring spawn is present, disturbance of the eggs is prohibited in the areas where spawning has occurred until such time as the eggs have hatched and Pacific herring spawn is no longer present. The U.S. Army Corps of Engineers (Corps) encourages the permittee to complete a training class on identifying Pacific herring spawn with the Washington Department of Fish and Wildlife (WDFW). You shall maintain a record of Pacific herring spawn surveys, including the date and time of surveys; the area, materials, and equipment surveyed; results from the survey; etc. The record of Pacific herring spawn surveys shall be made available upon request to the Corps, NMFS, and USFWS. f. Shellfish activities (e.g., rafts, anchors, lines, nets, bags) shall not be placed within 16 horizontal feet of eelgrass (Zostere marina) or kelp (rooted/attached brown algae in the order Laminariales). LOG f i SAA Hood Canal Mariculture, Inc. NWS -2008-502 g All pump intakes (e.g., washing down gear) that use seawater shall be screened in accordance with National Marine Fisheries Service and Washington Department of Fish and Wildlife criteria. Note: This does not apply to work boat motor intakes (jet pumps) or through -hull intakes. h. All foam material (whether used for floatation of for any other purpose) must be encapsulated within a shell that prevents breakup or loss of foam material into the water and is not readily subject to damage by ultraviolet radiation or abrasion. Un -encapsulated foam material used for current on-going activities shall be removed or replaced with the encapsulated type. i. All tubes, mesh bags, and area nets used waterward of Mean Higher High Water shall be clearly, indelibly, and permanently marked to identify the permittee name and contact information (e.g., telephone number, email address, mailing address). On the nets, identification markers will be placed with a minimum of one identification marker for each 50 feet of net. j. At least once every three months beaches in the project vicinity shall be patrolled by crews who will retrieve aquaculture debris (e.g., anti -predator nets, tubes, tube caps, stakes, lines) that escapes from the project area. Within the project vicinity, locations shall be identified where debris tends to accumulate due to wave, current, or wind action, and after weather events these locations shall be patrolled by crews who will remove and dispose of aquaculture debris appropriately. You shall maintain a record with the following information and the record shall be made available upon request to the U.S. Army Corps of Engineers, National Marine Fisheries Service, and U.S. Fish and Wildlife Service: date of patrol, location of areas patrolled, description of the type and amount of retrieved debris, other pertinent information. k. Tires shall not be used as part of above and below structures or where tires could potentially come in contact with the water (e.g., floatation, fenders, hinges). Tires used for floatation currently shall be replaced with inert or encapsulated materials, such as plastic or encased foam, during maintenance or repair of the structure. Vessels shall not ground or anchor in native eelgrass (Zosters marina) or kelp (rooted/attached brown algae in the order Laminaria/es) and paths through native eelgrass or kelp shall not be established. If there is no other access to the site or the special condition cannot be met due to human safety considerations, a site-specific plan shall be developed describing specific measures and/or best management practices that will be undertaken to minimize negative effects to eelgrass and kelp from vessel operation and accessing the shellfish areas. The access plan shall include the following components: (a) frequency of access at each location, (b) use of only the minimum number of boats and/or crew members needed to conduct the work and a description of the minimum number of boats and crewmembers needed at each visit, and (c) consistency in anchoring/grounding in the same location and/or walking on the same path to restrict eelgrass disturbance to a very small footprint. m. In order to meet the requirements of the Endangered Species Act and protect listed species, you may install the anchors from July 16 through January 14 in any year this permit is valid. You shall not install the anchors authorized by this permit from January 15 through July 15 in any year this permit is valid. n. When performing other activities on-site, the grower shall routinely inspect for and document any fish or wildlife found entangled in nets or other shellfish/mariculture equipment. In the event that any fish, birds, or mammals are found entangled, the grower shall: 1) provide immediate notice (within 24 hours) to the Washington Department of Fish and Wildlife (all species), Services (ESA listed species), and/or Marine Mammal Stranding Network (marine mammals), 2) attempt to release the individual(s) without harm, and 3) provide a written and photographic record of the event, including dates, species identification, number of individuals, and final disposition, to the Corps and Services. Contact the U.S. Hood Canal Mariculture, Inc. NWS -2008-502 Fish and Wildlife Service Law Enforcement Office at (425) 883-8122 with any questions about the preservation of specimens. o. You must implement and abide by the enclosed Infrastructure Inspection and Reporting Plan dated February 2016. Further Information: 1. Congressional Authorities. You have been authorized to undertake the activity described above pursuant to: ® Section 10 of the Rivers and Harbor Act of 1899 (33 United States Code (U.S.C.) 403). ❑ Section 404 of the Clean Water Act (33 U.S.C. 1344). ❑ Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972 (33 U.S.0 1413). 2. Limits of this authorization. a. This permit does not obviate the need to obtain other Federal, State, or local authorization required by law b. This permit does not grant any property rights or exclusive privileges. c. This permit does not authorize any injury to the property or rights of others. d. This permit does not authorize interference with any existing or proposed Federal project. 3. Limits of Federal Liability. In issuing this permit, the Federal Government does not assume any liability for the following: a. Damages to the permitted project or uses thereof as a result of other permitted activities or from natural causes. b. Damages to the permitted project or uses thereof as a result of current or future activities undertaken by or on behalf of the United States in the public interest. c. Damages to persons, property, or to other permitted or unpermitted activities or structures caused by the activity authorized by this permit. d. Design or construction deficiencies associated with the permitted work. e. Damage claims associated with any future modification, suspension, or revocation of this permit. 4. Reliance on Applicant's Data. The determination of this office that issuance of this permit is not contrary to the public interest was made in reliance on the information you provided. 5. Reevaluation of Permit Decision. This office may reevaluate its decision on this permit at any time the circumstances warrant. Circumstances that could require include, but are not limited to, the following: a. You fail to comply with the terms and conditions of the permit. b. The information provided by you in support of your application proves to have been false, incomplete, or 4 Hood Canal Mariculture, Inc. inaccurate (See 4 above). { L0G ITE A PWV �. N NWS -2008-502 c. Significant new information surfaces which this office did not consider in reaching the original public interest decision. Such a reevaluation may result in a determination that it is appropriate to use the suspension, modification, and revocation procedures contained in 33 Code of Federal Regulations (CFR), Part 325.7 or enforcement procedures such as those contained in 33 CFR, Parts 326.4 and 326.5. The referenced enforcement procedures provide for the issuance of an administrative order requiring you to comply with the terms and conditions of your permit and for the initiation of legal action where appropriate. You will be required to pay for any corrective measures ordered by this office, and if you fail to comply with such directive, this office may in certain situations (such as those specified in 33 CFR, Part 209.170) accomplish the corrective measures by contract or otherwise and bill you for the cost. 6. Extensions. General condition 1 establishes a time limit for the completion of the activity authorized by this permit. Unless there are circumstances requiring either a prompt completion of the authorized activity or a reevaluation of the public interest decision, the Corps will normally give favorable consideration to a request for an extension of this time limit. Your signature below, as permittee, indicates that you accept and agree to comply with the terms and conditions of this permit. Jonat P. Davis Hood Canal Mariculture, Inc. 311120,( (DATE) This permit becomes effective when the Federal official, designated to act for the Secretary of the Army, has signed below. -22t�'tl JAOV� I(/John G. Buck Colonel, Corps of Engineers District Engineer I MARc tf zo (DATE) When the structures or work authorized by this permit are still in existence at the time the property is transferred, the terms and conditions of this permit will continue to be binding on the new owner(s) of the property. To validate the transfer of this permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below. (TRANSFEREE) (DATE) ' . _ . • ? e�:;; •..+�M^'• :war.. �;%_;'' ':�.'':._ ' �'?!�i ' sti "-" '� %y�.4 :y,,;ti,"�,�r.l-• •y; M1••'lti�r�.` -, �'' •�_-;-�':: • w :.5En LO _�•.�Ln 1. ' t' , 00 E 1 •ra 01, cz pal • : i�: x. - Kt • _� • • OL4 3 ' a. �� ::� L� � ITEM c� d � � m � O N N ry N lu G' '17", N M o m ,- o U Lr.,N N �p 00 00 00 00 It N azcn a c u •� J c , (1 ¢ 9 m m 51- Ln O N ri V U rl F ' ~ � � Q ? b u "� U N � Ln m Lo O N cr y L d N zz'a o Z h U � G [ O -0 rO N v O co E QJ N w Q U CA 0- p�r�tw J ray him �_ p�r�tw ,y I .4 LOG ITEM # psm-�7210-31 NI) U N HS Al RoQ LO CD C*4 AC) Qj I I cu Fu rL ,y I .4 LOG ITEM # psm-�7210-31 NI) U N HS Al RoQ LO CD C*4 AC) Qj I Fu rL CL ,y I .4 LOG ITEM # psm-�7210-31 RF rrat�. Shoreline tip', "i Propose& �Ivk4a�4 zG-vn' k.00, B`iEP Pi5i �q PLAN VMW : A Retrofit south row mooring anchors within WDNR Lease 20-BI2535 by adding up to 17- new Enew embedment anchors. I Add up to 12 additional new embedment anchors throughout the lease area to moor the proposed seaweed array and oceanographic instrument buoys. 47.8'85384- 122.61313 NR ;e 20-BI2535 ICP#994000090 Dswa? a, Marie 1 "� ` oir� `? Seven Sisters Beach n�' Tracts 98 & 99 � ACOE Seattle NWS -2Q08-502 n ! � Pro osed 2 j Additional embedment anchors —�' within Aquaculture lease area (6) 50"A,6, r0 QD Reference Number: NWS -2008-502 Applicant Name: Hood Canal Mariculture, Inc. Proposed Project: 2015 PAFF Ocean Acidification Location: WDNR Aquatic Lands Lease 20-B12535 Hood Head, Jefferson County, WA S25 T28N R01E Page 5 of 7 September 17, 2015 J tmaoa ed,ar•} NE PATOlV Buoy USCG-LLNR-17731 II-Z:w 1. Proposed #2 Additional embedment anchors within Aquaculture lease area (6) HOOD CANAL SE PATON Buoy USCG-LLNR-17731 remNwL a�Lk&F-- N 47.882667 R W 122.6141673 Pro og sed #1 retrofit embedment anchors on south anchprrow (12) a 250 Scale in Feet GPS deciinal degree VIWGS 84 Tide datum MLLW Seattle, Elliott Bay (NOAA) Station ID: 1033 Sao c 50"A,6, r0 QD Reference Number: NWS -2008-502 Applicant Name: Hood Canal Mariculture, Inc. Proposed Project: 2015 PAFF Ocean Acidification Location: WDNR Aquatic Lands Lease 20-B12535 Hood Head, Jefferson County, WA S25 T28N R01E Page 5 of 7 September 17, 2015 J tmaoa ed,ar•} NE PATOlV Buoy USCG-LLNR-17731 II-Z:w 1. Proposed #2 Additional embedment anchors within Aquaculture lease area (6) HOOD CANAL SE PATON Buoy USCG-LLNR-17731 remNwL a�Lk&F-- N 47.882667 R W 122.6141673 Pro og sed #1 retrofit embedment anchors on south anchprrow (12) a 250 Scale in Feet GPS deciinal degree VIWGS 84 Tide datum MLLW Seattle, Elliott Bay (NOAA) Station ID: 1033 Sao # E �tW A INTERTIDAL ZONE 0 PAT ONBUOY Sm ft. 4-- 2 50 ft. --10� - USCG-LLX1 17731 SEVEN SISTERS BEACH Oceanographic �lnstrument Buoy mariculture array ! 24" mooring buoy 1 �I j 4' double backbone surface longline{ mariculture array + } ' subsurface longline dropper 500 ft. f� mariculture array Q 24 mooring buoy jPC#994000090 F OSW'ALD, MARIE ' . Seven Sisters Beach 0-1 ii 11000 ft. Tracts 98 &. 99 t? I 4' double backbone Ebb .kCOIr Seattle `1 surFace longline NWS -2008-502,1 �MWWH, � WDNR �. 5E PATON Buoy � .� +10.3 Lease 20-gI2535 jUSCG-LLNR-17731 �d F Oceanographic Instrument Buoy l f' Proposed: '1.) Utilize the existing and proposed Lenumber: NWS -2008-502 anchors to moor the 254 ft. x 500 f . ame: Hood Canal Mariculture, Inc. mariculture array, subsurface longlines roject: 2015 PAFF Ocean Acidification spaced 10 #t. and held at 10-15 ft. depth. DNR Aquatic Lands Lease 20-B12535 2) Utilize the double -backbone surface ood Head, Jefferson County. WA longlines to suspend bivalve shellfish 25 T2QN-R01E grow containers Ce.g trays] at 20-40 ft. depth. r 17, 2015 O - 2S0 SOD .. Scale in Feet decimal degree WGS 84 Tide datum MLLW f Seattle, Elliott Bay C-ROAA] Station ID-. 1033 w 01 0 x Q� ` � N f W cc G O O O U C U Ncu h "a := bJ := QI s LO ro� ++ M CJ ro m q � Q) c � b �'u o co v o '� ai ami 0, UO � K Co m ro O 13 zCL v� n�.~a w U ON cn Y a rn crczz + � 2 CO CU LO o N m z -OF o O LO EE a A CA �- v N O O .O c� r" O Z3 U O, cC CL r cu CL p �¢c,a f0) CL (U w 3 CO O Q' LO r� �f LZ a m ° ! M Ln y li L a�. o o m >, �;,co� C! O fB M Y - by 1 C? U `O E N a Z Q Tt ?, ? Am a " : 0 G F C p 0 N N Cl O L 3 y 0 m � yao) CD bo ULO uy V.0 V. CG V. R I t N rr CU LU n` Cq Jy -) O Ln Q, U -J cud d N a N.acl)� N ^O O V A Lail rC W 'H .L� . $ c — se7i m q cr y? Rei N� GaV3 w 01 0 x Q� ` � N f W cc G O O O U C U Ncu h "a := bJ := QI s LO ro� ++ M CJ ro m q � Q) c � b �'u o co v o '� ai ami 0, UO � K Co m ro O 13 zCL v� n�.~a w U ON cn Y a rn crczz + � 2 CO CU LO o N m z -OF o O LO N a A CA �- v N O O .O c� r" O Z3 U O, cC E O cu CL p �¢c,a f0) CL (U a.ci) ro� ro Q) c co v o 0, Co m ro O 13 zCL cn Y a rn tr J m Y c0`] .n m C (13 3 CO O Q' m o,a E �f LZ a m ° ! U O LO y y li L a�. o o Lk cn �;,co� C! O fB M Y - tS Q. Q 00 C? U `O E inlaw'O o LOG ITEM L% P O APPENDIX F Corps Letter "No Applications Pending" 12-9-19 Office of Counsel DEPARTMENT OF THE ARMY CORPS OF ENGINEERS, SEATTLE DISTRICT P.O. BOX 3755 SEATTLE, WASHINGTON 98124-3755 December 9, 2019 Mr. Kenneth Sheppard Simburg, Ketter, Sheppard & Purdy, LLP 999 Third Ave., Suite 2525 Seattle, WA 98104 Dear Mr. Sheppard. Your Freedom of Information Act (FOIA) request, received November 4, 2019 and assigned FOIA number FA -20-023, requested a copy of permit applications and drawings for all pending applications before the USACE for aquaculture projects within a 5 mile linear shoreline distance from either direction of the reference project NWS - 2013 -1268. Our Regulatory Branch searched and did not find any documents. We do not have any records responsive to your request. Please be advised the District of Columbia Circuit Court of Appeals held in Ogelsby v. Department of the Army, 920 F.2d 57 (D.0 Cir. 1990) that a "no records" determination is an appealable denial. You have the right to appeal this determination through the District Counsel's Office to the Secretary of the Army (ATTN: General Counsel). Should you decide to file an appeal, it must be received by this office within 90 days of the date of this letter. The envelope containing the appeal should bear the notation "Freedom of Information Act Appeal" and should be sent to: Office of Counsel U.S. Army Corps of Engineers P.O. Box 3755 Seattle, WA 98124-3755 If you have any questions, please contact me at (206) 764-6943 or via e-mail at Craig.M.Juckn'I_ess@usace.army.mil. Alternatively, you may contact the Corps' FOIA Public Liaison for any further assistance and to discuss any aspect of your request. The contact information for the FOIA Public Liaison is as follows: U.S. Army Corps of Engineers, ATTN: CECC-L, 441 G Street, NW, Washington, DC 20314-1000; e-mail at foia-Iiaison@usace.army.mil; telephone at (202) 761-4791. Additionally, you may contact the Office of Government Information Services (OGIS) at the National Archives and Records Administration to inquire about the FOIA mediation services they offer. The contact information for OGIS is as follows: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road-OGIS, College Park, Maryland 20740-6001, e-mail at ogis�nara.gov; LOG ITEM -2- P 5 telephone at (202) 741-5770; toll free at 1-877-684-6448; or facsimile at (202) 741- 5769. Because the cost of processing your request was minimal, there is no charge. Sincerely, � 'r / ralqcl, Juct Couel DIST pF 4q ' fid • �, r P�a �+ui.nsn. Regulatory Branch Mr. Brad Nelson BDN, LLC 3011 Chandler Street Tacoma, Washington 98409 Dear Mr. Nelson: DEPARTMENT OF THE ARMY SEATTLE DISTRICT, CORPS OF ENGINEERS P.O. BOX 3755 SEATTLE, WASHINGTON 98124-3755 AUG 2 2 2011 Reference: " � NWS -2013-1268 BDN, LLC (Smersh Lease) We have reviewed your permit file to cultivate 5.15 acres of geoduck in Squamish Harbor, near Port Ludlow, Jefferson County, Washington verified under the 2012 Nationwide Permit (NWP) 48. Your proposal as depicted on the enclosed drawings dated July 22, 2016 and as verified on January 3, 2017 under the 2012 NWP 48 (hereinafter "activity") is eligible for verification under the 2017 Nationwide Permit (NWP) 48 for Commercial Shellfish Aquaculture Activities (Federal Register January 6, 2017, Vol. 82, No. 4). The activity will be verified under the 2017 NWP 48 upon return of this letter, bearing your signature, to the Seattle District in conformance with the instructions below. if you would like to seek verification under NWP 48 for any proposed work outside of the activity for which you were verified under the 2012 NWP 48 on January 3, 2017, please contact the Project Manager listed in the cover letter accompanying this letter. In order for this authorization to be valid, you must ensure the work is performed in accordance with the enclosed NWP 48, Terms and Conditions and with the Services Biological Opinions - National Marine Fisheries Service (NMFS) Biological Opinion (BO) and Errata dated September 2, 2016 and September 30, 2016, respectively (NMFS Reference Number WCR- 2014-1502), and U.S. Fish and Wildlife Service (USFWS) BO dated August 26, 2016 (USFWS Reference Number OIEWFW00-2016-F-0121). The BOs contain mandatory terms and conditions to implement the reasonable and prudent measures associated with the specified "incidental take". You are also required to comply with the special conditions listed below. a. This U.S. Army Corps of Engineers (Corps) permit does not authorize you to take a threatened or endangered species. In order to legally take a listed species, you must have authorization under the Endangered Species Act (ESA) (e.g., an ESA Section 10 permit, or ESA Section 7 consultation Biological Opinion with non -discretionary "incidental take" provisions LW IT APPENDIX G USACE approval of the BDN Smersh project (granted on December 19, 2016 under NWS -2013-1268) l -G ITEM -2- � 70 with which you must comply). The Programmatic Biological Opinions for Shellfish Activities in Washington State Inland Marine Waters (BOs) - the National Marine Fisheries Service (NMFS) and Errata, dated September 2, 2016 and September 30, 2016, respectively (NMFS Reference Number WCR-2014-1502), and the U.S. Fish and Wildlife Service (USFWS), dated August 26, 2016 (USFWS Reference Number 01EWFW00-2016-F-0121), contain mandatory terms and conditions to implement the reasonable and prudent measures associated with the specified "incidental take". The authorization under this Corps permit is conditional upon your compliance with all of the mandatory terms and conditions associated with incidental take of the BOs. These terms and conditions are incorporated by reference in this permit. Failure to comply with the terms and conditions associated with incidental take of the BOs, where a take of the listed species occurs, would constitute an unauthorized take, and it would also constitute non- compliance with your Corps permit. The USFWS and NMFS are the appropriate authorities to determine compliance with the terms and conditions of its BO and with the ESA. b. In order to meet the requirements of the Endangered Species Act (ESA) and Magnuson - Stevens Fishery Conservation and Management Act (MSA), you must comply with the conservation measures in the Programmatic Biological Opinions for Shellfish Activities in Washington State Inland Marine Waters (BOs) - the National Marine Fisheries Service (NMFS) and Errata, dated September 2, 2016 and September 30, 2016, respectively (NMFS Reference Number WCR-2014-1502), and the U.S. Fish and Wildlife Service (USFWS), dated August 26, 2016 (USFWS Reference Number OIEWFW00-2016-F-0121). These conservation measures are included in the enclosed document, Enclosure 1, Conservation Measures for Activities Covered under the Shellfish Activities Programmatic Consultation Biological Opinions. If you cannot comply with these conservation measures, you must, prior to commencing your activity, contact the U.S. Army Corps of Engineers, Seattle District, Regulatory Branch for individual ESA/MSA consultation. The USFWS and NMFS are the appropriate authorities to determine compliance with the ESA. c. Incidents where any individuals of fish species, marine mammals and/or sea turtles listed by National Oceanic and Atmospheric Administration Fisheries (NOAA Fisheries) under the Endangered Species Act appear to be injured or killed as a result of discharges of dredged or fill material into waters of the U.S. or structures or work in navigable waters of the U.S, authorized by this Nationwide Permit verification shall be reported to NOAA Fisheries, Office of Protected Resources at (301) 713-1401 and the Regulatory Office of the Seattle District of the U.S. Army Corps of Engineers at (206) 764-3495. The finder should leave the animal alone, make note of any circumstances likely causing the death or injury, note the location and number of individuals involved and, if possible, take photographs. Adult animals should not be disturbed unless circumstances arise where they are obviously injured or killed by discharge exposure or some unnatural cause. The finder may be asked to carry out instructions provided by NOAA Fisheries to collect specimens or take other measures to ensure that evidence intrinsic to the specimen is preserved. Enclosed for your convenience is a list of the conservation measures and mandatory terms and conditions referenced in the above special conditions. The complete Programmatic Biological Opinions, are available on our website at http://www,nws.usace.army.mil/Missions/Civil Works/Regulatory/Permit-Guidebook.aspx. The authorized activity complies with the Washington State Department of Ecology's (Ecology) Water Quality Certification (WQC) requirements and Coastal Zone Management (CZM) consistency determination response for this NWP. No further coordination with Ecology For WQC and. CZM is required. You have not requested a jurisdictional determination for this activity. If you believe the Corps does not have jurisdiction over all or portions of your project you may request a preliminary or approved jurisdictional determination (JD). If one is requested, please be aware that we may require the submittal of additional information to complete the JD and work authorized in this letter may not occur until the JD has been completed. Our verification of this NWP authorization is valid until March 18, 2022, unless the NWP is modified, reissued, or revoked prior to that date. If the authorized work has not been completed by that date and you have commenced or are under contract to commence this activity before March 18, 2022, you will have until March 18, 2023, to complete the activity under the enclosed terms and conditions of this NWP. Failure to comply with all terms and conditions of this NWP verification invalidates this authorization and could result in a violation of Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act. You must also obtain all local, State; and other Federal permits that apply to this project. You are cautioned that any change in the activity's location or plans will require you to submit a copy of the revised plans to this office and obtain our approval before you begin work. Deviating from the approved plans and activity could result in an enforcement action. Please note we may need to reinitiate consultation with the NMFS and/or USFWS in order to authorize any work not already included in the enclosed plans. Thank you for your cooperation during the permitting process. We are interested in your experience with our Regulatory Program and encourage you to complete a customer service survey form. This form and information about our program is available on our website at LOG 1TEOO -4- p �(> www.nws.usace.ar ny.mil, select "Regulatory Branch, Permit Information" and then "Contact Us." If you have any questions, please contact me at pamela.sanguinetti@usace.army.mil or by phone at (206) 764-6904. Sincerely, hoL a A� Pamela Sanguinetti, P oject Manager Regulatory Branch Enclosures By signing below I certify the activity described in the enclosed drawings and descriptions as verified under the 2012 NWP 48 on January 3, 2017 accurately describes my proposed on-going activities for the period from March 2018 through March 2022 and constitutes a complete and accurate Pre -Construction Notification for authorization under the 2017 Nationwide Permit 48. By signing below I accept verification for the activity under the 2017 Nationwide Permit, as described and conditioned in this verification letter. I further acknowledge any changes to the activity from the enclosed drawings and descriptions require further coordination with the U.S. Army Corps of Engineers and are not authorized by this letter. JIB LCC- /44o) Print Applicant Name REFERENCE NUMBER: NWS -2013-1268 AJ -31 [s. a 1r Applicant Signature and date x .0 LL > a7 � r I NC] W C Z ; _ � � � W � z a 4 � s� [.i�� = � ¢ � _ 1� � � Jai/ j i 1 �r��•. a�� o� x y o, w M- .? c - JLC U Cl (a vi Hl, c c 4 m 1 pa <[ 4 p) D C W (a J C C C U 0 N Q � Y, IL • �! � W lV CI d y F U 1•- f •� 6iW V j JC�'1 11T1 wo N0 C, + •+ C4 A, C, N "; &C kf""f'IYf: a, .o J _ onpap7 K � Y C of O i W A U J J '�E L �I C� LL5 4l n1 IL oy v n+ m m LL m ' Ni 4, o ' +� `. Q. u' z RwR V Jai JI til c ei [i 9).G Z l f � G 1` ; uq u E a� Wa°om w M Jrni "' 4 u' � c vaia+;i y m w_, tL LU 2 t a4 j m jF I� Iti ly 1•. b. J J• f ? C + �, m (O f0 A] -� l) [I W I'J. 41 r 41 i'1 �S (J Y+ E A .. R 11 J �JJ C LOCA O W a A On r.7 W z z W I�1 Qn 1 N V O O w m 0 ' ` (PA""w UI mdea m� d M $ X30 i 011 Hill g za 90o N > F -UCC roti cd rA RO I J A M 4,6 � � � y �y I i(� a W� W 2 b `j< NF 1i LOG ITER r P86�- APPENDIX H Order in Coalition to Protect Puget Sound Habitat, v. U.S. Army Corps of Engineers Case No 2:16 -CV -00950, and 2:17 -CV -1209. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 Page 1 of 24 LOG ITEM Pli*kSECRM UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE THE COALITION TO PROTECT PUGET SOUND HABITAT, Plaintiff, V. U.S. ARMY CORPS. OF ENGINEERS, et al., Defendants, and TAYLOR SHELLFISH COMPANY, INC., Intervenor - Defendant. CENTER FOR FOOD SAFETY, Plaintiff, V. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants, and PACIFIC COAST SHELLFISH GROWERS ASSOCIATION, Intervenor - Defendant. Case No. C 16-0950RSL Case No. 17-1209RSL ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING This matter comes before the Court on cross-motions for summary judgment filed by the parties and intervenors in the above -captioned matters. Dkt. # 36, # 44, and # 45 in C16- 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LOG ITEM, Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 PaW 2 of of 24 �-q}q 0950RSL; Dkt. # 31, # 43, and # 44 in C17-1209RSL. The Court has also considered the Swinomish Indian Tribal Community's submission in a related case, C 18-0598RSL (Dkt. # 28). Plaintiffs challenge the U.S. Army Corps of Engineers' issuance of Nationwide Permit 48 ("NWP 48") authorizing discharges, structures, and work in the waters of the United States related to commercial shellfish aquaculture activities. Plaintiffs argue that the Corps failed to comply with the Clean Water Act ("CWA"), the National Environmental Policy Act ("NEPA"), and the Endangered Species Act ("ESA") when it reissued NWP 48 in 2017. They request that the decision to adopt NWP 48 in Washington' be vacated under the Administrative Procedures Act ("APA") and that the Corps be required to comply with the environmental statutes before issuing any new permits or verifications for commercial shellfish aquaculture in this State.z I:I O;5"Ml01L, El The CWA authorizes the Army Corps of Engineers to issue permits for the discharge of dredged or fill material into the navigable waters of the United States. 33 U.S.C. § 1344(a). If the Corps determines that activities involving discharges of dredged or fill material "are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment," it may issue general permits on a state, regional or nationwide basis permitting the activities for a five year period. 33 ' The Coalition to Protect Puget Sound Habitat seeks to bar the use of NWP 48 only in Puget Sound. z The Court finds that one or more members of plaintiff Center for Food Safety has/have standing to pursue the CWA, NEPA, and ESA claims based on their concrete, particularized, and imminent injuries arising from activities in Washington that are permitted under the 2017 version of NWP 48. ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING - 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LW ITEM Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 Page 3 of 24 U.S.C. § 1344(e). "[T]he CWA imposes substantive restrictions on agency action" (Greater Yellowstone Coalition v, Flowers, 359 F.3d 1257, 1273 (10th Cir. 2004)): if "the effect of a general permit will be more than minimal, either individually or cumulatively, the Corps cannot issue the permit" (Wvoming Outdoor Council v. U.S. Army CoEps of En 'rs, 351 F. Supp. 2d 1232, 1255-57 (D. Wyo. 2005)). General permits often impose requirements and standards that govern the activities undertaken pursuant to the permit, but they relieve operators from the more burdensome process of obtaining an individual, project -based permit. In 2017, the Corps reissued NWP 48, thereby authorizing "the installation of buoys, floats, racks, trays, nets, lines, tubes, containers, and other structures into navigable waters of the United States. This NWP also authorizes discharges of dredged or fill material into waters of the United States necessary for shellfish seeding, rearing, cultivating, transplanting, and harvesting activities." NWP003034. The nationwide permit authorizes(a) the cultivation of nonindigenous shellfish species as long as the species has previously been cultivated in the body of water at issue, (b) all shellfish operations affecting '/z acre or less of submerged aquatic vegetation, and (c) theall operations affecting more than '/z acre of submerged aquatic vegetation if the area had been used for commercial shellfish aquaculture activities at any point in the past 100 years. NWP003034-35.3 In addition to the CWA's requirement that the Corps make "minimal adverse effect" findings before issuing a general permit, "NEPA imposes procedural requirements on federal agencies to analyze the environmental impact of their proposals and actions." O'Reilly v. U.S. 3 The 100 -year look back provision was not in the 2012 version of NWP 48. ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING - 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LOG ITEM Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 Pag:0 4 of 24 Army Corps of Engr's, 477 F.3d 225, 228 (5th Cir. 2007). Federal agencies are required to do an environmental assessment ("EA") of their proposed action, providing a brief discussion of the anticipated environmental impacts and enough evidence and analysis to justify a no -significant - impact determination. 40 C.F.R. § 1508.9. If the agency, after conducting an EA, is unable to state that the proposed action "will not have a significant effect on the human environment," a more detailed and comprehensive environmental impact statement ("EIS") must be prepared. 40 C.F.R. § 1508.11 and § 1508.13.4 The Corps' EA regarding the 2017 reissuance of NWP 48 is presented in a Decision Document dated December 21, 2016. NWP003034-3116. An additional condition was later imposed by the Seattle District through its Supplemental Decision Document dated March 19, 2017. COE 127485-611. The Court has considered both Decision Documents to the extent they reflect the Corps' analysis of the anticipated environmental impacts of issuing the nationwide permit and imposing the additional regional condition. The Decision Documents set forth the Corps' discussion of anticipated environmental impacts and the evidence and analysis justifying its determination "that the issuance of [NWP 48] will not have a significant impact on the quality of the human environment," making an EIS unnecessary under NEPA. NWP003106. The Decision Documents also reflect the Corps' determination that the "activities authorized by [NWP 48] will result in no more than minimal individual and cumulative adverse effects on the aquatic environment" for purposes of the CWA. NWP003107. The Seattle District, for its part, concluded that if it added a regional condition preventing the commercial harvest of clams by 4 "Impact" and "effect" are used interchangeably in the regulations and are deemed synonymous. 40 C.F.R. § 1508.8. ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING - 4 2 3 4 6y 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LOG ITEM Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 Page of 241 rL Paw rc �j means of hydraulic escalator equipment and evaluated proposed activities as they were verified under the reissued permit, the effects of the permitted activities would be individually and cumulatively minimal. COE 127592-93. Plaintiffs argue that these conclusions must be invalidated under the APA because the record does not support the Corps' conclusions regarding the environmental effects of individual shellfish aquaculture activities or their cumulative impacts and the EA does not accurately describe the anticipated environmental impacts of NWP 48 or otherwise justify a no -significant - impact determination. Under the APA, a reviewing court must set aside agency actions, findings, or conclusions that are "arbitrary, capricious, an abuse of discretion, [] otherwise not in accordance with law" or "without observance of procedure required by law." 5 U.S.C. § 706(2)(A) and (D). Agency action is arbitrary and capricious "if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Assn v. State Farm Mut. Auto. lips. Co., 463 U.S. 29, 43 (1983). Although agency predictions within the agency's area of expertise are entitled to the highest deference, they must nevertheless have a substantial basis in fact. Ctr. for Biological Diversity v. Zinke, 900 F.3d 1053, 1067 (9th Cir. 2018). In determining whether a decision is supported by substantial evidence in the record, the Court will not substitute its own judgment for that of the agency but rather considers whether the decision is based on relevant evidence that a reasonable mind might accept as adequate to support the agency's conclusion. ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING - 5 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 Pia 23 24 25 26 27 28 Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 Page 6 "G San Luis & Delta -Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014).5 DISCUSSION Having reviewed the submissions of the parties and the administrative record, and having heard the arguments of counsel, the Court finds that there is insufficient evidence in the record to support the agency's conclusion that the reissuance of NWP 48 in 2017 would have minimal individual and cumulative adverse impacts on the aquatic environment for purposes of the CWA and that the Corps' environmental assessment does not satisfy NEPA's requirements. Although the minimal impacts finding is repeated throughout the Corps' Decision Document (see NWP003038, NWP003045-46, NWP003049, NWP003051, NWP003091, NWP003107), it is based on little more than (1) selectively chosen statements from the scientific literature, (2) the imposition of general conditions with which all activities under nationwide permits must comply, and (3) the hope that regional Corps districts will impose additional conditions and/or require applicants to obtain individual permits if necessary to ensure that the adverse impacts will be minimal. Each of these considerations is discussed below. (1) Effects Analysis At various points in its analysis, the Corps acknowledges that commercial shellfish aquaculture activities can have adverse environmental impacts. See NWP003040 (commercial s Plaintiffs also argue that the agency action should be invalidated because the Corps (a) failed to analyze a reasonable range of alternative actions in the EA, (b) failed to allow for meaningful public participation, and (c) failed to re-initiate consultation with expert wildlife agencies under the ESA when the 2017 version of NWP 48 was modified to increase the acreage on which commercial shellfish production was authorized, failed to incorporate assumed conservation measures and conditions, and failed to analyze the impacts of pesticides on endangered species. Because the Court finds that the Corps violated the CWA and NEPA, it has not considered these alternative theories for why NWP 48 should be invalidated. ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING - 6 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L0G' 1T�:&i Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 Paqe 7of 241 Pte- 64 5::-, shellfish aquaculture activities "have some adverse effects on the biotic and abiotic components of coastal waters, including intertidal and subtidal areas"); Id. (noting that "at a small spacial scale (e.g., the site directly impacted by a specific aquaculture activity) there will be an adverse effect."); NWP003041 (acknowledging "some impacts on intertidal and subtidal habitats, fish, eelgrass, and birds"); NWP003042 (recognizing that "commercial shellfish aquaculture activities do have some adverse effects on eelgrass and other species that inhabit coastal waters"); COE 127559 (stating that "marine debris is a serious impact on the marine environment"); COE 127570 (acknowledging "potential adverse impacts" to riffle and pool complexes); COE 127584 (noting that "[c]ommercial shellfish aquaculture activities can result in conversion of substrates (e.g. mudflats to gravel bars), impacts to submerged aquatic vegetation, alteration in aquatic communities from native to non-native shellfish species, and water quality impacts from harvest activities"). It concludes that these impacts are no more than minimal, however, (a) when considered on a landscape rather than a site -by -site scale, (b) because the relevant ecosystems are resilient, and (c) because the impacts are "relatively mild" in comparison "to the disturbances and degradation caused by coastal development, pollution, and other human activities in coastal areas." NWP003040 and NWP003044. (a) Scale of Impacts Evaluation In determining the potential effects of a proposed discharge of dredged or fill material in an aquatic environment, the Corps is required to determine the nature and degree of the environmental impact the discharge will have, both individually and cumulatively. "Consideration shall be given to the effect at the proposed disposal site of potential changes in substrate characteristics and elevation, water or substrate chemistry, nutrients, currents, ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING - 7 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 Pag of 44 1T RW 7' circulation, fluctuation, and salinity, on the recolonization and existence of indigenous aquatic organisms or communities." 40 C.F.R. § 230.11(e) (emphasis added). Ignoring or diluting site- specific, individual impacts by focusing solely on a cumulative, landscape -scale analysis is not consistent with the governing regulations. (b) Resilient Ecosystems The Decision Document issued by Corps Headquarters acknowledges that "[t]he effects of commercial shellfish aquaculture activities on the structure, dynamics, and functions of marine and estuarine waters are complicated, and there has been much discussion in the scientific literature on whether those effects are beneficial or adverse." NWP003040. Relying in large part on a.paper published by Dumbauld and McCoy for the U.S. Department of Agriculture in 2015, the Corps concluded that the individual and cumulative impacts of the activities authorized by NWP 48 would be minimal "because the disturbances caused by these activities on intertidal and subtidal ecosystems are temporary and those ecosystems have demonstrated their ability to recover from those temporary disturbances." NWP003045-46.6 6 The Corps also cites a 2009 paper co -written by Dumbauld, which it describes as "a review of empirical evidence of the resilience of estuarine ecosystems and their recovery (including the recovery of eelgrass) after disturbances caused by shellfish aquaculture activities." NWP003044. The Corps relies on the 2009 Dumbauld paper to support its conclusion that commercial shellfish production can have beneficial impacts on some aspects of the aquatic environment. See NWP003406 ("Many species co- exist with commercial shellfish aquaculture activities and many species benefit from these activities."); NWP003086 (noting improved water and habitat quality at moderate shellfish population densities); NWP003087 ("Activities authorized by this NWP may alter habitat characteristics of tidal waters. Some species of aquatic organisms will benefit from those changes, while others will be adversely affected."); NWP003104 ("Sessile or slow-moving animals in the path of discharges of dredged or fill material and aquaculture equipment may be destroyed. Some aquatic animals may be smothered by the placement of fill materials. Some aquatic organisms will inhabit the physical structure created by equipment used for commercial shellfish aquaculture activities."). The fact that there are environmental winners and losers when activities authorized under NWP 48 are undertaken does not resolve the issue of whether the ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING - 8 pi 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 Page 9 c�LAG ITEM 24 r1�� Dumbauld and McCoy's research cannot justify such a broad, sweeping conclusion regarding the resilience of entire ecosystems in both the intertidal and subtidal zones. According to the Corps' own summary of the paper, the authors evaluated only the effects of oyster aquaculture activities on submerged aquatic vegetation. NWP003044. The paper itself shows that Dumbauld and McCoy were studying the effects of intertidal oyster aquaculture on the seagrass Zostera marina. There is no discussion of the impacts on other types of aquatic vegetation, on the benthic community, on fish, on birds, on water quality/chemistry/structures, or on substrate characteristics. There is no discussion of the subtidal zone. There is no discussion regarding the impacts of plastic use in shellfish aquaculture and only a passing reference to a possible side effect of pesticide use. The Corps itself does not remedy these deficiencies: although it identifies various resources that will be adversely impacted by issuance of the national permit (along with resources that may benefit from shellfish production), it makes virtually no effort to characterize the nature or degree of those impacts. The Decision Document's "Impact Analysis" consists of little more than an assurance that district engineers will consider the direct and indirect effects caused by the permitted activity on a regional or case-by-case basis. NWP003073-74. proposed agency action has more than minimal impacts or obviate the need for a "hard look" at all impacts, beneficial and adverse. Native Ecosys. Council v. U.S. Forest Serv., 428 F.3d 1233, 1238-39 (9th Cir. 2005). The 2009 review clearly shows, and the Corps acknowledges, that at least some aquatic species and characteristics are adversely affected by commercial shellfish aquaculture. The Ninth Circuit, faced with a similar situation under NEPA, noted that "even if we had some basis for assuming that [the agency's] implementation of the BiOp would have exclusively beneficial impacts on the environment, we would still lack a firm foundation for holding that [the agency] need not prepare an EA and, if necessary, an EIS." San Luis & Delta -Mendota Water Auth. v. Jewell, 747 F.3d 581, 652 n.52 (9th Cir. 2014). ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING - 9 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 •^M 9 d t* m Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 Page 1q?of 24 Pte' 7? __J Under the CWA, the Corps must find that the proposed activity "will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment" before it issues a general permit. 33 U.S.C. § 1344(e). Under NEPA, the Corps is required to "[b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact." 40 C.F.R. § 1508.9(a)(1). The agency is required to take a "hard look" at the likely environmental impacts of the proposed action and prepare an EA to determine whether the impacts are significant enough to necessitate the preparation of an EIS. Native Ecosys. Council, 428 F.3d at 1238-39. The analysis, though brief, "must be more than perfunctory" and must be based on "some quantified or detailed information; ... [g]eneral statements about possible effects and some risk do not constitute a hard look absent a justification regarding why more definitive information could not be provided." Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 993-94 (9th Cir. 2004) (alteration in original, citations omitted). In this case, the Corps acknowledged that reissuance of NWP 48 would have foreseeable environmental impacts on the biotic and abiotic components of coastal waters, the intertidal and subtidal habitats of fish, eelgass, and birds, the marine substrate, the balance between native and non-native species, pollution, and water quality, chemistry, and structure, but failed to describe, much less quantify, these consequences. The Corps cites the two Dumbauld papers for general statements regarding the positive or negative effects of shellfish aquaculture on certain aquatic resources or characteristics (focusing on seagrass), but it makes no attempt to quantify the effects or to support its conclusion that the effects are no more than minimal. Even if the health and resilience of seagrass were the only concern - and, as discussed ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING - 10 Pj 4 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 Page #of 24' above, it is not - the 2015 Dumbauld and McCoy paper cannot reasonably be interpreted as evidence that seagrass is only minimally impacted by commercial shellfish aquaculture. As noted above, the paper evaluated only the effect of oyster aquaculture. In that context, it recognized the research suggesting that oyster aquaculture has direct impacts on native seagrasses at the site of the activity and in short temporal spans. These impacts are then ignored by both Dumbauld and the Corps in favor of a landscape, cumulative analysis which, as discussed above, is inadequate. Just as importantly, NWP 48 authorizes the discharge of dredged and fill material from not only oyster operations, but also from mussel, clam, and geoduck operations carried out on bottom substrate, in containers, and/or on rafts or floats. Thus, Dumbauld and McCoy did not evaluate, and drew no conclusions regarding, the impact that many of the activities authorized by NWP 48 would have on seagrass (much less other aquatic resources). The Seattle District, for its part, acknowledged the breadth of species and cultivation techniques that are encompassed in the phrase "commercial shellfish aquaculture." A draft cumulative impact assessment generated in February 2017 dedicated twenty-five pages to discussing the wide range of work and activities covered by NWP 48 and noting the species - dependent variability in cultivation techniques, gear, and timing. COE 125591-616.7 These variations gave rise to a wide array of effects on the aquatic habitat (COE 125635-36), none of which is acknowledged or evaluated in the national Decision Document. In its Supplement, the Seattle District noted: ' The Corps acknowledges that the draft regional impact assessment "was a NEPA-level analysis," but faulted the author because that level of analysis should be performed by Headquarters for a nationwide permit. COE 125856. No comparable analysis is included in the national Decision Document, however. ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING - 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 Page 12 of 24 m� H,: The impacts to eelgrass from aquaculture can be temporary, depending on the activity, because the habitat conditions themselves (elevation, water quality, etc.) are not permanently altered which allows eelgrass to eventually recover given sufficient time. In Washington State, the timeframe for recovery has been documented to be about 5 years depending on the activity and other factors. For example, when a geoduck farm is seeded it is covered with tubes and nets for 2 or more years and then the tubes and nets are removed until harvest, 3-5 years later. The eelgrass would have died back under the nets, had a chance to return when nets were removed, and then eelgrass is disturbed/removed again when harvest occurs. While this process allows for eelgrass return at the site, the frequency of disturbance and relatively long recovery times result in a local habitat condition where eelgrass more often than not is either not present or present at a much reduced functional state. This effect would persist as long as aquaculture is occurring at the site. In some cases, such as when nets are placed over planted clam beds, any eelgrass is likely to be permanently smothered and not recover. This is because of the permanence of the nets, which are only removed between harvest and the next planting cycle. The time between harvest and planting may only be a matter of weeks or months. Other impacts are discussed in the national decision document. This existing cycle of impacts to eelgrass represents the existing environment from aquaculture activities authorized under NWP [48] 2012; and these or similar effects may continue if verification under 48 2017 is requested and received. COE 127587-88. Pnm— —7q 4- FT Agency predictions within their areas of expertise are entitled to the highest deference, but they must have a substantial basis in fact. The Corps recognized that certain shellfish operations would displace eelgrass entirely for extended periods of time. In some cases, nets are used to smother the vegetation, precluding any chance of recovery. Where smothering nets are not in use, the eelgrass may recover to some extent, but was not likely to return to is full functional state before being disturbed and/or removed again for the next harvest or seeding ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING - 12 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 06K 23 24 25 26 27 28 Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 Page, 31a�' ITEM Ir ;- �5- PAM -2L01 activity. The impacts of commercial shellfish aquaculture on eelgrass (and presumably on all species that rely on eelgrass) would continue as long as the permitted activiV.continued. Under the 2017 version of NWP 48, a significant number of additional acres that were not cultivated under the 2012 NWP could be put into shellfish aquaculture if the area had been commercially productive during the past 100 years. See COE 118145-49; COE 127584. Any such "reopened" beds could result in additional losses of seagrass and the benefits it provides. COE 127589 ("[F]or many current operations, verification under NWP 2017 will create no appreciable change to the baseline environmental conditions, and the impacts will be minimal both individually and cumulatively! For other operations, however, activities may create a change in current conditions, for example if activities are proposed on land populated with recovered eelgrass."). The national Decision Document does not quantify the periodic and permanent losses of seagrass9 or the impact on the wider aquatic environment. A reasonable mind reviewing the s By quoting this portion of the Seattle District Supplement, the Court is not adopting its reasoning. National, regional, and state permits issued under the authority of the CWA last for only five years. When a NWP is reissued, the environmental impacts of the agency action logically include all activities conducted 4pder the auspices of the permit, regardless of whether those operations are brand new or are simply "verified" as covered by the reissued NWP. The governing regulations expressly impose upon the Corps the obligation to consider the ongoing effects of past actions when conducting a cumulative impacts analysis. 40 C.F.R. § 1508.7. See Ohio Valley Enytt. Coalition v. Hurst, 604 F. Supp. 2d 860, 886-87 (S.D. W. Va. 2009) (rejecting the Corps' post hoc rationalization that past authorizations of moutaintop mining had no continuing effects and noting that, in the court's "common sense judgment," "[t]hese losses and impacts do not exist in a vacuum; they are not corrected or cured every five years with the renewal of a new nationwide permit. Nor do these accumulated harms become the baseline from which future impacts are measured. Before authorizing future activities with such tremendous impacts, the Corps must at least consider the present effects of past activities ...."). 9 The cumulative impacts of reissuing NWP 48 are to be analyzed in accordance with 40 C.F.R. § 230.7(b)(3), pursuant to which the Corps must predict "the number of activities expected to occur until the general permit expires." NWP003043. The Corps' estimates of how many acres are likely to be cultivated under the reissued national permit vary widely, however. The estimate provided in Section ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING - 13 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 Page 14 of 24 record as a whole would not accept Dumbauld and McCoy's limited findings regarding the landscape -level impact of oyster cultivation on a species of seagrass in the intertidal zone as support for the conclusion that entire ecosystems are resilient to the disturbances caused by shellfish aquaculture or that the impacts of those operations were either individually or cumulatively minimal. (c) Impacts of Other Human Activity Pig* Although the Corps does not rely on this line of reasoning in opposing plaintiffs' motions for summary judgment, its Decision Document is replete with various forms of the following statement: "[c]ommercial shellfish aquaculture activities are a minor subset of human activities that affect coastal intertidal and subtidal habitats and contribute to cumulative effects to those coastal habitats." NWP003041. See also NW0003040; NWP003042-44; NWP003061; NWP003068; NWP003075-76; NWP003081; NWP003083-85. To the extent the Corps' minimal impacts determination is based on some sort of comparison between the environmental impacts of shellfish aquaculture and the environmental impacts of the rest of human activity (see 7.2.2 of the Decision Document states that NWP 48 will be utilized 1,625 times over the five-year period, resulting in impacts to approximately 56,250 acres of water. NWP003098. Those numbers are reportedly based on past uses of the NWP plus an estimate of the number of activities that did not require pre -construction notification and were not voluntarily reported to the Corps district. Id. According to the Seattle District, however, over 56,000 acres of marine tidelands were permitted under the 2012 version of NWP 48 in Washington State alone, and that number was only going to increase under the 2017 version. COE 127590. Recognizing the long history of commercial shellfish operations in the State's waters and the 100 -year look back for identifying "existing" operations, the Seattle District estimated that 72,300 acres of Washington tidelands could be authorized for commercial shellfish production under the 2017 NWP 48. COE 127590-92. Thus, even if Headquarters had attempted to quantify the proposed action's impacts on seagrass (or any other aquatic resource) before reissuing NWP 48, its data regarding past uses of the permit was incorrect and its estimates of future uses are suspect. ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING - 14 1 2 31 I 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 044 28 Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 Page 15WP-' I ! F c NWP003046 (commercial shellfish aquaculture activities "cause far less change to the environmental baseline than the adverse effects caused by development activities, pollution, and changing hydrology that results from the people living and working in the watersheds that drain to coastal waters ..."); NWP003078 ("[T]here are many categories of activities that contribute to cumulative effects to the human environment. The activities authorized by this NWP during the 5 -year period it will bein effect will result in no more than minimal incremental contributions to the cumulative effects to these resource categories."); NWP003081 ("The activities authorized by this NWP will result in a minor incremental contribution to the cumulative effects to wetlands, streams, and other aquatic resources in the United States because, as discussed in this section, they are one category of many categories of activities that affect those aquatic resources.")), the analysis is inadequate. NEPA and the CWA were enacted because humans were adversely affecting the environment to a noticeable and detrimental extent. See 42 U.S.C. § 4331(a) (Congressional recognition of "the profound impact of man's activity on the interrelations of all components of the natural environment"); 33 U.S.C. § 1251(a) ("The objective of [the CWA] is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."). Noting that a particular environmental resource is degraded is not an excuse or justification for further degradation. The Corps must analyze the individual and cumulative impacts of the proposed activity against the environmental baseline, not as a percentage of the decades or centuries of degrading activities that came before. The Corps makes a similarly untenable argument whenever the use of pesticides in a shellfish operation permitted under NWP 48 is discussed. While acknowledging that these substances are used and released into the environment during permitted activities, the Corps ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING - 15 2 3 4 5 I 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 Page 16 ofy,4 �OG � co, declines to consider the environmental impacts of pesticides because they are regulated by some other entity. See NWP003077. Even if the Corps does not have jurisdiction to permit or prohibit the use of pesticides, it is obligated to consider "other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non -Federal) or person undertakes such other actions." NWP003074 (quoting 40 C.F.R. § 1508.7). The Corps' decision to ignore the foreseeable uses and impacts of pesticides in the activities it permitted on a nationwide basis does not comport with the mandate of NEPA or with its obligations under the CWA. Having eschewed any attempt to describe the uses of pesticides in commercial shellfish aquaculture or to analyze their likely environmental impacts, the decision to permit such activities through NWP 48 cannot stand. (2) General Conditions of NWP 48 In making its minimal impact determinations, the Corps relied in part on the general conditions imposed on all nationwide permits. NWP003072. According to the Corps, the prohibitions it has imposed against impacts on the life cycle movements of indigenous aquatic species (general condition 2), spawning areas (general condition 3), migratory bird breeding areas (general condition 4), concentrated shellfish beds (general condition 5), and endangered or threatened species (general condition 18), and the requirements that permittees use non-toxic materials (general condition 6) and confer with other regulatory agencies as needed (general condition 19) will ensure that the individual and cumulative environmental effects of NWP 48 are minimal. Even if the Court were to assume that the general conditions will be universally heeded, regulatory fiat does not satisfy NEPA's requirement that the EA contain "sufficient evidence and analysis for determining whether to prepare an environmental impact statement or ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING - 16 1 2 3 4 5 I 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 Pa y 17 of 24 Pawi �- L& Sti a finding of no significant impact." 40 C.F.R. § 1508.9(a)(1). The general conditions are just Ithat: general. They apply to all NWPs and do not reflect a "hard look" at the environmental sequellae of commercial shellfish aquaculture. For purposes of the CWA, the general conditions on which the Corps relies do not necessarily prohibit substantial impacts: general condition 3, for example, precludes the most destructive of activities in spawning areas but leaves unregulated many activities that could significantly impact those areas. In addition, the general conditions relate to only some of the environmental resources the Corps acknowledges are impacted by the permitted activities and do not address the cumulative impacts of commercial shellfish aquaculture at all. 40 C.F.R. § 1508.7 ("Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time."). The Court does not intend to suggest, and is not suggesting, that the general terms and conditions imposed on a nationwide, regional, or state permit cannot be relevant to and supportive of a finding of minimal impacts. They are simply too general to be the primary "data" on which the agency relies when evaluating the impacts of the permitted activities. (3) Regional Conditions and District Engineers Any permit authorizing activities on a nationwide level runs the risk of sanctioning activities that have more than minimal environmental impacts. In order to safeguard against that risk, regional district engineers have the discretionary authority to modify, suspend, or revoke the NWP within a particular region or class of waters, to add regional conditions to the NWP, to impose special conditions on a particular project, and/or to require an applicant to seek an individual permit. NWP003037 (citing 33 C.F.R. §§ 330.4(e) and 330.5). Although permittees may generally proceed with activities authorized by an NWP without notifying the district ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING - 17 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1! d r% i Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 #age 18 f ?A engineer, (33 C.F.R. § 330.1(e)(1)), general condition 18(c) requires the submission of a pre - construction notification ("PCN") if the proposed activity may affect or is in the vicinity of a species listed or habitat designated as critical under the ESA. Because all aquaculture operations in the State of Washington occur in waters where there are threatened/endangered species and/or critical habitat, applicants who seek to operate under the auspices of NWP 48 in this State must submit a PCN and obtain a "verification" that the activity falls within the terms of the permit and that the requirements of the ESA have been satisfied. COE 127592. "For a project to qualify for verification under a general permit, a Corps District Engineer must conclude that it complies with the general permit's conditions, will cause no more than minimal adverse effects on the environment, and will serve the public interest." Sierra Club v. U.S. Army Corps of Eng�rs, 803 F.3d 31, 39 (D.C. Cir. 2015) (citing 33 C.F.R. §§ 330.1(e)(2), 330.6(a)(3)(i)). There is nothing arbitrary, capricious, or unlawful about having the regional district engineer review site-specific proposals to "cement [Headquarters'] determination that the projects it has authorized will have only minimal environmental impacts." Ohio Valley Envtl. Coalition v. Bulen, 429 F.3d 493, 501 (4th Cir. 2005). Tiering the review and decision-making tasks is permissible, but there must be a national decision document that actually evaluates the impacts of the proposed activity in light of any regional conditions imposed. The problems here are that the Corps' minimal impact determinations were entirely conclusory and the regional conditions that it assumed would minimize impacts were not in place at the time NWP 48 was adopted. The record is devoid of any indication that the Corps considered regional data, catalogued the species in and characteristics of the aquatic environments in which commercial shellfish aquaculture activities occur, considered the myriad techniques, equipment, and ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING - 18 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 Page 19 of ITEM S PAM _4 materials used in shellfish aquaculture, attempted to quantify the impacts the permitted activity would likely have on the identified species and characteristics, or evaluated the impacts of the as -yet -unknown regional conditions. Faced with incredible diversity in both the environment and the activities permitted under NWP 48, the Corps effectively threw up its hands and turned the impact analyses over to the district engineers. The "Impact Analysis" section of the national Decision Document simply reiterates the district engineer's powers to revoke, modify, or condition the NWP and directs the district engineers to make minimal adverse environmental effects determinations after considering certain factors. NWP003073-74. Its "Cumulative Effects" analysis bluntly acknowledges that "[i]t is not practical or feasible to provide quantitative data" regarding the cumulative effects of NWP 48 other than the estimated number of times the permit will be used. NWP003081. Because a nationwide analysis was impossible, the task of conducting a cumulative impacts analysis in specific watersheds was devolved to the district engineers. NWP003077. Even where adverse impacts are acknowledged, the Corps ignores its obligation to analyze and quantify them, instead relying on the district engineers to perform the analysis on a project -by - project basis. In the context of the public interest discussion regarding impacts to fish and wildlife, for example, the Corps recognizes that NWP 48 may "alter the habitat characteristics of tidal waters," that "[s]ome species of aquatic organisms will benefit from those changes, while other species will be adversely affected," and that equipment used in commercial shellfish operations may impede bird feeding activities and trap birds." NWP003087. It then states: The pre -construction notification requirement[] provides the district engineer with ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING - 19 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 Page 20 of 24 an opportunity to review those activities and assess potential impacts on fish and wildlife values and ensure that the authorized activity resin in r�o mo than minimal adverse environmental effects. �- �- Id. This abdication of responsibility is not authorized under the CWA or NEPA.10 As discussed in the preceding sections, Headquarters' prediction that the issuance of NWP 48 would have minimal individual and cumulative impacts on the environment, though repeatedly stated in the Decision Document, is not based on relevant evidence that a reasonable mind might accept as adequate to support the agency's conclusion, and the inclusion of general permit conditions does not obviate the need to analyze the impacts of proposed federal action. Thus, the Corps' impact analyses are based in large part on the hope that district engineers will mitigate any adverse environmental effects by revoking NWP 48, imposing regional or project - based conditions, and/or requiring an applicant to seek an individual permit. In this context, the Court finds that the Corps may not rely solely on post -issuance procedures to make its pre - issuance minimal impact determinations. See Bulen, 429 F.3d at 502 ("We would have substantial doubts about the Corps' ability to issue a nationwide permit that relied solely on post- " The Corps' analysis with regards to plastic debris discharged into the marine environment is even more problematic. The Corps acknowledges the many public comments raising concerns about the introduction of plastics into the marine food web, but relies on the fact that "[d]ivision engineers can impose regional conditions to address the use of plastics" in response to these concerns. NWP003402. The Seattle District, for its part, declined to quantify the impact of plastics, instead noting that "it would not be a practicable solution to regionally condition NWP 48 to not allow the use of PVC and HDPE gear as there are no current practicable alternatives to use of the materials." COE 127559. The CWA requires the Corps to make minimal adverse effect findings before issuing a general permit. If, as appears to be the case with regards to the discharge of plastics from the permitted operations, the Corps is unable to make such a finding, a general permit cannot issue. The Corps has essentially acknowledged that it needs to individually evaluate the impacts of a particular operation, including the species grown, the cultivation techniques/gear used, and the specific location, before it can determine the extent of the impacts the operation will have. ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING - 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 Page 21 of 24 issuance, case-by-case determinations of minimal impact, with no general pre -issuance determinations. In such -a case, the Corps' `determinations' would consist of little more than its LW 111110 own promise to obey the law."). CONCLUSION A nationwide permit can be used to authorize activities involving the discharge of dredged or fill material only if the Corps makes a determination that the activity will have only minimal individual and cumulative adverse effects on the environment. In issuing NWP 48, the Corps has opted to interpret the "similar in nature" requirement of 33 U.S.C. § 1344(e)(1) broadly so that all commercial shellfish aquaculture activities in the United States could be addressed in a single nationwide permit. That choice has made assessing the impacts of disparate operations difficult: the Corps essentially acknowledges that the permitted activity is performed in such different ways and in such varying ecosystems that evaluating impacts on a nationwide level is nearly impossible. It tries to avoid its "statutory obligations to thoroughly examine the environmental impacts of permitted activities" by promising that the district engineers will do it. Hurst, 604 F. Supp. 2d at 901-02. The Court finds that the Corps has failed to adequately consider the impacts of commercial shellfish aquaculture activities authorized by NWP 48, that its conclusory findings of minimal individual and cumulative impacts are not supported by substantial evidence in the record, and that its EA does not satisfy the requirements of NEPA and the governing regulations. For all of the foregoing reasons, plaintiffs' motions for summary judgment (Dkt. # 36 in C16-095ORSL and Dkt. # 31 in C17-1209RSL) are GRANTED and defendant's and intervenors' cross-motions (Dkt. # 44 and # 45 in C16-095ORSL and Dkt. # 43 and # 44 in C17-1209RSL) ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING - 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 Page 22 of 24 are DENIED. The Corps' issuance of a nationwide permit, at least with respect to activities in the waters of the State of Washington, was arbitrary and capricious and not in accordance with NEPA or the CWA. Pursuant to 5 U.S.C. § 706(2), the Court holdnlawful ets aside NWP 48 insofar as it authorizes activities in Washington. The only remaining issue is whether NWP 48 should be vacated outright to the extent it has been applied in Washington, thereby invalidating all existing verifications, or whether equity requires that the permit be left in place while the agency performs an adequate impact analysis and environmental assessment to correct its unlawful actions. Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995). Although not without exception, vacatur of an unlawful agency action normally accompanies a remand. Alsea Valley All. v. Dep't of Commerce, 358 F.3d 1181, 1185 (9th Cir. 2004). This is because "[o]rdinarily when a regulation is not promulgated in compliance with the APA, the regulation is invalid." Idaho Farm Bureau Fed'n[, 58 F.3d at 1405]. When equity demands, however, the regulation can be left in place while the agency reconsiders or replaces the action, or to give the agency time to follow the necessary procedures. See Humane Soc. of U.S. v. Locke, 626 F.3d 1040, 1053 n.7 (9th Cir. 2010); Idaho Farm Bureau Fed'n, 58 F.3d at 1405. A federal court "is not required to set aside every unlawful agency action," and the "decision to grant or deny injunctive or declaratory relief under APA is controlled by principles of equity." Nat'l Wildlife Fed'n v.EVY, 45 F.3d 1337, 1343 (9th Cir. 1995) (citations omitted). All. for the Wild Rockies v. United States Forest Serv., 907 F.3d 1105, 1121 (9th Cir. 2018). Courts "leave an invalid rule in place only when equity demands that we do so." Pollinator Stewardship Council v. U.S. E.P.A., 806 F.3d 520, 532 (9th Cir. 2015) (internal quotation marks and citation omitted). When determining whether to leave an agency action in place on remand, ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING - 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 K41 21 22 23 24 25 26 27 28 Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 Page 2:3 of 24 we weigh the seriousness of the agency's errors against "the disruptive consequences of an interim change that may itself be changed." Cal. Cmties. Against Toxics v. U.S. E.P.A., 688 F.3d 989, 992 (9th Cir,2012). In the context of environmental regulation, courts consider whether vacating the itri alid rule would risk environmental harm and whether the agency could legitimately adopt the same rule on remand or whether the flaws were so fundamental that it is unlikely the same rule would result after further analysis. Pollinator Stewardship, 806 F.3d at 532. Despite the fact that both plaintiffs clearly requested vacatur as the remedy for unlawful agency action, defendants provided very little evidence that would justify a departure from the presumptive relief in this APA action. The federal defendants state that additional briefing as to remedy should be permitted once the seriousness of the agency's error is determined. The intervenors assert that vacatur would cause disruption in the Washington shellfish farms and industry, including significant impacts to employees and the communities in which they live. Neither tact is compelling. The substantive defects in the agency's analysis when adopting the 2017 NWP are significant, the existing record suggests that adverse environmental impacts will arise if NWP 48 is not vacated, and, given the nature of the analytical defects and record evidence that seagrass is adversely impacted in the immediate vicinity of shellfish aquaculture, it seems unlikely that the same permit could issue following remand. As for the disruptive consequences to Washington businesses, employees, and communities, more information is required. As plaintiffs point out, shellfish growers can apply for individual permits (as they did before 2007). In addition, the Court has the equitable power to allow a period of time in which growers can avail themselves of that process before the existing verifications would be ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING - 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ►41 22 23 24 25 26 27 28 Case 2:17-cv-01209-RSL Document 65 Filed 10/10/19 Page 24 of 24 , ITEM PMP C� invalidated or to fashion some other equitable remedy to minimize both the risks of 11 environmental harm and any disruptive consequences. While the current record does not support deviation from the presumptive remedy for an APA violation, the Swinomish Indian Tribal Community has requested an opportunity to be heard regarding the scope of the remedy. C18-0598RSL (Dkt. # 28). Swinomish also challenge the Corps' minimal impacts analyses in reissuing NWP 48, but, unlike the plaintiffs in the above -captioned matters, does not seek vacatur of verifications or permits issued under the NWP. The Court will accept additional briefing regarding the appropriate remedy. Because there is a presumption in favor of vacatur, defendants, intervenors, and Swinomish will be the moving parties and may file motions, not to exceed 15 pages, regarding the appropriate relief for the APA violations discussed above. Only one motion may be filed in each of the three cause numbers at issue, C16-0950RSL, C17-1209RSL, and C18-0598RSL. The motions, if any, shall be filed on or before October 30, 2019, and shall be noted for consideration on November 15, 2019. Plaintiffs' responses, if any, shall not exceed 15 pages. Replies shall not exceed 8 pages. The Clerk of Court is directed to docket a copy of this order in Swinomish Indian Tribal Community v. Army Corps of Engineers, C 18-0598RSL. Dated this 10th day of October, 2019. Robert S. Lasnik United States District Judge ORDER HOLDING NWP 48 UNLAWFUL IN THE STATE OF WASHINGTON AND REQUESTING ADDITIONAL BRIEFING - 24 # LOG ITEM APPENDIX I Corps Of Engineers Aquaculture Permit Applications And Approvals — Jefferson County 2007-2016 LOG ITEM #� - pAgi- CORPS OF ENGINEERS AQUACULTURE PERMIT APPLICATIONS AND APPROVALS - JEFFERSON COUNTY 2007-2016 Corps Name Waterbody N � -0 w 'O m g �, .�. O - r- n N <` �, = m W(0 N 8 z o Number - 'rn w o Ca A C JJ j U L) LL << U (D .N d W W 2N NWS -2007- Coast Seafoods Co. Quilcene Bay 47.80314 25 0 25 Exst 10+ 01158 -122.86462 Miles NWS -2007- Penn Cove Shellfish, Quilcene Bay 47.79098 21.57 0 21.57 Exst 10+ 01412 LLC --Jefferson J&G Gunstone Clams, Scow Bay -122.85165 Miles NWS -2008- 48.03709 0.5 0 0.5 Exst 12+ 00247 Inc. -122.69741 Miles NWS -2008- Hood Canal Hood Head 47.88373 5.74 5.74 Exst 3+ 00502 Mariculture -122.613858 Miles NWS -2008- AG Gunstone Clams, Discovery Bay 47.99585 8 0 8 Exst 15 00564 Inc. -122.85116 Miles NWS -2008- AG Gunstone Clams, Diamond Point 48.07327 10 0 10 Exst 21+ 00567 Inc. - Jefferson 9 -122.9253 Miles NWS -2009- J&G Gunstone Clams, Scow Bay 48.03913 0.5 0 0.5 Exst 12+ 01481 Inc. -122.69844 Miles NWS -2012- Marrowstone Island Marrowstone 48.06131 1.11 0 1.11 Exst 12+ 00362 Shellfish LLC - Island -122.69074 Miles Hoffstater Lease NWS -2012- Marrowstone Island Marrowstone 48.0547 0.71 .18 0.89 Exst 12+ 00377 Shellfish LLC - Erving Island -122.69123 Miles Lease NWS -2012- Marrowstone Island Marrowstone 48.0547 0.45 0.11 0.56 Exst 12+ 00379 Shellfish LLC - Island -122.69324 Miles Buckland Lease NWS -2012- Marrowstone Island Marrowstone 48.05898 0.6 0.15 0.75 Exst 12+ 00380 Shellfish LLC - Island -122.69729 Miles Johnson N. Lease NWS -2012- Marrowstone Island Marrowstone 48.05368 0.37 0.09 0.46 Exst 12+ 00381 Shellfish LLC - Island -122.70137 Miles Rem el Lease NWS -2012- Marrowstone Island Marrowstone 48.041 0.39 0.1 0.49 Exst 12+ 00421 Shellfish LLC - Lunde Island -122.69992 Miles Lease NWS -2012- BDN LLC - Squamish 47.868025 0.56 0 0.56 Exst <1 Mile 1099 Mocean Shellfish Harbor -122.674814 3 E Corps° N v 2 _C Z M C oName WaterbodY w�06 M 3 2 o c < == cN ch opNumber 2co(0 Squamish JJ 0 L << U C. d W to N 0ZO NWS -2012- BDN LLC (WA 47.867972 5.3 5.3 Exst <1 Mile 1210 Shellfish) Harbor -122.67377 NWS -2013- BDN Brad Nelson Squamish 47.867 1 1 0.73 10.73 Exst I <1 Mile LOG 1 1, Em # Z6 papi-q-0129. 01147 I jemsland Lease Harbor -122.67505 NWS -2013- BDN (Brad Nelson) Squamish 47.867 0.92 0.92 Exst <1 Mile 01222 Harbor -122.675 NWS -2013- BDN (Brad Nelson) Squamish 47.867 2.02 2.02 New <1 Mile 01223 Garten Lease Harbor -122.675 NWS -2013- BDN (Brad Nelson) Squamish 47.865422 5.15 10.62 10.62 New Subject 01268 Smersh Lease Harbor -122.661214 Project NWS -2014- Penn Cove ' Quilcene Bay 3.1 3.1 New 10+ 00171 Miles NWS -2016- Dabob Bay Oyster Co. Hood Canal 47.615667 11.28 11.28 New 20+ 00021 -122.974537 Miles