HomeMy WebLinkAbout056 Email - Showalter/Wold/CorbettDonna Frostholm
From:
Sent:
Marilyn Showalter <marilyn.showalter@gmail.com> LOG ITEM
Friday, August 20, 2021 2:53 PM #
To:
Cc:
gonna thoage�of�
Sue Corbett; Janet
t
Subject:
BDN-Smersh Comments Cover Letter Plus Attachments A and B
Attachments:
00 COVER LETTER MGS-JLW-SDC BDN-SMERSH.pdf; A SECTION A HICKS PARK BDN-
Smersh mgs jlw-sdc.pdf; B SECTION B BONES CREEK BDN-Smersh mgs jlw-sdc.pdf
CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking
links, especially from unknown senders.
Hello, Donna,
I am planning to send you a Cover Letter plus Attachments A through H, hoping no email is too big to get
through. Please look for Attachments A through H, in some combination of emails.
This email has the Cover Letter plus Attachments A and B.
Please, if you can, reply that you have received these.
Thank you --Marilyn
Marilyn Showalter
1596 Shine Rd
Port Ludlow, WA 98365
(360) 259-1700 (cell)
marilyn.showatter@gmail.com
LOG IT��yj
Page
MARILYN SHOWALTER, JAN WOLD & SUE CORBETT
1596 SHINE ROAD, PORT LUDLOW, WA 98365
mariiyn.sliowalter cr,izmail.coin, 360-259-1700 (cell)
LOG ITEM
August 20, 2021 # �y 5—L�—
Jefferson County Hearing Examiner page
--0
Att: Development Review Division
Jefferson County Department of Community Development
621 Sheridan Street
Port Townsend, WA 98368
By email: dfrostholm@co.jefferson.wa.us
Dear Development Review Division and Jefferson County Hearing Examiner,
Re: Urging Denial of BDN-Smersh Application MLA19-00036
Dear Development Review Division and Hearing Examiner,
We are residents of Shine on Squamish Harbor, where BDN-Smersh proposes to
establish a 5.1- acre geoduck farm on a parcel adjoining Hicks County Park.
We urge Jefferson County to reject this application for the reasons set forth in
Sections A — H, attached.
Sincerely,
*44d" SAW44bt
Marilyn Showalter
1596 Shine Rd
Port Ludlow, WA 98365
Jan Wold
POB 1340 Poulsbo, WA
98370
marilyn.showalter(agmail.com '.creek hotmail.com
Attachments A — H (see following page)
cram- Caic%tt
Sue Corbett
31 Churchill Lane
Port Ludlow, WA 98365
Suec7l Agmail.com
Please Note: In these materials, citations to the BDN-Smersh application are shown as at either or both
of the following sites (Item 39 is a single document containing all parts of the Application):
MLA 19-00036 - Laserfiche WebLink 'efferson.wa.us OR
MLA 19-00036 BDN - Laserfiche WehLink {jefferson_wa.Lis ] Item 39
MGS-JL W-SDC
Ltr MLA 19-00036 BDN-Smersh
August 20, 2021
ATTACHMENTS
FEW lei 111, ' � 3 !, 01
LOG
rrITEM
page-2/�
A geoduck farm is incompatible with the use and enjoyment of Hicks Park, and the
incompatibility cannot be remedied or mitigated.
B. BONES CREEK
The geoduck operation would further degrade a Fish stream, which Mr. Smersh
has already seriously compromised.
C. MARINE ENVIRONMENT
A geoduck farm would degrade the ecology that supports threatened and endangered
species, and would contribute to ocean acidification and plastics pollution.
D. BAD TRACK RECORD
The applicant -owners have a poor record of compliance with laws, regulations,
and permit conditions affecting land, water, and the environment.
E. AESTHETICS
A geoduck farm would degrade the natural environment that draws tourists,
marine recreationists, and residents —all of whom support the local economy.
F. APPLICATION DEFICIENCIES
The required application forms contain blanks, omissions, and misleading and
false information that should disqualify the application.
G. CUMULATIVE EFFECTS
Neither the applicant nor anyone else has conducted an adequate analysis of the
cumulative effects of the proposed farm in combination with other factors.
H. ENVIRONMENTAL IMPACT STATEMENT (EIS)
The application should be denied. If it is not, a full EIS is required in order to
evaluate a raft of missing information and serious issues posed by the application.
Please Note: In these materials, citations to the BDN-Smersh application are shown as at either or both
of the following sites (Item 39 is a single document containing all parts of the Application):
MLA19-00036 - Laserfiche WebLink 'efferson.wams OR
MLA19-00036 BDN - Laserfiche WebLink (jefferson.wa.us) Log Item 39
MGS-JLW-SDC
Ltr MLA 19-00036 BDN-Smersh
August 20, 2021
LOG ITEIV
page- �O f
INDEX OF LOG ITEM 39 TO BDN-SMERSH ATTACHMENTS
ITEM 39
COUNTY TITLE
3-4
Application
5-6
Application -Shoreline
547-561
JARPA
8-10
Pro'ect Area Plan Sheet
Project drawing
7
525-546
SEPA Checklist
11-59
SEPA Att Al BE 2013
SEPA Att A2 BE Addendum 2016
60-65
66-71
SEPA Att A3 BE Addendum 2020
72-96
SEPA Att B1 Eelgrass 2015
97-98
SEPA Att B2 Eel -grass Reverification 2018
99-136
SEPA Att C Visual Assessment 2020
137-152
SEPA AUDI Cumulative Impacts 2020
153-240
SEPA Att D2 Cumulative Impacts Supplement 2021
241-282
SEPA Att E Habitat M mt Plans & No Net Loss Rgt 2020
283-407
SEPA Att G COE Pro rammatic ESA 2016
408-493
SEPA Att H Ltr Smith to Greetham 2017
494-495
SEPA Att I Revised Gear Mana emgnt Plan 2021
496
SEPA Att K WDOE 401 Ltr 2017
497-499
SEPA Att M-1 - Parcel 970200001
500-502
SEPA Att M-2 - Parcel 821344064
503-504
SEPA Att M-3 - Hicks Park
SEPA Att M-4 - Shine Boat ram
505-506
507-515
SEPA Att M-5 - Stormwater Packet 970200001
516-524
SEPA Att M-6 - Stormwater Packet 821344064
Please Note: In these materials, citations to the BDN-Smersh application are shown as at either or both
of the following sites (Item 39 is a single document containing all parts of the Application):
MLA 19-00036- Lased iche WebLink 'efferson.wa.us I OR
MLA 19-00036 BDN - Laserfiche WebLink iefferson.wa.us Log Item 39
LOG ITEM
#
LOG ITEM
Marilyn Showalter #
Primary Author page
SECTION A HICKS PARK
A geoduck farm is incompatible with the use and enjoyment of Hicks Park,
and this incompatibility cannot be remedied or mitigated.
This year marks the 75th anniversary of Hicks County Park. This special county park and
public boat launch is located immediately west of the proposed geoduck farm, sharing a
common land and tideland boundary. Tourists and county residents alike use this park
for crabbing, clamming, wading, swimming, paddling, floating, beach combing,
barbequing, picnicking, just sitting and taking in the beautiful view, and launching
kayaks, canoes, paddleboards, rowboats, and motorboats. It is used in summer and
winter, at high tide and low tide, week days and weekends. It is used by adults and
children. '
A 5.1-acre geoduck farm adjoining Hicks Park is entirely incompatible with the use and
enjoyment of the park, and poses extreme danger to waders, floaters, and swimmers,
especially children. This incompatibility cannot be remedied or mitigated. Therefore,
the application should be denied.
1. History
According to the Jefferson County Auditor's records for Resolution B 222,
Commissioners' Proceedings, on December 4, 1946:
Mr. W.R. Hicks of Shine appeared before them and stated that he would like to
give to Jefferson County for the benefit of the public a piece of waterfront near
Shine and he signed a deed giving Jefferson County ownership ...
NOW THEREFORE, BE IT RESOLVED by the by the Board of Jefferson County
Commissioners, that this real property be accepted by Jefferson County and
dedicated as a PUBLIC PARK forever, and to be known as `HICKS PARK.'
BE IT FURTHER RESOLVED, that the thanks of Jefferson County be extended
to the said William R. Hicks for his generosity and public spirit. ,2
(All -caps in original.)
Mr. Smersh now owns Mr. Hicks's old homesite and remaining tidelands, and hopes to
use the public's waters for his private benefit. Mr. Hicks's grave is just down Shine Road
in a cemetery that he and other community -minded residents conveyed to Jefferson
County.'
1 See the comprehensive collection of photos and images following this narrative.
2 Jefferson Couty, WA, Commissioners' Proceedings N, p. 14, December 4, 1946
s Jefferson County, WA, Commissioners' Proceedings M, p. 493, February 17, 1941
A-1
2. Danger to Park Users
LOG ITEM
�69e �#
The application proposes to insert more than 43,560 PVC tubes per acre (one per square
foot), on 5.15 acres, or 224,332 tubes'. Each tube is 10 inches long,' weighs 8.7
ounces,6 and will protrude up to seven inches above the surface.7 That is 35.4 MILES of
tubes, and 61 TONS of plastic. s
No nets will hold the tubes in place.9 It is a certainty (based on BDN's other geoduck
farm on Shine Road) that hundreds, perhaps thousands, of tubes will be loosened by the
area's strong winds and tidal action,10 generally pushing them west, onto the Hicks Park
tidelands. When covered by water, these tubes pose an extreme hazard to paddlers,
boaters, swimmers, and waders, especially young children, whose feet may be smaller
than the diameter of the tubes. When exposed, the tubes are hazardous as well as
unsightly, compromising the natural setting of the park.
3. Aesthetics
Aesthetics isn't just something nice to have. It's the very reason users enjoy Hicks Park.
Picnickers come because they can view the beach, water, and mountains while eating
outdoors. Paddle boarders glide by because they enjoy the natural shoreline, and because
it's safer to stay close to shore. Beachwalkers and waders come because they can enjoy a
natural beach and shallow water.
A geoduck farm adjoining the park would severely compromise the enjoyment of these
activities, especially in the summer months, when days are long, daytime tides are low,
and the weather is warm. Of the 92 days comprising June, July, and August, PVC tubes
would be visible at some point during daylight hours on 80 days, i.e., on 87% percent of
the days in those months". And the average period of visibility on those days is 4 hours
and 9 minutes.
4. JARPA p. 6 (Each tube and band weighs 8.7 ounces.)
s Ibid.
6 Each PVC tube has a rubber band holding a cap -net. Marilyn Showalter weighed two of these tubes -
with -bands on a sensitive digital kitchen scale, and each weighed 8.7 ounces. The tubes were retrieved by
Sue Corbett from the beach west of BDN's current geoduck farm and are labeled "BDN."
' SEPA Att C Visual Assessment, pdf p10/38. In various places in the application, the exposed tubing is
described as 3-5" or "half," but the professional consultant in the Visual Assessment uses 7" and that is
what is used here.
8 Math for miles: 224,334 tubes x 10" (each tube) - 12" _ 5280' = 35.40625 miles.
Math for weight: 224,334 tubes x 8.7oz - 16oz - 2000lbs = 60.9908062 tons.
9 Jefferson County Public Notice MLA19-00036
10 North Olympic Salmon Coalition Cell drift images, NOSC.org
" See our Section E Aesthetics, Visibility Analysis graph by Steve Aos, critique of BDN's analysis.
A-2
LOG ITEM
4. Planting Page9 of L3
According to the application, beginning in spring and lasting through fall, 12-25 workers
will work in five -hour shifts to insert the PVC tubes. 'Z It's not clear from the application
whether these numbers are per acre or for all 5.1 acres. No figure is given for how many
five -hour days it will take to plant one acre or 5.1 acres. In any case, it's clear that
planting activities are concentrated in the same season as most users enjoy Hick Park. A
crew of workers hauling giant bags of PVC tubes over the tidelands and stomping them
into the substrate conflicts with the natural setting that draws people to the park.
5. Harvesting
Even more problematic for park visitors is the harvesting method. For each geoduck to
be harvested, the application proposes to use a water jet, powered by a diesel engine, that
liquifies the sand to three feet deep, in order to extract the geoduck.
According to the application, this process will go on for three to six hours per harvesting
day, over one to two years, mostly underwater but also on exposed tidelands, and always
during daylight hours.13 If planting is staggered among plots, harvesting could go on
every year, permanently. The constant engine noise will interfere with enjoyment of a
natural setting. (This incessant noise is different from a boat that launches into the water
over a few seconds.) In addition, the turbidity resulting from the sand that is displaced
will interfere with visibility for wading crabbers or other waders, making it impossible to
see crabs and dangerous to wade onto unseen objects, including tubes.
6. Parking
The application states that workers won't park at Hicks Park if they see that visitors are
parked there. This is an unenforceable provision. (How does one know whose cars are
parked there?) It is also unworkable. If workers park their cars first, visitors won't have
a place to park.
The parking area is already very difficult for several reasons. It's small to begin with.
Pickup trucks with boat trailers need a long and wide area to swing around, in order to
back their boats into the boat launch; They also need somewhere to park. Waiting trucks
and trailers need a place to wait. Cars tend to want to park head -in, facing the water,
exactly where trucks and trailers need to swing wide.
'Z SEPA Checklist pdf p. 16/22
13 SEPA Checklist pdf p. 5/22 ("Dive harvesting will usually last for 3-to 6 hours each harvest day. Beach harvests
will employ 2 workers on the beach and 2 support workers on the skiff. Harvesting activities at this location will
occur only during daylight hours, over a period of about 5 hours per day, averaging 3-4 harvest days per week
during the one to two year harvest period.") Short days and bad weather dictate more harvesting in spring and
summer months —which is consistent with our observations of BDN's current geoduck farm in Squamish Harbor.
A-3
LOG ITEM
#__�a_
7. Applicant's Characterizations of Hicks Park Pa 4�_o#7
BDN consistently undervalues Hicks Park, while also minimizing the effects on the park
of an adjoining 5.1-acre geoduck farm to the point of absurdity and insincerity, e.g:14
There is a concrete boat ramp and gravel parking lot on the adjacent public
property. 1 s
The only nearby designated recreational opportunity is the neighboring park,
which is primarily a boat launching ramp, usable at high tide only, with an
associated gravel parking lot.16
The potential limited use of Hicks Park as described above will have virtually no
cumulative impact on the park, either nearby or distant. No BDN personnel will
ever interfere in any way with use of the park by members of the public. 17
The cumulative impact on the use of W.R. Hicks County Park for recreational
purposes is also de minimis (See BDN004R10-20, Paragraph 3.) There will be no
significant interference of any kind with public use of the park at any time.18
(Emphasis added)
8. Cumulative Effects
Not surprisingly, the application does not explore any cumulative effects in respect of
Hicks Park —it simply denies there are any significant effects at all. A proper analysis
would examine: the number of county parks; how many of those are on Hood Canal;
how many of those have a boat launch; how many of those are located in mid -county.
Where are any non -county alternatives? How many users are there during summer
months? These would be questions for an EIS, but the application should be denied
outright, making an EIS unnecessary. Even a cursory search, though, would show that
Hicks Park is a unique treasure to mid -county residents and visitors.19
14 Bear in mind that Mr. Smersh's residence is next door, and Brad Nelson's current geoduck farm is a half mile
down the beach. BDN has also has used the park for both parking and boat access; and he has also stored piles of
geoduck tubes (without a permit) across the street on Mr. Smersh's upland property. They can hardly claim
ignorance of the multiple activities at Hicks Park over all seasons.
'S SEPA Checklist pdf p. 14/22
16 Ibid p. 18/22
17 SEPA Aft M-3 pdf p. 2/2
is SEPA Aft D-2, pdf p788
19 Parks and Recreation Areas arc is.com
A-4
CONCLUSION
LOG, ITEM
Page--11 Of 13 _7
BDN-Smersh's proposed site is in Hood Canal. All of Hood Canal is Shoreline of
Statewide Significance.20 . Under RCW 90.58.020, the legislature declared that "the interest of
all of the people shall be paramount in the management of shorelines of statewide significance."
It ordered that Shoreline Master Programs
shall give preference to uses in the following order of preference which:
(1) Recognize and protect the statewide interest over local interest;
(2) Preserve the natural character of the shoreline;
(3) Result in long term over short term benefit;
(4) Protect the resources and ecology of the shoreline;
(5) Increase public access to publicly owned areas of the shorelines;
(6) Increase recreational opportunities for the public in the shoreline;
It is difficult to imagine a shoreline use that fits this order of priorities more perfectly
than Hicks Park. Visitors both statewide and local come to use and enjoy the natural
setting of this public park for all manor of recreational activities: clamming, crabbing,
wading, swimming, beach walking, kayaking, canoeing, paddleboarding, motor -boat
launching, picnicking, and simply enjoying a publicly accessible spectacular view of the
tidelands, the water, and the Olympic Mountains.
It is also difficult to imagine a shoreline use that would pose a greater degradation of the
benefits of Hicks Park than BDN-Smersh's proposed geoduck farm. On a parcel
immediately adjoining the park, 5.1 acres of 224,332 PVC tubes would convert a
beautiful shoreline into an unnatural, ugly, and dangerous hazard.
The Shorelines Hearings Board (SHB) has denied a geoduck farm application where it
competes with recreational interests. In the de Tienne case, the SHB rejected a proposed
farm that was located 1500 feet from a popular windsurfing launching site; the BDN-
Smersh farm would be immediately next to Hicks Park. In the de Tienne case, the
proposed geoducks were to be subtidal, which the SHB acknowledge were less dangerous
to recreationists but were still a concern; BDN-Smersh's PVC tubes will be planted in
tidelands that get assaulted by the tides four times a day, and battered by heavy winds.
A geoduck farm is fundamentally in conflict with the use and enjoyment of Hicks Park.
The central elements of geoduck farming —plastic tubes and hydraulic harvesting —can't
be mitigated. Nor can tides, high winds, and the westward drift of debris. BDN-
Smersh's application should be denied.
20 Coalition to Protect Puget Sound Habitat et al v Pierce County et al, SHB 013-16, January 22, 2014.
The SHB decision was upheld at both the Superior and Court of Appeals levels. Darrel de Tienne et al v
Shorelines Hearings Board et al, Div I, Washington State Court of Appeals, Div 1, unpublished opinion,
filed Nov 14, 2016.
A-5
LOG ITEM
Hicks Park in Images, Explaining and Supporting the Foregoing Narrative o nts
SITE PLAN or• MI. ARRAS IN.LHI'FERSON COUNTY TO BI! USED IN CONNI-010N1 ` `I Ii
BDN LLC/switsti Q.,DDUCK AQUACULTURE PROJECT - CAsr # MLA I ER" COUNT)
This photo is the Project Area Plan Sheet of the BDN-Smersh application.
A-6
1. Hicks Park is used in all seasons for many purposes
All photos of Hicks Park, by Marilyn Showalter on (clockwise from upper left) June 4, 2019, August 8, 2020,
August 2, 2019, and January 2, 2020. Photo below on June 20, 2020
�� i . ai Wv
�ii�A���i2fC �.itiN-.�. .�.i11 � ti-- _ .. l ��. _�.•d,4ry -
A-7
LOCH ITEM -
#
2. Dangers P %gej-q--6-L
Imagine this scene next to (or drifting into) the following activities at Hicks Park,
whether under water or exposed. The PVC tubes pose extreme danger.
PVC tubes at BDN's current geoduck farm % mile west of Smersh site.
Photo by Sue Corbett, April 19, 2015
Children wading and floating at Hicks Park. Smersh boat and tidelands in background.
Photo by Jan Wold, June 20, 2020
A-8
`N6
AC... -
Boys wading at Hicks Park. Smersh and tidelands in background.
Photo by Marilyn Showalter, June 16, 2019
Girls running in shallow water at Hicks Park. Photo by Marilyn Showalter, July 30, 2021
A-9
LOG ITEM
Pclge--ZO#-(- 7
Families, including wading and swimming children, enjoying Hicks Park. Rock jetty marks Smersh boundary line
and proposed geoduck farm. By Marilyn Showalter, July 29, 2020.
0
A-10
cN,�1 a.
'rJ
Page �r
The tides and winds push driftwood and debris to the west. PVC tubes from BDN's
current geoduck farm drift to the west. Tubes from Smersh site would drift onto Hicks
Park.
:nt t l a �p i •s h � Q r b o r
� u
NOSC. Related ncarshore information has also been layered onto the maps for your review.
WHAT DO THE MAPPED ARROW5 MEAN?
The arrows show the dominant direction sediment (sand and gravel) travels along local beaches. Sand
dues not just sit on the beach but is often moved by wind and waves through its di-yi cell. Eroding
IrMer hhiJ%c along the way contribute sediment to the drift cells and keep our beaches stocked with
sand, gravel and cobbles. Healthy drift cells are important to forage fish because they need good beach
sands and gravels to spawn.
From North Olympic Salmon Coalition (NOSC) Newsletter. North Olympic Salmon Coalition I Community
Stewardship.. Collaborative Restoration nosc.or
A-11
LOG ITEM
#r
3. Aesthetics
Compare the experience one might have at Hicks Park, with and without this view and
noise and disturbance from a geoduck farm.
Workers scraping and bundling tubes on BDN's current geoduck farm in Squamish Harbor.
Per the application, the scrapings are left on the beach. It is likely the tides and winds will
push them west onto Hicks Park. Photo by Sue, Corbett, May 16, 2015. Below, beach blankets
at Hicks Park. Smersh boat and tidelands in background. Photo by Jan Wald
A-12
4 and S. Planting and Harvesting
A-13
6. Parking
n i;.i s �� f �'•.
40 ALP IV.
Ten cars park at Hicks Park at low tide the summer. Smersh's house and tidelands on the right.
Photo by Marilyn Showalter August 18, 2020
A-14
April 24, 2020 4:23 PM [T] Q/
=* ITEM
pagQ'_ / Q
Left: trucks with boat trailers
need the full width of the
eastern parking area, in order to
wait while a different truck
maneuvers into the boat ramp.
Above: visiting cars tend to park
head -in toward beach.
Photos by Marilyn Showalter,
August 21, 2019 (above) and
April 24, 2020 (left).
A-15
LOG ITEIM
PC,
Partially submerged rebar stake on Smersh's tidelands, in rising tide, around 300 feet from shore, posing
extreme danger to paddlers and boaters. Tide is at about -0.9 feet. Photo by Marilyn Showalter, August 19,
2021, at 10:12 am.
A-16
LOG ITEM
Marilyn Showalter P&,q ; �— j �{i_0
Primary Author �J
SECTION B BONES CREEK
A geoduck farm would further degrade a Fish stream, which Smersh has already
seriously compromised
Virtually unmentioned in BDN-Smersh's application is a stream that runs through Mr.
Smersh's property and onto his tidelands. Though it may be unnamed in some
inventories, it has been known locally as Bones Creek or sometimes East Squamish
Creek.
When mentioned at all, the application consistently minimizes or misstates the location
and status of this stream. Bones Creek is a DNR-recognized Fish stream, though
appallingly this fact is denied in BDN's application.' Elsewhere in the application, BDN
leaves blank or fails to provide accurate information about this stream, seemingly
working hard not to draw attention to it.
As documents in this section show, soon after Mr. Smersh bought his property, he moved
the stream. Originally, Bones Creek meandered northeast to southwest across his
property, emptying to Squamish Harbor very close to his western boundary. Now it runs
directly along his eastern boundary, shortening and straightening, and therefore
compromising fish migration. Next, Mr. Smersh the brought in 180 yards of fill, and
constructed a bulkhead and culvert that blocked fish access.
Needless to say, all of this degradation of the stream and shoreline was done without a
permit. After a complaint in 1993 by a Point No Point Treaty biologist, the County
issued a stop -work order. The culvert was modified, but the stream remained
rechanneled.
More recently, the stream buffer has been compromised by a gravel road and parking
area the applicant proposes to use on Parcels # 970200001-2. Mr. Smersh should not be
permitted to degrade fish habitat even further, by drastically altering the natural state of
the tidelands, further altering the outflow pattern of Bones Creek, and driving and
parking within its buffer.
If anything, Mr. Smersh should work to restore the stream. Further upstream, the spent
$1.4 million to build a large fish -passage culvert under SR 104. z The stream is listed for
Coho, Rainbow trout, Steelhead, and SeaRun Cutthroat.
1 The application says, falsely, of Parcel 970200001: "This property is not within 150 feet of any
waterbody, is not within 150 feet of any known Type F, N or S streams." SEPA Att M-1, p 2; Log. The
JARPA at 8(b) answers "no" to the question whether waterbodies are affected. JARPA pdf p 9/15. The
stream is minimized as "near" the site, when the stream runs right through two affected parcels. SEPA
SEPA Checklist Log Item 39, p 531/561
Z Washington State Fish Passage, Barrier Correction Site ID: 992196. See screen shots in the following
pages.
B-1
LOG ITEM
s # S� _
Pig e 0#1 7
Bones Creek Before and After Smersh Moved It
Above: GoogleEarth image taken June 20, 1990.One can see that the stream empties close to the boat
launch, at the western edge of Smersh's property, Parcel #927021011. Below, an image from March
13, 2005 shows the stream outlet on the eastern edge of Smersh's house. See also the large white
platform on western boundary, at the shoreline. This may be where 180 yards of fill were brought
Screenshots downloaded by Marilyn Showalter, August 16, 2021. Arrows added.
B-2
•
July 13, 1993
lqw
ShI&Iter Appendix A Pagel
Point No Point Treaty council
Port Gamble 5'Klallam ► Lower Eiwha Klallam . Jamestown Kfallam ► Skokomish
John Boettner
Washington Department of Fisheries
502 High Street
Suite 112
Port Orchard, WA 98366
Dear John,
RECEIVED
JEFFERSON COUNTY
PERMIT CENTER
I would like to report a probable Hydraulic Permit violation on
East Squamish Creek (ake Bones Creek), located in T27, R1E, S3. The
stream was put in a culvert from the south side of Shine Road to
the mouth at Hood Canal (about 100 feet). The elevated culvert
currently prevents fish access up the stream. The stream was re-
routed along the east side of property mapped as C. Hicks on the
Metzger's plat map (due south of Madrona Vista Road). The property
was bought by James Smersh (3400 Island Crest Lane, Mercer Island,
WA 98040) in 1990, according to Jefferson County Tax Assessor's
office. A septic permit was issued to Smersh in 1991, according to
the Jefferson County Permit Center.
According to Robert Garten ((206)437-2852), a neighbor, the stream
was culverted less than two years ago. Garten claims that the
stream used to flow southwest across the property, with the mouth
of the stream about 20 feet east of the concrete boat ramp at the
County Park property to the west. He says that he fished this
stream as a kid and caught large sea -run cutthroat. In electroshock
surveys, I found an abundance of cuthroat trout and the stream also
has potential for small populations of chum and coho salmon, with
2 miles streamlength of spring fed stream containing cutthroat.
According to Garten, the neighbor to the east of Smersh, Theodore
C. Mitchell,(P.O. Box 645, Citrus Heights, CA 95610)objected at the
time and wrote a letter to Smersh. I've left a voice message with
Mitchell on July 11, 1993 to send me any information he has on the
exact time that the stream was re-routed.
Sea -run cutthroat and perhaps salmon have already missed at least
one season of spawning access to this stream. I am requesting that
Jefferson County flag this property to insure that no building
permits are issued until this potential violation is investigated
and resolved. I am asking you to please investigate and take
appropriate action. If the landowner put in the culvert within the
Port la-d&ble 5'Klallam Fisheries Office • 31974 Little Boston Road ► Kingston, Washington 98346 • (206) 2974792
--4 4 q
f
St*lter Appendix A Paget
a
last two years and without an HPA, I would hope that fisheries
would press full charges and also require that the culvert be
removed before September 1, 1993, with the stream restored to as
close to it's original condition as possible.
In addition, Mr. Smersh appears to have conducted bulkheading and
filling behind shoreline loge without an HPA as well. Mr. Garten
claims that there was no fill in this area prior to Mr. Smersh's
ownership. I would ' ask that fisheries require removal of. fill, if
this is indeed an HPA violation.
I would be interested in discussing restoration measures needed.
Please let me know if I can be of further assistance.
Please respond in writing as to the action taken on this matter by
July 25, 1993.
Sincerely,
Peter Bahls
Habitat Biologist
cc
LOU I VEM
Page a�13
Alice King, Jefferson County Permit Center
Steve Kalinowski, Washington Department of Wildlife
B-4
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APR 4 M
JEFFERSON COUNTY
PERMIT CENTER
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PRTI ON REQU ES°terAppendix A Pa_ge4
DATE: �, �t�( c�a✓ �3 ` lj�-T a
NAME:
MAILING ADDRESS:
PHONE NO:
SITE ADDRESS:
POSTAL DISTRICT:
VIOLATION:
DATE:
VIOLATION:
COMMENTS:
DATE:
SECTION
LOG TEFO
P`"ge 3 7
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TOWNSHIP RANGE PARCEL
YES NO
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ACTION TAKEN:
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B-6
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PGA
Fish Streams on Shine Road
Bones Creek and the stream at BDN's tidelands and small parcel on Shine Road are Fish streams
000 Forest Practices Application Mapping Tool
Data Ai:95s ttaj L."M
Weae lourw i rll
'!rn L'Tnn�i[PI
— true:
rr:c r
rnv r[ rut rK
u ..a. ,
x W ssxc Wars
WRIA BoundaAes
P'H10. Bn�imx"�
WA�Us
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Unnamed stream running under Shine Road at north end of BDN's Parcel #821334011 and onto his
tidelands. Red color shows this creek is a Fish stream (see legend).*
Bones Creek (aka East Squamish Creek) runs through Smersh's Parcel #927030011 and onto his
tidelands. Red color shows Bones Creek is a Fish stream (see legend).
Water Type Classifications
The following table provides a general description of forest practices water type
classifications currently in use.
Type
Description
Type"S"-
Streams and waterbodies that are designated "shorelines of the
Shoreline
state'as defined in chapter 90.58.030 RM
(formerly type 1)
Type "F" -
Streams and waterbodies that are known to be used by fish, or
Fish
meet the physical criteria to be potentially used by fish. Fish
streams may or may not have Flowing water all year; they may
be perennial or seasonal.
(formerly type 2 or 3)
Type"Np"-
Streams that have flow year round and may have spatially
Non -Fish
intermittent dry reaches downstream of perennial Flow. Type
Np streams do not meet the physical criteria of a Type F stream.
This also includes streams that have been proven not to contain
fish using methods described in Forest Practices Board Manual
Section 13.
(formerly type 4)
Type"Ns"-
Streams that do not have surface flow during at least some
Non -Fish
portion of the year, and do not meet the physical criteria of a
Seasonal
Type F stream.
(formerly type 5)
Source: Forest Practices Application Mapping Tool FPAMT wa. ov
*There is an ambiguity between this map and the Jefferson County gis map, regarding the stream on the
left (purple dot). This map labels it "F." The Jefferson map shows it as Np (formerly Type 4) as it enters
Squamish Harbor. An EIS could resolve the ambiguity.
B-7
From Jefferson County gis: *
t- Public Land Records amrvo.co"my wa,t-9—
Water Type Classifications
The following table provides a general description of forest practices water type
classifications currently in use.
Type hescrlpNvn
Type"S"- Sirearta and waterbodies thatare designated-shwelinesof the
Shoreline sime'as defined in chapter 90-5a030 RCW.
;formerly type 1)
Type "F" - 51resmsand waterbodies that are known to be used by fish, or
Fish meat the physical criteria to be potentially used by fish. Fish
st eAms may or may not have Flowing water all year; they may
be perennial or seasonal-
Iformerly type 2 or 1)
Type"Np"- Ivearnt that have Flow year round and may have spatially
Non -Fish IflOrmlitrnt dry reaches downstream of perennial flow. Type
Nio streams do not meet the physical criteria ofa Type F stream
Ws she includes streams that have been proven not to contain
fish using methods described in Forest Practices Board Manual
Sat Wn 13.
(Tormatly type 4)
Type"Ns"- Streams that do not have surface now during at least some
Non -Fish portion ofthe year, and do not meetthe physical criteria ofa
Seasonal Type F stream.
t formarly type SI
Type X is a symbol on DNR maps that identifies various water features (for example: irrigation
ditches, sanitation ponds, pipeline, etc.) which are not part ofthe above classifications.
Type U is a symbol on DNR maps tha?identifies unknown water features that need to be
LOG ITEM
Pcige
WTMF Tracking
Application IWTA)
Instructions for Creating and
Accessing a SAW Account and
Service
Extemal Reviewer Overview
RELATED LINKS
SAW Videos
How to Create a Secure Access
Washington (SAW) Account
How to Log In to a Secure
Access Washington (SAW)
Account
Accessing the Water Type
Modification Form Tracking
Application from SAW (Sec.
Access Washington)
Available Resources
E-Subscribe
(Receive E-mail updates)
(PARS Mapping Websne
(Disable Pop-up block -
"'
There is an ambiguity between this map and the FPAMT map (previous page), regarding the stream on
the left (purple dot). The FPAMT map labels it "F." The Jefferson map shows it as Np (formerly Type 4)
as it enters Squamish Harbor. An EIS could resolve the ambiguity.
B-8
# LOG ITEM
PEAZge
Washington State has spent $1.4 million on a fish passage culvert under SR 104 for
Bones Creek, which is listed for Coho, Rainbow trout, Steelhead, and SeaRun Cutthroat
- -- ..
7i WSDQT WSDOT Fish Passage Inventory
Mp Control.
�� i e-ana aam
0 Uncorrected garners Statewide
Q Corrected Barners Statewide
US v WA Case Area Boundary
Uncorrected Barriers Subject to Injunction
Culverts With Fish Use
❑ Fish Passage barrier Correction Plan
❑ Rivers and Lakes
n State 9—.d—
WDFW ID
992198
I} Road
SR 104
Milepost
12.7
County
Jefferson
Stream Name
unname'd7
Tnbu13ry Tb
Squamigh
Harbor
WRIA Number
17
Fish Use
Ycs
Potential Habitat Gain
1922
(meters)
Greater than 200 m
Yes
Barrier Status
No
Species
CO, RT, SH,
SRCT
Year Corrected
2009
GeoLocallonPooint
Po"
1671 D2 Zoom to441e Street ws, Print
21
M
.n nc Vkw to
v Finu address or place Q
•r• �l � It.p Iw�l}iu -
Srtre fla
O d
3
992198
v
� � S
E e'e��OG
rOi}
Snrne Rd
n
Source: Fish passage inventory, assessment and prioritization I Washington Department of Fish & Wildlife
C)
B-9
Bones Creek (aka East Squamish Creek) runs through Smersh's Parcel #927030011 and onto his
tidelands. Red color shows Bones Creek is a Fish stream (see legend).
Species listed in lower left box: "CO, RT, SH, SRCT;' or Coho salmon, Rainbow trout, Steelhead, and
SeaRun Cutthroat
LOG ITEM
k �
$1.4 million Culvert Under SR 104 for Bones Creek
Photo of fish passage culvert under SR 104 https://apps.wdfw.wa.gov/fishpassagephotos/Active/992196_1.jpg
Tab►e 2 ICrnbnue(4
LD
to
a H1{b 1 M I'M 1" A) Qb IpyI-y CG V[i1-j • • .-I, F.- ;4 11
09351b SR 14 [U 2 tu!n 1> wb+4wy )k 111 1 i ]
.'i 9721% SR 104 127 Uirwrwd trkkA } 45So"ftsh HwbMw s i,61 ES 2D'* i 13 I,d7�
f IiR.N! pw.Jar �.rvI
B-10
LOG ITE-M
ANNOTATIONS TO r'°�?� L]#7
SEPA ATT M-1 Parcel 970200001
(The lettered comments below track with the letters placed on Att M-1)
A. Parcel Number(s). There are TWO parcels at issue here: 970200001, which may
or may not be shown accurately in the red square; and 970200002, through which
the gravel drive from Shine Road runs.
1) Parcel 9702002, which BDN plans to use for driving over a gravel
drive in order to park on Parcel #9702001, is shown on County records
as owned by Bruce Olsen. He should be listed on the Shoreline
application and on the JARPA as a property owner and sign the
appropriate forms. Smersh may have an easement over Olsen's
property, but Olsen cannot grant an easement for commercial purposes
unless he himself has a CUP or other applicable permit, which Olsen
does not have.
2) JARPA Attachments A and B should be filed for both parcels, but have
not been.
3) County records show a boundary line adjustment between the two
parcels. The attached survey shows that "before" the adjustment, Parcel
A (Mr. Smersh's, 9702001) was .29 acres, and "after" is .68, more than
twice the original size. See BLA Survey in these pages of Section B
Bones Creek. The post-BLA property lines are not accurately shown by
the red box. Further, Smersh claims in the text below the photo that his
parcel is .29 acres, not .68 acres.
4) The Real Estate Excise Tax (BEET) Affidavit filed with the BLA
shows that no taxes were paid on the transaction. Both parties signed
under penalty of perjury that no taxes were owing, citing 458-61A-109.
See REET, included in these pages. Mr. Smersh should explain how he
could more than double his property without triggering a tax on the
transaction. If there was some kind of exchange of value, such as
graveling a driveway, WAC 458-61-10 makes clear that taxes are due
on the value each party receives.
5) The western boundary of Mr. Smersh's post-BLA boundary comes
within a few feet of the stream and contain much of the gravel drive.
B-11
LOG ITEM
# 154
B. Contradictory Parcel Acreages. The acreage stated here of .29 is contradicted by
the Boundary Line Adjustment Survey (attached in these pages) which shows that
Smersh's Parcel #970200001 grew from .29 acres before the BLA to .68 acres
after the BLA.
C. Driveway Description is Contradicted by the BLA Survey. This description is
contradicted by BLA Survey, which shows much of the gravel driveway going
through Mr. Smersh's post-BLA property lines.
D. Unpermitted Use of Property for Commercial Purposes. As admitted here and
shown by the white PVC tubes in the photo, BDN and Smersh used this residential
property for commercial purposes without any permit. This went on for several
years.
E. The parcel(s) were already graded and graveled, within feet of Bones Creek —the
same salmonid stream that Smersh re-routed in 1993. By anyone's measure, Mr.
Smersh's property is within 150 feet of Bones Creek. See the BLA Survey.
F. Further, it IS a Fish stream. See "Fish Streams on Shine Road," in these
pages, Section B Bones Creek.
G. There should be NO driving or parking within the stream buffer. Mr. Smersh and
Mr. Olsen should explain to the County who made this drive, and whether there
was a permit to construct it.
H. The application says that from spring into fall 12-25 workers will work 5 hours per
day on planting days. That site (821344064) is 1/4 mile from Smersh's tidelands. If
history and photos are any guide, the workers will use closer venues, such as Shine
Road, Watney Lane, and this parcel (970200001), which is in a Fish stream buffer.
B-12
LOG F FE M
PC
SEPA Checklist -BDN, LLC G du. Farm — Vev. 3131/20
JEFFERSON COUNTY IDCO
Addendum M-1 — Use of Upland Parcel 970200001 A
Description of Property and Potential Usage.
This parcel is owned by applicant James Smersh. It consists of .29 acres of unimproved land, B
zoned Rural Residential RR-5, Assessor's Land Use Code 9100-Vacant Land. It is accessed at C
its northwest corner via a recorded easement across the adjacent parcel 970200002 immediately
BDN, LLC — SEPA Checklist Addendum M-1
Page - 1
B-13
# LOG ITEM
37
to the west, owned by Bruce A. Olsen. That easement is roughly co -extensive with the roadway
visible to the left of the parcel in the above photo.
The Google Earth Imagery Date for this photo is 5/13/2018, and shows it being used by the
applicant for storage of three small personal watercraft in the upper northeast area, and storage D
by BDN, LLC of white PVC geoduck planting tubes connected with existing nearby BDN
aquaculture operation. There are two BDN trailers parked temporarily on the property as shown
to the left of the PVC tubes. Since the date of the photo, all BDN items have been removed from
the property, and it is once again being used only for storage of the personal watercraft.
Because BDN has now acquired a nearby parcel (821344064) for storage and staging as
described elsewhere in this SEPA Checklist, there will be no future storage of BDN tubes or
other materials on parcel 970200001. It will be used solely as a secondary parking area for
activities related to the operation of the proposed aquaculture project.
There will be no clearing, grading or construction of any kind on this parcel by BDN, LLC, and
no impervious surfaces will be created. This property is not within 150 feet of any waterbody, is F,
not within 150 feet of any known Type F, N or S streams, is not a wetland, and is not in a
Shoreline Jurisdiction. It is not within a FEMA Flood Zone, Landslide Hazard Area, Soil Erosion
Area or Soil Seismic Area. It is within a Critical Aquifer Recharge Area and a Saltwater
Intrusion Protection Zone, but no activities proposed on the property will in any way impact the
parcels aquifer or saltwater intrusion functions or characteristics.
The only BDN use anticipated for this parcel will be as follows:
1) Parking of one or two passenger vehicles or light trucks on the parcel for 1-2 hours once
weekly for regular beach inspections of geoduck gear.
2) Parking of one or two passenger vehicles or light trucks on the parcel in connection with
emergency responses per the applicable Gear Management Plan. From prior BDN
experience in the area, such emergency responses occur on less than five days per year,
typically in the winter and sometimes at night.
3) Parking of a maximum of 6 passenger vehicles or light trucks on the parcel for no more
than 5 hours per day during planting or harvesting activities. However, it is anticipated
that BDN parcel 821344064 will be the primary parking and staging area for these
operations, such that related parking on this parcel will take place an average of less than
ten days per year.
Cumulative Impacts of the Use of This Parcel by BDN
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
and proposed BDN projects. The addition of the very 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 regular parking will be provided for all
beach workers on parcel 821344064 as necessary.
BDN, LLC — SEPA Checklist Addendum M-1
Page - 2
B-14
LO, ITEM
6
CA q70
The SMP defines "Cumulative impacts" or "cumulative effects" as "the combined impacts'9of a �77
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).
The miniscule additional vehicle traffic generated by infrequent parking of vehicles on the parcel
as described above will have no significant cumulative impact on the areas surrounding the
parcel, either nearby or distant, while facilitating an aquaculture usage that is preferred under
Washington law (RCW 90.58.020.)
BDN, LLC — SEPA Checklist Addendum M-1
Page - 3
B-15
LOG ITEM
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R. 1 EAST, W.M., JEFF'ERSON COUNTY, WA.
jjj MLA 12-00243
/�'JU' ACESS AND
� - UTILITY EASEMENT LLINU SE 71.
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`MONUMENT WAS FOUND
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FROM THE CALCULAIED
101' 1
1 PARCEL "A"
CORNER.
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FOR )NGRESS, EGft-A AND
UTILITIES ACROSS PARCEL -8" /
LNIXIYLMI WAS. FOUND
FOR THE BENEFIT OF PARCEL "A". E, 01{' i
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FOUND A 4"14' CONCRETE
S. 1/4 CDR Sj MONUMENT WITH A 1 112'
FUUND A 4'x4DIA BRASS DISK WITH
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EDGE OF FAytwr
----�-
CONCRETE MON{IIY
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STAMPED 36791'. SET
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1-12'X24' WHITE WITNESS POST
ALONGSIDE.
AUDITOR'S FILE NO. _� x
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—•�� NEW PROPERTY LINE
PROPERTY LINE SURVEYED
AUDITOR'S CERrIFICATE
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efl V
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`F ''__''''
FILED FOR
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Q FOUND A 3/4' IRON PIPE WITH
A PLASTIC CAP STAMPED "ADA
RECORD THIS__ -DAY OFJ/1�3A{�-, 20� AT �;fj p M
�A�g -'-- -
IN BOOK 36 OF_.CVVe J' AT PAGE 134,' AT PIE REQUEST OF
J' -
LS 8894", SET BY HERBERT
---
-
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ARMSTRONG IN THE WILLIAM L
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FINIS R BRLWER.
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JOB NO.:
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FILE:: ,zo,0_sme,:l,Gr
PROFESSIONAL LAND SURVEYING
THIS MAP COHR CITLYEREPRES NCS AIFSURVEY MADE BY ME OR
FIELD BK:
48, PG, 65-68
UNDER MY DIRECTION IN CONFORMANCE WITH THE REQUIREMENTS
jARES S,NERJR
LOCATION: PATT50N S'f.
OF THE SURVEY RECORDING ACT AT THE REQUEST OF._.
SURVEYED:
DC/CLH
PORT
OR Rf. T NAOLOCK IAA 98339
—__-_-_ JAMFS 3MERSH
DRAWN BY:
0 30 60__--- 90
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CHK'D BY:
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CHIMACUN, NA 9032.5
lele: (360) 385-9851 FAX (AO) 385-9853
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LOG ITEM
B-18
LOG ITEM
#
Page �L-e / 3
Donna Frostholm
From: Marilyn Showalter <marilyn.showalter@gmail.com> L(3i
Sent: Friday, August 20, 2021 2:59 PM
To: Donna Frostholm
Cc: Sue Corbett; Janet
Subject: BDN-Smersh Attachments D and E
Attachments: D SECTION D BAD TRACK RECORD BDN-Smersh mgs jlw-sdc.pdf, E SECTION E
AESTHETICS BDN-Smersh D mgs jlw-sdc.pdf
CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking
links, especially from unknown senders.
Here are attachments D and E of attachments A-H
Marilyn Showalter
1596 Shine Rd
Port Ludlow, WA 98365
(360) 259-1700 (cell)
marilyn.showalter@gmaii.com
LOG 1TEsAw
�xl _
ale j
LOG ff vi
Sue Corbett
Primary Author /
SECTION D BAD TRACK RECORD
The applicant -owners have a poor record of compliance with laws, regulations,
and permit conditions affecting land, water, and the environment.
James Smersh and BDN/Brad Nelson have each exhibited conduct that should disqualify
them from receiving approval of their application for a conditional use permit.
Mr. Smersh's conduct is covered primarily in Section A Hicks Park and Section B Bones
Creek. This conduct includes, all without a permit: rechanneling a fish stream (Bones
Creek); constructing a bulkhead and culvert that blocked fish access; bringing in 180
yards of fill; failing to file any septic inspections; and storing huge piles of BDN's PVC
tubes on his property for years; and recklessly and dangerously spiking his tidelands with
rebar. In addition, it is unclear who is responsible for graveling and grading a road within
the buffer of Bones Creek, in part because of peculiarities of a boundary line adjustment
between two land parcels (#s970200001-2), one of which belongs to Mr. Smersh.
Brad Nelson/BDN, in connection with his current geoduck farm in Squamish Harbor, '/2
mile west of the Smersh site, has an extensive record of breaking rules and disregarding
the environment —including bulldozing the shoreline buffer, anchoring in native
eelgrass, failing to retrieve hundreds of dislodged tubes and other debris in a timely
manner (if at all), and harvesting geoducks in prohibited time periods —as further
described below.
1. BDN bulldozed the shoreline buffer to create parking space
In August 2013 BDN bought a tiny strip of land between Shine Road and the beach,
Parcel #821334011. It's 40 feet long, and the width actual land between the south edge
of Shine Road and the meander line is roughly 25 feet. To this postage stamp of land is
attached some of the tidelands that make up BDN's geoduck farm. A year-round
unnamed fish stream (not Bones Creek) runs through a culvert under Shine Road and
BDN's parcel, and empties onto BDN's tidelands. BDN uses this strip of shoreline for
access by dinghy to his harvesting boat when anchored in Squamish Harbor. This boat,
with large numbers "258" painted on it, has been anchored continuously in Squamish
Harbor since the beginning of June 2021, as well as during summer months of past years
and for other extended periods.
In April 2015, Bob Garten (a Shine neighbor) without a permit, bulldozed vegetation
from Parcel 4821334011. Fill was brought in and graded to create a parking space for
BDN. The southern edge of the parking area is marked by a long log, which is just
above the outlet of the stream. Multiple cars and trucks park there along Shine Road.
D-1
LOG ITEM
P-47
age
Above: Tiny green square shows BDN's Parcel #821334011, between Shine Road and shoreline.
Screen County Tax Parcel viewer by Marilyn Showalter, August 16, 2021. Below: Garten bulldozer
carving parking space on Shine Road a few feet from shoreline. Photo by Sue Corbett, April 27, 2015.
D-2
Garten bulldozer hauling away vegetation on Shine
Rd. Photo by Sue Corbett, April 27, 2015
BDN truck using parking spot. Stream culvert runs
underneath ground by front fender. Photo by Sue
Corbett, May 6, 2015
Pa��
BDN newly created parking area on Shine Road, tire
marks in soft surfacing, and log near shoreline.
Photo by Sue Corbett, May 7, 2015
Multiple BDN cars and Honeybucket on Shine Road.
Photo by Marilyn Showalter, June 20, 2020
2. Parking boat and equipment in fish stream.
From the beach side, one can see that the parking space, used by multiple cars and trucks,
is directly over a stream. This stream is classified as a fish stream ("F) by the state
Department of Natural Resources. ' BDN uses this shore to ferry a small boat to and from
his larger boat anchored in Squamish Harbor. BDN has left a washed-up boat and
equipment in this stream.
1 See "Fish Streams on Shine Road" in our Section B Bones Creek.
D-3
LOG ITEM
PCA 7-
Above: Bagged tubes next to rushing stream. Log above tubes defines BDN's parking space on Shine
Road. Photo by Sue Corbett, January 13, 2016. Below: Screenshot shows red stream just west of
BDN's postage stamp lot. Legend show that red stream is a Fish ("F") stream.
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Above: Small BDN boat on mouth of
stream, with water and gravel in the
boat, and motor propeller in the stream.
Photo by Sue Corbett, December 23,
2019.
Left: Close-up of small BDN boat, with
battery under water. Photo by Sue
Corbett, December 13, 2019.
LOG ITEM
3. BDN's disregard for native eelgrass P,%g � {
a. BDN's unauthorized proposed expansion of geoduck cultivation area (area with
native eelgrass)
After two years of emails and photos sent from Sue Corbett to the US Army Corps of
Engineers documenting our concerns about the BDN geoduck farm, Pam Sanguinetti
from the Corps came for a site visit on July 1, 2015. She observed extensive native
eelgrass in BDN's proposed site, resulting in cancellation of his applications (two of
which, both in Squamish Harbor, have not yet been revived). The following
communications from the Corps to BDN are drawn from the Corps' files on BDN.
July 31, 2015 This email is to follow-up on our site visit on July 1, 2015. The purpose of
the site visit was to confirm the eelgrass delineations provided by Marine
Surveys and Assessments (MSA) NWS-2013-1147 (Tjemsland lease), NWS-
2013-1222 (BDN), NWS-2013-1223 (Garten lease), NWS-2013-1268
(Smersh), and also for NWS-2010 (BDN - formerly WA Shellfish).
We observed extensive native eelgrass within the areas proposed for
cultivation. (Emphasis added.)
I recommend you withdraw your applications at this time until you can
provide the requested revisions.
If you do not submit all of the required information within 30 days, the
application will be canceled.
November 19, As you are aware, we are currently evaluating your permit deviations
2015 for unauthorized expansion of your geoduck cultivation area (reference
number NWS-2012-1099). Since your permit deviation is the subject of an
ongoing enforcement action, your new permit application cannot be
processed and the application has been canceled. (Emphasis added)
November 19, At this time, we will administratively cancel NES-2013-1223 (Garten),
2015 NWS-2013-1147 (Tjemsland), and NWS-2013-1222 (BDN). Please submit
the revised Smersh maps within 30 days. (Emphasis added)
May 15, 2016 We have concerns that the previous eelgrass surveys may not be accurate
because during the video and snorkeling surveys, the transects were not
uniform and spaced sometimes more than 50 feet apart and the 2013
survey may not have accurately identified native eelgrass. Please provide
an addendum to the BE dated October 28, 2013. The Corps will confirm
the bed boundary in July 2016 (site visit).
D-6
er^" .� ! c
„s
b. BDN's boat anchored in native eelgrass
The geoduck boat was anchored in native eelgrass on several occasions. For example, on
May 28, 2017 at 1:05 PM, the geoduck boat was anchored in native eelgrass.
Photo IMG 2517. BDN's boat anchored in native eelgrass. Tideline is at minus 3.1'. Photo by Sue
Corbett, May 28, 2017 at 1:05 PM.
c. BDN workers without knowledge to identify native eelgrass, as required
On May 18, 2015, as workers were
taking vegetation off of the tubes,
Sue Corbett asked them if they knew
the difference native eelgrass and
other sea grasses. They replied,
"No, we just do what we are told."
Workers removing seaweed from PVC tubes
on BDN's current geoduck farm in Squamish
Harbor. Photo by Sue Corbett, May 18, 2015
II
D-7
4. Illegal harvests by BDN
LOG ITEM
#-3�,
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On several occasions, BDN illegally harvested geoducks in Squamish Harbor.
a. Harvest of wild geoducks without a permit
On June 5, 2015, Brad Nelson illegally harvested 3 crates worth of wild geoducks on
parcels that had no permits from the Corps, including on parcel 821334076, which is
owned by Bob Garten. Sue Corbett took photos of this event and reported it to Pam
Sanguinetti at the Corps. Ms. Sanguinetti later confirmed to Sue Corbett, by telephone,
that BDN did in fact harvest wild geoducks, which was not permitted.
"*Ew,
BDN's workers harvesting wild geoducks on Bob Garten's unpermitted tidelands, three parcels west of BDN's
tidelands. Photo by Sue Corbett, June 3, 2015
8
D-8
LOG ITEV
RGgq �3 0_137
b. Harvest of Geoducks During Prohibited Period
Under BDN's federal permit, he is prohibited from harvesting from February 1 st through
April 30'.Z This is for the protection of an endangered species, Hood Canal Summer -
Run Chum. Condition number 33 states:
In Hood Canal summer -run chum salmon designated critical habitat: Between
February 1 and April 30, shellfish planting and harvesting shall not occur within
15 feet waterward of the waterline (tideline) to protect juvenile chum salmon. In
addition, shellfish activities which increase turbidity in the nearshore water
(eg..,geoduck harvest) shall not occur at all during this timeframe.
(Emphasis added)
On siA separate dates during the prohibited period —February 7, 13, 14, 18, 20, and 22,
2021—BDN harvested geoducks in Squamish Harbor. The crates of harvested geoducks
were taken by boat to Port Ludlow Marina and transferred to BDN's refrigerated van.
These events were observed by Sue Corbett, Jan Wold, Paul Steenberg, and Marilyn
Showalter, and were reported to the Corps.
On March 4, 2021, the Corps sent BDN a "Letter of Noncompliance."' Further action is
pending, but the Letter of Noncompliance instructed:
Your entire project area is in designated critical habitat for Hood Canal summer -
run chum salmon. Performing work outside of the work window is non -compliant
with the terms and conditions of your previous verification, and we direct you to
do no further harvesting between February 1 and April 30, in any given year, at
this site.
National Marine Fisheries Service and U.S. Fish and Wildlife Service will receive
a copy of this letter, because the failure to comply with the terms and conditions
associated with incidentaltake of the BOs, where a take of the listed species
occurs, would constitute an unauthorized take,as detailed above in special
condition "a".
2 Application files SEPA Att H, pdf p. 3/86; Item 39 pdf p 438/561
a The Letter of Noncompliance is attached to this Section D Bad Track Record.
D-9
C7
1414
Top left: BDN harvesting in Squamish Harbor; hydraulic hose off stern. Photo by Jan Wold, February 18, 2021 at
8:53 am. Top right: Later the same day boat is at Port Ludlow Marina. Photo by Jan Wold, February 18 at 4:56
pm. Lower photos: Crates of BDN's geoducks harvested from Squamish Harbor, ready for transport at Port
Ludlow Marina. Tag with label "Seaproducks, Inc," BDN's company: "Harvest Date: 2-22-2021. Harvest Location:
Hood Canal. Type of Shellfish: Geoduck 308 lbs. Shine 4" Photos by Paul Steenberg, February 22, 2021,
3.48 �I
14
February 22
1:39 PM
10
D-1 0
•ram`'15-7
5. BDN has not complied with its Gear Management Plan
Squamish Harbor is uniquely unsuited for geoduck aquaculture as geoduck aquaculture
gear is constantly becoming dislodged and strewn about the harbor. The tidelands along
Shine Road are subject to high winds that head straight toward the current BDN site and
the proposed Smersh site.
a. Hundreds of Tubes Become Dislodged Every Year from BDN's current site
In an email dated October 14, 2016, the Corps wrote to Brad Nelson stating its concerns
over possible loss of gear from the proposed Smersh site.4 Written in response to an
addendum to the Biological Evaluation dated September 21, 2016, the Corps' email
stated:
Hood Canal is subject to heavy currents, tides and high waves. The water level
falls as much as 18 feet and wind gusts have been recorded with gusts as high as
120 mph at the Hood Canal Bridge, which is 1.5 miles from your site.
Because of the dynamic location of your project, the Corps has concerns with 5.15
acres of cover nets proposed for being in place for about 60 - 100% of the 4-7 year
cultivation cycle. These nets could potentially pose a hazard to navigation if they
were to break loose.
As the Corps points out, dislodged nets may pose a navigational hazard. But without
using cover nets, the risk of escaping tubes is even worse.5 In any event, given the
following described track record, there is every reason to believe that adding a geoduck
farm even larger than BDN's current site will result in hundreds, probably thousands, of
tubes dislodged into Squamish Harbor.
Several documents in the BDN-Smersh application make claims that are disproven by
BDN's own record. For example, the application asserts:
The PVC tubes that will be used on the project, based on current BDN
experience, not likely to come loose from their insertion points due to wave
action. While the tubes may be pushed out by maturing geoduck, area
tidal currents do not typically carry them off of BDN property.6
a Email from Pam Sanguinetti to Robert Smith and Brad Nelson, October 14, 2016, 3:30 pm.
s This is not an argument in favor of nets; it is an argument for denying the application altogether, as there
are hazards with and without nets that, because of the winds and tides, can't be mitigated.
6 Smersh Farm Cumulative Impacts Report, revised May 26, 2020, in the Cumulative Debris, Plastics and
Chemical Impact 1.0.4.9.1 section, Log item 39, page 160/561
11
D-11
LOG ITEM
#
pag -0
and:
The installed PVC tubes are very resistant to dislocation during severe weather, or
from geoduck movement and activity, so no securing nets are necessary. Any
dislodged tubes do not float and thus tend to remain on or near the tract even
if dislodged'
(Emphasis added)
Those statements are demonstrably false:
On January 31, 2020, there was a wind storm heading towards the Hood Canal
Bridge. Wind speeds were 50 mph so the Hood Canal Bridge was closed for 6 1/2
hours. After a serious storm, BDN's federal permit requires inspection and clean-up of
beaches within '/z mile of the site:
...beaches within one-half mile of the farm shall be patrolled (subject to the beach
owner's permission to enter) 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." 8
(Emphasis added)
That did not happen. Bruce Case, a neighbor in Shine, contacted Sue Corbett about a
large number of dislodged tubes. No one from BDN came to collect them.
Starting on February 5, Sue Corbett and Bruce Case began taking video and photos of
dislodged tubes, picking up loose tubes, and putting them in piles high up on BDN's
beach property. This went on for three months in 2020. In all, 312 PVC tubes were
collected. Only twice during that period did Sue Corbett or Bruce Case see any BDN
people come to pick up tubes, and even then, they did not pick up all of them.
ren 5- may Ls, Zulu
February 5, Bruce picked up tubes and placed them high up on the BDN beach (66 in video
but picked up more).
February 6 Bruce picked up tubes and added them to the pile. (36 in video but picked up
more (video of more tubes still under water).
February 10 Bruce picked up 53 tubes to add to the pile (53 in video but picked up more).
February 11 Bruce counted 192 tubes in the pile in the morning and Sue added 4 more at
the 12:30 PM low tide.
' JARPA Log item 39 page 552/561
8 Application files SEPA Att H, pdf p. 25/86, or Item 39 pdf p. 432/561
12
D-12
February 12
Bruce was only able to reach 19 tubes. Sue counted 52 loose tubes but most
were under water.
February 13 Sue was able to collect 3 tubes and 4 were under water at a 2.7 tide. The rest
of the tubes that were observed the day before apparently had gone out
further into the harbor.
February 14 Sue picked up 27 to add to the pile.
February 15 Bruce and Sue picked up 50 loose tubes and added them to the pile. It had
been a very windy morning so loose tubes would be expected. The tide was 1.2
February 16 Sue picked up and added 20 tubes to the pile. Many tubes were dislodged but
half way filled with sand so were too difficult to pick them up.
February 17 Brad Nelson and two young people were at the BDN site during low tide.
The two young people walked west on the tidelands down to near the end of
the bay picking up loose tubes. They had one bag full which presumably was
added to the pile. The pile of tubes remained on the beach until at least March
2.
February 25 Bruce picked up tubes and placed them high up on the BDN beach (66 in video
but picked up more).
March 15 Sue picked up 9 loose tubes. Started a new pile.
March 17 Bruce picked up 14 tubes.
April 2 Sue picked up 21 tubes. The pile there until at least April 7.
April 27 Sue picked up 41 tubes.
May 5 Sue picked up 16 loose tubes after being alerted of loose tubes on May 2.
May 23 BDN workers removed the rest of the tubes from the BDN site.
13
D-13
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In addition to the storm -related extended incident above, dislodged tubes have
persistently appeared on Squamish Harbor's beaches, largely to the west of BDN's site,
as that is the direction the winds and tides push them.
Right: Dislodged PVC tubes on BDN's current Squamish Harbor site. Photo by Sue Corbett, March 24, 2015.
Left: Tubes strewn on beach west of BDN's current geoduck farm. Photo by Sue Corbett, December 27, 2014.
15
D-15
LOG iT EAM
b. Skiff sinking and debris drifting to shore PCA 'Q 0j� �f—L-5]
On November 16, 2019, there was a storm with gusts of 50 mph. The next day, BDN's
skiff, which he anchored more or less permanently in Squamish Harbor (with no night
lights), began to sink. Apparently, someone alerted the Coast Guard, because a Coast
Guard helicopter came and circled around the harbor for about 30 minutes. Then a
Washington Fish and Wildlife boat came and maneuvered close to the skiff. Later a raft
arrived and pushed the skiff to shore. The dive flag on the skiff had been left up, which
might have been the concern for whoever made the call to the Coast Guard.
By November 19, 2019, debris from the skiff had washed onshore: 5 black plastic crates,
a large mat, and a dive tank. A long yellow electrical cord was drifting out from the
skiff. The skiff was finally removed November 20, 2020, but the dinghy with loose
batteries remained, as of November 21, 2020.
... -� - - .tea _ •. .J. -
M- MINA -IMP
Skiff sinking in Squamish Harbor. Photo by Sue Corbett, November 17, 2019, 9:04 am.
16
D-16
LOG ITEM
Above left: Helicopter responding to sinking skiff. Photo by Sue Corbett, November 17, 2019, 10:09. Above right:
Three crates and a DIVE tank (black and yellow item by stairs) on Bob Garten's beach. Photo by Sue Corbett,
November 19, 2018. Lower left: Skiff pulled closer to shore, partially submerged with electrical cord floating.
Photo by Sue Corbett, November 18, 2019. Lower right: Dinghy with batteries floating tideline. Photo by
17
D-17
LOG ITEM
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November 16 There were wind gusts of 50 mph in Squamish Harbor.
November 17 The skiff that harvests on the BDN property began to sink. Apparently,
someone alerted the Coast Guard because a Coast Guard helicopter came
and circled around the harbor for about 30 minutes. Then a Washington
Fish and Wildlife boat came and maneuvered close to the skiff. Later a raft
arrived and pushed the skiff to shore. The dive flag on the skiff had been
left up so that might have been the concern for whoever made the call to
the Coast Guard.
November 19 Debris from the skiff had washed onshore: 5 black plastic crates, a large
mat and a dive tank. A long yellow electrical cord was drifting out from the
skiff.
November 20 At 9:31 AM, Steve Dittmar, a local resident, messaged Brad Nelson that his
skiff was drifting away: "Your boat has moved overnight 100yds or so
toward our house. Looks like your other work boat is anchored offshore
so maybe your guys know about the drift."
Reply from Brad Nelson 11/20 11:39 AM "They are hauling boat out
now. Thanks again"
November 25 On November 25, 2019: A man picked up some tubes but neglected to
pick up about a dozen more that were west of the farm site. He did not
pick up the crates or mat. The crates, mat and dive tank were still on the
beach November 26.
December 13 On December 13 or before, a small BDN boat on the beach at the BDN site
for months had become submerged with water. There were two batteries
in the boat also submerged under water. The boat remained submerged,
at times resting where the stream enters the beach. It remained, filled with
water, on the beach until at least December 23. At one point, one of the
neighbors tied the boat to a tree because it was not anchored.
c. BDN has left non -secured aquaculture gear on site when crews are not present
The 2016 BDN LLC Gear Management Plan, Item 2 requires that: "Non -secured gear
and equipment will be removed from the farm area when crews are not present." 9 In
addition to the storm -related items described above, BDN has violated this provision on
many occasions. Examples follow.
9 Log Item 39, p 432/561
18
D-18
CA
parking log in beach vegetation at
high tide. Photo by Sue Corbett,
December 10, 2015. xr
Six crates on beach vegetation
(trespassing on neighbor's
property). Photo by Sue Corbett, 141 frio
January 5, 2019.
PVC tubes in netting by chair in
beach vegetation; battery and
electrical cord on chair. Photo by
Sue Corbett, December 23, 2019.
D-1 9
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77
sm
19
PVC tubes on beach, long metal
pole with netting in parking
space. Photo by Sue Corbett,
January 13, 2016.
Long metal pole in parking space,
small metal poles in beach
vegetation, tubes on beach in
background. Photo by Sue
Corbett, January 13, 2016.
D-20
Rnm
20
LOG 3 d EM
FAG g J3 l 3
d. BDN has not reported lost gear or navigational hazards, as required
BDN's federal 2016 Gear Management Plan requires:
If any nets or more than 20 tubes are observed to have escaped from the project
area, upon discovery, BDN will immediately contact the U.S. Army Corps of
Engineers,"
BDN will initiate an emergency inspection to document (including photos) the
incident and determine the cause of failure (e.g. storm conditions, etc.)10
(Emphasis added)
BDN has clearly failed to comply with these requirements. The evidence contained in
this Section D Bad Track Record show conclusively that on many occasions, BDN was
required to report and document ("including photos") the incidents. And yet,
A FOIA request by Sue Corbett to the Army Corps of Engineers reveals not a single
piece of correspondence from BDN to the Corps about the numerous occasions
when there were more than 20 lost tubes or about the sinking of their geoduck skiff."
6. For years, BDN has anchored his boat in Squamish Harbor without night lights
BDN anchors his boat in Squamish Harbor for extended periods of time, including
continuously since the beginning of June 2021 through August 16, 2021 (the date this is
written). This violates Coast Guard rules and poses a hazard to boats navigating at night.
Fishing boats and pleasure boats frequently stay in Squamish Harbor for the night. This is
just one more example of BDN violating a well -understood rule.
CONCLUSION
BDN and Mr. Smersh have demonstrated that they are untrustworthy to comply with
regulatory requirements or to take care of the environment. A permit with conditions will
not be a dependable way to ensure the environment and public safety are protected.
'0 Item 9, 2016 Gear Management Plan. Log Item 39, p433/561
" FOIA materials received by Sue Corbett from the U.S. Army Corps of Engineers, covering April 2014
through May 11, 2020. Two FOIA requests since that date have not yet been answered.
21
D-21
•t 51 Ij 6r
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Regulatory Branch
Mr. Brad Nelson
BDN, LLC
3011 Chandler Street
Tacoma, Washington 98409
Dear Mr. Nelson:
DEPARTMENT OF THE ARMY
CORPS OF ENGINEERS, SEATTLE DISTRICT
P.O. BOX 3755
SEATTLE, WASHINGTON 98124-3755
March 4, 2021
LOG ITEM
Page, f l3
Reference: NWS-2017-230-AQ
BDN LLC
(Geoduck Farm)
In response to a complaint, my staff is investigating the work performed on your tidelands
(parcel numbers 821334079, 821334011, 821334073) in Squamish Harbor near Port Ludlow,
Jefferson County, Washington. Based on the available information, you may have harvested
shellfish outside of the approved work window in Squamish Harbor.
You may not be in compliance with Special Conditions "a" and "b" of your permit which
requires:
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.
D-22
LOG
- 2 - �c499--�Of
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.
Your entire project area is in designated critical habitat for Hood Canal summer -run chum
salmon. Performing work outside of the work window is non -compliant with the terms and
conditions of your previous verification, and we direct you to do no further harvesting between
February 1 and April 30, in any given year, at this site. Conservation Measure 33 requires:
33. In Hood Canal summer -run chum salmon designated critical habitat: Between February
1 and April 30, shel fsh planting and harvesting shall not occur within 15 feet waterward of
the waterline (tideline) to protect juvenile chum salmon. In addition, shel f sh activities
which increase turbidity in the nearshore water (e.g., geoduck harvest) shall not occur at all
during this timeframe.
Please read the enclosure entitled Clean Water Act and Rivers and Harbors Act Extracts
and Definitions which describes laws that may apply to the unauthorized work. Failure to
cooperate in this matter could also result in the assessment of administrative civil penalties under
33 CFR Part 326 and/or a directive to remove any fill placed under this permit. Please read the
enclosure Clean Water Act Class I Administrative Penalties for more information.
On June 11, 2020, the District Court for the Western District of Washington issued final
orders invalidating authorizations for commercial shellfish aquaculture operations under 2017
Nationwide Permit (NWP) 48, Commercial Shellfish Aquaculture Activities, in the state of
Washington. In accordance with that order, beginning on August 11, 2020, activities currently
authorized under 2017 NWP 48 will no longer be authorized.
However, for those with verifications under the 2017 NWT 48, the court order allows
certain activities to occur if the U.S. Army Corps of Engineers, Seattle District (Corps) receives a
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new permit application for the project by December 11, 2020. Specifically, 2017 NWT 48
verification holders, who submit a new permit application by December 11, 2020, may:
1. Continue seeding and planting new shellfish crop until December 11, 2020 in areas of the
project that do not contain mature native eelgrass beds; and
2. Until the expiration of their current 2017 NWT 48 verification, continue maintenance and
harvest activities for shellfish planted or seeded on or before December 11, 2020.
3. Commercial shellfish aquaculture verified under 2017 NWT 48 that provides treaty
harvest in furtherance of adjudicated treaty rights may continue in accordance with the
terms of the verification, provided that a request for authorization is submitted to the
Corps by December 11, 2020.
The Corps received your request for application on December 4, 2020. You are reminded
that you are required to perform work in compliance with your enclosed 2017 NWP 48
verification, and the above referenced court order.
National Marine Fisheries Service and U.S. Fish and Wildlife Service will receive a copy of
this letter, because the 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,
as detailed above in special condition "a".
To assist in the evaluation of this potential violation, I request the following information:
a. As -built drawing of the locations where harvesting occurred. Enclosed for your use is a
copy of your permit drawings from previous verification. You should make any necessary
changes to the sketch to reflect current conditions, sign, and return with your other comments.
b. If work was occurring, who did the work? If a contractor, please furnish name, address,
and telephone number.
c. Date(s), time, and duration of any harvesting occurring after January 31, 2021.
d. Reasons why work was started during the work -window closure.
e. Property ownership as of January 21, 2021 and at time of work/activity.
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Please furnish the requested information within 30 days from the date of this letter. Your
comments will be beneficial in resolving this matter. If you have any questions concerning your
reply, please contact Ms. Daisy Douglass at daisy.p.douglass@usace.army.mil or at
(206) 764-6903.
Sincerely,
u4l� �"
Alexander "Xander" L. Bullock
Colonel, Corps of Engineers
District Engineer
Enclosures
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Page F13 �
REM
Marilyn Showalter &Sue Corbett �iGge� ���
Primary Authors
SECTION E AESTHETICS
A geoduck farm would degrade the natural environment that draws tourists, marine
recreationists, and residents —all of whom comprise the local economy.
Shine Road along Squamish Harbor enjoys a spectacular setting. It has a southern
exposure, looks directly down Hood Canal, and looks west to the Olympic mountains.
It is a natural and residential setting. There is nothing commercial about it other than
BDN's current geoduck farm, which is a blot on the area, and which unfortunately got
started just before Jefferson County's permit requirement became effective in 2014.
BDN now seeks to minimize, to almost absurd lengths, the aesthetic effects of his
current and would-be future farms on the area. The obvious truth is that a second farm
would degrade the area's natural aesthetics, particularly those of Hicks County Park.
1. BDN-Smersh's Visual Assessment is Deeply Flawed
Our review of BDN's Visual Assessment, a document required by SEPA, shows that it
should be entirely disregarded. As a consequence, BDN's application is incomplete.
3.1 Scenic Quality
BDN's Assessment rates the area's scenic quality as "moderate," i.e., an area "with a
combination of some outstanding features and some that are fairly common."
3.1.1.1 Environmental Condition Rating
This section of the Assessment alludes to a "nearby public park and public use area."
This is Hicks Park, which is not just "nearby" but adjoins the proposed site. The report
then downgrades the shoreline, because it has been "altered by rip rap hardening."
This is Smersh's rip rap, which was part of his unpermitted rechanneling and
culverting Bones Creek and bringing in 180 yards of fill.' So now that he has
"altered" the shoreline, he points to the alteration as a reason to lower the
environmental condition rating. In the next sentence, there is downgrading due to "a
concrete boat ramp and gravel parking lot." This, again, is Hicks Park, where people
come to enjoy the shoreline, tidelands, and water. This section also seems to be
limited to assessing the "landscape," when the tidelands and water are clearly a central
part of Squamish Harbor's rich environment.
' See our Section A Hicks Park and Section B Bones Creek.
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Page 77, 01,17
3.1.2.1 Spatial Definition Rating
This section of BDN's Assessment does not explain why a bay that is "1/2 to 2 miles
across" and 3 miles across from the far (eastern) shore of Hood Canal deserves a
"moderate" special definition rating.
3.1.2.3 Adjacent Scenery Rating "Low"
This rating is laughable. Here is BDN's explanation in full:
Adjacent scenery was rated as low based on the lack of variety in form, line,
color, and texture. Trees obscure views from neighboring residences, clear
cutting is visible in the managed forests to the west, managed forests are visible
on all adjacent shorelines and most shorelines being greater than 1 mile from
viewpoints.
This appraisal completely omits any mention of spectacular water and mountain
views. It downgrades neighbors' views for having trees, but also downgrades the far
western hills for having clearcuts. As for "lack of variety in form, line, color, and
texture," observe the following photos, taken from adjoining Hicks Park. (In addition,
probably every neighbor who lives on Shine Road has dozens of photos of mornings
and sunsets over Hood Canal and the Olympic mountains.)
"Form, line, color, texture." Hicks Park. Smersh boat and tidelands (and tip of Mt Rainier) in background.
Photo by Jan Wold, June 20, 2020
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"Form, line, color, and texture" Pu9�
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Paddleboarders at Hicks Park. Smersh tidelands in background. Photo by Marilyn Showalter, July 3, 2017
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Photos from GoogleMaps Reviews of Hicks Park
"Form, line, color, and texture"
GoogleMaps reviews for Hicks Park. Downloaded by Marilyn Showalter on August 11, 2021
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3.2.1 Number of Viewers
BDN's Assessment rates the number of viewers as "low." Both its qualitative and
quantitative evaluations are flawed. Taking the last sentence of BDN's paragraph
first:
The neighboring park is little more than a boat ramp and gravel parking lot.
The boat ramp is only useable during high tide, when the PVC geoduck tubes
would be submerged, so there is little opportunity for visitors to see
aquacultural activities.
Contrary to this statement, the park is used by far more people when the tides are low,
(especially in the summer months) when BDN-Smersh's 224,334 PVC tubes would be
visible immediately to the east.
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Also, in this section, BDN's Assessment counts the number of residences that can see
the tubes as 12 residences at a +2 tide, and 20 residences at a -2 tide. Skipping for the
moment that the tidal measurements are wrong (this is covered in the next section on
view duration), the applicant has miscounted the residences in the very photos he uses
to support these numbers.
The following photos show a clear line of sight from the residence of Marilyn
Showalter and Steve Aos to Smersh's tidelands (red circle). Yet, this residence and
others were not counted (as shown by orange circles) in the applicant's photos.
Photo by Marilyn Showalter, August 9, 2021 at 12:59 pm. The tideline is at -1.4'
The photo above is taken from the Hicks Park/Smersh boundary. The stakes in the
foreground (dangerous, ugly, and unpermitted) are driven in at around 0 to -1', i.e., in
the middle of Smersh's proposed planting area. There is a clear line of site from
Smersh's planting area to the southwest windows of the Showalter-Aos home.
The next photos show close-ups of both the applicant's photos and the one above.
3
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'jf
See close-up of
large red circle on
next page. Where
the applicant
shows one house
(one orange circle,
there are three, all
with views to
Smersh tidelands.
Top: Close-up of the east end of applicant's photo purporting to show visibility of tubes at a +1 tide.
SEPA Att C, p 37, Photo 11. Orange circles denote houses.
Center: Close-up of Showalter photo, August 9, 2021, at 12:59 pm. Red circles denote houses.
Bottom: Close-up of the east end of applicant's photo purporting to show visibility of tubes at an "estimated"
tide of -2'. (The photo is apparently taken from the water, not when the tide was -2' or lower.)
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Even more magnified close-up of Showalter August 9, 2021 photo, showing three houses where the applicant
indicated (by orange circle on photos on previous page) only one house. Showalter-Aos house in middle red
circle.
It seems that the applicant took a poor -quality photo on a poor -quality day, and then
inspected the photo (not very carefully) to see what houses could be seen. There are
other examples like this in the set of visibility photos, but this example should be
sufficient to disregard the analysis on "number of viewers."
BDN's Visual Assessment also makes no attempt to quantify the number of walkers,
boaters, paddlers, or others who use and enjoy Shine Road. These are not only people
who live in Shine. We can say, as residents, that people come to walk on Shine Road,
because it is beautiful, has a 25mph speed limit, and relatively few cars. After a county
public works survey, Jefferson County recently posted pedestrian signs to alert drivers
of pedestrians walking Shine Road.
Finally, neither the Visual Assessment nor the application in general adequately
addresses the aesthetics of storing seven -foot tall piles of PVC tubes on the residential
lot BDN proposes to use (parcel number 821344064), in an area twice the footprint of
an average house. What will look like an industrial waste deposit has no place in a
residential neighborhood. Similarly, using this lot and parcel number 970200001 for
parking lots is visually and audibly incompatible with low -density residential living.
E-8
3.2.1 View Duration
This section of BDN's Visual Assessment is worse than laughable. It either
demonstrates a complete lack of competence or an intent to deceive. The section
purports to show that "aquaculture equipment and activities are only visible during
daylight low tides for a small percentage of each month." This is shown graphically in
BDN's Figure 4, Charts A and B. Here is a closeup of Chart A:
C4I"III on avdo j(kIubr!, ,I( , Air, 1 X;,1[1tir! Ou(�r%03y1,4jIi ir-�ro
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a. The vertical axis is nonsensical
The vertical axis is labeled "daylight hours." But the numbers along that axis make no
sense. According to Chart A, the month of June has around 2800 daylight hours. But
simple math reveals that the total number of hours in June is 30 days x 24 hours = 720
hours. Daylight hours would be substantially fewer, but the numbers shown, in
addition to being obviously inaccurate, do not seem to relate in any mathematical way
to any obvious error the applicant might have made. BDN's analyst hasn't shown his
work or how he got to these conclusions. This makes the analysis non -reproducible,
and therefore non -verifiable.
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b. The analysis misapplies its own calculations, which are conceptuallyflenved
The analysis correctly states that the tubes will be planted between +2 feet and -2 feet.
It then states, presumably also correctly, that the tubes will protrude above the
sediment up to 7" or .6 feet. It creates a "farm boundary" of -1.4 to +2.6, which it
says, correctly, "represent[s] the tidal elevation of the PVC tubes."
Then the analysis takes a confused and confusing turn, as shown in its Figure 5:
Proportion of Mont:NTidai LlevatiDn Range is Withlnl Farm Boundary
206
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1) It appears to be measuring a percent of all hours, not daylight hours, but there is
no explanation of how the "months" are calculated.
2) It says the farm boundary is -2 to +2, not -1.6 to 2.6, though the box placement
may be correct.
3) Astoundingly, it does not include visibility hours at tides below the
planting level (whether -2 or -1.6). Apparently, BDN's analyst thinks that
once the tide recedes below the lowest row of tubes, they can no longer be
seen. Instead, the analysis says that the tide "rarely goes as low as the lower
farm boundary," as if the tubes are invisible at even lower tides. One might
think that he had never been on a beach, except that the author is "Principal
Aquatic Ecologist" with decades of experience.2
2 1 I -Novak-Resurne.pdf (confenvxom)
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This slei ht of h— - �1ff7
g and depicting when the tideline is in the farm boundary instead of
when the tubes are visible (including at tides below the "farm boundary") —
disqualifies BDN's analysis. It is either conceptually flawed or ethically flawed.
c. An accurate analysis shows that during the months of June, July, and August,
tubes would be visible during daylight hours on 80 of 92 days (87%), and the
average period of visibility on those days is 4 hours and 9 minutes
There are different ways one can accurately calculate visibility, but a pertinent one for
Hicks Park is: If a family wants to take the kids to the county public beach in the
summertime, what are the chances that PVC tubes will be visible that day?
The following analysis by Steve Aos3calculates, for each month of the year, the days
in the month when the tubes would be visible during daylight hours (sunrise to sunset),
and the number of hours of visibility for each of those days.
Hours Per Day (During Daylight Hours) When PVC Tubes Would be Visible,
By Day of the Year During 2021
Each column represents a day in 2021 when the tubes would
be visible For example, on June 25 the tubes would be
visible for about 6 5 hours between sunrise and sunset.
Blank columns (columns without a blue bar) representdays
when the tubes are not visible
During the months afpeak countypark
i usage, from June through August, the tubes
would be vlsiNe at least some of the time
during daylight hours on 87% of the days.
On these days, the tubes would be visible, on
3 average, 4 hours and 9 minutes.
2
L
D
Jan I Feb I Mar I Apr I May I Jun I Jul I Aug I Sep ) Oct I Nov I Dec I
The calculations use data from two sources. First, high and low tidal data for Lofall (across Hood Canal from Shine) for each day in 2021 are from the
National Oceanic and Atmospheric Administration (NOAA)(ht!p5: tidesandc_urreJits-noaa-gaylltoaatideannual.html?id=9445088).
Second, the time of sunrises and sunsets for each day in 2021, for a latitude and longitude at Shine, are from NOAA.
(https://gml.noaa.gov/grad/solcalc/table.php?lat=47.866616&Ion=-122.65411&year=2021). Tide data for each minute of each day during 2021 were
estimated by linear interpolation between the minute of each successive high and low tide from the NOAA data. For each day of the year, each
daylight minute is defined to occur between the minute of sunrise and the minute of sunset. The tubes would be visible when the tideline is lower
than or equal to +2.6 feet, assuming they are planted up to a tideline of+2.0 feet, and they protrude .6 feet (7 inches) above the beach.
Full Landscape Version on Following Page
3 Steve Aos, steveaos _c msn.com; Shine resident; economist; retired Executive Director, Washington State Institute
for Public Policy; recipient 2017 Outstanding Achievement Award, Society for Benefit -Cost Analysis, SBCA
Award - Sociejy for Benefit -Cost Analysis benefit ostanal sis.or ;profile "The Great Evaluator," State
Legislatures Magazine, Nat Council of State Legislatures, The Great Evaluator SL Magazine July 2013 ncsl,or
11
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3.3 Visibility: Summary Category "Low" M' _ Z,�0
BDN's Assessment rates visibility "low," citing "large distances between geoduck
planting area and potential viewers." This judgment completely omits Hicks Park,
which adjoins the proposed site, sharing a common land and tideland boundary. It
also omits all of the many visitors to Hicks Park as potential viewers, when those
visitors would be the ones most immediately affected by the physical and visual
intrusion of the PVC tubes.
"Also," states the Assessment, "geoduck tubes have very low relief and natural
macroalgae colonizes equipment rapidly leading to natural color and texture." The
reader can judge for oneself if the following photos from BDN's current geoduck farm
look "natural." Bear in mind, too, that many of the tubes, due to winds and tides, will
be in Hicks Park, not just next to it.
PVC tubes on BDN's tidelands, Squamish Harbor,''/: mile west of proposed Smersh site. Photo by Sue Corbett,
March 24, 2015
13
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3:3.1.1 View Obstruction Rating
It is not clear in this section of BDN's Assessment whether houses with partially
obstructed views count for anything, but it is clear that they have not been counted in
the photos put forth previously in section 3.2.1. Beyond that, no house has an
unobstructed view from every room, so it's unclear how meaningful this measurement
is, in this case. Most houses on Shine Road have a room or two with best views of the
water and mountains, which they use heavily. If they can see the tubes from there,
their view is degraded. Beyond that, this subsection fails even to recognize the users
of Hicks Park, who would have an unobstructed and up -close view of the PVC tubes
from virtually every square foot of the park.
3.3.2.1 Distance Offhore/Observer Position Rating
BDN's Assessment states: "This element is rated low because distance from most
potential viewers (i.e., visible residences and Shine Road) to aquaculture is greater
than 1500 feet and between 20 feet and 50 feet above sea level." Once again, the
assessment ignores Hicks Park visitors, of whom there are many more than the
number of residences on all of Shine Road. Those visitors are at sea level, or perhaps
ten feet higher if having a picnic, and right next to the proposed geoduck site.
3.3.3.1 Viewshed Coverage Rating "Low"
Per the Assessment, "The project is only 500 feet wide along the nearly 2-mile-long
northern shoreline of Squamish Harbor." Now, suddenly, the Assessment zooms out
to the full northern shoreline, when before those areas were heavily discounted in
terms of view degradation. As anyone knows, 500 feet of waterfront and tidelines
with a waterward distance of 550' is a substantial chunk of shoreline. If planted with
224,334 PVC, it will be a blight on the tidelands when viewed from near and far.
Conclusion on BDN's Visual Assessment: It Should be Entirely Disregarded
Aesthetics is a matter of human perception. By trying to objectify the subject using
(inaccurate) mathematical calculations, the assessment squeezes out, deliberately or
otherwise, how actual human beings will experience, aesthetically, the proposed
geoduck farm. They assert, in Orwellian manor, that the PVC tubes will quickly look
"natural," while downgrading the actual natural setting of the site.
Just as bad, the Assessment's actual calculations and measurements are nonsensical and
non -reproducible (the visibility graphs), and it fails to note and count houses in its own
photos. Worst of all, the Assessment completely ignores and discounts Hicks Park, the
enjoyment of which would be radically altered by an adjoining geoduck farm. An
assessment so flawed must be disregarded, leaving a gaping hole in the SEPA Checklist.
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2. Noise and Incompatible Commercial Activity Pugs Of-.1-31
Noise and commercial activity in a residential neighborhood, but particularly at Hicks
Park, would also compromise the aesthetic enjoyment of beach activities.
Planting. According to BDN's application, beginning in spring and lasting through
fall, 12-25 workers will work in five -hour shifts to insert the PVC tubes. 4 Thus,
planting activities are concentrated in the same season that residents, walkers, boaters,
and visitors to Hicks Park most enjoy Squamish Harbor. A crew of workers hauling
giant bags of PVC tubes over the tidelands and stomping them into the substrate
conflicts with the natural setting that draws people to the area and to the Hicks Park.
Harvesting. For each geoduck to be harvested, the application proposes to use a water
jet, powered by a diesel engine, that liquifies the sand to three feet deep, in order to
extract the geoduck. According to the applications, this process will go on for three to
six hours per harvesting day, over one to two years, mostly underwater but also on
exposed geoduck tidelands. If planting is staggered among plots, harvesting could go
on every year, permanently. The constant engine noise will interfere with enjoyment
of a natural setting. (This incessant noise is different from a boat that launches into
the water over a few seconds.) In addition, the turbidity resulting from the sand that is
displaced will interfere with visibility for wading crabbers or other waders, making it
impossible to see crabs and dangerous to wade onto unseen objects, including tubes.
Equipment. Despite federal permit conditions to the contrary, BDN leaves equipment
on site, and even on other people's property.' This would be aesthetically displeasing
anywhere, but especially next to Hicks Park, whose very purpose is to enable the
public to enjoy the view and shore. The point here is that simply prescribing permit
conditions is not effective, as BDN repeatedly violates them.
CONCLUSION ON AESTHETICS
A geoduck farm is fundamentally incompatible with the proposed location, and the
problem cannot be mitigated. Winds, tides, and weather can't be changed; nor can
tubes and harvesting. The combination would sacrifice the use and enjoyment of
Hicks Park.
a SEPA Checklist pdf p. 16/22
s JARPA pdf pp 6-7/15; Item 39 pdf pp. 532-3/561
'See our Section D Bad Track Record, pp. 18-20
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Smersh tidelands. Left photo by Marilyn Showalter, June 22, 2020. Right photo by Sue Corbett, October 3,
2020. Below left: Connie eninvs sitting and elammino_ Phntn hu Marilyn ¢hnwnitur enenct o 9n91 Rohn.
Left: PVC tubes left on current BDN site. Photo by Sue Corbett, December 23, 2019. Small boat with motor,
batteries, and electrical cords left in shallow water. Photo by Marilyn Showalter, November 21, 2019
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Page
Donna Frostholm
From: Marilyn Showalter <marilyn.showalter@gmail.com> LUG ITEM
Sent: Friday, August 20, 2021 3:03 PM
To: Donna Frostholm Page
Cc: Sue Corbett; Janet P
Subject: BDN-Smersh Attachments F, G, and H
Attachments: F SECTION F ANNOTATED FORMS BDN-Smersh mgs jlw-sdc.pdf, G SECTION G
CUMULATIVE EFFECTS BDN-Smersh mgs jlw-sdc.pdf; H SECTION H EIS BDN-Smersh
mgs jlw-sdc D.pdf
CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking
links, especially from unknown senders.
This should be the final email of attachments. The four emails I sent include a cover letter and attachments A through H.
Marilyn Showalter
1596 Shine Rd
Port Ludlow, WA 98365
(360) 259-1700 (cell)
marilyn.showatter@gmail.com
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SECTION F ANNOTATED FORMS
The required forms contain blanks, omissions, and misleading and false
information that should disqualify the application.
F-1: Annotated DCD Application ...... F-page 2
F-2: Annotated JARPA ........ F-page 5
F-3: Annotated SEPA Checklist ...... F-page 14
F-1
ANNOTATED PERMIT APPLICATION
Comments to yellow highlighted text shown in blue bold, by Marilyn Showalter
ON (<) DEPARTMENT OF COMMUNITY DEVELOPMENT
621 Sheridan Street, PortTownscnd, WA 98368 360.379.4450 1 Fax: 360.379.4451
k7 �
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Ys/Y1 NCs 0 PERMIT APPLICATIQ J May 07 2021
Page q2c� f 3 �1EFFERSON COUNTY DCD
Steps in the Permit Process: � -
-Review application checklist to ensure all information is completed prior to submitting application.
-Make sure septic has been applied for and water availability has been proven.
-Make an appointment to meet with the Permit Technician by calling 360-379-4450.
-This is not a standalone application; it must be accompanied by a project specific supplemental application.
-Fees will be collected at intake. Additional fees may apply after review and payment is required before permit is
issued.
For Department Use Only
Related Application #s:
Site Information
M LA#
Building Permit #
Assessor Tax Parcel Number:721031007 MGS: There are six private parcels and two public parks that
are involved in this proposal. See our Annotated DARPA, Item 59, following this document.
Site Address and/or Directions to Property: 1 160 Shine Road, Port Ludlow, WA 98365
Access (name of street(s)) from which access will be gained: Shine Road
Present use of property:Unimproved Tidelands MGS: This item asks for the use of the "property," which
should be answered "a residence." This is the first of many instances where, for some reason,
the application obscures or skirts around the fact that Parcel #721031007 is a residence, with
house, garage, (presumably) septic tank and drain field, and an apparent large concrete
platform and boat launch. A full certified survey of this parcel should be completed before this
application is advance.
Description of Work (include proposed uses):Cultivation of Pacific Geoduck on 5.15 acres of subject tidelands
'Wastewater - Sewage Disposal
This property is served by Port Townsend or Port Ludlow sewer system? YES NO
If not served by sewer identified above, identify type of septic system below:
is LEFT BLANK. BDN-Smersh does answer °°yes" or "no." Given the rest of the application's
shiness on this subject, his does not seem to be an oversight. MGS: Records show that
rsh applied for a septic permit, but it's unclear whether it was properly completed, and it IS
r that no inspections have been filed in recent years, as required by law. Smersh should be
to file a septic and drain field inspection before this application is advanced.
of Sewage System Serving Property:
Septic
Septic Permit #:
F-2
Community Septic Name of System:
Are other residences connected to the septic system?
Additions or repairs to sewage system:
Is it a complete or partial system installation:
Has a reserve drainfield been designated?
1-00 NqTF3
Case #:
gage (If
Complete Partial
Yes No
Late of Last Operations & Maintenance check: Attach last report to application
Describe or attach any drainfield easements, covenants or notices on title, which may impact the property.
s nimoroved tidelands are not served by anv sealer or septic system
GS: Again, BDN-Smersh avoids answering the question, which refers to the "property" by
irrowing the scope of the answer to "unimproved tidelands." This is no more appropriate than
an application for an ADU on five acres omitted mention of the septic system connected to
e primary residence.
The authorized agent/representative is the primary contact for ail project -related questions and correspondence. The County will
mail / e-mail requests and information about the application to the authorized agent/representative and will copy (cc) the owner
noted below. The authorized agent/representative is responsible for communicating the information to all parties involved with
the application. It is the responsibility of the authorized agent/representative and owner to ensure their mailbox accepts County
email (i.e.,
Count email is not blocked or sent to" •unk mail" 1
Applicant/Property Owner Information
Property Owner:
Name: James Smersh
4ddress: Ro. Box 1246, Mercer island, WA 98040
Phone#: 206-963-5571 E-mailIJ ddress:l
Please contact Authori F��W�t ve with -
-- roject info. (select only one).
wrier Signature: —y
Property Owner Signature: Date: 2
Note: For projects with multiple owners, attach ase arate sheet wit each owner s) information and signatures.
4pplicant: Authorized Agent/Representative Of other than owner)
Vame: BDN, LLC
address: c/o Kenneth A. Sheppard, attorney, 999 Third Ave., Suite 2525, Seattle, WA, 98104
)hone #: 206-382-2600 E-mail Address: ksheppard@sksp.com
Irofessional: Is this an Authorized Agent/Representative for this project? NO YES
Engineer Architect Surveyor Contractor S/ Consultant
Jame: Grant Novak, Senior Aquatic Biologist License #
F-3
LOG ITEM
ddress: Confluence Environmental Company, 146 N Canal Street, Suite 1 1 1 Seattle, WA 98103 .1ge��7
Phone #: (206) 200-7703 E-mail Address:
rant.novak@confenv.com
Professional:
Is this an Authorized Agent/Representative for this ro•ect? NO YES
Engineer
Architect Surveyor Contractor Consultant
Name:
License #
Address:
Phone #:
E-mail Address:
Professional:
Is this an Authorized Agent/Representative for this project? NO YES
Engineer
Architect Su rveyor Contractor Consultant
Name:
License #
Address:
Phone #:
E-mail Address:
By signing this application form, the owner/agent attests that the information provided herein, and in any attachments, is true and
correct to the best of his or her knowledge. Any material falsehood or any omission of a material fact made by the owner/agent
with respect to this application packet may result in making any issued permit null and void.
I further agree to that all activities I intend to undertake or complete associated with this permit will be performed in compliance
with all applicable federal, state and county laws and regulations and I agree to provide access and right of entry to Jefferson County
and its employees, representatives or agents for th sole purpose of application review and any required later inspections. Applicant
may request notice of the Cou y's in upon the property for visits related to this application and subsequent permit issuance.
Kenneth A. Sheppard Date:
Signaturez-- print Name: Kenneth A. Sheppard
IlePlniI Paei2od2
F-4
Marilyn Showalter
Primary Author
SECTION F-1 ANNOTATED JARPA
Following are comments on BDN-Smersh's JARPA:'
Incomplete and Inaccurate
Part 4, — Property Owners top section, all four boxes are left blank. The correct answer
would be to check the third box "There are multiple upland property owners." There are
actually six private parcels plus a county park and a state park that would be used in
BDN's proposed geoduck farm. (See 5g, below). Each one of the private owners must
fill out and file a JARPA A and JARPA B form, plus any other appropriate filings.
Incomplete and Inaccurate
Part 5—Project Locations. The box for stating there are multiple locations is left
blank. There are six private parcels and two public parks that would be used in BDN's
proposed geoduck farm. (See 5g, below). Each one of the private owners must fill out
and file a JARPA A and JARPA B form, plus any other appropriate filings.
Inaacurate and Misleading
5b. Street Address. The street address of Mr. Smersh's parcel is 1170 Shine Road.
Throughout this application, BDN-Smersh try to obscure from view any mention of the
rest of the parcel of which the tidelands are a part. The parcel is #721031007. It
includes a house, garage, septic tank and drain field, and some kind of large platform on
its western boundary. It also includes the tidelands. BDN-Smersh repeatedly try to
circumscribe the "property," "site," or "area," to include only the tidelands and not the
uplands. But this is no more appropriate than someone wanting to build an ADU on a
five -acre land parcel and describing the "site" as one acre of pasture; or describing the
"property" as vacant land; or describing the street address(s) as "nearby" and listing three
street addresses that front the pasture.
An official certified survey of the entire parcel #721031007 should be filed with the
County before this application can proceed any further. In addition, all of the other
parcels involved (see 5g) should file similar information.
1 Also found in Item 39, p547/561
F-5
LOG ITEM
4-ge
Incomplete, Inaccurate, and Misleading _.
5g. Tax parcel numbers. There are six private parcels plus a county park and a state
park that would be involved in the operations of the proposed geoduck farm:
1. Parcel #721031007. Owned by James Smersh. This is the primary parcel for the
operation of the geoduck farm, as it includes the tidelands that would be used to
plant PVC tubes with geoducks. Note that in BDN-Smersh's Project Area Plan
Sheet, this parcel is never actually listed or described, even though it is the
primary parcel. Further, the white dotted -line square purporting to represent the
parcel on the photo image is inaccurate, because it includes only part of the parcel,
the tidelands, and not the uplands, including Mr. Smersh's home.
The red trapezoid is added here to show what should be included in the dotted square in order to encompass
all of Parcel #721031007. (The parcel number on the image is shown in black, where it is hard to see.)
2. Parcel Number #970200001. Mr. Smersh also owns this parcel. The parcel
number is not provided either on the image or in the text in the Project Area Plan
Sheet. The size and shape of the parcel is in doubt. The application asserts
elsewhere that this parcel is .29 acres, but a survey filed with a boundary line
adjustment shows it to be .68 acres, with a western boundary much closer to a
class F fish stream and containing much more of the gravel drive than the
application represents. (See document in our Section B Bones Creek.) Perhaps
this is why the parcel boundaries are also not shown in SEPA Att M-1; 497/561.
2
F-6
3. Parcel #970200002. This parcel is owned by Bruce Olsen. According to the
Boundary Line Adjustment survey, it lost the .4 acre that Smersh gained in
#970200001. (See document in our Section B Bones Creek.) In any event, part of
the gravel drive that BDN-Smersh propose to use goes through this parcel. The
survey does show an easement, but that does not mean there is an easement for
commercial use. If Mr. Olsen wants to accede to this use, his property also needs
a CUP, and he needs to be listed as an owner on the JARPA and file the required
forms, beginning with JARPAs A and B.
4. Parcel #821344064. This parcel is owned by BDN, which he intends to use for
parking 12-15 workers during planting days, as well as use for storing seven -foot
piles of PVC tubes over 4000 square feet. He needs to file a JARPA A and B,
including such things as listing the neighbors' addresses, so they can be sent the
required notice for an application that affects them.
5. Parcel # 821344029. This parcel, according to SEPA Att M-2, Item 39 p 500/561,
contains the drive that BDN and his workers will use to get to Parcel #821344064.
As such, its owner must be part of the CUP application and file JARPA forms A
and B.
6. Parcel #821334011. This parcel is owned by BDN. The upland portion of the
parcel is tiny strip of land on the south side (water side) of Shine Road, about 40
feet long and 25 feet wide, immediately adjacent to the shoreline. To this postage
stamp of land is attached some of the tidelands that make up BDN's geoduck
farm. BDN bulldozed (without a permit) a parking spot virtually at the shoreline
and feet from a class F fish stream.2 BDN anchors his geoduck boat
(continuously in the summer) in the water off this spot and uses this spot to park
his or workers' vehicles to ferry to the boat via a dinghy or other small boat. (See
our Section Bad Track Record, Item 1.)
The application does not mention this parcel at all, but it's difficult to see how
BDN will get to his boat without using this parcel. He has not described how he
will get to this boat. If it's by boat from Smersh's property or Hicks Park, that
2 There is an ambiguity on the classification of this stream as it enters Squamish Harbor. See DNR and
County gis maps in our Section B Bones Creek.
F-7
LO C, � r
,age 3-7
was not stated, and would increase small -boat traffic there significantly. PeffiLI .I
he thinks he can use this spot as part of his operation for his current tidelands and
then "ferry over" to the Smersh site. But that would still be using this Shine Road
parcel for the Smersh operation. BDN's operations would more than double from
his current 3.6 acres (3.6 + 5.1 = 8.7 acres), so if he is using Parcel #821334011 in
any way in connection with the Smersh operation, he needs to file a JARPA A
and B.
Incomplete, Inaccurate, and Misleading
5j ("List all waterbodies other than wetland on or adjacent to the project location.")
The "helping link provided in the JARPA defines "waterbody" as "A river, creek,
stream, lake, pool, bay, wetland, marsh, swamp, tidal flat, ocean or other water area."
The application omits a Class F fish stream known as "Bones Creek" (or "East Squamish
Creek") that runs directly through the Mr. Smersh's property. Mr. Smersh actually
moved this creek (illegally), brought in some 180 yards of fill, and built a culvert and
bulkhead that blocked salmonid access. The Point No Point Treaty tribes complained to
Jefferson County, which issued a stop -work order. Mr. Smersh was forced to complete
some remedial work, but the creek has never been the same. It still runs year-round,
however, immediately next to Mr. Smersh's residence, and it flows out to Squamish
Harbor directly above his proposed geoduck operation. Further upstream, the
Washington State Department of Transportation constructed a $1.4 million culvert under
State Route 104, for salmon/steelhead access. (See our Section B Bones Creek.)
Here is a screenshot downloaded from GoogleMaps. Smersh's is the left -most house.
You can clearly see the creek and its outflow.
U
F-8
PGgeSq ti.1 f IV
It is disingenuous, at best, to omit this water body from this application —an omission
that frankly casts doubt on the reliability of the rest of the application.
Further, if BDN is going to use his tiny piece of upland next to Shine Road, he also needs
to list here the fish stream at the north end of his parcel. (See our Section B Bones
Creek, which includes DNR and County maps showing this stream.')
Incomplete, Inaccurate, and Misleading
5m (Describe how the property is currently used.) BDN-Smersh answer not about the
"property," rather only "the tidelands." Omitted is that the property is used as a
residence, which has a house, garage, other structure, and (presumably) septic tank and
drain field.
Incomplete, Inaccurate, and Misleading
5n ("Describe how the adjacent properties are currently used.") The "help" link in
the JARPA defines "adjacent" as "Something bordering, next to, or neighboring." BDN
states "The adjacent upland properties are single family residential. Nearby tidelands
include existing geoduck farms."
This entry can only be characterized as deliberately misleading, in that it omits Hicks
County Public Park. This park is immediately next to ("adjacent" to) Mr. Smersh's
property, i.e., they share a common boundary, including their tidelands. Hicks Park is
actively used throughout the year by visitors to walk, wade, swim, clam, crab, picnic, sit
and view the water and mountains, and launch kayaks, canoes, paddle boards, and motor
boats. In fact, the applicant, Brad Nelson, and his employees have used the concrete boat
launch at the park for their own commercial purposes.
It is telling that BDN, in the second sentence of his answer in Item 5n, reports that
"nearby tidelands include existing geoduck farms," (the closest of which, his own, is 1/2
mile away) but omits entirely the public recreational uses of the adjoining property. This
suggests the omission was deliberately misleading.
' There is an ambiguity on the classification of this stream as it enters Squamish Harbor. See DNR and
County gis maps in our Section B Bones Creek.
F-9
LOG ITEM
Paget'/ 00f/3-7
July 29, 2020 2:37 PM [T] III Ed
Incomplete, Inaccurate and Misleading
5o. (Describe the structures (above and below ground) on the property, including
their purpose(s) and current condition.) BDN-Smersh answer: "The site currently has
F-10
E s�r�
a decayed bulkhead above MHHW and a small rock jetty on the western b❑ e . 7
Reading this entry, one would think the uplands were unimproved, save an old bulkhead
and a small jetty.
In fact, the proposed tidelands are part of a property parcel that is the site of Mr.
Smersh's residence, garage, outbuilding, and other structures. In addition, the tidelands
border two other residences, including outbuildings. Once again, the applicant appears
to be wordsmithing (describing a self -defined "site" instead of the property) in a lame
attempt not to draw attention to features that are obviously pertinent to the questions on
the application.
Insufficient
8a. ("Describe how the project is designed to avoid an minimize adverse impacts to
the aquatic environment.") To this question, the answer limits specifics to fueling and
mooring, and then states: BDN will comply with all conditions provided in the Corps'
2015 Programmatic Biological Assessment for Shellfish Activities in Washington State
Inland Marine Waters."
BDN fails to mention that these conditions were found inadequate by the U.S. District
Court for Western Washington, which was upheld on appeal by the U.S. Court of
VA
F-11
LOG FEM
poF
Appeals for the 91h Circuit.' The District Court found that the U.S. Army Corps o'�
Engineers had failed properly to evaluate the effects, including cumulative effects, of
commercial shellfish operations in Washington State waters. As the District Court said
in its 10/10/2019 opinion, page 21:
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.
Similarly, the 91 Circuit said (2/11/2020, page 4):
The Corps expressly acknowledged the negative effects on the environment from
aquaculture activities but did not explain adequately why those effects were
insignificant or minimal.
False
8b. ("Will your project impact a waterbody or the area around a waterbody?")
Astoundingly, the applicant answers "No." (Note: in a 2013 DARPA for the same
proposed project, the applicant answered "Yes," which tests whether the current answer
is in good faith.)
The "help" link to this question states:
• Impact: For purposes of this DARPA, an activity in or adjacent to a waterbody
should be considered an impact; impacts may be temporary or permanent.
• Waterbody: A river, creek, stream, lake, pool, bay, wetland, marsh, swamp, tidal
flat, ocean or other water area.
The activity itself is an impact, not to mention myriad subsidiary effects (which in fact
should be mentioned in answer to this question). As the District Court said in the
opinion mentioned on the previous page, at page 10 of the opinion:
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, eelgrass, and birds, the
' Coalition to Protect Puget Sound Habitat vs. U.S. Army Corps of Engineers, U. S. District
Court for Western Washington, Case No. C16-0950RSL; U.S. Court of Appeals, 91h Cir., No.
20-35546 (2020).
F-12
marine substrate, the balance between native and non-native species, pollution,
and water quality, chemistry, and structure, but failed to describe, mut-86 ITEM
quantify, these consequences.
Insufficient and False T 1
8c. ("Have you prepared a mitigation plan to compensate for the project's adverse
impacts of non -wetland waterbodies?) The applicant has answered "No." This answer
is obviously insufficient, given that the proper answer to 8b, above, is "Yes."
The applicant goes on to assert: "No mitigation plan has been prepared because there are
no known adverse impacts on non -wetland waterbodies." There really is no honest way
to make that assertion, and it is flatly contradicted by reems of evidence; state, federal,
and local regulatory agencies; and the federal courts.
Insufficient and Incorrect
8d. ("Summarize what the mitigation plan is meant to accomplish. Describe how a
watershed approach was used to design the plan.") The Applicant answers "Not
applicable" and nothing more. However, a mitigation plan IS applicable (see 8 a, b, and
c), and should be described.
Incomplete and Insufficient
8e. ("Summarize impacts to each waterbody in the table below.") This is left entirely
blank, except for the words "Not applicable" —wrong for the reasons laid out in 8a, b,
and c, above.
CONCLUSION
The foregoing review of this incomplete and misleading application should be enough to
disqualify it for consideration. Citizens have an inadequate application for review and
comment, as do the County and Hearing Examiner. The application should be denied.
7
F-13
ANNOTATED SEPA CHECKLISTE May oT 2a�
Text shown in different font/color shows comments to highlighter! Portions above.
By Marilyn Showalter (MGS) JEFFERSONCOUNTY IDW
SERA ENVIRONMENTAL CHECKLI LOG ITEM
wi��L&
Purpose of checklist:
Governmental agencies use this checklist to help determine whether the environmental impacts of your
proposal are significant. This information is also helpful to determine if available avoidance, minimization
or compensatory mitigation measures will address the probable significant impacts or if an environmental
impact statement will be prepared to further analyze the proposal.
Instructions for applicants:
This environmental checklist asks you to describe some basic information about your proposal. Please
answer each question accurately and carefully, to the best of your knowledge. You may need to consult
with an agency specialist or private consultant for some questions. You may use "not applicable" or "does
not aooly" onlv when you can explain why it does not aooiv and not when the answer is unknown. You
may also attach or incorporate by reference additional studies reports. Complete and accurate answers
to these questions often avoid delays with the SEPA process as well as later in the decisionmaking
process.
The checklist questions apply to all parts of your groposai, even if you plan to do them over a period of
time or on different parcels of land. Attach any additional information that will help describe your proposal
or its environmental effects. The agency to which you submit this checklist may ask you to explain your
answers or provide additional information reasonably related to determining if there may be significant
adverse impact.
Instructions for Lead Agencies:
Please adjust the format of this template as needed. Additional information may be necessary to evaluate
the existing environment, all interrelated aspects of the proposal and an analysis of adverse impacts. The
checklist is considered the first but not necessarily the only source of information needed to make an
adequate threshold determination. Once a threshold determination is made, the lead agency is
responsible for the completeness and accuracy of the checklist and other supporting documents.
Use of checklist for nonproject proposals:
For nonproject proposals (such as ordinances, regulations, plans and programs), complete the applicable
parts of sections A and B plus the SUPPLEMENTAL SHEET FOR NONPROJECT ACTIONS (part D). Please
completely answer all questions that apply and note that the words "project," "applicant," and "property or
site" should be read as "proposal," "proponent," and "affected geographic area," respectively. The lead
agency may exclude (for non -projects) questions in Part B - Environmental Elements —that do not
contribute meaningfully to the analysis of the proposal.
F-14
A. Background rHELP1
1. Name of proposed project, if applicable:
BDN, LLC Geoduck Farm
2. Name of applicant:
SEPA Environmental checklist (WAC 197-11-960) Responses Revised April 2021
BDN, LLC
3. Address and phone number of applicant and contact person.
BDN, LLC
3011 Chandler Street
Tacoma, WA, 98409
Contact person: Brad Nelson, (253) 377-3353
LOG ITT
PCO
4. Date checklist prepared: February 2, 2019, Amended through May 19, 2020
5. Agency requesting checklist:
Jefferson County Dept. of Community Development
6. Proposed timing or schedule (including phasing, if applicable):
Construction of Project to begin immediately upon issuance of Jefferson County
Shoreline Conditional Use Permit.
7. Do you have any plans for future additions, expansion, or further activity related to or
connected with this proposal? If yes, explain.
There is no currently planned expansion beyond the areas and activities described in
this document.
8. List any environmental information you know about that has been prepared, or will be
prepared, directly related to this proposal.
A. Biological Evaluation, Marine Surveys and Assessments — 10-28-13 (See
SEPA Environmental checklist (WAC 197.11-960) Responses Revised April 2021
Page 1 of 2
F-15
Attachment Al), Biological Evaluation Addendum, Confluence Environmental 10-13-16
(See Attachment A2), Second Addendum to Biological Evaluation, ConfluenceLUG I
Environmental 10-15-20 (See Attachment A3)
r _
B. BDN Eelgrass Deliniation and Depth of Culture Survey, Confluence
Environmental
Company — 10-16-15 (See Attachment B1) and Eelgrass Reverification-7-9-18 (See
Attachment B2.)
C. BDN Smersh Farm Visual Assessment- 2019, Confluence Environmental
Company — October, 2019, Revised September 2020 (See Attachment C.)
D. BDN Smersh Farm Cumulative Impacts Report, Confluence Environmental
Company —
May 2019, Revised September 2020 (See Attachment D1) and Addendum —April, 2021
(See Attachment D2.)
Page 2 of 3
E. BDN Smersh Farm Habitat Management Plan and No Net Loss Report -
Confluence
Environmental Company — Revised September 2020 (See Attachment E.)
(F. Intentionally omitted.)
(G. U.S. Army Corps of Engineers — Seattle District, Programmatic Endangered Species
Act (ESA) and Magnuson -Stevens Fishery Conservation and Management Act
Essential Fish Habitat Consultation Specific Project Information Form for Shellfish
Activities in Washington State Inland Marine Waters — November 1, 2016. (See
Attachment G.)
(H. Letter from Robert Smith to David Greetham, dated March 29, 2017, and attached
Materials. (See Attachment H.)
(I. BDN Aquaculture Gear Management Plan (See Attachment I, Revised 2021 Plan.)
(J. BDN Addendum M-1 — Use of Upland Parcel 970200001 Rev. 3/31/20 (See
Attachment M-1)
SEPA Environmental checklist (WAC 197-11-960) Responses Revised April 2021
F-16
LOCI
(K. BDN Addendum M-2 — Use of Upland Parcel 821344064 Rev. 3/31Dalg% 13
Attachment M-2)
(L. BDN Addendum M-3 — Use of Hicks Park. 3/31/20 (See Attachment M-3)
(M. BDN Addendum M-4 — Use of Shine Boat Ramp. 3/31/20 (See Attachment M-4)
(N. BDN Addendum M-5 — Small Stormwater Packet, Parcel 970200001, 3/31/20
(See Attachment M-5)
(O. BDN Addendum M-6 — Small Stormwater Packet, Parcel 821344064, 3/31/20
(See Attachment M-6)
9. Do you know whether applications are pending for governmental approvals of other
proposals directly affecting the property covered by your proposal? If yes, explain.
Other than any applications that may be required in connection with related upland
parcels 970200001 and 821344064, We know of no other pending applications directly affecting
the property covered by our Proposal.
10. List any government approvals or permits that will be needed for your proposal, if known.
We have previously received the following government approvals, which are the only
Page 3 of 4
additional approvals we understand are needed for this project:
A. U.S. Army Corps of Engineers approval under Nationwide Permit (NWP) 48,
Commercial Shellfish Acquaculture Activities, dated December 19, 2016. (See
Attachments J1, J2 and J3.)
MGS: This answer is misleading. BDN-Smersh's NWP 48 permit has been invalidated by the U.S.
Federal District Court for Western Washington. A NEW permit is required and has NOT been
issued. Further, THERE ARE NO ATTACHMENTS Jl, J2 or J3 to this document or named as
such in the online Application file, so one can't know to what this refers.
B. State of Washington Department of Ecology Letter dated January 6, 2017
confirming that water quality concerns for the Project are adequately addressed and
an Individual 401 certification will not be required. (See Attachment K.)
C. Any approvals required by Jefferson County for the use of upland parcesl 970200001,
821344064, Hicks Park and Shine Boat Ramp.
SEPA Environmental checklist (WAC 197-11-960) Responses Revised April 2021
F-17
We-, ITF7M
# ,
11. Give brief, complete description of your proposal, including the proposed uses an t e size l 1a
of the project and site. There are several questions later in this checklist that ask you to
describe certain aspects of your proposal. You do not need to repeat those answers on this
page. (Lead agencies may modify this form to include additional specific information on
project description.)
BDN proposes to cultivate Pacific geoduck (Panopea generosa). The planting area will consist
of approximately 5.15 acres, generally between approximately +2 ft. MLLW and a 5-meter
(16.4 ft.) buffer of the native eelgrass (Zostera marina) bed edge, located between
approximately -1 MLLW and -2 MLLW.
To protect geoduck seed from predators, PVC tubes 4" in diameter by 10" long will be
manually placed in the substrate at low tide, while the tidelands are exposed, before any
geoduck seed is planted. The tubes are inserted into the substrate such that at least half of the
tube is below the substrate and the remainder is above it. A low pressure water hose may be
used to loosen the substrate sufficiently to properly insert the tubes. Tubes will be spaced at
approximately one tube per square foot in the planting area. Only 3"-5" of the tubes will be
exposed above the substrate. Tubes will be labeled with contact information for BDN. 12-25
workers will work to insert these PVC tubes during each approximately 5-hour shift. This will
allow for approximately 6,000-10,000 tubes to be placed per day.
MGS: This answer conflicts with the estimate of the Visual Assessment, which uses 7" of
exposed PVC pipe. SEPA Att C pdf p10/38; Item39 p108/56
Geoduck seed will then be obtained from a certified hatchery and typically planted in the
installed PVC tubes when 4-5 mm in size. The juvenile geoducks will be placed in the installed
tubes by divers during times when the tubes are submerged. No water jets will be used during
placement of the seed in the PVC tubes. The PVC tubes will be covered with a mesh cap and
secured with UV -resistant rubber bands after the seed has been planted. Planting will begin in
spring and continue through fall. Planting activities will occur once per year, typically in June or
July, over a period of 20-25 days.
No netting will be installed over the tubes, and no rebar or other materials will be used in
connection with the planting maintenance or harvest activities. The installed PVC tubes are
very resistant to dislocation during severe weather, or from geoduck movement and activity, so
no securing nets are necessary. Any dislodged tubes do not float, and thus tend to remain on
or near the tract even if dislodged, where they can be retrived by regular beach inspections.
No fill materials or other nursery/grow-out structures will be installed on the site. The project
may result in the removal of non-native Japanese dwarf eelgrass (Z. japonica) located in the
proposed planted area.
MGS: False. Hundreds, if not thousands of PVC tubes have escaped from BDN's current
geoduck farm in Squamish Harbor. Distances are up to 1/2 mile away. And BDN has failed
to retrieve them for months. See our Section D BAD TRACK RECORD, pp 11-15.
Site inspections will be made weekly, or more frequently if needed due to adverse weather or
citizen complaints, to ensure that PVC tubes have not become dislodged. BDN has
SEPA Environmental checklist (NAC 197-11.960) Responses Revised April 2021
F-18
Page 4 of 5
implemented an aquaculture gear maintenance plan, appended as Attachment I, to address
potential gear escapement and to facilitate quick recovery of any gear displaced by storm
activity. Site inspections will be generally conducted by 2-4 BDN employees walking the
tidelands and surrounding areas at low tide. Site maintenance will also include monitoring and
relocation of built-up drift microalgae (e.g. Ulva). If low tide periods occur at night, these
workers may use individual LED headlamps for such inspection and maintenance work. If any
maintenance work is required, this will be performed by as many as four people, but should
typically require no more than 1 hour for each such maintenance event. No vessel operations
will take place at night.
MGS: If past is prologue, this is an empty promise. See our Section D Bad Track Record, pp
15-21.
Two years after planting, when the geoducks have reached a depth sufficient to avoid
predators, beach workers will remove the tubes by hand at low tide. Consistent with Corps
requirements, if any herring spawn is found on the PVC tubes, they will not be removed until
the eggs have hatched. The tubes will be placed in large bags and removed for reuse or proper
upland disposal.
MGS: There is no way to oversee or enforce this provision. It also depends on the
workers being trained to identify spawn. See Sue Corbett's conversation with
workers in which they did not know how to identify native eelgrass. Our Section D
Bad Track Record, p 7.
Usually, harvesting will begin between five and six years after planting; the exact timing of
harvesting will depend on a variety of environmental and economic factors. The total harvest
window is expected to be 1-2 years. The majority of harvesting will be conducted at high tides
by divers using surface -supplied air. A small amount of beach harvesting will be conducted
during the "cleanup" harvest phase at the end of the harvesting period when there are fewer
geoducks remaining on the beach. Both dive harvests and beach harvests use the same
extraction equipment. A diesel or gasoline engine located on the work skiff is used to power a
water jet nozzle that loosens the substrate around each geoduck. The engine will have a
muffler to minimize noise impacts. The water intake hose will include a 2.36 mm wire mesh
screen covering the intake to prevent fish entrainment in the low-pressure pump. The water jet
nozzle is at the end of an approximately 150' long, 1.5" delivery hose. The nozzle is
approximately 27" long and may supply up to 20-30 gallons of water per minute at 40 psi
MGS: If planting is staggered over the 5.1 acres, harvesting could go on every year, 3-6 hours
per day, 3-4 days per week, in daylight hours.
After geoducks are removed from the substrate as described above, they will be stored in
crates located on the work skiff prior to transport off -site. During both dive and beach
harvesting, the work skiff will not be anchored in any native eelgrass beds. Dive harvests will
be conducted during daylight hours. Divers work within a 150' radius of the work skiff at depths
of 5' to 20' using surface supplied air. The vessel engine will be turned off while divers are
working for diver safety. When beach harvesting, the skiff is regularly moved so that it always
remains near the water's edge. Water hoses are then run from the skiff to the beach. Dive
harvests will employ 1 diver and 2 support workers in the skiff. Dive harvesting will usually last
SEPA Environmental checklist (WAC 197-11-960) Responses Revised April 2021
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L01 0 1T
#�-
for 3-to 6 hours each harvest day. Beach harvests will employ 2 workers or�thje`beach 6 2�
support workers on the skiff.
Harvesting activities at this location will occur only during daylight hours, over a period of about
5 hours per day, averaging 3-4 harvest days per week during the one to two year harvest
period. BDN will comply with Corps' conditions associated with herring, surf smelt, and sand
lance spawning.
MGS: If planting is staggered over the 5.1 acres, harvesting could go on every year, 3-6 hours
per day, 3-4 days per week, in daylight hours.
For related use of upland parcels 970200001 and 821344064, Hicks park, and Shine
Boat Ramp, see Addendum M-1 through M-6
MGS Incomplete. Parcel # 970200002 (owner Bruce Olsen) also needs evaluation, as
it contains the gravel drive (in the stream buffer) used for access to proposed
parking. See our Section B Bones Creek, SEPA Att M-1 Annotated. Similarly,
Parcel 4821344029 contains the drive BDN proposes to use for his workers to get to
his parcel #821344064.
12. Location of the proposal. Give sufficient information for a person to understand the precise
location of your proposed project, including a street address, if any, and section, township, and
range, if known. If a proposal would occur over a range of area, provide the range or boundaries
of the site(s). Provide a legal description, site plan, vicinity map, and topographic map, if
reasonably
Page 5 of 6
available. While you should submit any plans required by the agency, you are not required to
duplicate maps or detailed plans submitted with any permit applications related to this checklist.
Address: 1160 Shine Road, Port Ludlow, WA, 98365
Waterbody: Squamish Harbor
1/4 Section: NW Section, 03 Township, 27N Range 01E
Latitude: 47.865575-47.866644
Longitude: 122.661410 - 122.66364
Tidal elevation: Between -2 and +2 MLL W
B. Environmental Elements HELP
1. Earth hf elpl
a. General description of the site:
(circle one): Flat, rolling, hilly, steep slopes, mountainous, other:
SEPA Environmental checklist (WAC 197-11-960) Responses Revised April 2021
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Gently Sloping Tideland
(Note: See Addendum M-1 through M-6 for description of related upland parcels)
p8ge of�)1.
7
b. What is the steepest slope on the site (approximate percent slope)?
Approximately 1 % slope. The site slopes about 4 feet over its approximately 400 foot
width, from +3 MLLW to -2 MLLW.
c. What general types of soils are found on the site (for example, clay, sand, gravel, peat,
muck)? If you know the classification of agricultural soils, specify them and note any
agricultural land of long-term commercial significance and whether the proposal results in
removing any of these soils.
Substrate at the Smersh site consists mainly of well -sorted, clean, sand with an adjacent
sandy, gravelly beach.
d. Are there surface indications or history of unstable soils in the immediate vicinity? If so,
describe.
No.
MGS: This answer is contradicted by the 180 yards of fill Mr. Smersh brought in, circa 1993.
See his hand-written notes filed with the County, in our Section B BONES CREEK.
e. Describe the purpose, type, total area, and approximate quantities and total affected area of
any filling, excavation, and grading proposed. Indicate source of fill.
There is no proposed filling, excavation or grading.
Could erosion occur as a result of clearing, construction, or use? If so, generally describe.
M
Page 6 of 7
g. About what percent of the site will be covered with impervious surfaces after project
construction (for example, asphalt or buildings)?
No impervious surface will be created as part of this project.
h. Proposed measures to reduce or control erosion, or other impacts to the earth, if any:
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No erosion is anticipated so no erosion control measures will be implemented �1
2. Air }gel Puget ' 7
a. What types of emissions to the air would result from the proposal during construction,
operation, and maintenance when the project is completed? If any, generally describe and
give approximate quantities if known.
MGS: Incomplete. There is strong reason to believe that significant amounts of carbon will be
released during harvesting, into the water or the air, or both. See our Section C Marine
Environment, subsection on Carbon Release.
The only anticipated emissions will be from engines and pumps on one small harvest
vessel (under 40') or from skiff mounted engine -driven pumps when dive or beach
harvesting is occurring on the project. Usually, harvesting will begin between four and
seven years after planting, but the total harvest window is expected to be 1 year.
Dive harvests will be conducted only during daylight hours. Vessel engines will be
turned off while divers are working for diver safety. When beach harvesting, a skiff with a
gasoline powered pump will be used to provide water for extraction. Dive harvesting will
usually last up to 5 hours each day, and beach harvesting will be done only in a low tide
window of 3 hours or less. Thus, the emissions from the use of no more than two small
gasoline or diesel engines associated with harvesting should not have a significant
impact on air quality in the vicinity of the project.
b. Are there any off -site sources of emissions or odor that may affect your proposal? If so,
generally describe.
None that are known to applicant
c. Proposed measures to reduce or control emissions or other impacts to air, if any:
Not applicable.
MGS: This answer should address carbon release. However, carbon release from hydraulic
liquification of substrate to three feet deep on every square foot over 5.1 acres can only be mitigated
by not using hydraulic harvesting methods. See our Section C Marine Environment, subsection on
Carbon Release.
3. Water hf
a. Surface Water: hf elpl
1) Is there any surface water body on or in the immediate vicinity of the site (including year-
round and seasonal streams, saltwater, lakes, ponds, wetlands)? If yes, describe type
and provide names. If appropriate, state what stream or river it flows into.
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The Project area consists of Squamish Harbor saltwater tidelands that are exposed
and covered on a daily basis. Shine Creek, a freshwater creek, is approximately 1.5
miles to the west. A small un-named stream enters Squamish Harbor near the
project site.
MGS: This "small un-named stream" is Bones Creek, aka East Squamish Creek, which
empties directly onto the site's tidelands, and which Mr. Smersh moved when he built his
house. It is a Class F fish stream See our Section B BONES CREEK.
2) Will the project require any work over, in, or adjacent to (within 200 feet) the describe
waters? If yes, please describe and attach available plans. �� w " i11r
r-1age J� 2 �# 7 Page 7 of 8
Yes. See A. 11. above, which describes the nature and extent of all work to be
performed at the site, all of which would be within 200 feet of all described waters except
for Shine Creek.
3) Estimate the amount of fill and dredge material that would be placed in or removed from
surface water or wetlands and indicate the area of the site that would be affected.
Indicate the source of fill material.
There is no proposed filling, excavation or grading.
4) Will the proposal require surface water withdrawals or diversions? Give general
description, purpose, and approximate quantities if known.
No.
5) Does the proposal lie within a 100-year floodplain? If so, note location on the site plan.
Yes, being tidelands, the site lies withing the 100 year flood plain.
6) Does the proposal involve any discharges of waste materials to surface waters? If so,
describe the type of waste and anticipated volume of discharge.
No.
MGS: This is a technical answer, using federal Clean Water Act definitions. However, the
proposal is to insert up to 61 TONS of PVC pipe into the substrate and waters of Hood Canal,
a Shoreline of Statewide Significance. See our Section C Marine Environment, subsection on
Plastics Pollution.
b. Ground Water: hf e
1) Will groundwater be withdrawn from a well for drinking water or other purposes? If so, give
a general description of the well, proposed uses and approximate quantities withdrawn
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from the well. Will water be discharged to groundwater? Give general descriptiRn _
purpose, and approximate quantities if known.
No.
PGge__[[�Lo► / 37
2) Describe waste material that will be discharged into the ground from septic tanks or other
sources, if any (for example: Domestic sewage; industrial, containing the following
chemicals... ; agricultural; etc.). Describe the general size of the system, the number of
such systems, the number of houses to be served (if applicable), or the number of animals
or humans the system(s) are expected to serve.
None.
c. Water runoff (including stormwater):
1) Describe the source of runoff (including storm water) and method of collection and
disposal, if any (include quantities, if known). Where will this water flow? Will this water
flow into other waters? If so, describe.
No runoff (including storm water) will result from Project operations.
Page 8 of 9
2) Could waste materials enter ground or surface waters? If so, generally describe.
No.
MGS: The County should examine Mr. Smersh's septic tank, drain field, and backup drain field.
The original drawings are sketchy, construction work has been done since, and there have been
NO filed inspections, as required by the County.
3) Does the proposal alter or otherwise affect drainage patterns in the vicinity of the site? If
so, describe.
No.
MGS: It is highly likely that 224,000 PVC tubes sticking up 7" over 5 .1 acres WILL have a
significant effect on the drainage pattern of Bones Creek and on the tidal patterns in shallow
waters --which are very important to crabs, small fish, returning salmon, and other creatures.
This should be a topic of any EIS, if this application gets to that statge.
d. Proposed measures to reduce or control surface, ground, and runoff water, and drainage
pattern impacts, if any:
There should be none needed.
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4. Plants hf e
a. Check the types of vegetation found on the site:
X deciduous tree:
evergreen tree:
X shrubs
X grass
alder, maple, aspen, other
fir, cedar, pine, other
LOG P"FAV
P-' , ; 130
pasture
crop or grain
Orchards, vineyards or other permanent crops.
wet soil plants: cattail, buttercup, bullrush, skunk cabbage, other
X water plants: eelgrass
other types of vegetation
MGS: For comments on native eelgrass, see our Section C Marine Environment, subsection
on Native Eelgrass.
b. What kind and amount of vegetation will be removed or altered?
There will be no removal of native materials during site preparation. Excessive amounts
of macroalgae (e.g. Ulva) may be hand -raked away from the planting area, but left on the
site. Successive tides will redistribute algae across the site. The project may result in the
removal of non-native dwarf Japanese eelgrass (Zostera japonica) located in the
proposed planted area.
MGS: The winds and tides generally push debris to the west, i.e. to Hicks Park.
Macroalgae beds are not found in or near the project area. Green algae (Ulva) were present
at a very low density, attached to a small number of hard objects such as derelict clam
shells. Macroalgae density is anticipated to increase in the project area due to geoduck
farming as the PVC tubes provide solid substrate required by macroalgae for attachment
and growth.
Because the project will be located outside of a 16-foot protective buffer from native eelgrass,
no negative effects are anticipated to occur to eelgrass due to the proposed project and there
may be an ecological lift from the potential increase in other macroalgal species on the PVC
tubes.
c. List threatened and endangered species known to be on or near the site -
Page 9 of 10
No threatened or endangered plant species are found on the site.
d. Proposed landscaping, use of native plants, or other measures to preserve or enhance
vegetation on the site, if any:
SEPA Environmental checklist (WAC 197-11-960) Responses Revised April 2021
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All project activity will occur at least 16 feet away from native eelgrass (Zostera marina).
Also see b. above.
e. List all noxious weeds and invasive species known to be on or near the site. P�
The Washington Department of Fish and Wildlife has classified Z. japonica growing on
commercial aquaculture sites as a "Class C" noxious weed (Pleus 2012). This category is
for abundant, widespread non-native species that are difficult to control. The primary
concern with Z. japonica in relation to shellfish aquaculture is that it occurs on mid -
intertidal areas that were previously bare mud and sand flats. Z. japonica can potentially
grow to the extent that shellfish planting and harvesting cannot be done successfully
(Fisher et al. 2011). In addition, extensive Z. japonica can reduce water flow by up to 40%
in comparison to bare mudflats (Tsai et al 2010). Filter -feeding species, including
geoduck, could have their growth or survival affected by this reduction. Given the WDFW
classification of Z. japonica, any loss at the site could be viewed as a positive. However,
this classification does not necessarily mean that Z. japonica presence is detrimental
from the perspective of ecosystem structure and function.
5. Animals Lbelp
MGS: For complete comments, see our Section C Marine Environment.
a. List any birds and other animals which have been observed on or near the site or are
known to be on or near the site.
Examples include:
birds: hawk, heron, eagle, songbirds, other:
mammals: deer, bear, elk, beaver, other:
fish: bass, salmon, trout, herring, shellfish, other
See Attachment Al, "Biological Evaluation, Marine Surveys and Assessments —
10/28/13, in particular Section Il, Pages 9-12, and Attachments 1 through 4 to that
Evaluation.
b. List any threatened and endangered species known to be on or near the site.
The following fish, marine mammal, and bird species listed under the Endangered Species
Act may occur, or have critical habitat within the proposed action area:
Puget Sound Chinook
Hood Canal Summer -run Chum
Puget Sound Steelhead
Bull Trout
Yelloweye Rockfish
Boccacio Rockfish
Marbled Murrelet
Southern Resident Killer Whale
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Page 10 of 11
For more details, see Attachment A 1, "Biological Evaluation, Marine Surveys and
Assessments — 10/28/13", in particular Section 11, Pages 9-12, and Attachments 1 through
4 to that Evaluation, and Attachment A 2, "Confluence Environmental Company _
Addendum to Biological Evaluation — 9/23/16." LUG II ��
c. Is the site part of a migration route? If so, explain. P --�_
Yes. Hood Canal Summer -run Chum salmon may migrate along the shoreline of the site. IF
d. Proposed measures to preserve or enhance wildlife, if any:
The protection of juvenile geoduck as provided in 11 above will preserve those shellfish
from predators. Further, see "BDN Smersh Farm Habitat Management Plan and No Net
Loss Report - Confluence Environmental Company — October 2019 (Attachment E), and
BDN Aquaculture Gear Management Plan, 10/17/19'. (Attachment 1) for more detailed
description of Project measures to be taken to preserve or enhance wildlife.
MGS: The geoducks aren't the "wildlife" the question is asking about.
e. List any invasive animal species known to be on or near the site.
None.
6. Energy and Natural Resources Lel
a. What kinds of energy (electric, natural gas, oil, wood stove, solar) will be used to meet
the completed project's energy needs? Describe whether it will be used for heating,
manufacturing, etc.
Diesel or gasoline powered small engines will be used to power vessels and harvesting
equipment during the planting, growing and harvesting phases.
b. Would your project affect the potential use of solar energy by adjacent properties? If
so, generally describe.
No.
c. What kinds of energy conservation features are included in the plans of this proposal?
List other proposed measures to reduce or control energy impacts, if any:
Because the energy use connected with the Project in minimal, there are no specific
conservation measure planned for the Project
SEPA Environmental checklist (NAC 197-11-960) Responses Revised April 2021
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7. Environmental Health hf elpl # I
Pry{ �
a. Are there any environmental health hazards, including exposure to to 9,che� als, risk �
of fire and explosion, spill, or hazardous waste, that could occur as a result of this
proposal? If so, describe.
1) Describe any known or possible contamination at the site from present or past uses.
Page 11 of 12
There is no known contamination or possible contamination at the site from present or
past uses.
2) Describe existing hazardous chemicals/conditions that might affect project development
and design. This includes underground hazardous liquid and gas transmission pipelines
located within the project area and in the vicinity.
There are no known existing hazardous chemicals/conditions that might affect project
development and design.
3) Describe any toxic or hazardous chemicals that might be stored, used, or produced
during the project's development or construction, or at any time during the operating life
of the project.
The only toxic chemicals anticipated to be stored or used in connection with the Project
are gasoline and diesel fuels for operating land based vehicles, harvest vessels, air
pumps, and water pumps. No toxic chemical will be produced by development or
operation of the Project.
4) Describe special emergency services that might be required.
The only special emergency services that might be required in connection with the
Project would be oil spill response and cleanup. Such services are provided through the
Washington Department of Ecology, and for the Project would most likely be provided by
the WSDOE response team based in Olympia, which provides year- round, statewide,
24-hour a day response services.
5) Proposed measures to reduce or control environmental health hazards, if any:
Land vehicles (e .g. all -terrain vehicles or trucks) shall be washed in an upland area such
that wash water is not allowed to enter any stream, waterbody, or wetland. Wash water
shall be disposed of upland in a location where all water is infiltrated into the ground (i.e.,
no flow into a waterbody or wetland). Land vehicles shall be stored, fueled, and
maintained in a vehicle staging area located 150 feet or more from any stream,
waterbody, or wetland.
SEPA Environmental checklist (WAC 197-11-960) Responses Revised April 2021
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P Il -ofL3�
For boats and other gas -powered vehicles or power equipment that cannot be fueled in a
staging area 150 ft. away from a waterbody or at a fuel dock, fuels shall be transferred in
Environmental Protection Agency (EPA) -compliant portable fuel containers 5 gallons or
smaller at a time during refilling. A polypropylene pad or other appropriate spill protection
and a funnel or spill -proof spout shall be used in the event of a spill. A spill kit shall be
available and used in the event of a spill. All spills shall be reported to the Washington
Emergency Management Office at (800) 258-5990. All waste oil or other clean-up
materials contaminated with petroleum products shall be properly disposed of off -site.
MGS: The two paragraphs above and below this comment are lifted directly from the BDN's
federal permit conditions. Tellingly, it omits the paragraph between these two, Number 13,
which prohibits storing vehicles within 150 feet of any stream. See SEPA Att G pdf p9; Item
39, p291/561. The County application proposes to drive through a stream buffer and park
close to or within 150 feet of Bones Creek. Also, BDN carved a parking space on Shine Road
directly above another year-round creek. Though built for one car, multiple workers' cars
are often park there. These creeks are both Class F fish streams, though there is some
ambiguity about the stream by BDN's parking space. See our Section B BONES CREEK re
Parcel # 970200001-2 and both Fish streams Section D. BAD TRACK RECORD, page 1 for
more on BDN's Shine Road parcel.
All vehicles operated within 150 feet of any stream, waterbody, or wetland shall be
inspected daily for fluid leaks before leaving the vehicle staging area. Any leaks detected
shall be repaired in the vehicle staging area before the vehicle resumes operation and
documented in a record that is available for review on request by any regulatory or
enforcement personnel.
Page 12 of 13
Except as to water -borne boats and vessels, the direct or indirect contact of toxic
compounds including creosote, wood preservatives, paint, etc. with the marine
environment shall be prevented. For water -borne boats and vessels, all paints and other
compounds coming into contact with the water will be approved for such use under all
applicable rules and regulations.
b. Noise
1) What types of noise exist in the area which may affect your project (for example:
traffic, equipment, operation, other)?
The uplands neighboring the proposed Smersh geoduck farm are rural residential, and
they are zoned as shoreline residential under the current Shoreline Master Plan for
Jefferson County. There are numerous single-family residential houses in the Shine
neighborhood which is bordered on the north side by the heavily trafficked State Route
(SR) 104. Between 6,000 and 22,000 vehicles pass the Shine neighborhood each day on
SR 104 (15,000 average annual daily trips) traveling at 60 miles per hour (WSDOT 2017).
SEPA Environmental checklist (WAC 197-11-960) Responses Revised April 2021
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LOG ITEM
12-0 �f
Existing noise in the area includes that which is typically found associated with water -
dependent activities (e.g., boat use), residential uses (e.g., vehicle use, lawn mowers,
beach walking), and vehicular traffic. Using the standard that 10 percent of the average
annual daily traffic represents hourly average traffic (WSDOT 2018) leads to 1,500
vehicles per hour passing near the Shine neighborhood on SR 104. At 60 mph the sound
from vehicle traffic is approximately 75 dBA at 50 feet (WSDOT 2018). This sound level
attenuates to approximately 45 dBA at 800 feet which is approximately the halfway point
between the Smersh parcel and SR 104. The estimated noise level based on population
density is approximately 40 to 45 dBA (FTA 2006).
MGS: This analysis is virtually irrelevant to Hicks Park, which is on the water and protected
from SR 104 noise by a bank behind it to the north and by a band of uplands further north.
Anyone who has been on the water or beach next to BDN's current geoduck farm knows that
one can hear constant engine noise, and that water bounces sound. ALSO, it is critically
important to determine the effect of this constant noise on feeding MARBLED MURRELETS,
which have been observed diving directly over Smersh's tidelands. Any EIS should evaluate
underwater noise on diving birds. See our Section C Marine Environment, subsection on
Marble Murrelets. I (Marilyn Showalter) will also say that I live more than a mile away from
BDN's current geoduck farm, and I have personally heard conversation and actual words
spoken over some kind of boat -underwater communications loudspeaker system that is not
mentioned here.
Measurements of ambient underwater noise were recorded at the Hood Canal Bridge in
2004. Median background peak sound pressure was between 118.2 and 137.5 dBPEAK re
1 NPa and median root mean squared (RMS) levels were 115 and 135 dBRMS re 1 NPa
(Battelle 2005).
2) What types and levels of noise would be created by or associated with the project on a
short-term or a long-term basis (for example: traffic, construction, operation, other)?
Indi- cate what hours noise would come from the site.
Noise -generating elements of the proposed project are consistent with existing use of the
surroundings (small boat use and walking on the beach). Both airborne and underwater
noise would be generated from the proposed project when boats are used to access the
project site and during the operation of pumps for harvest on a 5- to 7-year cycle.
MGS: During harvesting periods, access would occur 3-4 days per week for 1 -2 years, and
many more years if plantings are staggered. ALSO, it is critically important to determine the
effect of this constant noise on feeding MARBLED MURRELETS, which have been observed
diving directly over Smersh's tidelands. Any EIS should evaluate underwater noise on diving
birds. See our Section C Marine Environment, subsection on Marble Murrelets.
The proposed project does not include the use of heavy equipment. Access to the site
would occur about once a month, and more frequently during limited periods for activities
such as planting or harvesting. Access would be via the upland parcels or via boat. The
outboard motors typically used on boats used for aquaculture typically create a noise level
of about 60 dBA at 50 feet (Berger et al. 2010). However, once at the site, boat engines
would be turned off until employees are ready to leave. Small diesel or gas -powered
SEPA Environmental checklist (WAC 197-11-960) Responses Revised April 2021
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water pumps with hoses would be used to harvest the geoducks for several days every 5
to 7 years. While noise levels of the water pumps have not been directly measured, they
are considerably quieter than the outboards, referenced above, that produce a sound level
of 60 dBA at 50 feet. Based on an ambient noise level of approximately 40 dBA to 45
dBA, terrestrial noise associated with the proposed project is expected to, attenuate to
ambientLIV)
P � Page 13 of 14
conditions 199 to 285 feet from the pumps. The landward margin the geod uckJpfa ing
area is approximately 160 feet from the ordinary high water line, leading to the conclusion
that nearby residents will be exposed to only slight increases in noise if they approach
within close proximity to the shoreline near the project site.
The loudest noise source proposed for the project) is expected to increase noise levels by
15 dBA to 20 dBA above ambient noise levels (assuming 60 dBA produced by the water
pump and 40 to 45 dBA ambient noise).
Underwater noise would also be generated from the motors on boats used to transport
gear and personnel to the project area and the small engines used for the water pumps
during a geoduck harvest.
For more information on anticipated noise generation, see BDN Smersh Farm Habitat
Management Plan and No Net Loss Report — Confluence Environmental Company —
June, 2018 (See Attachment E, pages 9-12.)
3) Proposed measures to reduce or control noise impacts, if any:
There is no evidence that increases in either airborne or underwater noise from the use of
boat motors or water pumps associated with the rearing and harvest of geoducks would
result in negative effects to fish and wildlife species. Noise resulting from aquaculture
operations throughout Washington State was reviewed with respect to potential effects to
fish, marine mammals, and birds listed as threatened or endangered under the
Endangered Species Act (NMFS 2009, USFWS 2009, NMFS 2011). These reviews found
that noise levels did not exceed disturbance thresholds that would affect foraging,
migration, reproduction, or fitness for any of the ESA -listed species in Puget Sound. The
proposed shellfish aquaculture operation in Squamish Harbor would not significantly alter
noise above existing background conditions. Therefore, harvest operations are not
anticipated to increase underwater noise to a level that will result in a loss of ecological
functions, and no specific measures are planned or needed to reduce or control the
already minimal noise impacts. Nonethless, applicant plans to locate the water pumps
used during harvesting in an insulated box, thereby decreasing pump noise.
MGS: First, If there is a study on the effects of underwater noise on diving Marbled
Murrelets, the applicant should cite it. The Marbled Murrelet has been observed feeding
directly over the propose site.
Second, The US Federal District Court for Western Washington invalidated all federal permits
in Washington because they failed properly to evaluate he cumulative environmental effects of
SEPA Environmental checklist (WAC 197-11-960) Responses Revised April 2021
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LOG ITEM
Psgc /� f
some 900 shellfish operations in the state. These studies cannot be relied upon without a
subsequent cumulative effects evaluation, which has not been done. This is critically
important for the Marbled Murrelet, because their range of feeding waters is limited by the
extreme distances to their nests; Squamish Harbor is one of the closest inland marine
waterbodies to the Northern Olympic Peninsula, where they nest. Any displacement,
cumulative or otherwise should be prohibited.
8. Land and Shoreline Use hf elpl
a. What is the current use of the site and adjacent properties? Will the proposal affect current
land uses on nearby or adjacent properties? If so, describe.
The site is currently vacant tidelands, located on a heavily altered shoreline in a
mediumdensity, residential neighborhood. The shoreline has been altered by rip rap
hardening.
MGS: The site is Mr. Smersh's residence, a fact which for some reason is consistently
obscured or minimized. His property appears to contain a house, garage, septic system, drain
fields, small boat lauch, some kind of concrete platform. The rip rap was a consequence of his
unpermitted rechanneling of the stream with a culvert too high for fish passage, and 180 yards
of fill blocking the natural shoreline. See our Section B BONES CREEK.
There is a concrete boat ramp and gravel parking lot on the adjacent public property.
MGS: This understatement fails to acknowledge that the adjacent property is well -used,
multipurpose Hicks Public County Park. It is much more than a boat launch and parking lot.
See our Section A HICKS PARK.
Riparian trees have been removed from a number of the adjacent properties to increase
private views, and a paved roadway is adjacent to the shoreline for approximately 1 mile
next to the Smersh parcel.
The uplands neighboring the proposed Project are rural residential, and they are zoned as
shoreline residential under the current Shoreline Master Plan for Jefferson County. There
are numerous single-family residential houses in the Shine neighborhood which is
bordered on the north side by the heavily trafficked State Route (SR) 104.
Page 14 of 15
The proposed project will not affect current land uses on nearby or adjacent properties.
For related use of upland parcels 970200001 and 821344064, Hicks park, and Shine Boat
Ramp, see Addendum M-1 through M-6
b. Has the project site been used as working farmlands or working forest lands? If so, describe.
How much agricultural or forest land of long-term commercial significance will be converted
to other uses as a result of the proposal, if any? If resource lands have not been designated,
SEPA Environmental checklist (NAC 197-11-960) Responses Revised April 2021
F-32
how many acres in farmland or forest land tax status will be converted to nonfarm or Loo,
nonforest use? ?`lj
No. P&gle 2',3
�37
1) Will the proposal affect or be affected by surrounding working farm or forest land normal
business operations, such as oversize equipment access, the application of pesticides,
tilling, and harvesting? If so, how:
No.
c. Describe any structures on the site.
There are no structures currently on the site
d. Will any structures be demolished? If so, what?
No.
e. What is the current zoning classification of the site?
RR-5 — Rural Residential
f. What is the current comprehensive plan designation of the site?
RR-5 Rural Residential
g. If applicable, what is the current shoreline master program designation of the site?
Aquatic — Shoreline Residential
h. Has any part of the site been classified as a critical area by the city or county? If so, specify.
Yes. Portions of the Project Area are classified as Wetlands Critical Area, FEMA Flood
Zone Critical Area, Seismic Hazard Critical Area, Seawater Intrusion Protection Zone, and
Critical Aquifer Recharge Area.
i. Approximately how many people would reside or work in the completed project?
Page 15 of 16
12-25 workers will work in 5-hour shifts to plant PVC tubes during the geoduck planting
phase, which will take place once every 5-7 years. The work will be sporadic, depending
SEPA Environmental checklist (WAC 197-11-960) Responses Revised April 2021
F-33
LOG ITE410
# L_g
P /1!� r
on tides and weather, beginning in the spring and lasting through the fall. After pianting,0
weekly site inspections will be conducted by 2-4 BDN employees walking the tidelands and
surrounding areas at low tide. 6-12 months after planting, the PVC tubes will be removed
by hand, again by 12-25 workers working in 5-hour shifts. This work will also be sporadic,
depending on tides and weather, and will be done from winter to early summer.
Usually, harvesting will begin between four to seven years alter planting; the exact timing
of harvesting will depend on a variety of environmental and economic factors. The total
harvest window is expected to be 1 year. Dive harvests will employ 1 diver and 2 support
workers in the skiff. Dive harvesting will usually last up to S hours each day for two divers.
Beach harvests will employ 2 workers on the beach and 2 support workers on the skiff.
j. Approximately how many people would the completed project displace?
None.
k. Proposed measures to avoid or reduce displacement impacts, if any:
None planned, as there will be no displacement.
L. Proposed measures to ensure the proposal is compatible with existing and projected land
uses and plans, if any:
See Attachments C through E for descriptions of the compatability of the project with
existing and projected land uses and plans.
m. Proposed measures to reduce or control impacts to agricultural and forest lands of long-term
commercial significance, if any:
None are required, as there are no anticipated impacts to agricultural and forest lands of
long-term commercial significance.
9. Housing L4eM
a. Approximately how many units would be provided, if any? Indicate whether high, mid-
dle, or low-income housing.
No housing units will be provided.
b. Approximately how many units, if any, would be eliminated? Indicate whether high,
middle, or low-income housing.
None
c. Proposed measures to reduce or control housing impacts, if any:
SEPA Environmental checklist (WAC 197-11-960) Responses Revised April 2021
F-34
LOG ITEA4 Page 16 of 17
None
Page
hf .
10. Aesthetics elpl
a. What is the tallest height of any proposed structure(s), not including antennas; what is the
principal exterior building material(s) proposed?
No structures are proposed. The only artificial objects that will be placed on the subject
tidelands are PVC plastic 4" diameter by 10" long geoduck planting tubes, which will be
placed into the sandy substrate at an approximate density of 1 tube per square foot with 3"
to 5" of the tube exposed above the substrate.
MGS: The Visual Assessment says 711. SEPA Att C, pdf p 10; Log Item 39, 108/561
These tubes will be stored in open piles or stacks in areas in the northern half of related
upland parcel 8213444032 currently covered by grass or small shrubs. Total coverage of
these piles at any one time will be not more than 4,000 square feet, and the piles will not
exceed 7 feet in height.
MGS: Huge piles of PVC tubes over a footprint more than twice the size of an average house
are not compatible with a residential neighborhood.
b. What views in the immediate vicinity would be altered or obstructed?
15 to 20 homes have unobstructed view of the proposed geoduck planting area when
nearby trees are in the leaf -off condition. The estimate of 15-20 homes with unobstructed
views will be reduced during the summer when trees have a cover of leaves that are likely
to more fully block views. For more detail on potential and actual visual obstruction, see
Attachment C, BDN Smersh Farm Visual Assessment-, Confluence Environmental
Company — October, 2019.
MGS: The view would be altered for anyone who could see the tubes. That includes homes,
walkers on Shine Road, boaters and paddlers, and most importantly users of Hicks Park. It's
not clear here whether the applicant is counting homes with partially obstructed views, which
includes almost anyone with a few trees in the way. I can see the site from my house, which is
visible in the applicant's photos but was not counted. So the applicant's numbers are either
unreliable or leave out a whole category of homes with some view of the geoduck farm. BDN
has also egregiously miscalculated when the tides do or don't cover the tubes. See our Section E
Aesthetics, pp 5-12.
Tubes stored on related Parcel 8213444032, or vehicles temporarily parked there may be
visible to a minor degree from three nearby homes.
MGS: Views of huge piles of PVC tubes over a footprint more than twice the size of
an average house are not compatible with a residential neighborhood.
c. Proposed measures to reduce or control aesthetic impacts, if any:
SEPA Environmental checklist (WAC 197-11-960) Responses Revised April 2021
F-35
LOG ITEM
The proposed project will be visible for only short duration during very low tides. Geaduck
PVC tubes will initially be black or white, and will quickly take on a natural color due to
colonization by aquatic flora and fauna, such that from a distance they will blend in with other
beach elements, and even close up will not be a significant visual disruption to the natural
landscape. Maintenance will occur monthly, and after any storm events, to ensure farm is
tidy and tubes have not become dislodged. While not in use, equipment will be stored off -
site.
MGS: These statements are flatly false. A tide below plus 2.6', below which the tubes are visible,
is not "very low." During the months of June, July, and August, PVC tubes will be visible,
during daylight hours, on 80 out of 92 days, or 92% of the days Hicks Park and Squamish
Harbor are most used for recreation. See our calculations of tube visibility in Section E
AESTHESTICS.
Also, beauty is in the eye of the beholder, but it strains credibility to suggest that protruding
tubes, often dislodged, pose "no significant disruption to the natural landscape."
Piles of stored tubes on upland parcel 8213444032 will be restricted to 7 feet in height and
no more than 4000 square feet of total coverage. (See Addendum M-2)
MGS: Huge piles of PVC tubes over a footprint more than twice the size of an average
house are not compatible with a residential neighborhood. The problem can't be
mitigated, except by removing the tubes.
11. Light and Glare hf elpl
a. What type of light or glare will the proposal produce? What time of day would it mainly occur?
No work will be performed at night other than checking of PVC tubes and other gear by
beach maintenance workers on an as -needed basis (see Item A. 11. above for a more
detailed description of this work.) Beach maintenance workers will use individual LED
headlamps (with an output of 6000 lumens or less) to provide a narrow beam of individual
Page 17 of 18
lighting for that worker. Overall, the project will not produce any significant light or glare
that will be visible to upland owners.
No vessel operations will be performed at night.
b. Could light or glare from the finished project be a safety hazard or interfere with views?
No.
c. What existing off -site sources of light or glare may affect your proposal?
SEPA Environmental checklist (WAC 197-11-960) Responses Revised April 2021
F-36
None.
MGS: If BDN were to comply with Coast Guard rules, there would be night lights on
his boat when anchored at night. BDN has left his boats anchored in Squamish Harbor
every night since June 1, 2021 (and during summer and other months for many years)
with NO running or night lights. This is dangerous and violates Coast Guard rules.
Proposed measures to reduce or control light and glare impacts, if any: a001TEE
Not applicable.SP
12. Recreation
f�c4g�0f
h€ else]
a. What designated and informal recreational opportunities are in the immediate vicinity?
The only nearby designated recreational opportunity is the neighboring park, which is
primarily a boat launching ramp, usable at high tide only, with an associated gravel parking
lot. The main informal recreational activites are beach walking by resident and visitors at low
tide, and use of the water over the project at high tide by recreational boaters.
MGS: This is false. Hicks Park is not primarily a boat launch, though that is a very useful
function. It is primarily used at high and low tides, by families and others for a wide variety of
recreational purposes, including clamming, wading, paddleboarding, picnicking, and more. See
our Section A HICKS PARK.
b. Would the proposed project displace any existing recreational uses? If so, describe.
The boat ramp is only useable during high tide, when the geoduck tubes would be
submerged, so there is no displacement of that use. There will be no impacts to beach
access as the project is located on private tidelands that are not currently accessible by the
public. The project will not impact recreational boating use in any significant way. Dive
harvest vessels will be small, and moored over the project tidelands in such a way as to not
significantly interfere with other vessels in the area.
MGS: The proposed project diminishes some uses of Hicks Park to the point of displacing them.
Whether the PVC tubes are in place or dislodged, they are a serious danger to paddleboarders,
waders, and swimmers, especially children. They also so alter the natural setting that many
would-be users won't want to go the park any longer.
c. Proposed measures to reduce or control impacts on recreation, including recreation
opportunities to be provided by the project or applicant, if any:
None are proposed, as none are necessary
MGS: None are proposed, and none are possible. The proposed geoduck farm and the use and
enjoyment of Hicks Park are simply incompatible with each other.
13. Historic and cultural preservation hf e
SEPA Environmental checklist (WAC 197.11-960) Responses Revised April 2021
F-37
a. Are there any buildings, structures, or sites, located on or near the site that are over 45 years
old listed in or eligible for listing in national, state, or local preservation registers ? If so,
specifically describe.
LOG MZIM,
No such structures or sites exist in the project area.
rt �
PGg,e J )-F r
Page 18 of 19
b. Are there any landmarks, features, or other evidence of Indian or historic use or occupation?
This may include human burials or old cemeteries. Are there any material evidence, artifacts,
or areas of cultural importance on or near the site? Please list any professional studies
conducted at the site to identify such resources.
No landmarks, features, or other evidence of Indian or historic use or occupation are known to
exist at the site.
c. Describe the methods used to assess the potential impacts to cultural and historic resources
on or near the project site. Examples include consultation with tribes and the department of
archeology and historic preservation, archaeological surveys, historic maps, GIS data, etc.
No consultations or studies have been undertaken, since the project consists of bare
tidelands with no evidence of any prior habitation or human use.
The Corps of Engineers has determined that cultural resource surveys are not required for
this project.
d. Proposed measures to avoid, minimize, or compensate for loss, changes to, and disturbance
to resources. Please include plans for the above and any permits that may be required.
No specific measures are proposed.
14. Transportation [hel
a. Identify public streets and highways serving the site or affected geographic area and describe
proposed access to the existing street system. Show on site plans, if any.
Land access to the project site is via Shine Road, a public street running parallel to the
shoreline and serving the adjacent tidelands and upland properties. Public Highway SR 104
runs roughly parallel to the shoreline and at the location of the project is about'/4 mile north
of Shine road.
b. Is the site or affected geographic area currently served by public transit? If so, generally
describe. If not, what is the approximate distance to the nearest transit stop?
SEPA Environmental checklist (WAC 197-11-960) Responses Revised April 2021
F-38
The site is not directly served by public transit, but the Jefferson Transit Route #7, Poulsbo,
has a bus stop approximatsly 1.2 miles to the East at the western end of the Hood Canal
bridge.
c. How many additional parking spaces would the completed project or non -project proposal
have? How many would the project or proposal eliminate?
The project will not require any additional parking spaces, and will not eliminate any existing
parking spaces.
d. Will the proposal require any new or improvements to existing roads, streets, pedestrian,
bicycle or state transportation facilities, not including driveways? If so, generally describe
(indicate whether public or private).
No.
� Page 19 of 20
e. Will the project or proposal use (or occur in the immediate vicinity of) water, rail, or air
transportation? If so, generally describe.
No.
MGS: Incorrect answer. The proposal will use boats. Also, the proposed activity, including
tubes, hydraulic harvesting, and its boats, will be in the immediate vicinity of many types of
marine traffic: launching boats from the public boat launch; launching canoes, kayaks, and
paddleboards from the gravel beach just east of the boat launch and immediately next to the site;
and all manner of boats, canoes, kayak, paddleboards, etc that may navigate directly over the
PVC tubes. This scenario is especially dangerous when the water just barely covers the PVC
tubes and they can't be seen.
f. How many vehicular trips per day would be generated by the completed project or proposal?
If known, indicate when peak volumes would occur and what percentage of the volume would
be trucks (such as commercial and nonpassenger vehicles). What data or transportation
models were used to make these estimates?
During active planting and beach harvest activites, about ten to twenty passenger vehicle
trips, and one or two truck trips (to deliver or load geoducks or other project materials) will be
generated each day. During beach inspection periods, one to two passenger vehicle trips will
be generated each day. During waterborne harvesting, one or two truck trips (to deliver or
load geoducks or other project materials) will be generated each day. No data or
transportation models were used to make these estimates.
See also Addendums M-1 through M-6 for vehicle use of related upland parcels.
g. Will the proposal interfere with, affect or be affected by the movement of agricultural and
forest products on roads or streets in the area? If so, generally describe.
SEPA Environmental checklist (WAC 197-11-960) Responses Revised April 2021
F-39
LOG 1TEIM
No. # w
CA
h. Proposed measures to reduce or control transportation impacts, if any:
None needed or planned.
15. Public Services hf elpl
a. Would the project result in an increased need for public services (for example: fire protection,
police protection, public transit, health care, schools, other)? If so, generally describe.
No.
b. Proposed measures to reduce or control direct impacts on public services, if any.
None needed or planned.
16. Utilities hf @M
a. Circle utilities currently available at the site:
electricity, natural gas, water, refuse service, telephone, sanitary sewer, septic system,
other
No utilites currently directly serve the site.
Page 20 of 21
b. Describe the utilities that are proposed for the project, the utility providing the service, and
the general construction activities on the site or in the immediate vicinity which might be
needed.
None planned or needed
C. Signature rHELP1
The above answers are true and complete to the best of my knowledge. I understand that the
lead agency is relying on them to make its decision.
Signature:
SEPA Environmental checklist (WAC 197-11.960) Responses Revised April 2021
F-40
Name of signee Kenneth A. Shepard
Position and Agency/Organization Authorized Agent of Applicant
Date Submitted: April 21. 2021 LOG dTF.i1h
D. Supplemental sheet for nonproject actions [HELPI Pc'`• .3-7
(IT IS NOT NECESSARY to use this sheet for project actions)
Because these questions are very general, it may be helpful to read them in conjunction
with the list of the elements of the environment.
When answering these questions, be aware of the extent the proposal, or the types of
activities likely to result from the proposal, would affect the item at a greater intensity or
at a faster rate than if the proposal were not implemented. Respond briefly and in
general terms.
1. How would the proposal be likely to increase discharge to water; emissions to air; pro-
duction, storage, or release of toxic or hazardous substances; or production of noise?
Proposed measures to avoid or reduce such increases are:
2. How would the proposal be likely to affect plants, animals, fish, or marine life?
Proposed measures to protect or conserve plants, animals, fish, or marine life are:
3. How would the proposal be likely to deplete energy or natural resources?
Page 21 of 22
Proposed measures to protect or conserve energy and natural resources are:
SEPA Environmental checklist [WAC 197.11-960) Responses Revised April 2021
F-41
4. How would the proposal be likely to use or affect environmentally sensitive areas or areas
designated (or eligible or under study) for governmental protection; such as parks,
wilderness, wild and scenic rivers, threatened or endangered species habitat, historic or ��
cultural sites, wetlands, floodplains, or prime farmlands?
'CA�e i3Z off
Proposed measures to protect such resources or to avoid or reduce impacts are:
5. How would the proposal be likely to affect land and shoreline use, including whether it
would allow or encourage land or shoreline uses incompatible with existing plans?
Proposed measures to avoid or reduce shoreline and land use impacts are:
6. How would the proposal be likely to increase demands on transportation or public services
and utilities?
Proposed measures to reduce or respond to such demand(s) are:
7. Identify, if possible, whether the proposal may conflict with local, state, or federal laws or
requirements for the protection of the environment.
Page 22 of 22
SEPA Environmental checklist (WAC 197-11-960) Responses Revised April 2021
F-42
Marilyn Showalter
Primary AuthorOf
paqc
SECTION G CUMULATIVE EFFECTS
Neither the BDN-Smersh nor anyone else has conducted an adequate analysis of the
cumulative effects of the proposed farm in combination with other factors.
The preceding sections have demonstrated that even standing alone, BDN-Smersh's
proposed geoduck farm should be rejected, on numerous independent grounds. In
addition, evaluation of the application is required to take into account the cumulative
effects of the proposed farm on the broader area and environment.
Recreation
Here is BDN's "analysis" of recreational cumulative effects:
The cumulative impact on the use of W.R. Hicks County Park for recreational
purposes is also de minimis (See BDN004R10-20, Paragraph 3.) There will be no
significant interference of any kind with public use of the park at any time. is
(Emphasis added)
The application does not explore any cumulative effects in respect of Hicks Park or its
users —it simply denies there are any significant effects at all. A proper analysis would
examine: the number of county parks; how many of those are on Hood Canal; how many of
those have a boat launch; how many of those are located in mid -county. Where are any non -
county alternatives? How many users are there during summer months? Where people might
picnic, clam, wade, or swim, if Hicks Park became too dangerous or too unappealing. These
would be questions for an EIS, but the application should be denied outright, making an EIS
unnecessary. The fact is, there are very few public spots on Hood Canal with all or even
some of its features, especially in proximity to mid or north Jefferson County.
M Hicks Shine Park < ) X + OP
Address
1090 Shine Road
Port Ludlow, WA 98365
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County of Knsap, Island Counry, Bureau of Land Mana
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Marilyn Showalter
Primary Author peage i
Environment d- J
BDN's attempt at an environmental cumulative effects analysis is conceptually flawed.
First, BDN provides an inventory of all federally permitted shellfish farms within a five -
mile linear stretch of shoreline in either direction from the Smersh site. It completely
ignores much closer stretches of shoreline across Hood Canal.' Any analysis of a marine
environment needs to look at the shoreline of the affected body of water, which would be
a radius from the site. In addition, it's not clear what is magic about five miles. The
applicable radius might be a shorter or longer distance, depending on what is being
evaluated.
Second, BDN makes no real attempt and analyzing broader effects, mostly because he
denies any primary effect, making secondary cumulative effects non-existent.
Third, throughout the application, BDN relies on the fact that the BDN-Smersh was
approved for a Nationwide 48 permit by the U.S. Army Corps of Engineers, which
included a cumulative effects analysis. But this permit, NWP 48 has been invalidated by
the U. S. District Court for Western Washington on the very ground that the Corps failed
properly to evaluate the effects, including cumulative effects, of nearly 900 commercial
shellfish operations in Washington State waters.' The decision was upheld on appeal by
the U.S. Court of Appeals for the 9' Circuit.'
The District Court found that the U.S. Army Corps of Engineers had failed properly to
evaluate the effects, including cumulative effects, of commercial shellfish operations in
Washington State waters. As the District Court said in its 10/1 opinion, page 21:
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.
'Per BDN's Visual Assessment, "Hood Canal is approximately 3 miles across at the Smersh site." SEPA
Att L, pdf p 8; Log Item 39, p 106/561
'Log Item 39 pp 215-240/561. BDN must apply for anew permit from the Corps, which he has not yet
received. (The District Court allowed limited activities during pending applications, through December
2022.
3 Coalition to Protect Puget Sound Habitat vs. U.S. Army Corps of Engineers, U. S. District Court for
Western Washington, Case No. C16-0950RSL; U.S. Court of Appeals, 9' Cir., No. 20-35546 (2020).
2
G-2
Marilyn Showalter
Primary Author
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, eelgrass, 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 quant Ffy,� !VJ
these consequences. (emphasis added)
Regarding plastics the court said:
�.. `J�)
gage of 137
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.' (emphasis added)
In upholding the District Court, the 9' Circuit Court of Appeals wrote:
The Corps expressly acknowledged the negative effects on the environment from
aquaculture activities but did not explain adequately why those effects were
insignificant or minimal.'
The fact is, no one has done a sufficient cumulative effects analysis to enable this
application go forward. BDN-Smersh's application fails on this ground, as well.
'Log Item 39, p 224/561
s Log Item 39, p 234/561, footnote 10
6 Coalition to Protect Puget Sound Habitat vs. U.S. Army Corps of Engineers, U. S. District Court for
Western Washington, Case No. C16-0950RSL; U.S. Court of Appeals, 9' Cir., No. 20-35546 (2020), p 4
G-3
LOG ITEM
Page/& af L3j
BOG ITEM
Marilyn Showalter
Primary Author �[;ige1J 7 e' '
SECTION H ENVIRONMENTAL IMPACT STATEMENT (EIS)
The application should be denied. If it is not, a full EIS is required in order to
evaluate a raft of missing information and serious issues posed by the application.
The preceding sections have demonstrated that the application should be denied.
If the application is not denied, it certainly can't be approved without a full EIS. Even
the basic forms have not been filled out completely or accurately. In addition, the
preceding sections have laid out a host of serious issues that would need further analysis,
if the application goes forward.
H-1