HomeMy WebLinkAbout082 Response to CommentsFrom: Ken Sheppard <KSheppard@sksp.com>
Sent: Monday, April 11, 2022 4:52 PM
To: Donna Frostholm; Philip Hunsucker
Cc: Brad Nelson
Subject: RE: MLA19-00036 BDN
Attachments: BDN Response to Showalter Jeffco Comment 4-8-22.pdf; Att A - Nelson
Message 1-22 .pdf; Att B - Eelgrass in Squamish Bay.pdf
ALERT: BE CAUTIOUS This email originated outside the organization. Do not open attachments or click
on links if you are not expecting them.
Hello Donna –
I am attaching our response to the comments on this project. As I indicated, I am submitting a single
consolidated response oriented to Marilyn Showalter’s submission, because that submission contains
virtually every topic addressed by other commenters with a few exceptions, which I will address in an
email to follow this one. The additional attached files are referenced in my response as attachments to
it.
The following email will also contain a table showing the issues raised by each commenter. I believe I
have addressed all of these comment issues and your specific information request on particular topics,
but if you determine that is not the case, please let me know..
Thanks
Ken Sheppard
Kenneth A. Sheppard
Ketter, Sheppard & Jackson, LLP
50 116th Ave. S.E., Suite 201
Bellevue, WA, 98004
(206) 382-2600
Fax: (206) 223 3929
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Log Item 82
Page 1 of 62
Apr 11 2022
Log Item 82
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BDN Response to Showalter Smersh Comment
4/8/22 Page - 1
April 8, 2022
BDN, LLC RESPONSES TO
Comments of Marilyn Showalter
NWS 2013-01268, BDN LLC (Smersh Lease) Geoduck Farm
INTRODUCTION
This submission is for the most part a compilation of the various points raised by Ms. Showalter
and about a group of about 35-40 other Shine Road households that have submitted comments in
opposition to the proposed BDN project for various reasons. This group has also recruited support from
other organizations and individuals who are not local residents, but share their views.
All of these individuals and groups are of course entitled to their opinions, even when not
supported by the facts, and are also entitled to submit those opinions to Jefferson County. It should
not, however, be assumed that these repetitive positions are reflective of the community as a whole.
There are over 100 parcels of property within the Shine Road area from which the local commenters
come. The majority of those area property owners have not evidenced opposition to the project. Of the
dozen or so properties that are the closest to the proposed project, and much closer than Ms.
Showalter, only four have submitted a comment, as far as BDN can tell based on county property
ownership records. This should be kept in mind.
In a similar case to this, the Thurston County Hearing examiner noted that “The suggestion of
Appellants’ witness that one could gauge impacts by the strength of community opposition has been
expressly rejected by Washington courts. Sunderland Servs. v. Pasco, 127 Wn.2d 782, 797 (1995);
Maranatha Mining, Inc. v. Pierce County, 59 Wn. App. 795, 805 (1990). Thus, the existence of a small
group of very vocal opponents is not a factor to consider in evaluating this application – it is the strength
of their evidence, not their emotions, that should be weighed by the Corps.
The compendium of these arguments as submitted by Ms. Showalter provides an opportunity to
summarize the actual facts and evidence on each of the topics she and these other commenter address.
SECTION A HICKS PARK (Log Item Page 7)
Ms. Showalter begins her presentation by reciting the 1946 donation by W.R. Hicks of the small
parcel of waterfront that became W.R. Hicks Park. It is important to note that Mr. Hicks retained all
rights to the ownership and use of his much more extensive private tidelands that adjoined the park,
and those use and development rights have devolved to project applicant James Smersh. Ms.
Showalter suggests that the very existence of the park should deny Mr. Smersh the right to use the
“public’s waters for his private benefit.” The park has no such effect – Mr. Smersh is as much entitled to
use the waters over his private tidelands for his private benefit as Ms. Showalter is entitled to use them
(at high tide) for her own private benefit. Such “private benefit” use by Mr. Smersh for aquaculture
purposes is specifically allowed, and is in fact preferred under Washington law. WAC 173-26-
241(3)(b)(i)(A). the only basis for restricting that use is if it has proven significant negative
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BDN Response to Showalter Smersh Comment
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environmental or public effects. What Ms. Showalter argues might happen is not the standard by which
this application is to be judged.
2. Supposed Hazards. Ms. Showalter and other commenters have attempted to paint the
proposed project as posing an “extreme danger” to Hicks park users. They suggest this in apparently
two ways – first, that the planted field of tubes will be a hazard to people walking in or among them.
While Ms. Showalter would like the to expand the “public trust” doctrine to allow unlimited trespassing
on Mr. Smersh’s property, that is not the law in Washington. See City of Bainbridge Island v. Brennan,
128 Wash.App. 1046 (2005):
“… our Supreme Court did not contemplate pedestrian passage over tidelands.
Accordingly, while recognizing the right under the public trust doctrine of ‘navigation,
commerce, fisheries, recreation, and environmental quality,’ we affirm the trial
court's dismissal of the Larsons' claims to pedestrian travel over privately-owned
tidelands when not covered by water.”
This case correctly states Washington law, and there is no case that has held to the
contrary.
Hence, park users would not be allowed to walk or wade on or among the tubes in any event.
This fact is noted by The Washington Department of Fish and Wildlife on its website page concerning
Hicks park: “This small beach is located between private tidelands on either side. Please respect private
property, do not trespass and obey signage.” https://wdfw.wa.gov/places-to-go/shellfish-
beaches/270020.
Second, she asserts that dislodged tubes will drift onto the park property and will cause a hazard
to users in that way. This is an important topic that is addressed in more detail below; suffice it to say
that BDN has modified its current operations on its nearby project such that there has been essentially
no tube escapement for well over a year, and will achieve similar results on this project.
But it also bears noting that the principle dangers to small children using Hicks Park would not
be from an occasional dislodged smooth plastic tube drifting onto park property (which BDN contends
will not be allowed to occur.) The obvious, and much greater dangers to small children from use of the
park are drowning (“drowning is among the ten leading causes of death for children and youth aged 1-
24 years”, World Health Organization), vehicle traffic in the parking lot that comprises most of the park,
vehicles backing boat trailer in the parking lot area, and power boats approaching and leaving the
launch ramp with spinning propellers that can instantly sever a limb if encountered. The greatest
danger of falling for small children is not from an occasional plastic tube, but from falling on the jagged
rip-rap that extends along the park between the parking lot and the beach, and on the rocks of various
sizes that litter the tidal areas of the park beach (See photos at Pages A-8 to A-10 of Showalter
comment.) To contend that BDN operations would pose an “extreme danger” to children, while these
other far greater hazards do not, is simply ridiculous.
Log Item 82
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BDN Response to Showalter Smersh Comment
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3. Aesthetics. Hicks Park is essentially a large parking lot with a vault toilet (see photo 1
below) , a concrete boat launch ramp, a large riprap bulkhead supporting the parking lot, and a
small gravelly,
rocky beach. The appended photos shows the entire upland park area except for the actual boat launch
ramp, which is to the left.
Photo 1
Although beauty is in the eye of the beholder, it can hardly be categorized as a scenic “gem”. To many,
if not most people it could legitimately be categorized as “ugly” from an aesthetics standpoint. Consider
particularly the following photo of January 15, 2022 from a comment submitted by Ms. Showalter to the
Corps of Engineers, showing the launch ramp and the rip-rap separating Hicks Park from the Smersh
property. Is such rip-rap or a concrete boat ramp less “ugly” than PVC tubes? Are kayakers,
paddleboarders or beach walkers “attractive” or “ugly” from a visual standpoint? In the eyes of many
they are as much a visual disruption to the wilderness as a BDN harvest vessel.
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Hicks Park’s value, however, is not in its aesthetics, but in its function. It allows the public to
launch and retrieve boats, and secondarily to access the small, rocky beach and the public tidelands
beyond it. Neither of these activities will in any way be impeded by the proposed project. Swimmers,
waders and boaters will not see the farm at high tides when these activities typically occur. The only
possible minimal aesthetic impact will be to people walking or clamming on the park’s lower tidelands at
low tides. If they look to the east they will then see the farm. Since it is on private property they are not
permitted to walk on the farmlands, any more than they are allowed to trespass on Mr. Smersh’s upland
property.
How often will this view of the farm actually occur? Though on the one hand Ms. Showalter
claims the park is used year round, she then cherry picks the data by choosing only summer months,
when there are typically daylight low tides. Looking at January of this year, for example, there were at
most four days with daylight low tides below +2 MLLW that would expose any part of the farm.
https://www.tides.net/washington/2147/?year=2022&month=01. Ms. Showalter stresses the year
round use of the park when it suits her, and then concentrates only on summer months when that is
more to her liking. Taking the whole year into account, farm visibility is far, far less than she asserts.
Moreover, bear in mind that there is a six year planting cycle. From a visual standpoint,
depending on growing conditions the PVC nursery tubes are removed after 19 to 24 months, and for the
next four or five years until harvest, a geoduck crop is virtually invisible. Even during those first two
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BDN Response to Showalter Smersh Comment
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years the nursery tubes are visible approximately 5-6% of the time. The rest of the time they are under
water and/or not visible due to nighttime low tides. Considering that it takes an average of 6 years to
grow a crop of geoduck from seed to harvest size there will be tubes visible on the project for each
planted area approximately 2% of the time. Pacific Coast Shellfish Growers Association Geoduck
Farming fact Sheet. https://pcsga.org/wprs/wp-content/uploads/2013/05/GEODUCK-FARMING-FACT-
SHEET.pdf.
So what is the real aesthetic impact of the project? The farm area, when visible, comprises only
a few degrees of the 360 degree views from the park. It does not impede views of the mountains, sky,
or other parts of the Squamish Bay shorelands in any way. Is this small strip of visible farm as
aesthetically negative for a park user as the much larger views of the vault toilet or parked pickup trucks
on a dirt parking lot bounded by a rip-rap breakwater? BDN would suggest not.
But what weight should be given to such minimal aesthetic impact in the permit process? This
issue was addressed in Plum Creek Timber Co., L.P v. Washington State Forest Practices Appeals Bd., 990
P.2d 287, Court of Appeals of Washington, Division 1. February 14, 2000:
“The Forest Practices Appeals Bd (“FPAB”) found that the road and timber harvests on the
Scatter Creek parcel would be visible from the adjacent public lands of the Alpine Lakes
Wilderness Area, but that only a small portion of the views from the Wilderness Area
would be affected. The FPAB concluded that the mere visibility of forest practices would
not create a probable significant, adverse aesthetic impact. … any impact to aesthetics
would not significantly deter recreationalists from enjoying the area.
Finally, the Scatter Creek parcel is designated for timber harvests; Plum Creek is not
obligated to prevent the impacts of its forest practices on aesthetics. In light of these
factors, the FPAB reasonably concluded that the probable impact to aesthetics would not
be significant.”
4. BDN Planting Activities (Page 9, Log Item 56.) Planting activities are dependent on
several factors. First is seed availability. Hatcheries spawn their parent ducks in November so that the
babies will be ready to plant in May-June (keep in mind that there are few daylight low tides in the
winter that would allow planting at that time in any event, and no activity is allowed at all in February
through April of each year.) After the passage of the May-June planting window, water temperatures
are often too high for newly planted baby geoduck survival during low tide periods . So there is really
only a small window of opportunity to plant during May-June of each year. It takes 10-12 people four
days to plant an acre. So during a six year planting cycle there will be at most 20 days of planting
activity, and only four days on the acre nearest the park. This is 40 out of 2190 days during that cycle, or
less than 2% of the time. Moreover, even when they are occurring such activities in no way interfere
with any usage of the park, or of the water over the tidelands at high tide. Apart from the fact that Ms.
Showalter does not like to ever see any commercial activity in Squamish Bay anywhere at any time,
these very infrequent and largely benign planting activities form no reasonable basis to deny the BDN-
Smersh application.
Log Item 82
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BDN Response to Showalter Smersh Comment
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5. Harvesting (Page 9, Log Item 56.) Ms. Showalter raise two supposed effects on park
users from harvesting: Noise and turbidity. As to the supposedly “incessant” noise, once again bear in
mind that harvesting can occur only from May through January of each year. When the single BDN
harvest vessel is active, harvesting occurs for 3 days per week, 3-4 daylight hours per day (due largely to
diver safety requirements) So once again, actual harvest on the tract, even if staggered over the entire
the entire project area, would be for a maximum of 108 days, for a total of 432 hours. This means that
about 95% of the time there is no harvest activity whatsoever on the project. Moreover, when planting
and harvest activities occur at the project site, the minimal noise generated by a heavily muffled harvest
vessel would be less than 60 dBa, in full compliance with all applicable noise regulations. Burley Lagoon
Geoduck Farm Noise Assessment, Ramboll US Corporation, March 27, 2018. Contrast this with the 24
hour/seven days per week vehicle noise on the adjacent Shine road, from trucks and trailers launching
and retrieving boats at the park, and from the unregulated, frequent power boat noise associated with
Hicks Park users.
6. Parking at Hicks Park. (Page 9, Log Item 56.) Ms. Showalter suggests that BDN will
obstruct the Hicks Park parking lot even though it has committed not to park there when there are any
other park users. Such obstruction is unlikely for several reasons. First, it will be quite easy to tell if a
parked vehicle is associated with a BDN worker because there will be BDN activity going on nearby. And
BDN workers will certainly be able to easily determine if any other parked vehicles belong to their co-
workers by simply asking. Nearby abundant alternative parking is available when needed. Under this
protocol there is simply no reasonable basis to assume that even during the less than 5% of the year
when planting or other beach activities are occurring, BDN will actually prevent any usage of the park.
7. “Applicants characterization of Hicks Park.” (Page 10, Log Item 56.) BDN will allow
Jefferson County to decide who is being insincere or absurd in their characterization of the park. Every
single BDN statement Ms. Showalter cites is 100% accurate. The principle function and majority use of
Hicks Park is indeed for boat launching and associated activities, and most of the area of the park is
indeed a gravel (or dirt) parking lot. BDN’s effect on park usage will truly be at most “de minimis”, and
more likely non-existent, no matter how badly Ms. Showalter wants that not to be the case. How can it
be seriously contended that anyone will really stop using the park because of a nearby geoduck farm, or
will have that use prevented or interfered with? The public is going to be able to keep using Hicks Park
exactly as it is using it now, regardless of whether the BDN application is approved.
8. Cumulative effects. (Page 10, Log Item 56.) Hicks Park, is not a “unique treasure” as
nearby parks go. Less than 1¼ miles away is 249 acre Shine Tidelands State Park, with 20 times the
shoreline, four times the picnic facilities, and a better quality adjacent boat launching ramp accessed
from Termination Point Road. It provides the same opportunities for “kayakers and beach walkers,” and
“Low tide brings out oysters and clams, which makes the park popular with shellfish harvesters.”
https://www.parks.wa.gov/583/Shine-Tidelands . While this does not make Hicks Park any less useful or
significant, it does show the absurdity of Ms. Showalter’s misstatement the Hicks Park is ”unique” to the
area.
9. Shorelines of Statewide Significance. Ms. Showalter contends that the 2013 case of
DeTienne vs Coalition to Protect Puget Sound established that different standards should apply to this
project because it is located on Shorelines of Statewide Significance, and that as a result the project
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BDN Response to Showalter Smersh Comment
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should be rejected out of hand. As shown below, the De Tienne Case is one of the very few state
proceedings to ultimately deny a County Shoreline Conditional Use Permit for a Geoduck Aquaculture
project. The project there was very different from this one.
Prior to the development of intertidal geoduck aquaculture, geoduck harvest in Washington was
primarily through deep water diving on state owned tidelands via permits purchased from the
Washington Department of Natural Resources. The opportunity for such deep-water harvest on private
shorelands is very limited. There are only a very few areas where private ownership of subtidal lands
was granted under the Washington 1895 Bush-Callow Act, and Mr. de Tienne owned one such parcel.
He proposed to plant and harvest geoducks both on his tidelands and his subtidal lands, which were
separated by a band of eelgrass on his property. He could meet the required 16’ setback on the
tidelands side (as is proposed in the BDN project), but he could not meet the required 2’ vertical drop
setback on the deep-water side. The permit was ultimately denied by the Thurston County Hearing
Examiner because of this, and his decision was upheld by the Shorelines Hearings Board.
The De Tienne case did raise the issue of how the designation of the area as a Shoreline of
Statewide Significance applied to the de Tienne property. First, it noted that “… the proposed geoduck
operation on de Tienne's property would be primarily in the subtidal zone, which distinguishes this Farm
from others reviewed by the Board located in the intertidal zone.” The Shorelines Hearings Board then
held that “The careful review required for this shoreline of statewide significance weighs in favor of
requiring a cumulative impact analysis of the impacts that might result from granting the first subtidal
geoduck farm permit in Henderson Bay.”
Three years later the Thurston County Hearings Examiner reached a very different conclusion in
the Matter of Chang Mook Sohn, 16-106159 , approving an intertidal geoduck aquaculture project that is
much more like the BDN proposal. There the hearing examiner noted that “aquaculture is of statewide
and national interest and that, when properly managed, it can result in long-term over short-term
economic and environmental benefits. The [Thurston County] Comprehensive Plan provides that
existing and future aquaculture operations should be encouraged by protecting these uses from
incompatible development and impacts, while providing that adverse impacts from aquaculture should
be minimized.”
The Hearing Examiner then considered the evidence and testimony about the possible
cumulative impacts of the project, and concluded that:
“Credible scientific evidence in the record supports the conclusion that geoduck
aquaculture generally and, as proposed to be operated at this site specifically, is not a
significant concern for long-term risk to the plants, animals, and physical characteristics
of the shoreline. On the contrary, the evidence demonstrates that effects of the
proposal would be highly localized and short in duration. Studies and articles offered in
opposition to the application do not controvert the findings of the site-specific
evaluations in evidence and the findings of the Washington Sea Grant research program.
No substantial evidence was offered in support of alleged impacts to recreational values
and community use of the shoreline. The Farm would not interfere with navigation,
existing public recreational facilities, or community use of the tidelands via boats,
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BDN Response to Showalter Smersh Comment
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kayaks, or other means. The Farm would not obstruct views, would be completely
submerged for the vast majority of daylight hours, and would be required to comply
with numerous conditions to minimize and mitigate aesthetic impacts. The record
contains no evidence demonstrating that the Farm would result in cumulative impacts.”
Thus, the fact that BDN’s proposed project is in a Shoreline of Statewide Significance does not
disqualify it unless it is shown to have “impacts that risk harm to habitat, loss of community use, or a
significant degradation of views or aesthetic impacts.” In such cases, a cumulative impacts analyses can
be used to evaluate these impacts.
That is exactly what has been done here – a cumulative impacts analysis of a project of
statewide and national interest demonstrates that the proposed project will have no adverse impact on
the “Shoreline of Statewide Significance” on which it will be located.
10. “Peaceful Clamming” at Hicks Park and Smersh Tidelands “rebar stake”. As to the
photos Ms. Showalter submits at pages A-6 through A-16, three bear particular comment.
On page A-13 the bottom two photos supposedly depict “Peaceful Clamming” at Hicks Park.
One of the constantly repeated themes of Ms. Showalter is that any type of activity at any time in or
around eelgrass should be prevented.
The following photos show how park users regularly dig directly in the elgrass beds on or near
the park. If BDN should be prevented from harvesting geoducks on the Smersh property because of
potential damages to eelgras despite a 16 foot buffer requirement, then shouldn’t Ms. Showalter agree
that all clamming, and all walking in eelgrass, should be prohibited at Hicks Park? The same prohibition
of BDN activities she proposes to protect the environment would, if applied to similar supposedly
damaging activities at the park, essentially close its tidelands.
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BDN Response to Showalter Smersh Comment
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Photo 2 – Clamming in Hicks park eelgrass
Photo 3 – Clamming damage to Hicks Park eelgrass
Ms. Showalter also submits a photo of what is alleged to be a “partially submerged
rebar stake” at some undisclosed location on Mr. Smersh’s tidelands (seemingly obtained by
trespassing on those tidelands.) Please bear in mind that whatever and wherever this item is, it
bears no relationship to past, present or future BDN activities. BDN will not use rebar in any of
its proposed operations, and will fully abide by any limitations imposed on such things a
property corner markers, which it is required to maintain by regulation.
Log Item 82
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BDN Response to Showalter Smersh Comment
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SECTION B - BONES CREEK (Page 23, Log Item 56)
Much time is spent detailing the history of Mr. Smersh’s experience nearly 30 years ago with the
small stream on or adjacent to his property. This stream has no official name, though apparently it has
been known informally as Bones Creek or East Squamish Creek. It official identifier is WRIA 17.181A.
The characterization of Mr. Smersh’s activities is completely inaccurate. The history on this matter is as
follows:
W.R. Hicks purchased his tidelands from the state in 1940. In 1946 he deeded back the small
portion that became Hicks Park. Even after the Park was created, W.R. Hick’s son Chester continued to
live on what is now Jim Smersh’s property, in very deteriorated conditions, and to access his property
through a driveway that came off the east end of the Park’s parking lot, which the County of course
allowed since his family had donated the parkland.
When Jim Smersh purchased the property in 1989 he first removed large amounts of debris left
by Chester Hicks, but continued to use the access through the park while constructing his house. In the
process of cleaning up the lot he initially straightened the creek and placed it in an 18” culvert that
flowed directly to the bay. This was long before the Jefferson County Shoreline Master Program, and
Jim Smersh did not understand that a permit was required for what he was doing.
At the time Ted Mitchell owned the property to the East (now owned by Mark Johnson) and
wrote a letter to Mr. Smersh suggesting that the culvert might need to be a bit larger to keep it from
backing up onto both of their properties during periods of heavy flow at the point it entered Mr.
Smersh’s property from under Shine Road. Dealings between Jim Smersh and Ted Mitchell were entirely
amicable.
Subsequently Jim Smersh was contacted by Peter Bahls, the Habitat Biologist for the Point No
Point Treaty Council, and asked if he would voluntarily be willing to restore the stream to a more natural
contour. This contact was not confrontational at all, and Mr. Smersh proceeded to work with Mr. Bahls
to obtain all of the necessary permits and to modify the stream as suggested by Mr. Bahls. The course
of the stream was modified to no longer flow through the culvert, and to discharge onto the beach
exactly as it had done originally.
By the time Mr. Smersh completed the construction of his home In 1995, he was able to access
it from Shine Road without going through the park, and so he brought in clean sand to fill in the access
from Hicks Park, which he was no longer using. When he received the stop work order referenced by
Ms. Showalter, the county proceeded to examine the work and determined that the quantity and type
of fill did not require a permit, and that there was no need to modify or remove any of it. The fill was
permitted to remain and there have been no further complaints or problems.
After this work was completed, the status of this Creek was evaluated in 2002 by the
Washington State Conservation Commission (Salmon And Steelhead Habitat Limiting Factors Water
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Resource Inventory Area 17 Quilcene-Snow Basin, Final Report, Ginna Correa, November 2002.) the
determination of the status of the creek was as follows:
“Bones Creek
With the exception of access, the technical advisory group (TAG) has little knowledge of
this watershed. A partial barrier at Shine Road limits fish migration during most flows
and five upstream barriers are total barriers (TAG 2002).
The creek has constant spring fed flows with good water quality and cutthroat trout in
the headwaters (Peter Bahls, personal communication, 2002). Floodplain connectivity
and loss of floodplain habitat are not applicable due to gradient. The status of a
development with individual wells upstream of Highway 104 is unknown. There are
stormwater runoff and associated erosion problems on the south embankment of SR
104. [Note: the fish passage blockage at SR 104 and the erosion issues were later
addressed by the new culverting at this location.] The remaining parameters are data
gaps.
A small stream, adjacent to and east of Shine Creek, has a private fish-rearing pond. A
standpipe blocks passage halfway between Highway 104 and the mouth. Shine Road is
being undermined at this point. All northern Squamish Harbor tributaries are blocked at
Highway 104.
Estuaries
The lower watershed that is tidally influenced has been channelized and armored.
Estuary function has been eliminated.
Data Needs
• Assess fine sediments
• Conduct ambient monitoring surveys for streambank stability, pools, large
woody debris and riparian condition information
• Assess sediment supply and mass wasting potential
• Monitor water quality”
There was no mention of any problems relating to Mr. Smersh’s property. Though the stream
has no current estuary function (i.e tidal influences on function) it’s flow into the harbor is exactly as Mr.
Smersh found it, and that function would not be affected in any way by BDN operations. Upstream
blockage issues seem to be the primary limiting factors for this stream.
Ms. Showalter efforts are directed at weaponizing a non-issue against Mr. Smersh in order to
demonize him in any way possible so as to block a project she does not want to have to see from her
house. As Mr. Smersh notes, Ms. Showalter has built a path and stairway down the slide-prone hillside
below her house to get to the beach, and may well have done so without a building permit, quite
possibly acting in the same manner for which she now vilifies Jim Smersh.
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But the issue to be addressed here is not what Jim Smersh did 30 years ago, but what effect, if
any, BDN’s proposed project will currently have on stream WRIA 17.181A /”Bones Creek” as it now
exists. And that is where Ms. Showalter and other commenters fall woefully short. The stream has no
estuarine function, and as is shown in the following section on “Eelgrass and Forage Fish”, there is
absolutely no evidence of any kind that the proposed operations of BDN will have any effect whatsoever
on any area wildlife, including any fish that might otherwise use, or attempt to use the creek. This creek
is simply a non-issue here unless and until some contrary specific evidence is provided.
PARCEL 970200001 (Page 33, Log Item 56)
Ms. Showalter’s analysis of the issues surrounding the status and proposed use of this parcel of
land are both factually and legally incorrect.
Jim Smersh purchased this parcel, and the adjoining parcel to the west, 970200002, in 1991
from Michael and Suann Skelley. These lots were part of the 1963 Madrona Vista Plat (Jefferson County
Book of Plats Volume 4, page 34.) Mr. Smersh has used the gravel road on 970200002 to access his
property consistently for over 30 years. In 1994 he documented the location of the gravel road by a
recorded survey. (Auditor Recording No. 378280.) In 1995 an Easement and Road Maintenance
Agreement was recorded (Auditor Recording No. 378280) giving Mr. Smersh and certain other Madrona
Vista lot owners the right to use the gravel road to access their properties.
On November 18, 2009, Mr. Smersh sold Parcel 970200002 to Bruce and Deborah Olsen,
specifically subject to the recorded Easement and Road Maintenance Agreement. (Auditor Recording
No. 548071.) Since that time he has continued to use the road continuously under his easement rights
for over 13 years. Thus Mr. Smersh has legal access to his property via that gravel road. He does not
now and will not in the future access this property from Shine Road.
There was a Boundary Line Adjustment contemplated in 2012 between the Olsens and Mr.
Smersh, but that adjustment was not concluded since no conveyance was ever filed. Thus Mr. Olsen is
not a “property owner” within the meaning of the JARPA or any other permit documents – Mr. Smersh
is the “property owner” of this parcel, including his easement rights
This parcel, an all of the properties in the vicinity of the project are zoned Rural Residential. Ms.
Showalter contends that this prohibits all “commercial use” of Mr. Smersh’s properties. No ”commercial
use” is contemplated or proposed within the meaning of the Jefferson County Land Use Code. What is
being proposed falls clearly within the category of “agricultural use” as defined in Jefferson County Code
Chapter 18.15.040 and 18.20.030. (“ Agricultural activities are considered a matter of right and not
subject to land use permits or approval from the administrator.”) Parking and storage of agricultural
materials and equipment without the construction of associated buildings are specifically allowed as an
accessory use. (JCC 18.20.030 (3).) JCC 18.15.040 specifically states that “Aquaculture uses and activities
(outside of shoreline jurisdiction) are permitted on properties zoned Rural Residential:
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“Table 3-1. Allowable and Prohibited Uses
Resource Lands Rural Residential Rural Commercial
Agricultural –
Prime
and Local
Forest –
Commercial,
Rural
and Inholding
1
DU/5
Acres
1
DU/10
Acres
1
DU/20
Acres
Convenienc
e Crossroad
Neighborhood
/Visitor
Crossroad
General
Crossroad
Agricultural and
Forestry Uses
Agricultural activities
and accessory uses
See JCC 18.20.030
Aquacultural uses and
activities (outside of
shoreline jurisdiction)
Yes No Yes Yes Yes No No No
Aquatic plant and
animal processing and
storage
See JCC
18.20.030
No No No No No No No
Lumber mills and
associated forestry
processing activities
and uses
See JCC
18.20.030
C(a) No No No No No No
Marijuana recreational
producer
Yes No No No No No No No
Thus the proposed use of this parcel is entirely proper, and does not require a Conditional Use Permit.
Ms. Showalter seeks to totally block the use of this road because it is within the “stream buffer”
By her own admission, the road has been there since at least 1990 (Log Item 56, Page 24) As is stated in
JCC 18.22.240, the Jefferson County Critical Areas Ordinance as revised in 2009, “(1) Any legal use or
legal structure in existence on the effective date of this chapter that does not meet the critical area or
critical area buffer requirements of this chapter for any designated critical area shall be considered a
legal nonconforming use.”
There are five upland parcels that use this roadway as their principle access. This roadway is a
legal non-conforming use. Agricultural activities are specifically allowed in wetlands and stream buffers
if they are established prior to March 10, 2020, and if they do not have any significant effects that would
require performance based mitigation (JCC 18.22.830(1)) It’s use by Jim Smersh and BDN to access this
parcel for a proper and permitted use.
There are two important issues to keep in mind here:
First, all of the representations made by BDN in the JARPA were and are correct. The property is
currently .29 acres, with appurtenant easement rights. It’s use by BDN as proposed is a permitted
agricultural accessory use. No excise tax was due on any BLA because that tax is paid when the deed is
recorded, which has not happened (if that were even relevant here other than as an effort by Ms.
Showalter to demonize anyone connected with the application.)
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Second, and more importantly, is the addition of a few more vehicle trips on the gravel road, or
parking a few cars on the parcel really going to have any significant effect on the creek that is 30-40’
away to the west? Ms. Showalter, as in all things related to the BDN proposal, simply asks that everyone
assume such damage, submitting no proof or even any explanation as to how that damage would even
potentially occur and to what degree.
SECTION C MARINE ENVIRONMENT (Log Item 66, Page 7)
BIRDS, FISH & MAMMALS (Log Item 66, Pages 7-75)
This section of Ms. Showalter’s comment, nearly 70 pages in length, essentially lists every
known threatened or endangered species that has been documented in Squamish Bay at any time in the
past, and adds various non-threatened species that she categorically assumes will be damaged in some
fashion by the proposed project. The data and claims presented are wide-ranging, conclusory, and
uniformly free of any project or area-specific evidence. For the 30 species referenced, the claims of
negative effects from geoduck culture fall into a dozen categories, as shown in the following Table 4-1
[See Following Page]
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TABLE 4.1
Species
Claimed Effects Habitat Loss Noise Disruption Consuming Forage Fish Larvae Eelgrass Impacts Road Use & parking Plastics Carbon Acidification Turbidity Gear Entanglement Climate Chg. (temperature) Hypoxia Marbled Murrelet (E) X X X
Western Grebe (E) X
Common Loon (E) X X X
Pileated Woodpecker (E) X X
Oregon Vesper Sparrow “Likely no longer occurring in this area”
Vaux’s Swift (E) “This species may or may not be using the Squamish Harbor
area.”
Herons X X X X
Osprey
Bald eagle X ?
Killer Whales “Daisy
Chain”1
Humpback Whales X X
Gray Whale ? “Daisy
Chain”1
X X
Pacific Harbor Porpoise “Daisy
Chain”1
Olympic Marmot (E?) “Has been seen in the area”
Fishers(E) “Killed on the road in 2017 near the project.”
Keen’s Myotis Bat “has been recorded in Jefferson county.”
Townsend’s Bat “Documented records exist for Jefferson County.”
Sunflower Sea Star X? X
Western Toad “Might have seen one 2 mi.
away”
X
Pinto Abalone (False claim that this species was seen in the area was later withdrawn )
Olympia Oyster X X
Walleye Pollock X X
Pacific Cod X
Pacific Herring X X
Rockfish “Daisy
Chain”1
X X
Steelhead X X X
Chinook Salmon X
Summer-Run Chum X
Bull Trout “Daisy
Chain”1
X
Surf Smelt/Sand Lance X X
1. As near as can be determined, the supposed logic of this argument is , e.g. “Whales eat seals, seals eat pelagic
fish, pelagic fish eat forage fish, geoducks consume forage fish larvae and therefore harm forage fish. Therefore
Geoducks harm whales.”
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As can be seen, by far the most frequent claims involve the assertion that geoducks will consume forage
fish larvae, that the project will destroy eelgrass habitat, and that noise from project operations will
negatively affect these species. Each of these three major claimed effects is addressed as follows:
1. Geoducks do not deplete the forage fish resource, and the Project will have no negative
effects on Pacific herring sand lance spawning areas or Pacific Salmon habitat.
Ms. Showalter’s claims that it should be assumed that geoducks consume such large amounts
of zooplankton and forage fish larvae that they will reduce forage fish to a damaging extent. In all of
these references she presents only one proposed technical article supposedly supporting this claim: A
Review of Effects on Forage Fishes, Zooplankton and Marine Vegetation from Three Geoduck/Clam
Farm Proposals in Henderson Inlet and One Proposal in Eld Inlet, Thurston County, WA, Daniel E. Penttila.
This article addressed no actual research on this topic, only the authors assumptions based on
observations of others as to non-geoduck bivalve species..
Mr. Pentilla testified to this effect in the Washington Shorelines Hearings Board case of Coalition
To Protect Puget Sound Habitat And Case Inlet Shoreline Association, Petitioners v. Pierce County And
Longbranch Shellfish, LLC, SHB No. 11-019 July 13, 2012. There the Petitioners attempted to challenge a
permit for a geoduck farm on a variety of claims that the farm would damage the environment. The
Board, after careful consideration of the scientific evidence supporting each claim, held that:
“… PVC tubes, create artificial hard substrate, resulting, temporarily, in increased
habitat diversity. This increased habitat diversity augments the presence of certain
species at the farm site, including species important to juvenile salmon foraging along
the nearshore. Houghton Testimony; Ex. L11. The Board finds [the farmer’s] expert
provided a more detailed and convincing expert report, and therefore finds this expert
more credible regarding any impacts to the environment resulting from the presence of
the PVC tubes.”
“Petitioners’ experts raise questions about the ingestion of forage fish larvae by
geoducks. They testified that there is insufficient data on this question but that it could
hypothetically happen. Penttila Testimony; Daley Testimony. [The farmer’s] expert was
able to rebut these concerns regarding predation of zooplankton by geoducks. The
filtration rate of geoducks is relatively low compared to other bivalves. There is no
access to seawater more than a few centimeters above the tip of the siphon, and
therefore there is limited access by the geoducks to the water column. During the
winter months, when forage fish spawn and feed, geoducks are relatively dormant and
do not compete with forage fish or salmon for food resources. Davis Testimony; Ex. L14.
An earlier study suggests that geoducks feed exclusively on phytoplankton and not
zooplankton. Ex. L9V at 97. There is no evidence that farmed geoduck will cause adverse
impacts to forage fish or salmon by depleting food resources.”
“Petitioners posited that the farm could adversely affect forage fish because geoducks
will consume forage fish larvae. Petitioners presented no evidence to support this
hypothesis. Geoducks do not typically ingest particles the size of forage fish larvae. The
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geoduck bivalve gill is not designed to ingest such relatively large particles. Although
ingestion of forage fish larvae is technically possible, it would happen only infrequently
and would not adversely impact forage fish. Davis Testimony. Petitioners raise concerns
about impacts from the high density of geoducks in the farmed areas, but fail to cite to
any evidence of these impacts. Respondent’s expert indicated that a high density of
geoducks may come at the expense of other bivalves, but it does not significantly
change the ecological function of the area. Houghton Testimony.”
BDN has done a very specific analysis of the proposed site in its Smersh Farm Habitat Management Plan
and No Net Loss Report , referenced above. The findings were as follows:
“3.5 Migration, Access, and Refugia
This section describes existing migration, access, predation, and refugia conditions and the
expected effects of the proposed project.
.8.1 Existing Conditions
Shine Creek, approximately 1.5 miles to the west supports chum and coho salmon and cutthroat
and steelhead trout spawning. The Shine Creek estuary is likely rearing habitat for natal and non-
natal juvenile pink, chum, coho, and Chinook salmon (ESA Adolphson et al. 2008). A small
stream enters Squamish Harbor near the project site (>150 feet to the north) and is presumed
cutthroat trout habitat (Correa 2003). This small stream does not support salmon because access to
upstream habitat is hindered by (1) the very small size of the stream, and (2) the steep gradient
where the stream flows through shoreline armoring (i.e., boulder riprap). Sand lance spawning has
been documented along the beach to the west of the project and herring are known to spawn in the
eelgrass beds offshore (Penttila 2000, Long et al. 2003).
The project site is a sandy, gravelly beach with no man-made structures. Juvenile salmonids and
other fish may use the intertidal area, when inundated, for migration, access, and refugia.
.8.2 Effects to Migration, Access, and Refugia
PVC culture tubes are the only material planned for use in aquatic areas for this project. PVC tubes
extend only 3 to5 inches above the substrate surface No other equipment is planned for use in the
project and no excavation or alteration of the beach is planned. Culture tubes will not block
migration or access to habitat in the project area.
The planting area is over 150 feet from the mouth of the nearby stream. All species of Puget
Sound salmon are well documented utilizing estuarine and nearshore habitat in their migrations
from their natal freshwater watersheds to the ocean and back (Duffy et al. 2010). Salmon are
known to feed in habitat similar to that found in the project area, ingesting amphipods, copepods,
larval fish, and terrestrial insects (Fresh et al. 2006). Depending on the tidal cycle, fish can easily
swim over, or around culture tubes if necessary. Many researchers have reported that aquaculture
gear is similar (or superior) to adjacent eelgrass habitat in terms of the diversity and abundance of
benthic fauna and fish (Meyer and Townsend 2000, DeAlteris et al. 2004, Pinnix et al. 2005,
Powers et al. 2007).
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Sand lance spawn in sandy substrate in the upper intertidal zone between MHHW and +5 feet
(MLLW) (Pentilla 2007). Because project planting, grow-out, and harvest will not extend above
+2 feet elevation, access to sand lance spawning habitat will not be reduced.
As long as the gear is properly maintained, PVC geoduck culture tubes in the intertidal area are not
expected to affect migration, access, or refugia pathways for fish that utilize shallow water. The
presence of aquaculture gear may even serve as additional foraging habitat or cover from
predators. Because occasional vessel grounding in the highly dynamic sandy shoreline
environment will be of short duration and occur only occasionally during a 2-year harvest period,
no impacts to areas of fish and wildlife migration, access, and refugia are anticipated. No loss of
ecological function is expected to occur due to effects to migration, access, and refugia.
3.6 Forage Fish
This section describes existing forage fish conditions and the expected effects of the proposed
project.
3.6.1 Existing Conditions
Sand lance spawning has been documented along the beach to the west of the project and herring
are known to spawn in the eelgrass beds offshore (Penttila 2000; Long et al. 2003). Sand lance
spawn in sandy substrate in the upper intertidal zone between MHHW and +5 feet (MLLW)
(Pentilla 2007) and typically select substrate with a diameter between 0.2 and 0.4 millimeters. In
the project area, the substrate found in the elevation range sand lance typically spawn is primarily
gravel, which is sub-optimal for sand lance spawning. A dense eelgrass bed is found in the subtidal
zone at least 16 feet from the proposed planting area.
3.6.2 Effects to Forage Fish
There are two potential effects to forage fish from the proposed geoduck aquaculture operation,
including: (1) spawning habitat could be overlapped, and (2) forage fish spawning areas could
receive suspended sediments during a harvest event. The potential for these effects to be
significant to forage fish or their habitat in the project area are discussed below.
3.6.3 Spawning Habitat Overlap
The proposed culture activities are not located at shoreline elevations where sand lance spawn.
Culture will be confined to the intertidal and subtidal zone below +3 MLLW, while the forage fish
spawn elevation begins at +5 MLLW. Therefore, the proposed project is not expected to impact
spawning habitat of these forage fish species. When the site is accessed by boat, boats would not
be beached above +5 ft MLLW. Boats will be moored or grounded in areas waterward of +5 ft
MLLW. Foot traffic for routine maintenance and beach surveys for debris will use consistent paths
and will not occur where potential forage fish spawning habitat may exist.
In some cases, aquaculture gear can provide a new substrate for herring spawn attachment in an
otherwise unstructured environment. Growers will be trained by a WDFW-certified biologist to
recognize herring spawn. If herring spawn is observed within the geoduck farm, then those areas
will be avoided until the eggs have hatched. Vessels will not be grounded in areas where herring
spawn is observed. This conservation measure has been adopted by the Corps as part of the ESA
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consultation process with the Services on the Programmatic Consultation for Shellfish Activities in
Washington State Inland Marine Waters (NMFS 2016a, USFWS 2016).
Therefore, the proposed project will not result in a loss of ecological function due to the project
overlapping forage fish spawning habitat.”
2. The claimed negative effects of noise from the proposed project on wildlife are totally
speculative and not supported by any evidence. As to the supposedly “incessant” noise, once again
bear in mind that harvesting can occur only from May through January of each year. When the single
BDN harvest vessel is active, harvesting occurs for 3 days per week, 3-4 daylight hours per day (due
largely to diver safety requirements) So once again, actual harvest on the tract, even if staggered over
the entire the entire project area, would be for a maximum of 108 days, for a total of 432 hours. This
means that about 95% of the time there is no harvest activity whatsoever on the project. Moreover,
when planting and harvest activities occur at the project site, the minimal noise generated by a heavily
muffled harvest vessel would be less than 60 dBa, in full compliance with all applicable noise
regulations. Burley Lagoon Geoduck Farm Noise Assessment, Ramboll US Corporation, March 27, 2018.
Contrast this with the 24 hour/seven days per week vehicle noise on the adjacent Shine road, from
trucks and trailers launching and retrieving boats at the park, and from the unregulated, frequent power
boat noise associated with Hicks Park users.
3. Eelgrass. No one is denying that eelgrass is present in the area of the proposed project, or
that it could potentially host various forage fish at various times of the year. But the real issue is what
effect the proposed operations will actually have on that resource, if any.
The simplistic approach Ms. Showalter takes is to say, without proof, “well, if this resources is
declining, it must be the fault of geoduck aquaculture”, or “even if this resources is not declining I think
geoduck aquaculture will make it worse.” But the issue is not what Marilyn Showalter thinks might
happen, or thinks could conceivably happen under some set of hypothetical circumstances. Nor is it
whether Ms. Showalter prefers not to see anything but “vast sandy walkways” reserved for her private
use. The issue is what do scientific studies specific to this project show.
And those studies show unequivocally that the proposed project, when conducted in
accordance with reasonable limitations imposed by the Corps of Engineers and Jefferson County, and
agreeable to BDN, will have a neutral or net positive effect on eelgrass.
a.) BDN does not “disrespect” eelgrass. Ms. Showalter alleges that BDN “does not
respect eelgrass”, and provides a series of photos showing BDN operations on its current project in what
she contends are native eelgrass beds. [Note: BDN disputes that its vessel is anchored within the deep-
water extent of the native eelgrass bed in the photos she has provided.] It is important to note that
the Corps permits under which BDN has been operating its current project does not prohibit operations
in native eelgrass over most of the project. (Conservation Measures and applicable terms and conditions
from the Programmatic Biological Opinion for Shellfish Activities in Washington State Inland Marine
Waters (U.S. Fish and Wildlife Service Reference (USFWS) Number O1EWFW00- 2016-F-0121, National
Marine Fisheries Service (NMFS) Reference Number O1EWFW00-2016-F-0121.) Only the small “new”
portion of the project that was added in March of 2017 is subject to a 16 foot eelgrass buffer. As to the
rest of the current project, operations are required to “minimize negative effects to eelgrass and kelp”.
BDN continues to contend that its operations are so conducted, and hose management and traversing in
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the eelgrass are done in such a way that they do not in fact significantly negatively impact eelgrass at
the project site.
b.) It is not clear, as Ms. Showalter and other commenters have asserted, that
“… from available documentation, … eelgrass vanishes consistently when aquaculture
operations are in close proximity,” or that “eelgrass health and industrial shellfish aquaculture
are not compatible uses.” So much of what she submits as facts for this particular project are
actually broad general conclusions, usually for distant areas with distinctly different situations.
The specific claims of Ms. Showalter and others, presented as established fact, are simply
untrue. Please start by reviewing the attached Statement of Brad Nelson on “Eelgrass in Squamish Bay”.
His direct observations over a ten year period of conditions both above and below the surface show the
actual facts: that geoduck aquaculture does not do any mid- or long-term damage to eelgrass, and
actually encourages the expansion of native eelgrass into areas it otherwise would not colonize.
These conclusions are confirmed by the scientific eelgrass studies that have been commissioned
by BDN for both its current farm and the proposed Smersh project. The Confluence Environmental BDN
Eelgrass Delineation and Depth of Culture Survey, Hood Canal, Washington, October 15, 2015,
submitted with the BDN application, confirms that Brad Nelson’s conclusions about eelgrass are correct:
“At the Former Washington Shellfish Site, there was evidence that geoduck clams are located in
areas that currently have native eelgrass. The presence of tubes does not appear to restrict native
eelgrass presence. While there is no way to determine, based on the information collected, whether
geoduck clams were originally planted in native eelgrass, both native eelgrass and geoduck culture
appear to be able to coexist.
At the former Mocean Site existing geoduck culture areas were found in areas where native
eelgrass shoots were present. However, culture operations did not appear to influence the location of
native eelgrass when tubes were present. Information related to baseline conditions was not available,
and so it was not possible to determine whether these areas were colonized by eelgrass after tubes
were added or whether it existed prior to the installation of tubes. The only conclusion that can be
made in terms of the interaction between eelgrass and existing culture is that both eelgrass and
geoduck aquaculture coexist under current operations.”
The 2018 reverification of the eelgrass in the area of the proposed tract does not show, as Ms.
Showalter contends, that eelgrass is “receding in this area of Squamish Harbor”. Rather, that
reverification shows that the edge of the existing eelgrass beds remain in an approximately 100’ wide
band just beyond the outer edge of the entire proposed planting area of the site.
c.) The De Tienne case does not represent the current state of the science or the law on
the effects of geoduck harvest on eelgrass. Ms. Showalter again relies upon the case of De Tienne vs
Coalition to Protect Puget Sound, Shorelines Hearings Board Decision, SHB No. 13-106c (2014) for the
proposition that it has been established that geoduck aquaculture negatively effects native eelgrass
(Log Item 66, Pages Pages 83-90.) The factual background of this case has previously been described
above at Pages 6-7, and will not be repeated here – suffice it to say that it concentrated on the effects of
a proposed combined subtidal-intertidal project that would be the first of its type in Washington, and
was very different from the situation presented here.
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The later case of Matter of Chang Mook Sohn, 16-106159 (2016), approving an intertidal
geoduck aquaculture project that is much more like the BDN proposal, more accurately reflects the
potential effect, or lack thereof, of the current proposed project on native eelgrass.
“In April 2015, Mr. Bloch’s consulting firm, Confluence Environmental Company,
published a comprehensive review of all available literature addressing shellfish impacts
on eelgrass (Exhibit S37, “State of the Science Assessment”). Mr. Bloch testified that
this comprehensive assessment confirmed that potential negative effects associated
with geoduck aquaculture are confined to the farm footprint and directly adjacent
areas. Bloch Testimony; Exhibit S37.
Consistent with these findings, the U.S. Army Corps of Engineers recently
completed a programmatic assessment of shellfish farming activities throughout
Washington State (October 2015) which determined that a 16-foot buffer between new
shellfish farms and eelgrass provides a safe harbor to protect from impacts. Mr. Bloch
testified that project applicants can seek to have buffers smaller than 16 feet approved
on a case by case basis. Exhibits S30 and S31; Bloch Testimony; Osborne Testimony;
Phipps Testimony.
In his testimony, Mr. Bloch disputed Mr. Batker’s contention that the proposed
project, if approved, would preclude the possibility of eelgrass establishing at the site in
the future. Mr. Bloch testified that this issue has been recently studied by the University
of Washington Department of Biology and by DNR, as reported in the Final Report of the
Geoduck Aquaculture Research Program of the Sea Grant Washington study. Mr. Bloch
discussed eelgrass monitoring data collected by DNR, identifying eight monitoring sites
adjacent to shellfish farms. Mr. Bloch opined that data from eight sites is enough to
establish a trend. At four of the eight sites, eelgrass remained stable despite adjacent
aquaculture. At three sites, eelgrass density increased after geoduck aquaculture was
introduced. Referring to another study, Mr. Bloch pointed to one case in which a
geoduck aquaculture bed is believed to have facilitated the establishment of eelgrass
where it previously didn’t exist; while there were reductions of eelgrass in the culture
site after harvest, the eelgrass fully recovered even during subsequent geoduck culture
cycles. In another study, geoducks were planted and harvested within an existing
eelgrass bed; there was a reduction in eelgrass in the culture plot during harvest, but
eelgrass recovered such that the culture and “control” sites were indistinguishable 15
months later.
Mr. Bloch testified that he has personally witnessed eelgrass coexisting with
shellfish beds. Exhibits C1.N.5 (Appendix V), S14, and S52; Bloch Testimony.”
A very recent and interesting study concerned the effects on native zoster marina eelgrass of
sea otters digging up clams and other prey in such eelgrass beds. The study concluded that although
such digging destroys native eelgrass short term, it is actually beneficial to the genetic diversity and
resilience of native eelgrass in the longer term. Physical disturbance by recovering sea otter populations
increases eelgrass genetic diversity, Erin Foster et al., Science 374, 333 (2021).
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Both the findings in the Chang Mook Sohn case and the recent sea otter study dovetail precisely
with the observations of Brad Nelson in his attached comments on the effect of geoduck harvesting on
eelgrass in Squamish Bay. By contrast, the findings of these studies are totally inconsistent with the Ms.
Showalter’s unsupported allegations that geoduck harvesting destroys or impairs the establishment of
native eelgrass over time.
BDN will never harvest or plant on this project within 16’ of any native eelgrass beds. But the
inconvenient truth is that if eelgrass is receding in Squamish Bay and elsewhere, it has not been shown
to be due to geoduck aquaculture, which actually appears beneficial to eelgrass in the mid and long
term.
4. Other claimed negative effects on wildlife. Of the remaining nine claimed negative effects on
wildlife, some do not even require a specific response because they are so improbable – i.e the concept
of whales being entangled in project gear when no area nets are proposed for this project. For others, s
there is no plausible effect alleged from this proposed project – i.e. ocean acidification, climate change,
and hypoxia. The remaining claimed effects are addressed as follows:
a.) Plastics Pollution This is a topic that has been raised time and again by Ms.
Showalter and others (Log Item 66, Pages 105-117.) Once again, the claim is that the PVC nursery tubes
used by BDN are “ground by the sand into tiny particles, which can be ingested.” The only problem is
that this does not happen with the type of PVC tubes used by BDN. This assertion was addressed in
detail in Shorelines Hearings Board case of Coalition To Protect Puget Sound Habitat And Case Inlet
Shoreline Association, Petitioners v. Pierce County And Longbranch Shellfish, LLC, SHB No. 11-019 July 13,
2012.
““Petitioners hypothesized the PVC used in geoduck farming would break down into
microplastics and be consumed by marine life, causing harm. No credible evidence was
presented to support this claim. Conversely, there are studies of ambient
concentrations of microplastics in the Puget Sound. Expert testimony presented to the
Board considered these studies and concluded the level of microplastics in Puget Sound
is “substantially less” than what might cause a significant impact. Further, conditions at
the Longbranch site, including low UV exposure…and the likelihood debris will be
transported onshore and collected by the owners, minimize the possibility that
equipment from the farm will result in microplastics. Any debris that does permanently
escape the farm to deeper waters will not degrade or break into microplastics due to
the lack of UV exposure and wave energy at those depths. Baker Testimony. Additional
expert testimony described the absence of plastic in the stomach contents of 235 fish
captured near active geoduck tube fields. VanBlaricom Testimony. Finally, laboratory
test results of sediment samples taken from within active geoduck tube fields
demonstrated the absence of microplastics. Baker Testimony; Ex. L5, Appendix B. There
is no credible evidence that microplastics will result from the use of aquaculture gear at
the farm or harm the environment.”
Yet this same baseless allegation keeps being repeated time and time again without any scientific
support. The one new twist to Ms. Showalter’s plastics argument is a series of calculations about the
collective weight of all of the BDN PVC tubes used on the project – supposedly 61 tons. Bear in mind
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that almost all of these PVC tubes are recovered, re-used and rotated multiple times on a project, and
are not “discharged” into the water. The wildly inaccurate “61 tons” figure is intentionally misleading –
all of the PVC tubes ever owned or used, or that will ever be owned or used by BDN anywhere are only a
small fraction of that figure. Yet in any event it is not the weight of an object that determines its
environmental effect. The rip-rap at Hicks Park doubtlessly weighs far more than 61 tons. But does it
damage the environment? No, because it is an inert, stable substance (rock), just like BDN’s PVC tubes.
b.) Carbon Release. This is another baseless argument repeatedly thrown out by Ms.
Showalter (Log Item 66, Pages 91- 104.) The contention is that because geoduck farming operations
could conceivably result in some unknown and unquantified release of stored carbon from the marine
sediments in the tract area, the project should be prohibited, even if it has other proven environmental
benefits.
As support for her argument, Ms. Showalter cites a global study on the presence of carbon in marine
sediments, then makes totally unsupported and exaggerated extrapolations from that study.
The study cited is “Global Patterns in Marine Sediment Carbon Stocks”, authored in 2020 by
Trisha B. Atwood and Edd Hammill (Department of Watershed Sciences and Ecology Center, Utah
State University), Andrew Witt and Enric Sala (National Geographic Society), and Juan Mayorga (Bren
School of Environmental Science & Management and Marine Science Institute, University of California,
Santa Barbara.) This study is limited to a calculation of how much carbon is probably stored in all the
world’s oceans. It did not involve any actual data collection, but only interpretation data from 11,578
sediment cores collected from the global ocean.
The conclusion of the study was quite straightforward. It found that “Five-times as much [carbon] is
stored in deep-sea sediments (water depths > 1000 m) compared to sediments underlying shallow
seas”, and that 79% of this total estimated carbon occurred in the abyssal/basin zone.
The article makes passing mention of the potential “[f]or anthropogenic disturbances (e.g., deep-sea
mining or trawling) to enhance C remineralization in marine sediments”, and notes generally that “the
organic C in the sediment must be physically and chemically available to be broken down by
heterotrophic communities, and physicochemical conditions in the sediments must be or become
conducive to heterotrophic metabolism.”
There is no mention of carbon storage or release characteristics in shallow tidelands, and no mention of
the carbon release effect of aquaculture of any kind, much less geoduck cultivation, on stored carbon.
That article internally references another article by author Enric Sala, “Protecting the Global Ocean for
Biodiversity, Food and Climate”, published in Nature Magazine in March of 2021. Similarly, there is no
reference in that article to the carbon storage effects of aquaculture of any kind. Rather, using satellite-
inferred information on deepwater fishing activity by industrial trawlers and dredgers between 2016
and 2019, aggregated at a resolution of 1 square kilometer, the authors estimate that 4.9 million km2 or
1.3% of the global ocean is trawled each year, and that this disturbance to the deep seafloor results in
an estimated 1.47 Pg of aqueous CO2 emissions, owing to increased carbon metabolism in the sediment
in the first year after trawling.” It also notes that “ [d]eep-sea mining is another emerging threat to
sediment carbon, but its spatial footprint is so far unknown as this industry is only now developing.”
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Citing these studies as support, Ms. Showalter then presents a wildly inaccurate argument contending
that these articles indicate that geoduck farming probably releases unacceptable amounts of carbon
into the atmosphere and/or water. Her claim is: “If dredging incidentally disturbs the surface of the
ocean floor, hydraulic geoduck harvesting deliberately liquifies a full three feet of sediment and then
redistributes the sediment into marine waters, or into the air if harvesting on the beach. This harvesting
goes on day after day, month after month, in nearly every square foot of many contiguous acres.”
It is hard to know where to begin unpacking the inaccuracies in this statement, but:
i.) To conflate beach and shallow water manual harvesting of Geoducks with
large-scale deep sea industrial trawling of long dormant sediments is completely totally inappropriate.
First, absolutely no evidence is presented as to how much carbon is actually present in the shallow,
sandy areas in which most geoduck harvesting occurs. But more importantly, vastly more natural
sediment transport occurs nearshore and is affected by wave and current patterns and beach
configurations. See “Driving forces of sandy sediment transport beyond the surf zone”, Magdalena
Stella, June 2018: “The sediments at the study site, namely fine quartz sand, … are susceptible to
movement even under mild hydrodynamic forcing. Sediment motion near the bottom is frequently
associated with the appearance and evolution of sandy bed forms.” To imply that geoduck harvesting
disturbs large long-term accumulations of carbon in constantly shifting sandy bottom areas is
irresponsible.
ii.) There is absolutely no evidence provided of substantial carbon content in
the top meter of the BDN parcels. Ms. Showalter’s approach seems to be “there must be large carbon
reserves” simply because that conclusion would support her contentions. It is equally, if not more
logical to conclude that a constantly shifting nearshore sandy environment such as is present in the BDN
tracts likely retains very little stored carbon.
iii.) Geoduck harvesting does not “deliberately liquif[y] a full three feet of
sediment and … redistribute the sediment into marine waters.” Unlike trawling, and unlike traditional
clam dredging, Geoduck harvesting is a very targeted activity. A ¾ to one inch diameter 24 inch long
probe is inserted next to a specific, single geoduck “show”, and the claim is gently removed from the
small diameter area of loosened sand. Because of the high value of the product, great care is taken to
not damage the clam and to be a gentle as possible in the extraction process. Geoducks can burrow as
deep as three feet, but many are harvested at a depth of between two and three feet. Washington
Department of Fish and Wildlife, “Geoduck clam (Panopea generosa)”
iv.) Harvesting does not go on “day after day, month after month, in nearly
every square foot of many contiguous acres.” A geoduck takes five to seven years to reach marketable
size after planting. The resulting geoduck is dug up precisely once, during a process that typically takes
less than a minute. Once that geoduck is removed, another may or may not be planted in the same spot
and the process repeats itself. Though harvesting on a tract may continue for weeks or months, only a
tiny portion of the tract surface is disturbed each day, and in the end, each square foot of planted
geoduck is disturbed precisely once every five to seven years.
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c.) Turbidity. Expert testimony presented in Shorelines Hearings Board case of Coalition
To Protect Puget Sound Habitat And Case Inlet Shoreline Association, Petitioners v. Pierce County And
Longbranch Shellfish, LLC, SHB No. 11-019 July 13, 2012, addressed the claim of potential effects on
juvenile salmon of sediment plumes from harvesting.
“The Longbranch expert testified that geoduck harvesting at the farm will create
sediment plumes that are comprised of clean sediments, of short duration, and localized
in nature. Houghton Testimony. The National Marine Fisheries Service (NMFS) also
analyzed the potential impacts of geoduck harvest on the migratory behavior of Chinook
salmon and found that any degradation of forage conditions would be temporary and
localized following a geoduck harvest. NMFS concluded that juvenile salmonids could
avoid any disturbance and pass through the work area. Ex. L108 at 10. The Board finds
that Petitioners have not demonstrated significant adverse impacts to fish, including
salmonids, will result from sediment plumes generated by geoduck harvesting at the
farm.”
d.) Upland Parcel Usage. This claim is made as to some type of actual or
potential negative effect on the Pileated Woodpecker and/or the Western Toad from parking or
travel on the upland parcels associated with the proposed project. The mechanism for this
contended effect is not specified, and no evidence of any kind is presented that such claimed
negative effects will actually occur.
5. Species Specific Comment Responses. The following additional responses are
provided for specific species:
a.) Marbled Murrelets and other diving birds. The contention of Ms. Showalter, along with
others, that BDN proposed operations will somehow negatively impact waterfowl is simply not established in
any way. The Marbled Murrelet has been enlisted in this effort to assert unproven negative impacts on
waterfowl. As compelling as the narration of Ms. Showalter is on the Marbled Murrelet life cycle, the allegation
that the project should be banned simply because the Marbled Murrelet may choose to nest in a broad range
of forestlands within 55 miles of the Smersh location is simply irrational. Ms. Showalter admits that “…there
has been virtually no research on the effects of geoduck culture on the Marbled Murrelet”, and most of the
extensive materials she attaches on the Murrelet show more what is not known than what is known at about
the bird. Yet she then contends nonetheless that “geoduck cultivation should not be allowed in Squamish
Harbor” due to the claimed presence of this bird. It would make more sense to say that all powerboat traffic
using the Hicks park boat launch should be prohibited, or all traffic on Shine Road, including Ms. Showalter,
should be banned because the constant traffic noise or roaring high speed powerboat noise might disturb the
Murrelet, even though there has been no study of the effect of such noise. But demonstrated actual, or even
potential negative impacts from the proposed project on area waterfowl, including the Marbled Murrelet,
simply do not conform to reality. The Smersh Farm Habitat Management Plan and No Net Loss Report , dated
September, 2020, and submitted by BDN with its application materials, sets forth the following analysis:
3.8 Waterfowl
3.8.1 Existing Conditions
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Embayments of North Puget Sound provide important breeding and rearing habitat for waterfowl and
shorebirds. A variety of diving and dabbling ducks are likely to use the shorelines near the proposed
project for foraging, breeding, and loafing. The clean, well-sorted sand at the proposed project site
does not currently provide good foraging habitat for diving and dabbling ducks. The sandy beach may
provide foraging opportunities for shorebirds during low tides.
3.8.2 Summary of Effects to Waterfowl
Studies of waterfowl use in aquaculture farms have shown either positive impacts (e.g. increasing
avian species richness and abundance due to increased foraging opportunities) or benign impacts
(eliciting no significant difference in use from natural beds). Through their foraging habits, migrating
marine shorebirds can significantly alter the community structure of wild bivalve populations in soft-
bottom intertidal areas (Lewis et al. 2007). At shellfish aquaculture sites, some species of marine
birds feed directly on the shellfish products themselves (Dankers and Zuidema 1995), while others
feed on the macrofauna and flora that colonize shellfish aquaculture gear (Hilgerloh et al. 2001).
Shellfish growers have documented numerous bird species foraging on their shellfish beds, including
scoters, dunlins, killdeer, godwits, sand pipers, eagles, great blue herons, and gulls. Figure 3 presents
a few of the species mentioned using shellfish beds for foraging habitat.
Due to the relatively recent history of geoduck aquaculture, and the fact that intertidal geoduck beds
are exposed for a short portion (approximately 6%) of the culture cycle, there are limited examples
that illustrate how birds interact with geoduck aquaculture gear. However, there is both anecdotal
evidence and some photography to show potential interactions. One of the best examples is the
mutually beneficial relationship between shellfish aquaculture practices and scoters. In some areas,
geoduck nursery tubes, oyster crops, and culture gear will get coated with sets of mussels. The young
mussels attract scoters that provide a service to growers by grazing the fouling mussels off the crops
and gear. At the Foss farm in Case Inlet, crews removed nets and when they returned the following
night to clean out the mussels, they were gone. They removed more nets and deployed a GoPro®
camera to discover scoters were cleaning off what ended up being thousands of pounds of mussels
(Figure 4).
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BDN will use no ropes or nets as shown in this photograph. The colonized exposed tubes will provide
increased attachment sources for mussels and other organism that constitute food for ducks and other
wildlife.
The Washington Department of Fisheries lists the most important threats to the Marbled Murrelet:
“Increasing sea surface temperatures could lead to declines in target prey abundance
(e.g., herring, sand lance, crustaceans) and declines in murrelet productivity, though
their ability to target multiple types of prey may help this species adapt to shifts in prey
abundance.”
Conservation Threats and Actions Needed:
1) Conversion of old forest nesting habitat to commercial forestry. Fragmentation of nesting
habitat isolates remaining breeding areas, increases hard edge (attracting predators), and
decreases nest success.
2) Campgrounds/recreation sites in and near habitat can attract avian predators (corvids) and
human disturbance to nesting birds.
3) Environmental contamination (oil spills) in marine habitat; very vulnerable to periodic and
chronic spills that may have lethal and sub-lethal effects that affect populations.
4) Increasing sea surface temperatures could lead to declines in target prey abundance (e.g.,
herring, sand lance, crustaceans) and declines in murrelet productivity, though their ability to
target multiple types of prey may help this species adapt to shifts in prey abundance.”
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https://wdfw.wa.gov/species-habitats/species/brachyramphus-marmoratus#conservation
There is simply no evidence, other than the sheer conjecture of Ms. Showalter and others, that the
Marbled Murrelet or any other waterfowl will be negatively impacted by the proposed project.
b) Common Loon. Again, the Washington Department of Fisheries lists the most
important actual threats to the Common Loon:
“Ingestion of small lead fishing tackle is the leading cause of known mortalities of the common
loon.
Pacific herring, a primary food source for loons, have previously experienced declines during El
Niño years, leading to high mortality for loons; more frequent and stronger El Niño conditions
could lead to greatly decreased food supply for loons. [Note: There is no evidence that the
project will negatively affect Pacific Herring – see section above on forage fish.]
Threats: a) Shoreline and adjacent upland development, use and degradation by various land
use change actions (such as development, timber harvest, stormwater runoff impacts, increase
pollutant exposure), b) human consumptive and non-consumptive recreational intrusion on
breeding lakes by motor boating and intensive recreation activities. c) lead tackle impacts; d)
direct disturbance of nesting and brooding, e) gear entanglement f) commercial fish bycatch. g)
Water level fluctuation to nesting loons on reservoirs.
https://wdfw.wa.gov/species-habitats/species/gavia-immer#climate
As with the Marbled Murrelet, there is no evidence of any potential negative effect on the Common
Loon.
c) Fishers (Pekania pennanti) - Ms. Showalter indicates that a Fisher was killed on an
area roadway in 2017, and presents this as a reason to deny the project permit, without any explanation
as to how the project might negatively affect Fishers.
Fishers inhabit coniferous and mixed coniferous-deciduous forests. They tend to avoid areas
without substantial tree cover (e.g., clear cuts, grasslands, agricultural fields), areas with significant
human activity, and developed areas. They are not salt-water aquatic mammals. Fishers commonly
prey upon small and mid-sized mammals, such as snowshoe hares, squirrels, mice, and voles. They also
feed on ungulate carrion, fruit, insects, and birds. Fishers are known for their ability to prey upon
porcupines.
Bobcats are likely the most common predator of fishers in Washington; however, mountain
lions, coyotes, lynx, dogs, and wolves may also prey on fishers. “Incidental trapping capture, highway
mortality, and other mortality sources pose a risk for the reintroduced population on the Olympic
Peninsula and the Cascades.” https://wdfw.wa.gov/species-habitats/species/pekania-
pennanti#conservation.
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The threat to fishers of being run over by Ms. Showalter when driving on the area roads is
greater than any hypothetical threat from the proposed project.
6. Misleading References to Corps of Engineers Documents in Showalter Section C. At Pages C-
53-54 (Pages 59-50 of Log Item 66) Ms. Showalter references two Corps of Engineers Documents for the
proposition that the proposed project will, supposedly by the Corp’s own conclusions, substantially
negatively impact area wildlife. (Programmatic Biological Assessment, Shellfish Activities in Washington
State Inland Marine Waters, U.S. Army Corps of Engineers Regulatory Program, Seattle District, October
2015 (“PBA”), and a 2017 Army Corps Draft Cumulative Effects Analysis.)
This is an irresponsible distortion of these documents. The Draft Cumulative Effects Analysis
was produced in connection with the Corp’s preparation of the Nationwide Permit 48 (“NWP 48” ),
which related to all aquaculture of any kind anywhere in the United States. As the Washington Federal
Court noted in the Coalition case, “NWP 48 authorizes the discharge of dredged and fill material from
not only oyster operations, but also from mussel, clam, and geoduck operations carried out on bottom
substrate, in containers, and/or on rafts or floats.”
The PBA was prepared in connection with all aquaculture of any kind in Washington State. As
the PBA noted at page 45, Hood Canal aquaculture is 5% of total Washington Aquaculture acreage, and
geoduck aquaculture is 10-20% of aquaculture acreage in Hood canal. Thus Washington geoduck
aquaculture is .5 to 1% of aquaculture in Washington. The majority of the PBA addressed other types of
aquaculture, primarily oyster culture.
The PBA specifically states that the Effects cited by Ms. Showalter are “…written from the
perspective of a worst-case effects scenario relative to issues such as work timing and husbandry
practices. The purpose of this approach is to ensure the full range of possible effects is discussed.”
As Ms. Showalter well knows, that PBA in the end concluded that national level analysis could be
used to permit aquaculture projects in Washington, subject to possible additional conditions imposed by
regional Corps offices . This was the overall conclusion that Judge Lasnik objected to in the Coalition
case: “The Court does not intend to suggest, and is not suggesting, that the general terms and
conditions imposed on a nationwide, regional, or state permit cannot be relevant to and supportive of a
finding of minimal impacts. They are simply too general to be the primary “data” on which the agency
relies when evaluating the impacts of the permitted activities.”
Thus, the “effects” language cited by Ms. Showalter from these Corps documents relates much
more broadly to aquaculture in general, and clearly does not constitute any kind of conclusion that the
activities connected with this proposed project are “likely to adversely affect” the area marine
environment.
SECTION D – “Bad Track Record” (Log Item 56, Pages 45-90)
This Section of Ms. Showalter’s comment repeats various allegations raised by a number of
commenters against Jim Smersh and Brad Nelson that attempt to depict them as intentionally failing to
comply with rules and regulations applicable to their activities. Mr. Smersh’s action with respect to his
own property have been address above (Pages 9-13 above.)
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1. Parking on parcel #821334011 (Log Item 56, pages 45-47) The allegation is made
that BDN has knowingly and intentionally violated regulations concerning this small shoreline parcel that
it owns. The area is described as having been “bulldozed.” In reality, seven years ago a backhoe was
used briefly to clear brush and shrubs from less than 500 square feet of this property. No trees were
cut, not fill was placed, no excavation was performed and no structures were constructed. BDN
understood, and understands that no Land disturbance permit was required because the proposed area
of disturbance was less than .50 acres and did not met any of the other applicable standards that would
require such a permit. https://www.jeffco.us/DocumentCenter/View/10314/Do-I-Need-a-Land-
Disturbance-Permit-PDF. If in fact that interpretation is not correct, BDN will gladly obtain any
necessary permit and abide by its requirements.
Ms. Showalter implies that parking by BDN workers on this parcel is not permitted.
BDN’s Corps permit applicable to these activities requires that “Land vehicles shall be stored, fueled,
and maintained in a vehicle staging area located 150 feet or more from any stream, waterbody, or
wetland.” The obvious intent here is that a Corps permittee should not create a vehicle maintenance,
fueling or storage facility within 150 feet of a waterbody. There is no such facility maintained on the
BDN property. The permit provisions relating to operation of vehicles requires only that they be
inspected at their “staging area” (wherever that might be) for leaks before operating them within 150
feet of the waterbody. So it is not prohibited to operate, or short term park vehicles at the BDN
property so long as they are not leaking fluids, and no evidence has been presented of any such leaks or
discharges. Thus there is no violation of any Corps or County requirements shown here.
2. Parking boat and equipment in fish stream. (Log Item 56, pages 47-49) This is the
beginning of a series of comments about the alleged use of watercraft by BDN on its existing nearby
geoduck farm. (e.g see also “skiff sinking and debris drifting to shore, Log Item 56, pages 60-64.) All of
these related claims are best responded to comprehensively here as follows:
a.) Claims of Unsecured Gear in the “Farm Area”. What is the “farm area”? The
most logical interpretation is that gear items such as tubes, nets or other gear cannot be left on the
planting area unless they are secured – e.g. planted in the ground or otherwise tied down? This would
also seem to mean that the skiff used by BDN is permitted if it is “secured” by being anchored It does
not appear that this provision was intended to govern the use or occupation of upland parcels such as
BDN’s private upland property.
The important point to be made here is that BDN has always been operating its gear on
and around its project in what it believes is a manner allowed under its permits. Ms. Showalter
interprets the permit language otherwise. But regardless of how the Corps determines that these
conditions should be expanded, clarified or modified, BDN will fully comply so long as the requirements
are made reasonably clear to it.
b.) “Skiff sinking-debris washed to shore not removed” (Log Item 56, pages 60-
64.) The facts surrounding this storm related event are as follows, integrating Brad Nelson’s narrative
from his attached “Message to the Squamish Bay Community, January, 2022” with the corresponding
text and photos from Ms. Showalter’s comments.
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November 17th - Showalter: “On November 16, 2019, there was a storm with gusts of 50 mph. The next
day [November 17th], BDN's skiff, which he anchored more or less permanently in Squamish Harbor
(with no night lights), began to sink. [ “began to list” is really more accurate.]
Nelson: “Yes at times we temporarily anchor a small work skiff on our beach. I believe
this is permitted, just as many of you pull your own watercraft up on your own beach. In the center of
our beach [tidelands] there is a piece of iron that protrudes 6 inches above the sand. I don’t know what
it is, and I didn’t put it there, but it makes for a great anchor system. During one low tide, with some
substantial wave action hitting the moored skiff, the aft port pontoon struck the iron and became
punctured. The skiff’s pontoons are designed with many watertight compartments, so the boat is
essentially unsinkable.”
November 18th – The next day BDN responds and pulls the skiff up to its beach. Nelson: “As soon as the
water calmed, we brought it to shore and made the necessary temporary repair. It was then hauled out
and taken to a shop where a permanent repair was done. (See photo dated November 18th, Page 116.)
November 19th – Three plastic milk crates and what appears to be a dive tank are shown approximately
25 feet apart on BDN leased tidelands. The crates are possibly from the skiff, but not the tank. Nelson:
“If there was a ‘dive tank’ on the beach it was not ours.” (see photo Page 116)
(Sue Corbett in her comment regarding NWS 2017-230-AQ dated 1-9-22. “The skiff began sinking and
eventually was pushed to shore, leaving debris such as plastic crates and a dive tank strewn along a half
mile of shoreline.” A clear misstatement that should call into question her credibility.)
November 20th – The skiff is hauled out for permanent repairs. “Reply from Brad Nelson 11/20 11:39
AM ‘They are hauling boat out now. Thanks again’ " (Page 117.)
November 21st – BDN’s Dinghy is shown moored on its own beach, not blocking any stream flow (Photo
Page 116.)
December 23rd , 2020 – Weather or water has by now moved the anchored dinghy such that it is partly
over the small stream on the property for some unknown period of time, perhaps as short as one tide
cycle, and not the result of any intentional act by BDN. The tide then appears to have come in and
partially submerged the apparently leaking boat, which is still anchored securely to the beach. Some
items appear to have been removed from the dinghy and placed on the BDN uplands. (Photos pages
104-105, 116.)
February 11, 2020 – Sometime after December 23rd the dinghy has now been secured upside down on
the upland part of the BDN property. (Page 110.)
So what does this all show? The Gear Management Plan provides that “Beaches will be patrolled
(subject to permission) 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.“
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The pontoon skiff begins to list on November 17th, and BDN retrieves it on November 18th. The dinghy is
similarly retrieved and anchored on BDN’s property. There is no violation of the requirements of the
Gear Management Plan. By November 18th there is no unsecured gear on the project area.
Note: BDN does not plan to moor a pontoon skiff on the proposed project for extended periods, since
the harvest methods associated with such extended moorage turned out to be less efficient. Currently
the pontoon skiff being used on its existing project it is regularly being hauled out and stored on land,
and this will be the practice on the proposed project.
3. BDN’s “Disregard” for Native Eelgrass. Please see “BDN does not ‘disrespect’
eelgrass.” At Page 18 above.
The materials provided concerning correspondence with the Corps of Engineers about eelgrass
on the existing BDN project are intentionally misleading. As Ms. Showalter knows, BDN performed
additional eelgrass surveys as requested by the Corps for its current project, and based on these
updated surveys the Corps approved BDN’s application for that project on March 14, 2017.
There was no “unauthorized expansion” of that project by BDN. The County itself confirmed
this in its letter to BDN dated April 21, 2017, finding that pursuant to JCC 18.25.440(4)(b)(i) there had
been no expansion in excess of 25% during any 10-year period.
4. “Illegal Harvest by BDN”
a.) 2015 “Harvest of wild geoducks without a permit” (Log Item 56, Page 52.)
This allegation appears to conflate several unrelated events. In the summer of 2015 several things were
going on related to the BDN operations and the adjoining Tjemsland and Garten properties. BDN was in
negotiations with property owners Bob Garten and Arnold Tjemsland concerning the lease of their
tidelands for potential geoduck aquaculture. In connection with developing such a private aquaculture
project, BDN was required to give the Point No Point Treaty Council an opportunity to survey the
proposed site in order to determine if it contained wild geoduck to which the Council might assert
harvest rights under the U.S v. Washington case, 898 F. Supp. 1453(1995) (the so called “Rafeedie
Decision”) https://nwifc.org/w/wp-content/uploads/downloads/2011/08/shellfish-pamphlet.pdf The
tribes were given such a notice, and elected to survey the potential sites. At the same time, BDN was
conducting a geographic survey of the possible sites, and was setting corner markers denoting these
tidelands.
Also in the summer of 2015 Pam Sanguinetti of the Corps of Engineers had visited the current
BDN project, and had concluded that some planting may have occurred below the applicable area
boundary. BDN disputed this conclusion, and in November of 2015 it was agreed with the Corps that
BDN would have a survey performed of the alleged improper planting area. This was done in in January
of 2016, and the survey showed there had been no improper planting. The notice of violation was
cancelled, and a new Corps permit was issued for the site in 2017.
The June 3, 2015 photo provided Sue Corbett is difficult to analyze due to poor resolution, but
BDN believes it shows BDN personnel setting survey corners, using a wheelbarrow to haul down staking
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materials. There was no harvesting of “three crates” of geoducks on this parcel by BDN at any time,
because there were no wild geoducks on the parcel.
Tribal representatives did perform a survey of the area, with the assistance of BDN, and this may
have been observed by Ms. Corbett or others and incorrectly assumed to be improper harvesting by
BDN. The tribal survey confirmed that there were no wild geoduck on the property, and the tribe did
not assert any harvest rights.
b.) Harvest of Geoducks During Prohibited Period. (Log Item 56, Page 53.) This
section addresses an event in February of 2021 in which harvesting took place over a two week period
for about 15 hours total during a time when the area was closed to harvest activity. As BDN manager
Brad Nelson has explained, his son was managing the BDN operation in his absence and quite logically
interpreted the applicable regulations as allowing continued harvesting so long as it was beyond 15 feet
from the waterline and did not increase turbidity within that 15 foot area. This makes sense because it
is that nearshore area that has been identified as the juvenile salmonid habitat. This is a perfectly
logical interpretation of the law, except that the Corps has interpreted it differently.
For reasons unknown to BDN, after the Corps was notified by area residents of this harvest
activity, there was a delay of nearly a month before the Corps informed BDN of the complaints and
made a determination that there had been a violation. During that one month period a total of fifteen
hours of harvesting occurred. As soon as Brad Nelson learned of the situation from the Corps, he
immediately informed his son of the Corps interpretation, and instructed that operations should cease
and no further harvesting should occur on the tidelands until after April 30th. As soon as the letter was
received the harvesting ceased. Had BDN been informed of the situation earlier, the harvesting would
have ceased earlier.
Most importantly, this is the only formal notice of violation BDN has ever received from the
Corps, and it is not evidence of a pattern of habitually ignoring Corps permit conditions, as Ms.
Showalter contends. The Corps did impose consequences for this violation, informing BDN on October
12, 2021 that “As part of the Corps' review of the unauthorized activities, we will require you to submit
monthly reports of your site maintenance records. Reports should detail the dates and times the site
was accessed, gear secured, gear retrieved including quantity and/or size, and location of the retrieved
material escaped from the site. Reports shall be submitted to the Corps by the first Friday of the
following month to the email address NWS.Compliance@usace.army.mil.” BDN has fully complied with,
and continues to fully comply with these requirements.
5. BDN has not complied with its Gear Management Plan. (Log Item 56, Page 55-59.)
a. Tube Escapement. Past tube escapement on the existing BDN project is a
major, if not the major complaint of most of the commenters, and it is indeed a very important issue to
address and properly analyze. Commenters such as Ms. Showalter paint a picture of constant large
scale tube escapement from the BDEN project over the entire north shore of Squamish Bay – alleging
that BDN has violated these provisions [about gear escapement] on many, many occasions.
Log Item 82
Page 35 of 62
BDN Response to Showalter Smersh Comment
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But let’s examine the actual facts for a moment. BDN has been operating its current project
since 2013, for about nine years. What significant escapement events have occurred during the period?
Through comments and photos, Ms. Showalter and others attempt to depict more or less constant and
severe tube escapement. However, that is not the case. The following is a listing of the photographs of
tube escapement provided by commenters in response to the BDN applications to the Corps and to the
County for both NWS 2013-1268 and NWS 2017-230-AQ. (Page references here are to comments
submitted to the Corps of Engineers.)
Escaped Tube Dates
6/22/14 – Bundles of tubes on the BDN Beach (Showalter P.106)
12/27/14 – About 50 visible loose tubes on BDN Beach (Showalter, P.114, Corbett NWS 2017 comment )
12/10/15 – Bagged tubes on BDN Beach (Showalter, P.105)
3/24/15 – Dislodging, but still stationary tubes on BDN Beach (Showalter, P.114 , 13, 32, 36)
4/8/15 - Dislodging, but still mostly stationary tubes on BDN Beach (Showalter, P.11, 33)
4/18/15 - Dislodging, but still mostly stationary tubes on BDN Beach (Showalter, P.11, 33)
7/-/15 – Photos of dislodged tubes in submerged in deeper water just beyond BDN planting area
(Dittmer Comment)
1/13/16 - Tubes (bagged?) on BDN Beach (Showalter, P.100, 103, 106)
12/23/19 - Bagged tubes on BDN Beach (Showalter, P.105)
2/2/20 – Three Loose Tubes on BDN Beach (Showalter, P.108)
2/9/20 – Scattered Tubes on BDN owned or leased property. (Showalter, P.109)
2/16/20 - Dislodged and some still stationary tubes on BDN Beach planting areas (Showalter, P. 33)
2/10-17/20 – Case & Corbett trespassing on BDN property to move tubes. (Showalter, P.108)
2/20/20 - Case & Corbett trespassing on BDN property to photograph and move tubes. (Showalter,
P.108)
3/15-17/20- Case & Corbett trespassing on BDN property to photograph and move tubes (Showalter,
P.112)
4/2-5-5/20- Corbett trespassing on BDN property to photograph and move tubes (Showalter, P.113)
Several things are immediately apparent from this list. First, there are only two periods of significant
escapement – the first six months of 2015, and February through May of 2020. The same photo of the
same event during those two periods often appears three or four times in the same comment, making it
seem that there are more frequent events than is really the case. Thus during this nine year period of
BDN operations there has been substantial escapement during about 10 months, or a bit over 9% of the
time. Thus, for over 90% of the nine year period of BDN operations there has been no significant tube
escapement.
Equally as importantly, virtually all of the dislodged tubes remained on BDN property. Sue Corbett and
Bruce Case regularly trespassed onto BDN lands to photograph, collect or remove tubes that were on
BDN tidelands. Those tubes did not become “strewn all over Squamish Bay” as commenters assert. The
only significant movement off the BDN property appears to have taken place into deep water, or rarely
further to the west of the current BDN project. Once the existence of deeper submerged tubes became
known, such tubes are now being collected regularly.
Log Item 82
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What caused these two escapements? It was clearly not waves or wind, as some commenters posit.
Were that the case, tubes would be dislodged regularly and consistently. It was geoduck activity. In
2015 there was a totally unanticipated high survival rate of the initial 4 seeds planted in each tube in
2013, resulting from the superior Squamish Bay environment. Then from 2017-2019 there was a lower
survival rate of only 1-3 of the 4 seed per tube, not due to environmental factors, which remained
constant, but due to the quality and timing of the seed available to be planted. Thus there was virtually
no escapement for the next four years.
Then in 2020 there was once again more 4-seed survival from the 2018 planting, which caused gradually
increasing tube escapement. This took BDN a bit by surprise because there had been no such high
survival for the prior 4 years, and it had appeared that 2015 was an aberration. As a result of increased
escapement BDN concluded that beach patrols and other escapement containment methods would
need to be adjusted each year as appropriate. A new resident manager, Scott Simkus who lives across
Shine Road from the current project, was retained to patrol and monitor the property, whereas the prior
beach manager had commuted periodically from Poulsbo. BDN has also followed the practice of
removing most of the planted tubes as soon as the first tubes from a planting begin to be pushed out,
as opposed to collecting tubes only as they were pushed out. (Some tubes become buried and are not
initially recovered, but as they are later pushed out they are collected.)
So in view of all of this, how is BDN going to prevent escapement issues on the proposed Smersh farm,
and at Shine Park in particular? Here’s the proposed regime:
- Only three seed will be planted in each tube, such that there will never be four surviving
geoducks. This should avoid almost all early pushout due to four geoducks surviving in a tube.
- All visible tubes will be pulled when there is any evidence of a planting entering the pushout
phase. While tubes are sometime missed during the pullout phase if they have become buried, these
few tubes will usually expose themselves later, and they should be easy to monitor and collect.
- Jim Smersh will be hired by BDN as the full time beach manager for this project, to monitor
the beach from his home on a daily basis. He, or a backup if he is not available, will ensure that no
dislodged tubes move onto the adjoining Hicks Park tidelands, especially in the summer months.
- BDN will perform deep-water tube recovery, using divers, at least every three months.
- Hicks Park has a small riprap jetty to its east that will prevent any tubes that wash up on the
Jim Smersh’s beach from moving west onto the park. Since any dislodged tubes will be literally in Jim
Smersh’s front yard, they will be easily collected.
- 24 hour beach manager contact numbers will be provided to all area residents. If residents
can be convinced to cooperate with BDN by calling its representatives first in the event of any tube
escapement or other problems, instead of first complaining to the Corps and not advising BDN of the
situation at all, this will allow BDN to quickly address any neighborhood concerns.
Log Item 82
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In summary, if everyone works together to craft a system that is more results oriented, (rather than
based on such things as requiring interpretation of what does and does not constitute a “severe” storm,)
the results will be better for everyone. BDN seeks cooperation, not confrontation, and will accept
whatever reasonable provisions the County decides are appropriate.
b.) “Skiff sinking and debris drifting to shore.” (Log Item 56, Page 60-62.) This
has been addressed at Page 29-31 above.
c.) “BDN has left non-secured aquaculture gear on site when crews are not
present.” (Log Item 56, Page 62-64.) This has been addressed at Page 29 above.
d. “BDN has not reported lost gear or navigational hazards, as required.” (Log
Item 56, Page 65.) The Corps permit requirement is not to report whenever more than 20 tubes have
been pushed out, but to report when they have “escaped from the project area.” BDN did not
understand reporting to be required when escaped tubes remained on property that it owned. The
intent was understood to be applicable only when there was significant tube escapement entirely off of
its property, which it observed to rarely occur. Even under that interpretation, this requirement has
proven difficult to administer in practices, since during much of the winter low tides, when most
escaped tubes can be recovered, occur only at night.
As noted above, the Corps recently modified this reporting procedure to require that BDN
submit regular monthly beach patrol reports for analysis, and BDN has willingly done that. Similarly, it
will willingly comply with whatever reporting requirements the County might impose as a condition of
its permit.
6. “Anchoring Boat at Night without Night Lights” (Log Item 56, Page 65.)
To the extent that this comment refers to the pontoon skiff that has been anchored at times on
the tidelands, the governing rule is the same for both the Coast Guard and Washington State:
WAC 352-60-060, Navigation lights and shapes. Section (11) (e): “A vessel of less than
seven meters (23.0 feet) in length, when at anchor, not in or near a narrow channel,
fairway, anchorage, or where other vessels normally navigate, shall not be required to
exhibit the lights or shape prescribed in (a) and (b) of this subsection.”
U.S. Inland Navigation Rules (33 CFR 83), Rule 30: e) A vessel of less than 7 meters in
length, when at anchor not in or near a narrow channel, fairway or where other vessels
normally navigate, shall not be required to exhibit the lights or shape prescribed in Rule
30(a) and (b).
The pontoon skiff is less than 7 meters in length.
To the extent it refers to the harvest vessel “Princess Feleisha”, there are no further plans to
moor this vessel on the existing BDN project overnight, or to moor it overnight on the proposed project.
It was thought for a time that it would be more fuel and labor efficient to moor this vessel on the project
Log Item 82
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and offload the harvested geoducks via the BDN beach property. It was ultimately determined,
however, that due to the labor and logistics involved with this method it was actually less efficient to
leave the “Princess Feleisha” at the project. So current practice and the plan for the future is to not
moor the “Princess Feleisha” on the project, and also to no longer offload harvested geoducks via the
BDN beach parcel. If it is for some reason moored there overnight, it can certainly be a condition of the
permit that it display nighttime lights in that event.
This will also mean that there should be little further usage of the dinghy stored at the BDN parcel, and
care will be taken such that when it is used it will not be left so as to interfere with the small stream on
that parcel.
This same method of operations is planned for NWS-2013-1268 harvesting. It is not envisioned that
geoducks will be offloaded via Jim Smersh’s property, but will stay on the harvest vessel to be offloaded
directly from it elsewhere.
SECTION E. AESTHETICS (Log Item 56, pages 71-90
1. Critique Of BDN’s Visual Assessment (Page 19)
a.) Scenic Quality. Ms. Showalter attempts to substitute her judgment for that
of the author of the Confluence Environmental study based on her own bias that the area she lives is
clearly not “moderate scenic quality”, apparently primarily because it has water views. But the
standards used by the professional author are from an analytical model that is intended to cover the full
range between unspoiled wilderness (such as the North Cascades) to a strip mall. The Shine Road area,
with its highway running close to the water, its assortment of built up houses along or visible from the
shore, and, yes, Hicks Park with its riprap lined parking lot and concrete boat ramp, is not unspoiled
spectacular wilderness. It warrants precisely the professional visual assessment rating it has been given.
Specifically as to the number of nearby houses that can see the project, Ms. Showalter contends
that there has been some undercounting based on photographic analysis, but her comments appear to
identify perhaps five additional houses with a view of the project. The basic conclusion of the visual
assessment is correct – in this rural area there are only a few houses that will ever have a view of the
project at any time.
b.) View Duration. This unfortunate section of Ms. Showalter’s comment
appears to have been co-authored by Steve Aos, who is contemptuously dismissive of the BDN expert’s
analysis of view duration when in fact those calculations are correct. By contrast, Mr. Aos’s calculations
are totally incompetent.
Mr. Aos’ contends that vertical axis figures on the BDN charts are “nonsensical” since there are
obviously only 720 hours in the month of June, not 2800 . But a simple reading of the Confluence Chart
A and its caption shows Mr. Aos complete lack of understanding. The chart clearly states that it covers
daylight hours during a six year period, from 2012-2017. Daylight in June averages roughly 16 hours.
Thus there are 2,880 June daylight hours during that six year period, exactly as the chart shows. The
chart is entirely accurate as to its major conclusion, that tubes would be visible only about 7% of the
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time in a given year, and at most 16% of the time in June. These calculations are basic elementary
school arithmetic. Mr. Aos would do well to reign in both his puffery about his own qualifications and
his sarcasm about a graph he clearly does not understand.
He is equally critical of the Figure 5 chart, which is also entirely accurate. It’s vertical and
horizontal axes obviously show what percentage of the time the tide is at a particular level – i.e in
January the tide is at approximately +8.7 feet about 1.7% of the time. The graph then shows in basic
graphical analysis format that tides lower than -3.8 feet and higher than +12.2 feet are very, very rare in
all months, and that tides which expose at least some portion of the planned planting area occur
somewhat more frequently in the months of June and July, but even then a portion of the planting area
is exposed only about 14% of the time. Mr. Aos’ condescending analysis of this chart is not only
incorrect but essentially incomprehensible.
His own proposed chart is much more biased and misleading that the ones he so gleefully
criticizes. He first graphs all days during which any portion of the tubes would be visible for even one
minute as a “visible day”. Thus a day when one row of tubes is visible for 5 minutes counts in his world
the same as a day when all of the tubes are visible for several hours. In reality, even during the summer
months a significant portion of the tubes would not be visible on anything even approaching 87% of the
days, but rather a much, much lower percentage. This type of statistical distortion is very easy to
accomplish and all too common when one has a particular bias that is sought to be supported. (See How
to Lie with Statistics, Darrell Huff, W.W. Norton, 1993, one of the most eminently readable books ever
written on this subject, which has been used as a textbook in University of Washington statistics courses
for many years.)
c.) Ms. Showalter’s close-up views of tubes are misleading. (Log Item 56, pages
83-84.) In order to have the close-up views of the proposed project that Ms. Showalter has submitted
from the existing BDN project, one would have to be trespassing on the Smersh tidelands at low tide. A
much more realistic view is that contained in the BDN Visual Assessment. Even assuming that Hicks park
users will be viewing exposed tubes from the park tidelands at low tides, they would be viewing them
from a greater distance, not from a few feet away, assuming they do not trespass on the Smersh
tidelands. The photo submitted by Ms. Showalter appearing at Page E-13 of her comment (Log Item 56,
page 83) demonstrates the difference even 50-100 fee of distance makes. Even at such a modestly
greater distance, the tubes become much less visible.
Please also bear in mind that tubes are present in a planted area for less than 1/3 of the
six year planting cycle, and once they are removed the project is essentially invisible.
Finally, most of the photos Ms. Showalter has submitted showing loose or loosening
tubes, are from six to seven years ago, and none are more recent than over two years ago. As
addressed above, BDN has improved its tube management operations greatly, particularly in the last
year, and will properly manage this project to avoid tube escapement
Log Item 82
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2. Noise and “Incompatible Commercial Activity” (Log Item 56, page 86.)
Please see the section on Noise at Page 18 above. As to the allegation that the BDN project is
“incompatible” with the rural residential area zoning, see Pages 11-12 above, which
demonstrate that agricultural activities such as this project are considered to be entirely
compatible with Rural Residential zoned areas.
SECTION F. ANNOTATED FORMS/”APPLICATION DEFICIENCIES”
1. Annotated DCD Application. (Log Item 56, page 92-94.) This application was
completed on the correct assumption that what is actually being analyzed and reviewed is a tidelands
project, not any change to or improvement of Mr. Smersh’s residence. Tidelands parcels sometimes
have a unique parcel number (e.g. commenter Steve Dittmar has a tidelands parcel 821334072, while
his house is parcel number 821334005) and sometimes do not, depending on ownership and
conveyance history. Mr. Smersh’s tidelands do not have a separate parcel number, so there is no way
to refer to them by a separate parcel number.
No one can seriously contend that upon reviewing the entire permit package there is any
confusion as to what is being proposed and what portion of Mr. Smersh’s property it involves. The
tidelands are of course not served by a sewer or septic system. The “conspiracy theory approach of Ms.
Showalter suggesting that Mr. Smersh is attempting to “hide something” is totally uncalled for. We all
know what we are talking about here - tidelands. Let’s be realistic.
2.“ The application (“JARPA”) is incomplete, inaccurate, and misleading” (Log Item 56,
Pages 95-103). BDN responses are as follows:
Part 4, – “Property Owners top section, all four boxes are left blank” (Page 128) - There are not
“multiple property owners.” There is one property owner, James Smersh. The third box references
Attachment A, which clearly states that it is for use only if there is more than one owner of the subject
property. Ms. Showalter apparently thinks that adjacent property owners should be listed here,
whereas they are listed in Section 5h.
Part 5b. Street Address. – The JARPA asks for the street address, not the legal description, tax
parcel number or any other details. That is exactly what is given. The Project Area for the purposes of
this JARPA is indeed aquatic. The Corps jurisdiction under the Rivers and Harbors Act of 1899 and the
Clean Waters Act does not extend to the upland properties that Ms. Showalter describes.
https://www.nwp.usace.army.mil/missions/regulatory/jurisdiction.aspx The pending Jefferson County
CUP application proceeding describes those parcels in great detail, and Ms. Showalter has had and will
continue to have the opportunity to make her arguments about them to Jefferson County.
Part 5g. - Tax Parcel Numbers. - The tax parcel of the proposed project over which the Corps has
jurisdiction is given here, because that was what was asked for. The issue of the use of the upland
properties Ms. Showalter describes is of course within the jurisdiction of Jefferson County, and is being
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reviewed and considered by the County in this CUP proceeding. Ms. Showalter takes a simple request
for a tax parcel number and turns it into a three page diatribe repeating yet again speculative arguments
that are either not a proper part of this proceeding, have been considered elsewhere, or relate to a
completely separate project, NWP 2017-230-AQ.
Part 5j. – “Incomplete, Inaccurate, and Misleading.” - The JARPA states that the project area is
“aquatic”, and shows that the project area begins at +2 MLLW and extends seaward, being surrounded
on all sides by Squamish harbor waters. Whether the stream Ms. Showalter mentions should have been
referred to here is a matter of opinion. The existence of the stream is obvious and there has been no
effort or intent to conceal that.
But more importantly, as Ms. Showalter well knows the stream is specifically mentioned and
analyzed in the Habitat Management Plan and No Net Loss Report previously submitted to the COE with
the JARPA. At Page 20 that report indicates that “A small stream enters Squamish Harbor near the
project site (>150 feet to the north) and is presumed cutthroat trout habitat (Correa 2003). This small
stream does not support salmon because access to upstream habitat is hindered by (1) the very small
size of the stream, and (2) the steep gradient where the stream flows through shoreline armoring (i.e.,
boulder riprap). The parties can differ on what effects, if any, the project will have on that stream (BDN
contends none), but the argument that it has been “hidden” is disingenuous at best.
Part 5m. – Tideland Use. (Page 135) - As stated above, BDN contends that the property that is
subject to Corps jurisdiction in this proceeding is indeed the tidelands, and that this answer is accurate.
Part 5n. – “This entry can only be characterized as deliberately misleading, in that it omits Hicks
County Public Park.” (Page 136) - Once again, Ms. Showalter attempts to vilify BDN as being
“deliberately misleading.” In point of fact, the majority use of the upland properties adjacent to the
project is single family residential. Hicks Park is primarily used as a boat launching facility, and most of
the year is used for that only infrequently. It is not adjacent to the Project geoduck planting or harvest
boundaries.
Nevertheless, there has most certainly been no “deliberate effort” to conceal the existence of
Hicks Park and its relationship to the project. Addendum M-3 to the SEPA Checklist, which was
submitted to Jefferson County in September of 2020 in connection with BDN’s application, identified
and addressed the park. (Ms. Showalter certainly has a copy of this Addendum)
In her comment to which this annotated JARPA is attached, Ms. Showalter has gone into great
detail as to her position on Hicks Park, and BDN has responded to those contentions in detail. Her
arguments are simply once again repeated here.
Part 5o. – “Incomplete, Inaccurate and Misleading…[description of] the structures (above and
below ground.)” - Ms. Showalter seems to argue that the JARPA is defective because the applicant did
not specifically state the obvious – that Mr. Smersh’s house is on the upland parcel, as anyone can
plainly see. The applicant understood the “property” to be the tidelands on which the Project is to be
located, and considered the question to be asking about structures on or adjacent to those tidelands.
Although the bulkhead and rock jetty are on the beach and not on the tidelands per se, the applicant
thought they should be mentioned as they were effectively part of the shoreline. There is no evidence
that Mr. Smersh’s home has any more effect on the water quality of the adjacent tidelands than does
Ms. Showalter’s own nearby home.
Log Item 82
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Part 8a – Ms. Showalter apparently argues that this Permit process is somehow governed by the
Coalition to Protect Puget Sound v. USACE case. It is only affected indirectly, in that the Corps has now
determined that a Corps Individual Permit is required instead of the NWP 48 approval that was
previously granted for this project. This County proceeding is not in violation of the letter or the spirit of
that Court ruling. In fact, it is exactly the kind of individual evaluation that the Court felt should be done
by the Corps of Engineers, and that is in fact taking place here. It is disingenuous for Ms. Showalter to
contend that the hundreds of pages of exhaustive materials submitted in connection with this
application do not show in detail how BDN’s Project is “designed to avoid and minimize adverse impacts
to the aquatic environment.”
Part 8b – Again, Ms. Showalter alleges bad faith. - The applicant interpreted “impact” as
“negatively impact”. While Ms. Showalter points out that the “help” instructions do suggest that the
existence of an aquatic project by definition “impacts the surrounding waterbody”, she cannot in good
faith argue that the materials submitted by BDN do not acknowledge the overall impact of the project
on the environment, which BDN contends is overall a positive impact. Ms. Showalter can dispute that
conclusion, but it is ridiculous to contend that because of the way item 8b was answered, the entire
application should be rejected.
Part 8c and 8d – Objection that no mitigation plan has been prepared. - This is a technical and
inaccurate objection. In order to be required to prepare a “mitigation plan”, the question requires that
the applicant first admit that there are “adverse impacts of non-wetland waterbodies.” The applicant
contends that its very detailed plan of operations, as set forth in the hundreds of pages submitted in this
application, demonstrates that there are no “adverse impacts of non-wetland waterbodies.”. Ms.
Showalter can dispute that conclusion, but the answer given by the applicant is sufficient and, in the
applicant’s opinion, true.
Part 8e – Objection that no “impact summary” is given. - Applicant fully described its proposed
activities in detail in Section 6. Applicant interpreted Section 8e as requiring a description of only those
“adverse impacts to non-wetland waterbodies” that required a mitigation plan. Since there were no
such activities, this section was left blank. Ms. Showalter cannot seriously argue that she does not know
what activities BDN proposes to conduct on the Project. We should be concentrating on the substance
and merits of this proposal, of which everyone involved has been fully and fairly informed.
3. “Annotated SEPA Checklist.” (Log Item 56, Pages 104-132) BDN responds as follows:
Item 10 - As Ms. Showalter well knows, at the time this Checklist was originally submitted to
Jefferson County in April of 2019, the NWP permit had not been vacated, and even after it was vacated
by the court, BDN has been permitted to continue to operate its current project under it pending
completion of the pending Corps individual permit application. The referenced attachments J-1 (NWP
Permit for NWS-2013-1268 dated 12-19-16), J-2 (NWP Permit for NWS-2013-1268 dated 1-3-17), and J-3
(NWP Permit for NWS-2013-1268 dated 8-22-17) were attached to the SEPA Checklist submitted to
Jefferson County. They are part of the record that is and has been continuously available to Ms.
Showalter and others.
Item 11 – Tube Exposure. - If the Visual Assessment uses 7” of exposed pipe and still finds no
significant visual impact, how can it be a problem that elsewhere a smaller exposed portion is used?
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Item 11 – Dislodged Tubes, “Bad Behavior” – This issues has been explored in great detail
elsewhere. Suffice it to say the BDN continues to contend that virtually all of the dislodged tubes that
Ms. Showalter and others describe have remained on or very near BDN property and have been
accessed by third parties only through intentional and repeated trespassing on BDN tidelands.
Moreover changes over the last two years in BDN operations have shown that it can and will prevent or
recover dislodged tubes properly. Conditions to the County permit can be crafted and enforced to
accomplish this.
Item 11 – Herring Spawn. - Most Washington State herring stocks spawn from February through
early April, and the eggs hatch in about two weeks. (WDFW Forage Fish Information.) All project
activities are prohibited during this period precisely for such reasons. Tube removal takes place usually
beginning in mid-May or later when daylight low tides begin to become more common (except for tubes
dislodged during other times of the year, which are collected at that time.) BDN has not observed
herring spawn on any parts of the current BDN project during periods of project activity, and does not
expect that to happen on the proposed project. There have been no violations by BDN of such
provisions, yet Ms. Showalter demands that this be assumed and sanctions applied based on such
unsupported assumption.
Item 11 – Planting and Harvesting Activity. - Frequency of planting and harvesting has been
addressed in detail above.
Item 11 – Upland access. -The issue of the use of the upland properties 970200001 and 2 has
been addressed above, and the use of the other identified upland parcels is being reviewed and
considered in great detail by the County in this CUP proceeding.
Item B. 1. d. Fill on Smersh Property – This issue has been addressed in detail in the at Pages 9-
11 above.
Item B. 2. “Carbon Release” - See the response to this Carbon Release argument appearing at
Page 20-23 above.
Item B. 3. a Bones Creek – This issue has been addressed in detail at Pages 9-11 above.
Item B. 3. a. 6. Discharge of Waste materials – This is a variation on the “plastics pollution”
argument addressed in detail above. Bear in mind, however, that almost all of these PVC tubes are
recovered, re-used, and rotated around a project. They are not “discharged” into the water. The wildly
inaccurate “61 tons” figure is intentionally misleading – all of the PVC tubes ever owned or used, or that
will ever be owned or used by BDN anywhere are only a small fraction of that figure.
Item B. 3. c. 2. Jim Smersh’s Septic System – Jim Smersh’s septic system is of course within the
purview of the Jefferson County Public Health Department independent of this permit application. If the
County is concerned about potential groundwater pollution from that system, it can inspect and/or
monitor it on the same basis as other area septic systems. There is a strong an argument that the septic
systems of Ms. Showalter and all other Shine Road commenters could collectively cause far more
pollution of Squamish Bay. Does she propose that the County require inspection, examination and
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testing of her own septic system and those of all others nearby as part of a “cumulative impacts
analysis”? This is simply part of the overall effort to harass and attack Jim Smersh because Ms.
Showalter is angered by his proposed use of his property.
Item B. 3. c. 3. Drainage Patterns. - This is yet another speculative spur-of-the-moment
concoction of Ms. Showalter, presented totally without any evidentiary support. All studies of the effect
of geoducks aquaculture, and PVC tubes in particular, have shown no net negative impacts on area
wildlife. See responses above.
Items B. 5. “Animals”– All of the comments here are addressed in more detail above.
Item B. 7. a. 5). “Parking” - The arguments made here simply repeat those addressed by BDN
above. For BDN’s response concerning parking, see page 29. As concerns the stream buffer, see Page
12.
Please bear in mind that there are at least 25 properties that are within 150 feet of the creek
between SR104 and Shine Road, most of which have septic systems and are more intensively used than
the small unimproved Smersh upland parcel. The primary upland property owned by BDN, and on
which parking and storage will occur, is not within 150 feet of the creek.
The real question is what effect does the parking planned for the project at any location have on
the stream, and no actual effects have been shown by Ms. Showalter or anyone else because there are
none.
Item B. 7. b. 1) and 2). “Noise”. - This amateurish attempt to claim that the obvious road noise
of 15,000 daily vehicles, 365 days per year, on SR104 has less effect than a single, heavily muffled
harvest vessel that is active 5% of that time is absurd. Ms. Showalter and other commenters have
claimed elsewhere that the noise effects on the entire Shine Road community are to be considered.
Here, by contrast, she asks that the obvious and documented road noise be discounted because of the
unsupported claim of some type of topographic noise attenuation at one small location – Hicks Park.
That topographical attenuation would of course have little or no effect on users of the Hicks Park
tidelands, which tideland use she focuses on elsewhere when to her perceived advantage. Specific
studies have been done on geoduck harvest vessel noise, which is established at less than 60 dBa, in full
compliance with all applicable noise regulations. Burley Lagoon Geoduck Farm Noise Assessment,
Ramboll US Corporation, March 27, 2018.
Particularly egregious is Ms. Showalter’s ignorant assertion that there is “some kind of boat-
underwater communication loudspeaker system.” OSHA Regulations (1910.422(c)(2)) require that all
divers have an operational, two-way personal communication system to obtain emergency assistance.
This individual electronic communication is directly with the diver via and within the dive helmet, not
some kind of “underwater loudspeaker system.”
Once again the Marbled Murrelet, which Ms. Showalter admits has not been seen in the area for
over six years, is proposed as a basis for denying the application. For response to this allegation, see
above at Pages 24-26.
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BDN Response to Showalter Smersh Comment
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Item B. 7. b. 3) “Cumulative Impacts” - Once again, the assertion is made that the Court in the
Coalition case found negative cumulative impacts from geoduck aquaculture. This deceptive statement
is false. See response to “Section G, CUMULATIVE EFFECTS” appearing below.
Item B. 8. a. - These allegations have been addressed in detail above.
Item B.10 “Aesthetics.” – See Response to “Section E Aesthetics” above.
As to the “huge piles of PVC tubes”, these tubes would be stored only on the upland parcel
owned by BDN that is distant from the project and is primarily viewed by Robert Garten, who sold the
property to BDN for that stated purpose. Of the few other nearby parcels that might be able to see the
infrequent activity on that upland property, none have objected to the proposed project.
Item B.11 “Light and Glare” – On the one hand, Ms. Showalter complains earlier, and again
here, that the failure of the BDN vessel to display night lights is dangerous. Then in the same breath she
seems to suggest that these small and rare vessel lights would cause glare problems. This glare
argument is ridiculous, but in any event it has been stated above that BDN does not plan to moor its
harvest vessel on the proposed project at night. If that were to change and vessel lights were to
properly be required, this would be done by BDN, and these small lights would cause no glare issues,
and certainly less than the intensive and constant lights from nearby residences and passing vehicles.
Item B.12 “Recreation” (Page 176) – These repetitive arguments about Hicks park are addressed
in detail above.
Item 14.e. – “Water or Rail Transportation” - BDN correctly interpreted this question as asking
1) whether the proposed project would use or be dependent upon any type of public transportation -
the correct answer is no, and 2) whether the project would affect any such public transportation. There
are no marine (e.g. ferries) or land public transportation function that will be in any way impacted by the
proposed project. The comments here about claimed effects on and dangers to recreational activities
are addressed above.
SECTION G CUMULATIVE EFFECTS. (Log Item 56, Pages 133-136)
Ms. Showalter and others continually fall back on the case of The Coalition to Protect Puget
Sound Habitat vs. U.S. Army Corps of Engineers, 417 F.Supp.3d 1354, United States District Court, W.D.
Washington, at Seattle (2019) as support for their assertion that the court there somehow concluded
that geoduck aquaculture in general is environmentally damaging. That case makes no such finding.
Judge Lasnik specifically noted in his June 11, 2020 order that “the environmental impacts of
commercial shellfish aquaculture operations, individually and cumulatively, are largely unknown.”
The only conclusion actually reached by the court was that “the Court finds that there is
insufficient evidence in the record” to support the Corp’s issuance of a blanket nationwide permit for all
aquaculture projects subject to only to general conditions and limitations. The court noted that:
“The Court does not intend to suggest, and is not suggesting, that the general terms and
conditions imposed on a nationwide, regional, or state permit cannot be relevant to and
supportive of a finding of minimal impacts. They are simply too general to be the
Log Item 82
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BDN Response to Showalter Smersh Comment
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primary “data” on which the agency relies when evaluating the impacts of the permitted
activities
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 supplied.)
That is precisely what is being done via this application. BDN contends that when available evidence is
actually applied to this specific project as to “…species grown, the cultivation techniques/gear used, and
the specific location” the project is shown to have no significant negative effects on the area
environment, either individually or cumulatively with other nearby projects.
1. The BDN Cumulative Effects Analysis is Proper and Accurate. Before the Coalition
case vacated the NWP 48 permit held by BDN for this project, BDN had prepared a Cumulative Effects
Analysis because, of course, Jefferson County was requiring such a study as a condition of granting a
Conditional Use Permit. BDN retained Confluence Environmental Company to prepare such a study,
which was completed in June of 2018. In the course of the processing of the Jefferson County CUP
application, that study has been amended and updated in October 2019 in accordance with a request
from Jefferson County for additional cumulative impact information. This study and addendum
comprise nearly 100 pages of analysis.
a.) Claims regarding the inclusion of all nearby projects. Ms. Showalter makes
several technical objections to this report. First, she suggests that because the request to the Corps for
information on nearby aquaculture projects asked about all such projects within five linear shoreline
miles of the proposed project, it did not include all nearby projects. This is not the case. The response
from the Corps included all current and pending projects up to 21 miles away, as per the chart included
in the addendum. There are, to the best of BDN’s knowledge, no other existing or proposed geoduck
aquaculture projects within that radius. The bulk of approved or pending projects are far to the south of
BDN’s proposed project. If Ms. Showalter is aware of any omitted projects, she should so state.
Moreover, if there are any omitted projects within a five mile radius, these should be readily available to
the Corps from its own records, and can be presented to BDN for addition to the analysis if necessary.
However, the listing of projects should be considered as complete until evidence is provided to the
contrary.
b.) Claims about the Coalition case regarding cumulative effects. Once again,
Ms. Showalter attempts to twist the ruling in that case into a determination that there must be
significant negative cumulative effects in every geoduck aquaculture project, despite specific studies
indicating otherwise. The language she quotes from Judge Lasnik says no such thing. What is says is
that simply re-issuing a new nationwide permit without undertaking individualized study of the
cumulative impacts of each proposed project “would have foreseeable environmental impacts” Note
the absence of the term “negative”, since individual studies could show net positive impact, as is the
case here. Even if that decision is interpreted as requiring a cumulative impacts study in every individual
aquaculture permit application of any kind, BDN has done precisely that.
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BDN Response to Showalter Smersh Comment
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c.) Substituting Ms. Showalter’s own vague methodology for that of NEPA and
Jefferson County is improper. In discussing possible cumulative impacts of aquaculture, Judge Lasnik
frequently refers to the standards set out in the National Environmental Policy Act (“NEPA”). These
standards require the consideration of both direct impacts "caused by the action and occur[ing] at the
same time and place" and of 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 to potentially be considered 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).
Like most other state and county agencies, when Jefferson County adopted its cumulative
impacts provisions in its Shoreline Management Plan (SMP), it incorporated these same standards. The
SMP defines “Cumulative impacts” or “cumulative effects” as “the combined impacts of a proposed
development action along with past impacts and impacts of reasonably foreseeable future development
actions. (JCC 18.25.100(3)(aa)). “Reasonably foreseeable” is defined as “predictable by an average
person based on existing conditions, anticipated build-out, and approved/pending permits.” (JCC
18.25.100(18)(d)) these are the standards incorporated into and expressly referenced in the BDN
Cumulative Impacts Study.
Ms. Showalter suggests instead that some type of vaguely more “holistic” standards should be
applied, without suggesting exactly how that analysis would differ from that mandated by NEPA and the
Jefferson County SMP. Not surprisingly, Ms. Showalter suggest that if her vague “holistic” standards are
applied, they will show significant negative cumulative effects because there must by definition be
negative primary effects from geoduck aquaculture. She then recycles the same unsupported and
disproven allegations about such things as claimed plastics pollution from Geoduck PVC tubing.
But the fact remains that every specific study and analysis of this particular site shows no
significant negative environmental impacts. So, yes, if a project has no significant negative primary
environmental impacts, it should have no significant secondary negative environmental impacts. Ms.
Showalter may not like that tautology, but she cannot avoid it.
SECTION H ENVIRONMENTAL IMPACT STATEMENT
Ms. Showalter’s objective, openly stated to Brad Nelson, is to put BDN out of business by any
means possible. The best way to do that is to drag out this permitting process for as long as possible
and to make it as expensive as possible. Forcing a full Environmental Impact Statement furthers that
objective.
However, a full EIS is only required when there is a threshold determination that the proposed
project will have “a probable, significant adverse impact on the environment.” (emphasis supplied
throughout.) A “significant” impact means a “reasonable likelihood” exists that the proposal will have
“more than a moderate adverse impact on environmental quality.” WAC 197-11-794, Wild Fish
Conservancy v. Washington Department of Fish and Wildlife, 198 Wash.2d 846 (2022).
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BDN Response to Showalter Smersh Comment
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As the very recent Wild Fish Conservancy v. WDFW case holds, “[a]n agency does not have to
consider every conceivable environmental impact when making its threshold SEPA determination.” PT
Air Watchers, 179 Wash.2d at 932, 319 P.3d 23; WAC 197-11-060(4)(a) (SEPA requires consideration of
environmental impacts, “with attention to impacts that are likely, not merely speculative.”
To make a threshold determination, an agency must determine whether the proposal will have a
probable, significant adverse impact on the environment. A “significant” impact means a “reasonable
likelihood” exists that the proposal will have “more than a moderate adverse impact on environmental
quality.” WAC 197-11-794.
Almost all of Ms. Showalter’s arguments, and indeed those of the other commenters on this
application, are based wholly on speculation, and not on any hard evidence specific to this proposed
project. It cannot and should not simply be assumed that this project will have such a “probable,
significant adverse impact on the environment”so as to justify destroying BDN’s business, without real
proof of environmental damage, not just assumptions and speculation.lputting
CONCLUSION
Ms. Showalter repeats the same theme pressed by her and others previously in other contexts:
that various BDN acts or omissions that occurred at least two years ago, and often many more years ago
on another aquaculture project should automatically disqualify BDN from being granted a permit on this
project.
A new twist is added here, however, by attacking James Smersh, the project tidelands owner,
via inaccurate characterizations of interactions 19 years ago between Mr. Smersh and Jefferson County
involving the small stream running through his property. This issue was completely and properly
resolved by Mr. Smersh in cooperation with the county, and there have been no problems since then.
Yet Ms. Showalter contends that this event show that Mr. Smersh “cannot be trusted to comply with
significant and mandatory permit conditions.” Actually, it shows precisely the opposite – that he did
fully comply with county requirements concerning the use and development of his property.
But the proposition that BDN has also demonstrated that it “cannot be trusted to comply with
significant and mandatory permit conditions” is also not true. BDN has always had a good working
relationship with local Corps personnel on its existing project, and whenever a specific suggestion or
requirement was made by the Corps, it has been followed willingly by BDN. The same will be true of any
permit conditions imposed by the County.
Geoduck aquaculture is a relatively recent and continually evolving industry, and both the
responsible governmental agencies and the industry have been constantly striving to find the proper
balance between private property rights, the laws and regulations that establish the industry as
preferred and beneficial, and the laws and regulations protecting the public and the environment. BDN
and Jim Smersh desire to continue working with the Jefferson County, and with their Squamish Bay
neighbors, to achieve this proper improve this balance.
Log Item 82
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BDN Response to Showalter Smersh Comment
4/8/22 Page - 48
The real problem is not with Jim Smersh or BDN. It is with Ms. Showalter’s unreasonable
interpretations of the law and twisting of the facts so as to achieve her sole overriding objective -the
total elimination of all aquaculture in Squamish Bay. She incorrectly interprets the “public trust”
doctrine to give her the absolute ability to trespass on private tidelands whenever and wherever she
pleases, and to control the use of all Squamish Bay private tidelands in whatever way she wishes. When
she looks out the windows of her home high on a bluff overlooking the bay, she wants only to see “vast
sandy walkways”, hear total silence, and nothing else.
The inconvenient truth is that geoduck aquaculture is on the whole clearly environmentally
beneficial. It does not destroy or inhibit eelgrass or any area wildlife. Shellfish aquaculture is one of the
few industries that grows and enhances native, non-invasive species that are beneficial to the water
quality and the environment of the state’s shorelines, all done without any chemical inputs, and with no
problems of release or escapement of non-native species. Few other activities, including recreational
activities, can make that claim.
BDN, LLC
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Message of Brad Nelson – Page - 1
Brad Nelson Message to the Squamish Bay Community
January, 2022
To our neighbors and other interested parties,
My name is Brad Nelson. I am the owner of my family company, BDN LLC, which I operate
with my son, Damon. There have been a lot of comments made about me and my company in
connection with BDN’s existing geoduck farm, and the efforts of Jim Smersh and I to get a new
farm approved on his tidelands. I have been called everything from a “robber-baron” to
“dastardly.” I’d like to give you a more accurate picture of how I and my son strive to operate
operate BDN in an environmentally sound way. Maybe the best way to start is to tell a bit of my
own story.
I began scuba diving in 1974 at 17 years old. After graduating from High school I attended a
local community college for 2 years while studying marine biology and oceanography. In 1977 I
began commercial diving in the wild geoduck fishery operated by the Washington Department of
Natural Resources. I also dove in the Sea Urchin and Sea Cucumber dive fisheries.
The way these fisheries worked, bidders would buy the rights to harvest geoducks from state-
owned tidelands, and would pay the State a substantial amount of money for these rights. After
some time I could see that these fisheries were not sustainable and the system was not working
well. The State was rapidly depleting its own geoduck subtidal lands by repeatedly leasing them
to private harvesters without any effective way of replanting or replacing these geoducks.
After years of watching the public geoduck resource being depleted and over fished due to poor
management, I moved for a time to SE Alaska, where I worked in the state licensed shellfish
fishery. I also participated in the wild herring roe dive fishery in Cordova Bay up until the
Exxon Valdez disaster. All told, I have more than 20 thousand hours of direct involvement in
living, breathing, working, observing and studying our unique underwater environment
throughout Puget Sound, Hood Canal, the Straights of Juan de Fuca, the San Juan islands and
Alaska.
About 20 years ago I became convinced that the environmentally responsible future of the
shellfish industry was in properly managed aquaculture farms. Aquaculture geoducks could be
managed so as not to deplete the resource further. So I began to work with some of the
Washington aquaculture pioneers to learn how to properly manage farmed geoducks. I have
learned from the best operators, and of course have also witnessed some of the worst.
My First Geoduck Projects
I first acquired an existing beach farm in 2013. The first thing I did was to contact and
communicate with most of the immediate neighbors to describe what I intended to do, and to
give my phone number so as to address any concerns they might have.
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Message of Brad Nelson – Page - 2
Also in June of 2013, I planted my first acre of geoduck, about 80 thousand seed in 20,000 PVC
tubes (4 seeds to a tube.) In June of 2014, I planted an additional 1.75 acres. Altogether I planted
about 230 thousand seed on these two parcels. Starting in June of 2013 until December 2014, I
personally performed regular beach inspections to collect any dislodged tubes. I did these
inspection at pretty much every single low tide.
During that first year and a half of beach inspections, not a single tube was dislodged due to
storm, wind, or wave action. For the most part the inspections were quite boring. Especially in
the winter months when the low tides occur from 11:00 pm to 2:00 am in the morning. In
December 2014 I became very ill and bed ridden. I wasn’t too worried about missing an
inspection due to the fact that all previous inspections were 100% uneventful. Then I got a call
from the Army Corp that a substantial tube escapement had been reported. Still sick in bed, I
forced myself to get up and go assess the situation. What I saw was a shocking to me. How did
this happen? Since I had not had any similar problems in the past, it took a bit of time to round
up enough bags or crew to get the tubes recovered. It took until the next day to recover all the
tubes, but every tube I could find on the beach was collected. I then set out to determine why
and how this was happening.
How Did My Tubes become Dislodged?
All of the dislodged tubes in December of 2014 originated from my 2013 plant. No tubes were
being dislodged from the 2014 planted area. Upon investigating, I found that wherever a tube
was being pushed up and dislodged, all 4 seed planted in those tubes had survived. I also
observed that the tubes that were still secure to the beach and were not being pushed up only had
anywhere from 0 to 3 surviving seed. So where four juvenile geoducks were burrowing down in
the area of their planting tube, they were collectively pushing the tubes out of the ground as they
grew.
In a way this was good news – it turns out the Squamish Bay area is very productive for native
geoducks, but in a way it was too productive. It is industry practice to put 4 seed into each 4 inch
tube. Generally the industry hopes to achieve a 50% survival rate in other areas, but many times
it turns out to be more like 25 to 35%. With only one or two surviving juvenile geoducks from a
tube, the tube does not get pushed out of the ground before all of the tubes are pulled up at the
end of year two.
I should also note that geoducks are most active in the spring, summer and fall months. But they
also become active for a short time in the winter for about 7 to 14 days, usually December or
January, during which time they purge. Normally with only 1 to 3 surviving seed, they are not
yet strong enough to push a tube out at only 1.5 to 2 years old.
After the December 2014 event, it was clear that we need to become more proactive as tubes
were being pushed out. We set up regular beach patrols with 2 people ready with bags to
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Message of Brad Nelson – Page - 3
recover any and all dislodged tubes. Mostly these patrols occur at night, so you don’t see these
crews much of the time, but they are there. From Jan 2015 until May 2015 displaced tubes were
pretty much consistent at a moderate level. Most were retrieved on sight, but still a few were
escaping from the immediate planted area. Any tubes that did escape were retrieved in a timely
manner. In May of 2015 we removed the tubes from the 2013 planting, because the geoducks
were now deep enough to survive on their own.
From the lessons learned from the 2013 plant, it was now time to plan for similar challenges
coming with the 2014 plant. We became even more proactive. In addition to the beach cleanup
patrols, if a tube looked like it was in the process of being pushed out, we pulled it before it
became dislodged. This helped minimize escapement tremendously. But yet, some still did
escape. I would like to point out that 99% of the escaped tubes from the immediate planted area
have come to rest on property that I either own or lease for about 600 feet to the west of the 2014
planting. Any escapement beyond that point is extremely rare. And again, our beach crew
retrieves nearly every one.
On a normal beach maintenance day in July of 2015, I saw my neighbor Steve come down to the
beach in a dive suit and snorkel gear. I thought that’s pretty cool, I didn’t know he liked to
snorkel. When he was finished, he walked right past me. I asked him if he had seen anything
interesting, but he did not reply. Maybe he didn’t hear me.
A few days later, I received a notice from the Army Corp, including pictures, informing me that
there were dislodged tubes in deeper water below the low tide line. I had no idea that tubes
would go down there, and this was the first time I became aware of this. In all my previous
experience I thought that dislodged tubes had been washed into shallower water and down the
beach to the west. In order to behave responsibly, we immediately began deeper water diving
tube recovery surveys and did locate and recover quite a few dislodged tubes. Since that time we
schedule no less than 4 annual deeper water dive missions to recover such tubes, even though the
Army Corp only requested one per year.
We’ve also learned that even after we remove almost all of the tubes 24 months after planting,
there are still some remaining tubes that are beneath the surface and not visible. Not very many,
but some. Eventually, even one mature geoduck can push out such a buried tube, so these get
dislodged now and then, and wind up on our beach where we regularly collect them. If we patrol
the beach at night we may miss a few, but we will eventually get them all, either on our beach
patrols or through dive collection. It’s just not true that these tubes are left to degrade in the
water or elsewhere. A few may not be recovered, but only a few because they are valuable to us.
From all of this we have learned that we need to be especially vigilant during the period from 19-
24 months after a planting, since that is when the most tubes are pushed out. I continue to
believe they are not dislodged by storms or wave action. We now know that we need to continue
to patrol the beaches even beyond 24 months after planting, in order to recover dislodged
formerly buried tubes. We now have a permanent on-site beach patrol manager living across the
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Message of Brad Nelson – Page - 4
street from the project who visually views the beach at least 5-6 times per month, and more
frequently during periods of more frequent tube dislodging. We report these patrols in writing to
the Corps, and in the quarter ending 12/31/21 a total of 38 tubes were pulled from our property
because they were being pushed up, and 4 dislodged tubes were recovered.
So we genuinely believe our tube monitoring has greatly improved, and we are constantly
refining our practices to be completely responsible and responsive. We want to be good
neighbors.
Specific Concerns and Complaints
Of the relatively few people who have registered a complaint or concern, I have only met 1 of
you, Marilyn Showalter. I cordially invite any concerned neighbor to meet with me, and maybe
take an invited tour of the farm. Perhaps I can help you to understand the real benefits of
shellfish aquaculture, and to help offset some of the incorrect claims that are being made about
our operations. I’d like to address some specific issues that have been raised.
1) Tubes. The number one concern expressed by residents seems to be dislodged tubes. The
picture painted is that hundreds of tubes are constantly being carried off of our property to other
locations. This just really isn’t the case.
Let me begin by describing the actual situation on the ground at my current farm. I own three
parcels of land running east to west, and I lease unplanted property that extends 500 feet to the
west of these plantings. I do this because the currents and winds in the area go from east to west,
and anything that moves off of my planted areas tends to go onto my leased area, where I can
retrieve it.
It’s important to note that the areas I have planted or leased are private property, not public
property. As with all tidelands owners, the law in Washington would allow me to prohibit
anyone from walking on “my” beaches at low tide, while at high tide the public does have the
right to use the water above my land and everyone else’s. This seems to be a fact that is lost on
many residents. They seem to feel that my owned or leased property belongs to them, and that
they should be able to control and use it as if they owned it. But I have never tried to exclude
beach walkers from my property – they don’t really do any harm and I want to be a good
neighbor and part of the community.
So whenever tubes are dislodged on my farm, they tend to stay on my property, or stay in the
deeper water below my property. With very rare exceptions they do not wash up on anyone
else’s property. Some dislodged tubes may stay on my beach for several days while my crews
wait for low tides to collect them, but in the end I collect and remove virtually all dislodged tubes
if given the chance, either by beach patrols or through dive surveys of the deeper waters to the
south of my property. These tubes are valuable to me and I do not want to lose them.
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Message of Brad Nelson – Page - 5
So, for example, when Sue Corbett claims that a photo she has submitted shows lots of loose
tubes “on the beach”, that photo appears to me to show tubes on my own property that are
awaiting collection. When beach walkers trespass on my property and then collect dislodged
tubes to be presented as evidence of my “poor management”, this is just not correct. If they
simply left the tubes for a few days, they would typically be picked up by my crews. Moreover,
if trespassers toss the tubes up into the weeds on my property, they become harder to find and to
keep track of. And of course all they have to do is call me or my beach manager and tell us
about these dislodged tubes and we will come and get them. My contact number is 253-377-
3353, and my beach manager’s contact number is 253-375-9595.
I would also like to point out that some tube escapement is not a violation of any Army Corp
permit condition. Failing to retrieve them in a timely manner is. And we constantly strive to do
just that. I hope I have convinced you that we are recovering almost all the tubes on the project,
but we realize that even a 99% recovery rate is not a proper goal. We are trying to recover every
single dislodged tube. As I said above, loose tubes are not discarded debris. They are very
valuable farming equipment, and I will spare no expense to retrieve every single one.
2) Claims that I fail to follow the laws or rules. A number of people make claims that I have
“repeatedly” shown that I intentionally ignore laws and rules, that I have “not complied with
important environmental requirements,” that I engage in “continual flouting/ignoring of
regulations” and that I have an “extremely bad record” Many of these comments seem to be
repeating the things they have been told by others, without really looking into what has actually
happened.
Please remember that geoduck aquaculture is a relatively new activity. It has developed as a
sustainable alternative to the depletion of the wild geoduck populations. Many, if not most of the
regulations and laws controlling it are relatively new and constantly changing. The shellfish
industry is one of the most regulated businesses on the planet. We are regulated by DNR,
WDFW, Dept. of Health, NOAA, Dept. of Ecology, OSHA, the Coast Guard, Army Corps and
perhaps soon Jefferson County. Adhering to regulations is what we try very hard to do. It is a
challenge to keep up with everything, but please be assured we are doing our very best to comply
fully.
A claimed example of our “extremely bad record” that has been cited by several people is the
event in February of 2021 in which harvesting took place over a two week period for about 15
hours total during a time when the area was closed to harvest activity. I was aware of the
applicable regulations, which are very complex and had been in place for only a few years, but at
the time I had taken my usual annual vacation and left my son Damon to supervise harvesting in
my absence. I thought he understood these regulations, but when I received a letter from the
Corps telling me he had been harvesting during closed periods, I immediately contacted him. He
explained that he did not understand the applicable Conservation Measures to completely
prohibited all harvesting between February 1st and April 30th, but rather that harvesting beyond
15 feet from the tideline at a particular time was not prohibited so long as it did not produce
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Message of Brad Nelson – Page - 6
substantial turbidity within the shoreward 15 foot area. He thought that his harvesting activities
were both beyond the 15 foot limit and did not create any turbidity within the prohibited area
such that his harvest activities on those dates were permitted.
I immediately informed him that this was not the Corp’s interpretation, which is that the
Conservation Measures do indeed completely prohibit all harvesting between February 1st and
April 30th. He assured me that no further harvesting would occur on the tidelands until after
April 30th, and we have complied fully from then on. We worked closely with the Corps to
further enhance our beach patrol reporting so that the Corp’s can be confident we are complying
with all harvest regulations. This is the only formal notice of violation we have received from
the Corps.
We are in constant communication with the Army Corps, and other agencies as appropriate,
about our activities. In the last year there have been no further problems with any rules or
regulations concerning our activities. We want to do things correctly and we try very hard to do
so. We believe we have a good relationship with all of these agencies. We don’t believe we have
an extremely bad record, or even a bad record at all.
3) Noise. Our family harvest boat, the Princess Feliesha is one of the quietest harvest vessels in
the industry. Commissioned in 1977, it has been working steadily for over 40 years. I’ve never
received a complaint about noise. If fact, 2 of the closest neighbors of the current BDN farm
report zero noise during harvest operations. We intend to keep noise to a minimum.
4) Our Skiff. Yes at times we temporarily anchor a small work skiff on our beach. I believe this
is permitted, just as many of you pull your own watercraft up on your own beach. In the center
of our beach there is a piece of iron that protrudes 6 inches above the sand. I don’t know what it
is, and I didn’t put it there, but it makes for a great anchor system. During one low tide, with
some substantial wave action hitting the moored skiff, the aft port pontoon struck the iron and
became punctured. The skiff’s pontoons are designed with many watertight compartments, so
the boat is essentially unsinkable. As soon as the water calmed, we brought it to shore and made
the necessary temporary repair. It was then hauled out and taken to a shop where a permanent
repair was done. At no time was it at risk of sinking, there was no oil or gas spill, and there was
no “debris strewn along a 1/2 mile of beach.” If there was a “dive tank” on the beach it was not
ours. Other than one geoduck cage/milk crate on the beach near the boat, there was nothing on
the boat to be strewn on the beach.
5) The Oct.14, 2016 letter from the Corps of Engineers. This was in connection with my
application for Corps approval of my proposed project under the Corps’ Nationwide Permit 48,
which is the one that was later vacated by the Federal Court, hence we have now filed this
application for an Individual Permit. In response to the Corps’ concerns in that letter about gear
loss from Jim Smersh’s beach due to high winds, I identified an area of the proposed project that
had the most exposed location with the softest sand, and imbedded 100 tubes as a test, without
geoduck seed in them. Unfortunately, the following spring, the Army Corps notified me of a
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complaint about these tubes and I was instructed to remove them. If the person who was
complaining had just talked to me first, I could have explained to them what I was doing, but
they didn’t. I am happy to report that all 100 tubes were removed from their exact location. As I
had expected, none had been dislodged because it is the growing geoducks that dislodge the
tubes, not storms or wind.
6) Claims that my current farm is “poorly tended”. Since 2020 I have had no reports of
dislodged tubes, and I hope by now I have shown how we are trying our best to tend our projects
conscientiously.
7) A Complaint that “Shine road is frequently Blocked with vehicles.” This one is a mystery to
me. I have never seen or heard of traffic on Shine Road being blocked by any of the few
vehicles connected with my operations. If there are specific instances where this is documented
as having happened, just tell me. The plan I am proposing for my new project is specifically
designed such that this would never happen.
8) Complaints that I have “cut swaths through the eelgrass.” This is simply not true. The rules
that apply to our operations do not absolutely prohibit us from ever entering areas with eelgrass –
they only require that we don’t plant or harvest in those areas, that we minimize any contact with
eelgrass, and that we don’t damage any eelgrass beds. Our beach harvesting activities as
described above do not damage any eelgrass. I wish I could say the same for the members of the
public digging for clams in the area of Hicks Park. They routinely dig intensively in areas of
eelgrass, but there seems to be no concern about that.
The Puget Sound Marine Environment
The one thing I believe we all have in common is we all want a healthy marine environment with
clean water. None more than me and my family. Our lives and livelihood depend on it, now and
in the future, including generations to come.
Yes there are also too many threatened and endangered species. But is this because of shellfish
aquaculture? I believe the answer is no.
As I’m sure you already know, the tide moves in and out about twice a day, But what you may
not realize is that it’s mostly the same seawater that just moves back and forth. In and out. It
takes many years for the sound, including Hood Canal to totally purge with new ocean water.
To find the real threat to our marine ecosystem, we must first look in the mirror. Do you use
herbicides in your gardens? Do you fertilize your grass with nitrates? Does your car leak oil?
Does the soap you use contain phosphates? Do you and your neighbors frequently have your
Septic systems checked and tested? How about new construction causing silt to fill the streams
and rivers where salmon spawning actually occurs. All of these things damage the marine
environment. Everything you do eventually filters to the Bay, by rivers, streams, and storm
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drains. We all live in the Puget Sound water basin, which is basically a big bathtub. We need a
way to clean up all of the contaminants that people create.
You need look no further than New York, Virginia, and other areas on the highly populated east
coast, and closer to home at Hoodsport in lower Hood Canal, for evidence that shellfish, and
properly repaired and maintained septic systems, go a long way to preserve and in many cases
repair water quality in polluted bays and inlets. The actual data shows that our native geoducks
clean and improve the water without harming biodiversity. We actually need more geoduck
aquaculture, not less.
The Smersh Project
Our neighbor Jim Smersh has for many years been a hard working contractor specializing in
remodels. He suffered a mild stroke a few years back. His lifelong dream has been to retire in his
beautiful beach side house, and supplement his retirement by operating a shellfish farm on the
beach that he owns. In 2013 he contacted me on my beach and asked if I would help him to
achieve his dream to create such a shellfish farm. Of course I agreed. To those of you that have
never met him, you should. He’s a great guy.
I have learned many lessons since I first started operating my current farm. I have tried to
become super proactive in regards to tube escapement. I agree with everyone that any tube
escapement into Hicks Park is 100% unacceptable. How will this be accomplished?
1. We will only put 3 seed per tube, instead of the industry standard 4.
2. Jim Smersh will be a full time resident on site manager who you can regularly
communicate with.
3. We are developing a visually unobtrusive and environmentally sound low barrier
system to prevent tubes moving onto the park.
4. And to put my money where my mouth is, we will offer a $5 reward for any tube
recovered in or on Hicks Park. Your kids are gonna love that, if they can catch some
before we do.
And as a benefit to Hicks Park, I would also request as a permit condition, that BDN enhance the
park beach with clams, geoducks, and oysters. Similar to what the State does with many of the
State parks. This would benefit all of the peaceful clammers, and perhaps keep them from digging
in the eelgrass. (see attached pics)
In Conclusion
I am confident our aquaculture activities actually improve the marine environment in Squamish
Bay. Aquaculture is not only permitted on Jim Smersh’s tidelands, but it is a preferred usage of
them. I know that many residents would prefer to prohibit any commercial use of any tidelands
so that they can look out their window every day and see nothing but “vast sandy walkways.”
But it is no fairer to Jim Smersh to prohibit the proper and environmentally sound use of his own
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land than it is for Jim to try to prevent you from using your own property in properly permitted
ways. He might prefer that your property be kept as “unspoiled wilderness”, but that is not fair
to you as the property owner. Everyone should be able to use their property as they see fit, so
long as this is done properly and responsibly.
In the end I sincerely believe that if all aquaculture activities are stopped, as some propose, Puget
Sound will actually be worse off, with the Health Dept. condemning even more beaches to
clamming. Thousands of citizens depend on properly managed and environmentally sound
shellfish aquaculture for their livelihood. If we work together, not against each other, we can
both promote the health of Puget Sound and the aquaculture industry in an environmentally
sound way.
Again, I invite anyone to meet with me personally to discuss any and all issues, and perhaps take
a scheduled tour of our farm to learn more.
Brad Nelson
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Eelgrass in Squamish Bay, Nelson – Page - 1
EELGRASS IN SQUAMISH BAY
Statement of Brad Nelson
NWS-2017-230 AQ
NWS-2013-1268 AQ
January 30, 2022
About Native And Invasive Eelgrass
There has been much discussion about eelgrass in Squamish Bay, and the claimed effects of
geoduck aquaculture on that eelgrass. I’d like to summarize my own experience in that regard,
all gained through direct observation.
I think everyone acknowledges that generally a dense eelgrass bed of native Zostera Marina
runs east and west along Squamish Bay, from the hood canal bridge to near the incoming river.
This eelgrass bed exists from about the -1 to -2 seawater elevation down to about the -12 ft
elevation. If you could see it all, it would be about 60 to 120 feet wide depending on beach
contour. At the lowest tides in the summer, you can only see about 12 to 20 feet of it. This is the
natural environment for eelgrass in Squamish Bay. Typically, directly below the eelgrass are
kelp beds. This may be why the eelgrass doesn’t go deeper. Probably a little rocky, which kelp
needs to attach. Below the kelp beds is sand starting at about 30 feet deep.
My first introduction to Squamish Bay was in 2011 when a company called Mocean Shellfish
contacted me to help harvest and market the product from its existing geoduck aquaculture
project located at about 600 Shine Road. What I noticed at the time, besides that the geoducks
grown by Mocean were beautiful white #1 quality geoducks, was that above the natural eel grass
delineation level the beaches were totally clear of any vegetation with the exception of some
sparse Japanese Eelgrass (Zostera Japonica) at the higher levels on the nearby beaches. (There
are two common varities of eelgrass in the bay, one called “Native Eelgrass” (Zostera Marina)
and the other “Japanese Eelgrass” (Zostera Japonica) The Native Eelgrass is protected, while
the Japanese eelgrass is considered an unwelcome invasive species.)
In the summer of 2012, we actually began to harvest the Mocean beach. At that time I noticed
the Japonica was actually increasing in density and expanding lower onto the beaches. I also
noticed Japonica becoming intermixed with the Marina at the higher levels where the Marina
grew.
I wound up purchasing the tidelands from Mocean, along with some other tidelands to the west,
and at the time of my first plantings of new geoduck seed in this area in 2013 the main body of
these beaches was still clear of any vegetation. By the time I planted in 2014, the former Mocean
parcel was being invaded by more Japonica covering most of the beach.
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By 2015 we were seeing some native Marina beginning to take hold in the planted areas on all
of these parcels where the invasive Japonica was expanding. Not much Marina, but a few shoots
here and there, along with a few very small patches.
The thick Marina beds that exist in the lower minus tide elevations cannot exist at higher levels
without some help. The help is coming from the invasive Japonica that is tending to stabilize the
beach enough that some Marina can remain secure at these higher elevations enough to survive
the winter storms. In addition to the Japonica, I have observed that the addition of our tubes also
contributes to stabilizing the beach even more, resulting in more Marina survival outside of its
normal subtidal areas.
The Smersh beach that I am seeking to develop into a geoduck aquaculture project is located
further to the east, at about 1200 Shine Road, This property is currently essentially devoid of
any Japonica and therefore no Marina is taking hold outside of its natural area.
The Marina eelgrass bed in the Squamish Bay area is very strong and healthy. There is concern
by a few folks that the Marina bed is receding. I assure you this in not the case. It is absolutely
normal for the Marina to expand and recede at its higher subtidal beach elevations. It naturally
expands when conditions allow. And that native Marina can also be totally dislodged and
destroyed due to adverse winter storms and wave action that can tear up the beach’s top 2 to 3
inches of sand. I have personally seen this very often on my farm to the west of the Smersh
beach. It is always after heavy weather conditions during a low tide event. I think it’s safe to
assume the same is occurring on the Smersh beach along with all the rest of the Squamish Bay
beaches. I’m sure I am one of the few to witness this because I am usually the only person on
the beach at 1:30 AM during the late-night winter low tides, when I am patrolling for any
dislodged geoduck tubes.
The invasive weed Japonica does not seem to get dislodged the way that the native Marina does.
I think this is because the Japonica has a stronger root system. Where the Marina root is
relatively straight, the Japonica root Y’s off. I would be happy to show anyone interested.
What Effect Will Geoduck Aquaculture Have on Eelgrass in the Area?
I predict that if the Smersh farm is allowed to continue forward, its PVC tubes will stabilize the
beach. That will allow the invasive weed Japonica to take hold, followed by some native
Marina.
By law, I am allowed to remove Japonica eelgrass from my projects, because it is considered an
invasive toxic weed. But I don’t remove it, because my geoducks seem to like it. And if I did
remove it, no Marina would exist on the beach either.
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The downside for me is that if I leave the Japonica in place and it encourages new growth of the
native Marina on my farm, there may then be some who wish to terminate all farm activity to
preserve native Marina that is only there because of my geoduck farm.
By allowing the Smersh project to proceed, it would be integrated into a bigger picture of 6
rotating crop cycles. At maturity, one area will be harvested, while another will be replanted.
Yes, it is true that much Japonica and some existing Marina will be displaced during harvest.
But in the big picture, more will be created than will be damaged.
To the naked eye, it is difficult to tell the difference between Marina and Japonica. My guess is
that any forage fish may not be able to tell the difference either. Could it be considered a net
gain of protective sea grass overall?
Again, I would like to invite any interested parties to contact me, and perhaps take an invited
tour of the beaches to learn more.
Sincerely, Brad Nelson BDN LLC
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