HomeMy WebLinkAbout2023 SMP Public Comment Record - Planning CommissionPublic Comment Record
Proposed Revisions to the Jefferson County Shoreline Master Program (SMP)
Written public comments received by Jefferson County during the public comment period initiated on
September 20, 2023 through closure of the public hearing at the October 4, 2023 meeting of the
Jefferson County Planning Commission.
Comments appear in the order in which they were received.
# Date Time Party Notes
1 24-Sep 9:05 PM Martinson Toandos
2 26-Sep 1:57 AM Tooloee Shine
3 29-Sep 2:09 PM Muul / Plauche & Carr LLP Taylor Shellfish Co., DeNike letter
4 30-Sep 10:33 AM Patterson Shine
5 2-Oct 2:00 PM King Port Townsend, Taylor Shellfish,
letter dated Oct 4
6 2-Oct 3:12 PM Thompson Pacific Coast Shellfish Growers Assoc.
7 2-Oct 3:52 PM Corbett Shine, 56 neighbors
8 2-Oct 8:30 PM Gunstone J&T Gunstone Clams, letter dated Sep 29
9 3-Oct 9:47 AM Godfrey / Santiago Discovery Bay, letter dated Sep 27,
attachments
10 3-Oct 11:50 AM Hendricks Coalition to Protect Puget Sound Habitat,
5 attachments
11 3-Oct 1:42 PM Showalter Shine, attachments
12 3-Oct 11:20 PM Steenberg Squamish Harbor
13 4-Oct 11:55 AM Bryant / WDFW Region 6 Planning
14 4-Oct 11:56 AM Montgomery / MRC Jefferson County Marine Resources
Committee (MRC)
15 4-Oct 12:52 PM Steele Rock Point Oyster Co., Quilcene
16 4-Oct 12:57 PM Long Rock Point Oyster Co., Quilcene
17 4-Oct 3:29 PM Scagliotti / JST Jamestown S'Klallam Tribe, Hals letter
18 4-Oct 5:15 PM Best Hood Canal Environmental Council
19 4-Oct 6:16 PM Dittmar Shine
20 4-Oct 9:03 PM Showalter Shine, additional comment
21 4-Oct 10:56 PM Nichols shellfisher [DeNike letter is comment 3]
22 3-Oct 4:37 AM Wold *initially sent to incorrect address
23 4-Oct 10:31 PM Wold *initially sent to incorrect address
From:Donn and Val Martinson
To:Josh Peters
Subject:FW: Conditional Use Permit for New Geoduck Operations
Date:Sunday, September 24, 2023 9:05:55 PM
ALERT: BE CAUTIOUS This email originated outside the organization. Do not open
attachments or click on links if you are not expecting them.
-------- Original message -----From: Donn and Val Martinson <donnvalm@msn.com>Date: 9/24/23 9:02 PM (GMT-08:00)To: jpeters@co.jefferson.wa.udSubject: FW: Conditional Use Permit for New Geoduck Operations
Home and property addresses now included in email.
Val and Donn Martinson
-------- Original message --------From: Donn and Val Martinson <donnvalm@msn.com>Date: 9/24/23 8:47 AM (GMT-08:00)To: jpeters@co.jefferson.wa.usCc: Val Martinson <donnvalm@msn.com>, Donn Martinson<oldoutboardmotors@gmail.com>Subject: Conditional Use Permit for New Geoduck Operations
Re: Urging Requirement for Conditional Use Permit for New Geoduck Operations We urgethe Planning Commission to maintain the requirement, included in its September 20, 2023,draft Shoreline Master Plan (SMP), for a standard Conditional Use Permit (CUP) for any newgeoduck operations on Jefferson tidelands, including expansions and conversions of othershellfish to geoduck.
We are property owners in Jefferson County on the tip of Toandos Peninsula. We have alsobeen out to the park on the tideland shorelines in Shine, and in our exploring saw the geoduckfarm. What we noticed was the plastic tubes that had come lose in various places and areconcerned about the environmental impact to the shoreline, marine life and the tubes that floatout into Hood Canal. We would like the county now and in the future to have input from thepublic to be able to make comment and make a difference in the negative impacts we havealready seen in Shine. It is important now and in the future that the requirement for theconditional use permit for new geoduck operations support the requirement for a conditionaluses permit. We ask them to maintain the requirement stated above. Most of all we wouldlike the public to voice, be heard, and also the permits require more environmental safe use of
1
materials. We are concerned that a precedence has been set by how the geoduck farm ismanaged and the negative effects of what we have seen on the Shine tidelands. Private
tidelands that are used for geoduck farming affect all those who live near it and the waterwaysof Hood Canal. We support the planning commission to maintain the requirement for a
conditional use permit for new geoduck operations and/or any shellfish operation. Our biggestconcern is the negative impact on marine life and to those who own property on Hood Canal.
Thank you for your support.
Valerie and Donn Martinson
Property address:
703 Donald Rd.
Quilcene, WA 98376
Resident address:
18082 Owls Trl N.W.
Poulsbo, WA 98370
Property owners on Hood Canal on the tip of Toandos Peninsula
Sent from Mail for Windows
From:Nezam Tooloee
To:Josh Peters
Subject:Support for CUP Process for New Geoduck Operations - Shine Area
Date:Tuesday, September 26, 2023 1:57:42 AM
Attachments:Scan Sep 26, 2023.pdf
ALERT: BE CAUTIOUS This email originated outside the organization. Do not open attachmentsor click on links if you are not expecting them.
Please see the attached letter in support of adopting the CUP process for new geoduck operations.
Nezam Tooloee206-755-1825
Sent from my iPhone
2
SHINE NEIGHBORS AND SUPPORTERS
SQUAMISH HARBOR, HOOD CANAL, JEFFERSON COUNTY, WA
Suec71@gmail.com
Jefferson County Planning Commission
c/o Josh Peters, Director
Jefferson County DCD
jpeters@co.jefferson.wa.us
October _, 2023
Dear Jefferson County Planning Commission,
Re: Urging Requirement for Conditional Use Permit for New Geoduck Operations
We urge the Planning Commission to maintain the requirement, included in its September 20,
2023, draft Shoreline Master Plan (SMP), for a standard Conditional Use Permit (CUP) for any
new geoduck operations on Jefferson tidelands, including expansions and conversions of other
shellfish to geoduck.
More than two years ago, as residents of Shine and stewards of Hood Canal, many of us wrote to
the Planning Commission in support of such a provision. We are gratified that the Planning
Commission included this requirement in the draft it sent to the state Department of Ecology for
review.
The Department of Ecology, in its initial review, approved this requirement, as it similarly did
(in final form) for Kitsap and Clallam counties. Jefferson lies in close shoreline-proximity to
these counties, sharing Hood Canal, Discovery Bay, and other waters of the Salish Sea. Notably,
all of Hood Canal, including its tidelands and shoreline, and most of Puget Sound and the Strait
of Juan de Fuca are Shorelines of Statewide Significance, under the state Shoreline Management
Act. By adopting the CUP process, Jefferson County will harmonize with Kitsap and Clallam
counties in how they review commercial geoduck operations in our common waters.
At seeding time, commercial geoduck farms insert approximately 43,560 PVC tubes per acre
(one per square foot) into the tideland. At ten inches per tube, that's about 7 miles of PVC-the
distance between the QFC/Jefferson County Planning office and the county library in Irondale-
shoved into one acre. Many geoduck farms are five to ten acres or more. That's also about 15
tons of plastic per acre, plunged into the grinding sand. At harvesting time, the sand and its bio-
life are liquified up to three feet deep with a hydraulic hose so the geoducks can be extracted.
A CUP process does not dictate the outcome of a commercial geoduck application. Rather, it
allows a neutral decision-maker to evaluate the potential effects of commercial geoduck
operations on a particular site: on critical eelgrass, on estuarial life, on local endangered
species, on recreational activities, and on disturbances to neighbors. The process allows all
interested parties to present evidence and participate in a public hearing before a decision is
made.
Shine Neighbors and Supporters
Ltr to Jefferson County Planning Commission
October_, 2023
In a similar vein, the Planning Commission need not decide whether commercial geoduck farms
are good or bad. It's the job of the Planning Commisssion to recommend a fair process for
making such a decision on a particular application for a particular site. That process is the CUP
process, and we urge the Planning Commission to recommend it to the Board of County
Commissioners.
Sincerely,
Sue Corbett
31 Churchill Lane
Port Ludlow, WA 98365
suec@gmail.com
and the following _ neighbors and supporters
Randy Corbett
31 Churchill Lane
Port Ludlow, WA 98365
etc
!+5 It
No rcr1l?af2.-H WJO 1
T -
!+130\/l=-
AOop, --i:-tt~ CcJf) j?f2.ol_E--~s--
TH 1'5 (TPPL,,,f 'Cfrt(OtJ .
F~rL
rJ NlM Tooc,oe~
W(\J6Mi(20 l./)1\/~ /02-
foaT L-vow~ t;JA f3 Jo s-
i I
From:Aimeé Muul
To:Josh Peters; Joel Peterson
Cc:Jesse DeNike; GordonK@taylorshellfish.com
Subject:SMP period review comments – Taylor Shellfish
Date:Friday, September 29, 2023 2:09:59 PM
Attachments:l.Planning Commission.SMP periodic review.092923.pdf
ALERT: BE CAUTIOUS This email originated outside the organization. Do not open
attachments or click on links if you are not expecting them.
Good afternoon,
Attached please find a comment letter submitted on behalf of Taylor Shellfish Company, Inc.regarding the Jefferson County SMP period review. Please let me know if you have any difficultiesopening the attachment.
Best regards,
Aimeé Muul / Legal Assistant / Plauché & Carr LLP / 1218 Third Avenue, Suite 2000 / Seattle, WA98101
aimee@plauchecarr.com / Phone: (206) 380-6893 (mobile) or (206) 588-4188 (main) / Fax: (206) 588-4255
This e-mail is intended only for the use of the individual or entity to whom it is addressed and may contain confidential, privileged
information. If the reader of this e-mail is not the addressee, please be advised that any dissemination, distribution or copying of this e-
mail is strictly prohibited. If you receive this communication in error, please call (206) 588-4188, return this email to Aimeé Muul at the
above e-mail address, and delete this e-mail from your files. Thank you.
3
Pacific Northwest Office
1218 3rd Ave, Suite 2000
Seattle, WA 98101
206.588.4188
Gulf Coast Office
1110 River Rd S, Suite 200
Baton Rouge, LA 70802
225.256.4026
September 29, 2023
Via email
Jefferson County Planning Commission
621 Sheridan St
Port Townsend, WA 98368
RE: Jefferson County Shoreline Master Program Periodic Review
Dear Planning Commission:
I am submitting this comment letter on behalf of Taylor Shellfish Company, Inc. (“Taylor
Shellfish”) regarding Jefferson County’s Shoreline Master Program (“SMP”) periodic review. The
current draft revisions to the SMP’s aquaculture provisions are inconsistent with the Shoreline
Management Act, Chapter 90.58 RCW (“SMA”), and implementing guidelines, Chapter 173-26 WAC
(“Guidelines”). To ensure the SMP remains consistent with state law, and to avoid the County needing to
make subsequent revisions by the Department of Ecology or as a result of a Growth Management
Hearings Board challenge, the County should modify the proposed aquaculture revisions as set forth in
section III below.
I.Shellfish Farming Provides Important Benefits to Jefferson County
Taylor Shellfish is a fifth-generation, family-owned company headquartered in Shelton,
Washington. The Taylor family has grown shellfish on Washington State shorelines since the 1890s.
The company currently cultivates a variety of shellfish species on thousands of acres of tidelands and
bedlands throughout Washington State’s marine waters, including oysters, clams, geoducks, and
mussels.
Taylor Shellfish employs over 500 workers in Washington State who grow, process, sell, and
serve the company’s shellfish. The company’s farms and employees are largely located in rural areas,
and Taylor’s farms help sustain and diversify these local economies. Taylor manages highly productive
and valuable shellfish farms in Jefferson County, including intertidal farms in Dosewallips Hood Canal
and Discovery Bay, and a hatchery in Dabob Bay. Taylor employs over 35 individuals on these farms,
and they provide significant economic benefits to the local economy and residents.
Taylor Shellfish’s farms also provide important ecological benefits to Jefferson County.
Commercial shellfish beds are classified as critical saltwater habitat under the Guidelines, and they
“require a higher level of protection due to the important ecological functions they provide.”
WAC 173-26-221(2)(b)(iii)(A). See also WAC 173-26-241(3)(b)(i)(A) (aquaculture “is of statewide
interest. Properly managed, it can result in long-term over short-term benefit and can protect the
Plauché & Carr LLP 2
resources and ecology of the shoreline”). Key benefits provided by shellfish farming include
sequestration of excess nutrients through the filter-feeding behavior of bivalves and provision of
structured habitat. Commercial cultivation and harvest of shellfish reduce the scale and impact of excess
nutrients, which has caused dead zones in Hood Canal.
Further, shellfish farming is reliant on high water quality, WAC 173-26-241(3)(b)(i)(B), and
shellfish farmers, including Taylor Shellfish, have fought hard over the years to protect and improve
water quality in Jefferson County. In fact, the County established a Clean Water District in 2007 with the
express purpose of protecting surface water quality and shellfish resources that were being degraded,
including in Discovery Bay, Mats Mats Bay, and Hood Canal. Chapter 8.65 JCC. In establishing the
Clean Water District, the County Commission emphasized the ecological and economic importance of
maintaining high water quality and a thriving shellfish industry in the County, declaring as follows:
“Protecting and fostering this multi-million-dollar enterprise [shellfish farming] is one of the most
important economic development steps the county commission can undertake.” JCC 8.65.020(11).
Establishment of the district included, among other things, adoption of a nonpoint pollution plan
addressing a shellfish growing area downgrade in Discovery Bay, where Taylor Shellfish along with
other farmers operate. JCC 8.65.060.
In total, existing water quality protection programs bring in millions of dollars to the Jefferson
County and Hood Canal region. These funds are used for activities that have broad public benefits,
including septic monitoring and repair and other efforts to reduce anthropogenic sources of nonpoint
source pollution. Additionally, water quality for shellfish growing areas directly benefits Jefferson
County residents by improving water quality for all recreational uses. Finally, Jefferson County residents
relied on healthy shellfish from high-quality growing areas during the COVID pandemic, when
biosecurity concerns and access to protein was restricted. People with access to recreational growing
areas and private tidelands increased their intake of shellfish as it was readily available, safe to eat and
affordable.
Shellfish aquaculture is vital to the ecology, economy, and culture of Jefferson County. The
County has historically supported this industry, and it is critical to the broad community interest that the
County continue to support it in the future.
II.SMP Aquaculture Revisions Require Strong Justification
The SMA was enacted in recognition of the need “for a planned, rational, and concerted effort,
jointly performed by federal, state, and local governments, to prevent the inherent harm in an
uncoordinated and piecemeal development of the state’s shorelines.” RCW 90.58.020. Thus, “[t]he SMA
does not prohibit development of the state’s shorelines, but calls instead for ‘coordinated planning ...
recognizing and protecting private property rights consistent with the public interest.’” Nisqually Delta
Ass’n v. City of DuPont, 103 Wn.2d 720, 726, 696 P.2d 1222 (1985) (quoting RCW 90.58.020). See also
May v. Robertson, 153 Wn. App. 57, 92, 218 P.3d 211 (2009); Biggers v. City of Bainbridge Island, 162
Wn.2d 683, 697, 169 P.3d 14 (2007).
The SMA declares “[i]t is the policy of the state to provide for the management of the shorelines
of the state by planning for and fostering all reasonable and appropriate uses.” RCW 90.58.020.
Planning for uses occurs through the development and approval of SMPs, which constitute use
regulations for the shorelines, RCW 90.58.100(1), and are considered state action, Citizens for Rational
Shoreline Planning v. Whatcom County, 172 Wn.2d 384, 387, 258 P.3d 36 (2011). “Foster” means “to
Plauché & Carr LLP 3
promote the growth or development of: promote and sustain.” Foster, Webster’s Third New International
Dictionary (2002). Thus, SMPs must promote the growth or development of reasonable and appropriate
uses while also ensuring uses are “designed and conducted in a manner to minimize, insofar as practical,
any resultant damage to the ecology and environment of the shoreline area and any interference with the
public’s use of the water.” RCW 90.58.020.
Further, while all reasonable and appropriate uses are to be fostered, the SMA identifies a subset
that are preferred—those, like shellfish aquaculture, that “are consistent with control of pollution and
prevention of damage to the natural environment, or are unique to or dependent upon use of the state’s
shoreline.” Id. The Guidelines also recognize aquaculture is a water-dependent, preferred shoreline use,
and they further specify that aquaculture is of statewide interest. Additionally, as discussed above, the
Guidelines require commercial shellfish beds to be protected as critical saltwater habitat and provide
that, when properly managed, aquaculture can result in long-term benefits, protect the resources and
ecology of the shoreline. WAC 173-26-221(2)(c)(iii)(A); WAC 173-26-241(3)(b)(i)(A). See also WAC
173-26-176(3)(a) (expressing a policy goal of the SMA to utilize shorelines for economically productive
uses that are particularly dependent on shoreline location or use). No other type of use is specifically
recognized in the Guidelines as being in the statewide interest, capable of producing environmental
benefits, and creating critical saltwater habitat. Because aquaculture is a preferred, water-dependent use,
Jefferson County must plan for, foster, and give preference to this activity in its SMP Update. RCW
90.58.020; WAC 173-26-176(3)(a); WAC 173-26-201(2)(d); WAC 173-26-241(3)(b).
The SMA and Guidelines call for shoreline utilization and protection to be mutually advanced in
SMPs and establish detailed requirements to achieve these goals through SMPs. RCW 90.58.100(1)
requires Ecology and local governments to take several measures in preparing SMPs and amendments,
including utilizing scientific and technical information. The Guidelines state two steps shall be followed
“[t]o satisfy the requirements for the use of scientific and technical information in RCW 90.58.100(1).”
WAC 173-26-201(2)(a). “First, identify and assemble the most current, accurate, and complete scientific
and technical information available that is applicable to the issues of concern.” Id. “Second, base master
program provisions on an analysis incorporating the most current, accurate, and complete scientific or
technical information available. Local governments should be prepared to identify the following: (i)
Scientific information and management recommendations on which the master program provisions are
based . . .” Id.
As the Board has recognized, “RCW 90.58.100(1) sets a high standard for scientific analysis of
local shoreline conditions on which [SMP] provisions are to be based” and the “[G]uidelines require a
diligent review of ‘existing’ reports and studies . . .” Elizabeth Mooney et al. v. City of Kenmore et al.,
WWGMHB Case No. 12-3-0004, Final Decision and Order (Feb. 27, 2013), at 21. Cf. Lake Burien
Neighborhood, et al. v. City of Burien et al., CPSGMHB Case No. 13-3-0012, Final Decision and Order
(June 16, 2014), at 11-12 (petitioners may demonstrate provisions do not comply with the GMA’s best
available science standard by showing scientific information was not used or better, available
information was disregarded). Thus, SMP provisions that are based on the most current, accurate, and
complete scientific and technical information and are tailored to advance the goals of the SMA are
permissible; restrictions that are not supported and tailored are contrary to the SMA and Guidelines and
require reversal. RCW 90.58.020; RCW 90.58.100(1); RCW 90.58.190(2); WAC 173-26-201(2)(a).
In a recent challenge to Pierce County’s SMP update, the Growth Management Hearings Board
struck down numerous aquaculture provisions that were enacted in response to public concerns with
aquaculture but that were unsupported by scientific and technical information. Taylor Shellfish
Company, Inc. v. Pierce County and Ecology, Final Decision and Order, GMHB Case No. 18-3-0013c
Plauché & Carr LLP 4
(June 17, 2019), as modified by Order on Reconsideration (August 7, 2019). The Growth Board
scrutinized the appropriateness of the aquaculture provisions individually and in their totality, holding
that the provisions must be consistent with state law and supported by scientific and technical
information. The Board ruled that the utilization of shorelines for economically productive uses that are
particularly dependent on shoreline location, such as shellfish aquaculture, is given a high priority under
the SMA and the Guidelines, and aquaculture restrictions must be supported by scientific and technical
information. Id.
Jefferson County went through an extensive and thorough process to comprehensively update its
SMP several years back. It is now conducting a statutorily-mandated periodic review. In contrast to
comprehensive SMP updates “the periodic review addresses changes in requirements of the act and
guidelines requirements since the comprehensive update or the last periodic review, and changes for
consistency with revised comprehensive plans and regulations, together with any changes deemed
necessary to reflect changed circumstances, new information or improved data.” WAC 173-26-
090(d)(B)(iii). In other words, a periodic update is not an invitation to comprehensively review an
SMP’s provisions for a particular use anew. Rather, a periodic review is a focused exercise to ensure that
the SMP does “not fall out of compliance over time through inaction.” WAC 173-26-090(d)(B)(ii). In
addition, amendments to SMPs through the periodic review, like amendments resulting from
comprehensive updates, must be supported by scientific and technical information and consistent with
the requirements in state law to give preference to shellfish aquaculture as a preferred, water-dependent
use of statewide interest. RCW 90.58.100; WAC 173-26-201(2)(a).
III.Numerous Draft Aquaculture Revisions Are Inconsistent with the SMA and the
Guidelines and Must Be Stricken or Revised
The County began its periodic review process in the last few years, and initially it had an
appropriate scope and focus. With respect to aquaculture specifically, limited changes were proposed to
align the SMP with provisions in the Guidelines addressing geoduck aquaculture that were
newly-enacted after the County’s comprehensive update concluded. A 30-day joint review was
conducted with the Jefferson County Planning Commission and the Washington Department of Ecology
from May 17-June 16, 2021, concluding with a public hearing on June 16, 2021.
The process, however, was abruptly derailed as the County incorporated extensive proposed
revisions to the SMP’s aquaculture provisions in response to comments that were submitted after the
public comment period closed. Further, these comments were not supported by scientific and technical
information demonstrating a need to incorporate new or revised regulations. Rather, they were based on
opposition by a limited number of shoreline residents to a specific, poorly-managed shellfish farm in
Jefferson County. These residents requested that Jefferson County incorporate permitting requirements
from the Kitsap County SMP, which they viewed as being tougher on the aquaculture industry. Unlike
Jefferson County, Kitsap County does not have a robust commercial aquaculture community.
Nonetheless, County staff acquiesced to shoreline residents’ request.
Taylor Shellfish understands and sympathizes with these individuals’ concerns with the
poorly-managed farm near their houses, in particular the farm’s failure to follow regulatory requirements
Plauché & Carr LLP 5
and best management practices for responsibly using and maintaining gear.1 However, the appropriate
response to one individual violating regulatory requirements is to enforce those requirements on that
individual. Imposing harsher regulatory requirements on all operators will not only fail to solve the
problem at issue (one individual violating existing requirements), but it will discourage, rather than
foster, aquaculture in violation of the SMA and Guidelines. Moreover, it will adversely affect the
broader public interest in Jefferson County, which relies on a strong shellfish aquaculture industry for
the numerous ecological, cultural, and economic benefits this use provides.
Representatives for Taylor Shellfish have expressed concern with the proposed aquaculture
revisions in the draft SMP amendment to County staff over the last several months and recommended
the County revert back to the proposed amendments that were proposed in May 2021. Accordingly,
Taylor Shellfish is baffled by the contention on page 7 of the September 20, 2023 staff report that
“[i]ndustry commenters have expressed general concerns about the changes to the regulations, but the
concerns have not been detailed enough that the consultant team could consider what changes might be
appropriate.” This is simply incorrect. Taylor Shellfish, along with other shellfish farmers, have clearly
stated the numerous additional aquaculture revisions that were proposed after the June 16, 2021 hearing
are unsupported and fail to give preference to aquaculture and specifically recommended they be
removed from the draft.
Moreover, the County has inappropriately treated the proposed aquaculture revisions in the draft
amendment as the status quo and imposed the burden on shellfish farmers to demonstrate why any
objectionable proposed revisions should be removed. But this reverses the mandates of the SMA and
Guidelines, which require the County to demonstrate that new aquaculture restrictions are supported by
scientific and technical information and remain consistent with shellfish farming’s status as a preferred,
water-dependent use of statewide interest. RCW 90.58.020; RCW 90.58.100; WAC 173-26-201(2)(a);
WAC 173-26-241(3)(b); Pierce County, GMHB Case No. 18-3-0013c, Final Decision and Order. The
County has failed to make this required showing, and the proposed revisions in the current draft are
inconsistent with the SMA and Guidelines. Comments addressing the proposed revisions are provided in
the table below, which build off the information and analysis included in the Shannon & Wilson July 28,
2023 Aquaculture Regulations Analysis memorandum, referenced in the County’s September 20, 2023
Staff Report.2
SMP Provision Summary of
Changes Comments
18.25.220, Table
18.25.220
The County is
proposing to require
The County’s proposal to require a standard
CUP for new, expanded, and converted
1 For example, standard conditions of federal approval for shellfish aquaculture in Washington State require using suitable
materials, securing gear to the farm site, and monitoring gear. See Conservation Measures 5, 11, 19, 22 of the programmatic
consultation for shellfish activities in Washington State inland marine waters, available at:
https://www.nws.usace.army.mil/Portals/27/docs/regulatory/NewsUpdates/20181128%20Verification%20Enclosure%201.pd
f?ver=wEEviExfV5z-aA3uEPh1Uw%3d%3d. The County’s current SMP requires operators to comply with existing federal
and state regulations. JCC 18.25.440(4)(e)(xii). It further requires structures and apparatus to be located, designed, and
maintained to avoid adverse effects on ecological functions and processes. JCC 18.25.440(4)(e)(i).
2 Taylor Shellfish does not cultivate finfish and hence will not provide comments on proposed amendments to finfish
regulations within JCC 18.25.440(5).
Plauché & Carr LLP 6
a standard CUP for
new geoduck
aquaculture, along
with expansions and
conversions.
Previously, a
discretionary CUP
was proposed for
new geoduck
culture, which
would typically only
require approval by
the Administrator
but may be referred
to the Hearing
Examiner on a
case-specific basis
when warranted.
geoduck culture is not required to align the
SMP with state law, nor is it based on
scientific or technical information. Rather, as
acknowledged by Shannon & Wilson, it was
added because public commenters asked the
County to require this more onerous process
and from a misguided effort “to incorporate
Kitsap County aquaculture regulations” into
Jefferson County’s SMP. For reasons set forth
above, these are inappropriate grounds for
imposing new restrictions on aquaculture. In
fact, as documented in Sea Grant’s geoduck
aquaculture research report to the legislature,
geoduck aquaculture has been found to result
in minor and temporary impacts that are
within the range of natural events.3 The
County’s original proposal to require a
discretionary CUP for new geoduck
aquaculture aligns with state law, WAC
173-26-241(3)(b), and provides the County
with the ability to require heightened review
by the Hearing Examiner on a case-specific
basis when warranted. The proposal to require
a standard CUP for new, expanded, and
converted geoduck is scientifically
unsupported and will inappropriately hamper
this use by imposing unnecessary permitting
costs and delays on project proponents. The
County should revert to its original proposal
to require a discretionary CUP for new
geoduck aquaculture.
18.25.440(3)
The County is
proposing to further
amend the
designation-specific
regulations to
specify that new
geoduck aquaculture
requires a standard
CUP.
For the reasons set forth directly above, the
proposal to require a standard, rather than a
discretionary, CUP for new geoduck
aquaculture is unsupported by scientific and
technical information, and the County should
instead require a discretionary CUP.
18.25.440(4)(b) The County first
proposed to clarify a
The County’s proposed revisions are not
required to align the SMP with state law and
3 Available at: https://wsg.washington.edu/wordpress/wp-content/uploads/publications/Geoduck-Final-Report-Dec-2013.pdf
Plauché & Carr LLP 7
calculation for
triggering a new
permit but is now
proposing extensive
additional
restrictions and
permitting
requirements for
expansions. The
County is also
proposing new
restrictions and
permitting
requirements for the
cultivation of new
species.
are unsupported by scientific and technical
information. Rather, as reflected by Shannon
& Wilson, the new permitting requirements
were added “per public comments” and the
restrictions and permitting requirements for
cultivating new species were added “to
incorporate language included in Kitsap
County’s SMP per Planning Commission
Direction.” As discussed above, neither of
these grounds are appropriate justifications for
imposing new restrictions on shellfish
aquaculture. Accordingly, these proposed
revisions should be removed, and JCC
18.25.440(4)(b) should either remain
unchanged or, at most, the limited
clarification proposed in the May 2021 draft
should be advanced.
18.25.440(4)(e)(v)
The County appears
to be proposing
changes to the
height of floating or
hanging aquaculture
structures and
associated
equipment, although
given
inconsistencies with
the proposed
language, the
precise changes are
unclear.
Due to lack of clarification in the proposed
amendment language, it is unclear what
amendments are actually proposed or what
they are intended to accomplish. Shannon &
Wilson note that potential amendments are
being considered by staff and the consultant
team based on WAC requirements, regulatory
reform objectives, public comment, and
Planning Commission input. Taylor Shellfish
supports amendments that are required to
align this code section with the WAC,
although no such amendments appear
necessary. As discussed above, reflexively
amending this section due to public comments
unsubstantiated by scientific and technical
information is inappropriate.
18.25.440(4)(e)(vii)
The County is
proposing to add a
reference to “other
water dependent
uses” in this section.
Any amendments to this section must comply
with the Guidelines. In pertinent part, the
Guidelines state as follows: “Aquaculture
should not be permitted in areas where it
would . . . significantly conflict with
navigation and other water-dependent uses.”
Taylor Shellfish supports revising this code
section to include the “significantly conflict”
standard in compliance with the Guidelines in
lieu of the undefined and potentially
confusing “materially interfere with”
standard.
Plauché & Carr LLP 8
18.25.440(4)(e)(vii)
The County is
proposing numerous
new requirements
and restrictions
related to gear use.
As discussed above, Taylor Shellfish
understands and appreciates the need to use
appropriate gear, effective secure gear, and
perform routine maintenance. Shellfish
farmers are already required to follow these
practices through federal permitting
conditions, and the current SMP already
requires operators to comply with such
requirements. That said, Taylor Shellfish does
not object to the new, proposed requirements
in subparagraphs (B), (D), and (F) of this
section. And, while most gear should use
colors to blend with the natural environment,
as set forth in (C), there may be some
instances in which it is desirable to have gear
more noticeable, so this should not be a
universal requirement. And, while Taylor
Shellfish agrees that gear that does become
loose should be promptly retrieved, the
remaining language in subparagraph (E) is
inflammatory and unsupported, and it should
be removed. The new, introductory language
to this section, stating these measures are
needed to limit ecological and aesthetic
impacts from predator control measures, is not
properly supported and serves no function; it
should be removed as well.
18.25.440(4)(e)(xvi)-
(xviii)
The County is
proposing new
regulations
addressing the use
of equipment (xvi),
accumulation of
garbage (xvii), and
complying with
Coast Guard
requirements.
Taylor Shellfish supports the appropriate use
of gear and management of sites so that they
do not accumulate garbage or waste.
Therefore, while Taylor Shellfish disagrees
with the County’s rationale for adding these
provisions—relocating from the finfish
section and incorporating Kitsap County SMP
requirement—Taylor does not object to
including them in the SMP. Taylor Shellfish
does not believe that the County needs to
separately include a requirement for
aquaculture operators to comply with Coast
Guard requirements and would recommend
removing subparagraph (xviii).
18.25.440(4)(e)(xix)
The County is
proposing to add a
new regulation
prohibiting
This new regulation appears to be based on
WAC 173-26-241(3)(b)(i)(C). However, the
SMA Guideline uses “should” rather than
“shall” The SMP should similarly use the term
Plauché & Carr LLP 9
aquaculture from,
among other things,
significantly
impacting the
aesthetic qualities of
the shoreline.
“should,” which is a specifically defined term
that means “the particular action is required
unless there is a demonstrated, compelling
reason, based on policy of the Shoreline
Management Act and this chapter, against
taking the action.” WAC 173-26-020(37).
Given the subject nature of aesthetic impacts,
and that water-dependent uses are given
priority over aesthetics in the event of
irreconcilable conflicts, WAC 173-26-
221(4)(d)(iv), the use of “should” rather than
“shall” is appropriate and required to maintain
consistency with state law.
18.25.440(6)
The County is
proposing numerous
new restrictions
specific to geoduck
aquaculture.
Subsection (a)(i) requires a CUP for new
geoduck aquaculture in compliance with WAC
173-26-241(3)(b)(iv)(A). This subsection also
requires a CUP for all conversions. While
counties are not necessarily precluded from
requiring CUPs for conversions—the
Guideline grants local governments the
discretion to require it—counties must
exercise that discretion consistent with the
requirements of the SMA and the Guidelines.
Thus, there must be a scientific and technical
basis for requiring CUPs for conversions. No
such basis has been provided, and as discussed
above, research demonstrates that geoduck
aquaculture has minor and temporary impacts
within the range of natural events. Thus, the
requirement to obtain a CUP for conversions
is insufficiently supported and should be
removed from subsection (a)(i). Subsection
(a)(v) should be revised to use “should” rather
than “shall” consistent with the Guidelines.
See WAC 173-26-241(3)(b)(iv)(I). The
remaining provisions within section (a) are
appropriate.
Section (b) should also use the “should”
standard rather than “shall” consistent with
WAC 173-26-241(3)(b)(i)(C).
The allowance in section (c) for work to be
conducted at nights or on weekends is
consistent with the Guidelines, but the
“greatest extent practicable” standard is
Plauché & Carr LLP 10
unclear and fails to provide adequate guidance
to the regulated community, County staff, and
the public as to what is required. The County
should instead include more objective
requirements such as compliance with County
noise limits and using lighting that is directed
towards aquaculture work areas.
18.25.440(7)
The County is
proposing extensive
application
requirements for
aquaculture.
The extensive application requirements that
the County is proposing for aquaculture are
inconsistent with state law and unsupported by
scientific and technical information. As
acknowledged by Shannon & Wilson, the
County is proposing to lard the SMP with
these extensive requirements because
opponents have asked Jefferson County to
incorporate Kitsap County’s aquaculture
restrictions.
This is an inappropriate basis for imposing
new restrictions or requirements on
aquaculture. Instead, any new requirements
must be designed to align the SMP with
updated legal requirements or to account for
deficiencies with the application requirements
in the current SMP. But no such deficiencies
have been identified. Rather, opponents have
requested that Jefferson County adopt the
Kitsap County requirements, presumably
because they are viewed as more onerous for
the aquaculture industry. In other words, they
will serve as a barrier to entry, making it so
difficult to even complete a permit application
that many farmers will avoid pursuing new
farms. This will in no way advance
opponents’ concerns with a current operation
that is violating current regulatory
requirements, and it will inappropriately
punish all current and prospective shellfish
farmers in Jefferson County. And, given the
important ecological, cultural, and economic
benefits that shellfish farming provides to
Jefferson County, it will harm the broad
County interests.
The inappropriateness of the proposed
application requirements is highlighted by the
Plauché & Carr LLP 11
fact that many address issues that have no
relevance to shellfish aquaculture, such as
flow rates, flushing rates, sedimental
dispersal, size of species at harvest, feed,
antibiotics, vaccines, growth stimulants,
pollutant loading, etc. Many of these issues
are comprehensively addressed by other
regulatory agencies, and the County has
neither the expertise nor resources to evaluate
them. Nor does the qualification in the new,
proposed code section that specific elements
need not be provided when the administrator
concurs with an applicant that they are
irrelevant save it from being inappropriate.
Given the administrator does not have
expertise on these issues, it is questionable
when, if ever, elements will be waived.
Regardless, imposing this burden on
applicants in the first instance is inconsistent
with the SMA and Guidelines, which require
restrictions to be supported by scientific and
technical information and consistent with
aquaculture’s status as a preferred, water-
dependent use.
At most, the County should amend the
application requirements specific for geoduck
aquaculture consistent with WAC 173-26-
241(3)(b)(iv)(E),(F).
Taylor Shellfish respectfully urges the County to revise the proposed draft SMP amendments
consistent with the comments above. Such revisions are necessary to ensure that the County’s
amendments are not later reversed by the Department of Ecology or the Growth Management Hearings
Board on appeal.
Sincerely,
Jesse DeNike
cc: Client
From:Kerri Patterson
To:Josh Peters
Subject:Comment on SMP: Include CUP for Geoduck’s
Date:Saturday, September 30, 2023 10:33:27 AM
ALERT: BE CAUTIOUS This email originated outside the organization. Do not open attachments or click on links
if you are not expecting them.
We are part of the SHINE NEIGHBORS AND SUPPORTERS
SQUAMISH HARBOR, HOOD CANAL, JEFFERSON COUNTY, WA
Dear Jefferson County Planning Commission,
Re: Urging Requirement for Conditional Use Permit for New Geoduck Operations
We urge the Planning Commission to maintain the requirement, included in its September 20, 2023, draft Shoreline
Master Plan (SMP), for a standard Conditional Use Permit (CUP) for any new geoduck operations on Jefferson
tidelands, including expansions and conversions of other shellfish to geoduck.
The Department of Ecology, in its initial review, approved this requirement, as it similarly did (in final form) for
Kitsap and Clallam counties. Jefferson lies in close shoreline-proximity to these counties, sharing Hood Canal,
Discovery Bay, and other waters of the Salish Sea. Notably, all of Hood Canal, including its tidelands and shoreline,
and most of Puget Sound and the Strait of Juan de Fuca are Shorelines of Statewide Significance, under the state
Shoreline Management Act.
By adopting the CUP process, Jefferson County will harmonize with Kitsap and Clallam counties in how they
review commercial geoduck operations in our common waters.
A CUP process does not dictate the outcome of a commercial geoduck application. Rather, it allows a neutral
decision-maker to evaluate the potential effects of commercial geoduck operations on a particular site: on critical
eelgrass, on estuarial life, on local endangered species, on recreational activities, and on disturbances to neighbors.
The process allows all interested parties to present evidence and participate in a public hearing before a decision is
made.
The Planning Commission need not decide whether commercial geoduck farms are good or bad. It’s the job of the
Planning Commisssion to recommend a fair process for making such a decision on a particular application for a
particular site. That process is the CUP process, and we urge the Planning Commission to recommend it to the
Board of County Commissioners.
Mike and Kerri Patterson
Sent from my iPhone
4
From:Gordon King
To:Josh Peters
Cc:Joel Peterson
Subject:Re: Public comments
Date:Monday, October 2, 2023 2:02:00 PM
Attachments:image001.pngOutlook-i2nzbdoz.pngOctober 4 2023 Comment Letter on Jefferson County draft SMP.docx
ALERT: BE CAUTIOUS This email originated outside the organization. Do not open
attachments or click on links if you are not expecting them.
Please find attached Public Comment for the Jefferson County Planning Commission
regarding changes to the SMP
Gordon King
Director of Mussel Farms
130 SE Lynch RD Shelton, WA 98584W: 360-432-3338| C: 360-490-9511gordonk@taylorshellfish.com
From: Josh Peters <JPeters@co.jefferson.wa.us>
Sent: Thursday, September 28, 2023 11:06 AM
To: Gordon King <GordonK@taylorshellfish.com>
Cc: Joel Peterson <JPeterson@co.jefferson.wa.us>
Subject: RE: Public comments
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
Please send them to me (by 10/4). I am collecting all SMP comments to put into a package for the
Planning Commission. If someone provides written comments at the hearing itself on 10/4, we’ll add
those to the record the following day.
From: Gordon King <GordonK@taylorshellfish.com>
Sent: Thursday, September 28, 2023 10:19 AM
To: Josh Peters <JPeters@co.jefferson.wa.us>
Cc: Joel Peterson <JPeterson@co.jefferson.wa.us>
Subject: Public comments
ALERT: BE CAUTIOUS This email originated outside the organization. Do not openattachments or click on links if you are not expecting them.
5
Josh and or Joel,
Do we send draft SMP Public comments directly to ne of you?
Gordon King
Director of Mussel Farms
130 SE Lynch RD Shelton, WA 98584W: 360-432-3338| C: 360-490-9511gordonk@taylorshellfish.com
October 4 2023 Comment Leter on Jefferson County dra� SMP.
I have been a marine farmer for 43 years and made my living from shellfish farming while living in
Jefferson County for the past 32 years. Shellfish farming is an important and significant private employer
in rural Jefferson County especially in the south county. This has been the case for well over 100 years.
I got involved with the Jefferson County periodic review of the SMP in 2020 by volunteering to be an
aquaculture representa�ve on the update Task Force. The Task Force reviewed and made sugges�ons on
the dra� SMP which Jeffco staff and consultants presented to them. By in large I, and other members of
the Task Force found the document to be well writen and few changes were asked for. This was the
document that was presented for Public Comment in June 2021. The public was told by WDOE and
Jefferson County staff that Public Comment would close at the end of the June 16th 2021 Planning
Commission periodic review of the SMP Public Comment mee�ng.
I have read the available public comment leters and listened to verbal comments made, up to the end of
the June 16th 2021 Planning Commission mee�ng, and while there were requests for all geoduck farm
permit applica�ons to require Condi�onal Use Permits (CUP’s) there was no agency or public request to
increase the collec�on of data and other informa�on related to marine physical parameters and farm
management when applying for a shellfish farming permit. Despite no sound regulatory or scien�fic
reason being provided requirements that presently are only asked for in a Fin fish applica�on were
generalized to all aquaculture permits in the dra� SMP. The majority of sec�on Aquaculture sec�on
seven:
“(7) Regula�ons – Applica�on Requirements. In addi�on to the minimum applica�on requirements in
4853 JCC 18.25.630, aquaculture applica�ons shall provide the informa�on listed in subsec�ons (a)
through 4854 (d), unless waived by the administrator when an applicant has demonstrated that the
requested 4855 informa�on is not applicable to a specific proposal or type of aquaculture.”
takes a complete shotgun approach asking for a broad range of informa�on for all aquaculture
applica�ons:
(a)A site plan, including:
(i) The perimeter of the proposed aquaculture opera�on area;
(ii) Exis�ng bathymetry depths based on mean lower low water (MLLW datum);
(iii) Adjacent upland use, vegeta�on, presence of structures, docks, bulkheads and other
modifica�ons;
(iv)Areas where specific substrate modifica�on will take place or where structures or materials will be
constructed or installed;
(v) Number, types and dimensions of structures, apparatus, equipment, or other improvements,
including food and equipment storage areas.
(vi) Access provisions for marine or vehicle traffic, processing structures or facili�es; and
(vii) Loca�on of storage or processing structures or facili�es.
(b) A baseline ecological survey, including a descrip�on of exis�ng and seasonal condi�ons, and
assessment of direct, indirect, and cumula�ve impacts on each of the survey items. Where
applicable to the subject proposal, the following shall be included in the survey.
(i) Water quality;
(ii) Tidal varia�ons;
(iii) Prevailing storm wind condi�ons;
(iv) Current flows at each �dal cycle;
(v) Flushing rates;
(vi) Litoral dri�;
(vii) Sediment dispersal, including areas of differing substrate composi�on;
(viii) Areas of aqua�c, inter�dal and upland vegeta�on complexes; an aqua�c vegeta�on habitat
survey must be conducted according to the most current WDFW and U.S. Army Corps of Engineers
eelgrass and macroalgae survey guidelines; and
(ix) Aqua�c and benthic organisms present, including forage fish, and spawning and other 4883
lifecycle use of, or adjacent to, the site.
(c)An opera�onal plan, which includes the following, when applicable:
(i) Species and quan�ty to be cultured or reared on an annual basis, including pounds of fish on hand
throughout the year;
(ii) An�cipated size of species at harvest;
(iii) Source of eggs, juveniles, broodstock or other aqua�c product;
(iv) A narra�ve descrip�on of implementa�on methods, including average and maximum stocking
density, plan�ng and harvest schedule/cycles, phasing op�ons, and �me of day, and poten�al plans
for future expansion or change in species grown or harvest prac�ces;
(v) Schedule of development and maintenance;
(vi) Predator control methods including types of predator exclusion devices;
(vii) An�cipated use and type of any feed, herbicides, an�bio�cs, vaccines, growth s�mulants,
an�fouling agents, or other chemicals and an assessment of predicted impacts;
(viii) An�cipated levels of and management prac�ces that minimize and address impacts from
mooring, parking, noise, light, liter, and odor and other ac�vi�es associated with opera�ons;
(ix) Methods and loca�on of waste disposal and sanita�on facili�es;
(x) Number of employees/workers necessary for the project, including average and peak employment;
(xi) Methods to address pollutant loading, including biological oxygen demand (BOD);
(xii) A schedule for water quality monitoring, where required;
(xiii) Descrip�on of waste water management, including poten�al impacts to animals, plants, and
water quality due to the discharge of waste water from any upland development; and
(xix) Measures to address direct, indirect and cumula�ve impacts to achieve no net loss of ecological
func�ons consistent with the mi�ga�on sequence described in JCC 18.25.270(2)(d).
(d) Prior to approving a permit for floa�ng/hanging or upland aquaculture use and development
or botom culture involving structures or installa�on of materials such as tubes or predator
exclusion devices, the county shall require a visual analysis, including photo
analysis/simula�on of the proposed ac�vity, prepared by the applicant/proponent. The
analysis shall describe effects on uses and aesthe�c quali�es of the shoreline within a quarter-
mile of the site during a range of �des from mean high to mean low, including what views in
the vicinity would be altered or obstructed, such as public access views and views from
substan�al numbers of private residences, and shall iden�fy proposed measures to reduce
impacts. The analysis shall demonstrate that adverse impacts on the character of those areas
are effec�vely mi�gated.
(e)Other applica�ons and reports, when applicable or requested, to ensure compliance with
permit condi�ons, which may include:
(i) Proof of an accepted applica�on for an aqua�c lands lease from the Washington State Department
of Natural Resources (DNR), including a waiver of preference rights to access for naviga�on from the
upland property owner, if applicable or proof of lease or ownership if bedlands are privately held.
condi�ons, which may include: (ii) Applicable Department of Health (DOH) licenses, cer�ficates, or
other approvals.
(iii) Department of Fish and Wildlife (WDFW) aqua�c farm registra�on, fish stocking permit, and/or
fish transport permit.
(iv) Proof of an accepted Washington Department of Ecology Na�onal Pollutant Discharge Elimina�on
System (NPDES) permit, if applicable;
(v) Water quality studies;
(vi) Reports on solids accumula�on on the botom resul�ng from the permited ac�vity along with its
biological effects;
(vii) Report on growth, produc�vity, and chemical contamina�on of shoreline plants and animals
within or adjacent to the proposed site;
(viii) Noise level assessments, including mi�ga�on measures to minimized impacts; and/or
(ix) Monitoring and adap�ve management plan for introduc�on of non-na�ve aqua�c species, if not
otherwise prohibited by state law, not previously cul�vated in Washington State.
(x) Proof of applica�on for any other permits required by the U.S. Army Corps of Engineers,
Department of Health, WDFW, Ecology, or other agency, including any required federal consulta�on
under Sec�on 7 of the Endangered Species Act (16 U.S.C. 1531 et seq., ESA).
(f) Where the county does not have exper�se to analyze the merits of a report provided by an
applicant, the applicant may be required to pay for third-party peer review of said report.
Most of these regula�ons were writen for Fin Fish farms and the informa�on asked for is o�en difficult
and expensive to provide and serves no reasonable purpose for a shellfish farm applica�on. This is
poorly constructed regula�on.
These requirements were inserted into the dra� SMP when the Planning Commission was seeking a way
to make CUP’s mandatory for geoduck farms. To achieve this they adopted Kitsap County aquaculture
regula�ons wholesale, apparently not looking at the poorly writen language and they are making
significant “not backed by science” changes to other parts of the Aquaculture sec�on of the dra� SMP.
I know of no jus�fica�on in the State regula�ons on Periodic Reviews of SMP’s that allows for inser�ng
new regulatory requirements that nobody asked for.
Well writen regula�ons that protect and support the environment and water quality are essen�al for
the ecological well-being of our waters and for con�nued shellfish produc�on. The aquaculture sec�on
of the present dra� SMP is not well writen is difficult to understand and encourages arbitrary
administra�ve decisions. The changes that have been made will be costly and burdensome for shellfish
farmers, especially small growers leading to the loss of shellfish aquaculture jobs.
The County needs to revert to the Aquaculture sec�on of the dra� SMP as it was presented in June 2021.
Gordon King
Bell St.
Port Townsend
WA 98368
From:Kim Thompson
To:Josh Peters
Cc:jeffbocc
Subject:Comments re: Jefferson Co Revised Shoreline Master Program
Date:Monday, October 2, 2023 3:12:17 PM
Attachments:Jefferson Co SMP_PCSGA Comments_Oct 2023.pdf
ALERT: BE CAUTIOUS This email originated outside the organization. Do not open
attachments or click on links if you are not expecting them.
Dear Mr. Peters,
Please see attached for our comments regarding the Jefferson County SMP update. Feel free to
reach out if you have any questions.
Sincerely,
Kim
Kim ThompsonExecutive DirectorPacific Coast Shellfish Growers Association (PCSGA)626-327-7723PCSGA.ORG
6
October 2, 2023
Jefferson County Planning Commission
c/o Department of Community Development
621 Sheridan Street
Port Townsend, WA 98368
RE: Draft Shoreline Master Program (September 20, 2023 version)
Dear Jefferson County Planning Commissioners:
I’m writing on behalf of The Pacific Coast Shellfish Growers Association (PCSGA) to submit comments on the
draft Shoreline Master Program (SMP) that was released on September 20, 2023. PCSGA represents oyster,
clam, geoduck, and mussel growers in the waters of Washington, California, Alaska, Oregon, and Hawaii. We
have several members in Jefferson County who provide important sources of well-paying jobs and economic
activity, which help to diversify and strengthen the local economy. We greatly appreciate the value and role for
the SMPs as our growers are highly dependent on healthy ecosystems and water quality. The SMP, as a robust
planning document, was established to provide guidance on development within the shoreline designation. This
tool, once developed, provides a reference on what and where development is allowed, and the process for
doing so. We have concerns about the current draft and the impacts it will likely have on new and existing
shellfish farms in the County.
Specifically, many of the data requirements in section 7 of the aquaculture chapter are actually aimed at finfish
and not appropriate for shellfish farming. Some of it does apply to geoduck, but not other bivalves, such as
oysters, clams, and mussels. Our growers accept the need to collect and submit data that is relevant to their
species and growing methods. They do this to meet the many permit and regulatory requirements they already
must meet. These efforts do cost time and monetary resources, for both the growers and the County staff who
will review them, so it is important that any data requirements will contribute to the desired outcomes for the
SMP. In this case, many of the data requests will not. What they will do is put strain on the limited resources for
County staff and farmers, particularly smaller growers.
Further, while we appreciate the intent of the newly added language at the beginning of section 7 that provides
an applicant the opportunity to have certain requirements waived based on the project, the burden still lies with
the applicant. We recommend including language or a chart that outlines the core application requirements for
each type of aquaculture in the SMP. This would provide clarity and guidance to both the administrator and the
applicant regarding necessary data for a specific application/permit. Please review the letter from Plauché &
Carr on behalf of Taylor Shellfish dated September 29, 2023 for more details on concerns our members have
about the current SMP draft.
Washington’s shellfish growers already meet the requirements for a suite of regulations at the local, state, and
federal levels. Cultivation practices and impacts to species and the environment have been thoroughly evaluated
120 State Ave. NE, #142 • Olympia, WA • O: 360-754-2744 • F: 360-754-2743 • www.pcsga.org
120 State Ave. NE, #142 • Olympia, WA • O: 360-754-2744 • F: 360-754-2743 • www.pcsga.org
under the Army Corps 2015 Programmatic Biological Assessment and the Services 2016 Biological Opinion. Both
reports concluded that, when used with a set of appropriate conditions, aquaculture was not likely to adversely
impact the environment or species. Shellfish farmers also provide important economic and job benefits for local
communities, as well as nutritious food with less impact on the environment. They are also actively engaged in
ongoing efforts to support healthy water quality and ecosystems that benefit not just their livelihoods, but also
the communities in which they operate.
We urge you to consider the many benefits shellfish aquaculture can provide Jefferson County residents, and
keep in mind that the growers themselves are members of those communities when deciding whether to accept
this draft. We welcome the opportunity to work with the Planning and County Commissioners to make
appropriate changes to section 7 of the SMP so we can maximize use of grower and County resources, as well as
the many benefits shellfish farming provides to Jefferson County residents and communities.
Thank you for your consideration.
Sincerely,
Kim Thompson
Executive Director
Pacific Coast Shellfish Growers Association
From:Sue Corbett
To:Josh Peters
Subject:SMP Public Comment from 56 Shine Neighbors and Supporters
Date:Monday, October 2, 2023 3:51:58 PM
Attachments:Community ltr 56 FINALm 10-02-2023.pdf
ALERT: BE CAUTIOUS This email originated outside the organization. Do not openattachments or click on links if you are not expecting them.
Hello, Josh.
Attached is a (corrected) letter from 56 Shine Neighbors and Supporters concerning SMPregulation of geoduck operations. This replaces the letter I sent you earlier today that was
signed by 53 people.
I would appreciate acknowledgement of this email and attachment.
Thank you--Sue
7
SHINE NEIGHBORS AND SUPPORTERS
SQUAMISH HARBOR, HOOD CANAL, JEFFERSON COUNTY, WA
Suec71@gmail.com
October 2, 2023
Jefferson County Planning Commission c/o Josh Peters, Director Jefferson County DCD jpeters@co.jefferson.wa.us
Dear Jefferson County Planning Commission,
Re: Urging Requirement for Conditional Use Permit for New Geoduck Operations
We urge the Planning Commission to maintain the requirement, included in its September 20,
2023, draft Shoreline Master Plan (SMP), for a standard Conditional Use Permit (CUP) for any new geoduck operations on Jefferson tidelands, including expansions and conversions of other shellfish to geoduck.
More than two years ago, as residents of Shine and stewards of Hood Canal, many of us wrote to
the Planning Commission in support of such a provision. We are gratified that the Planning Commission included this requirement in the draft it sent to the state Department of Ecology for review.
The Department of Ecology, in its initial review, approved this requirement, as it similarly did
(in final form) for Kitsap and Clallam counties. Jefferson lies in close shoreline-proximity to these counties, sharing Hood Canal, Discovery Bay, and other waters of the Salish Sea. Notably, all of Hood Canal, including its tidelands and shoreline, and most of Puget Sound and the Strait of Juan de Fuca are Shorelines of Statewide Significance, under the state Shoreline Management
Act. By adopting the CUP process, Jefferson County will harmonize with Kitsap and Clallam
counties in how they review commercial geoduck operations in our common waters.
At seeding time, commercial geoduck farms insert approximately 43,560 PVC tubes per acre (one per square foot) into the tideland. At ten inches per tube, that’s about 7 miles of PVC—the
distance between the QFC/Jefferson County Planning office and the county library in Irondale—
shoved into one acre. Many geoduck farms are five to ten acres or more. That’s also more than
11 tons of plastic per acre, plunged into the grinding sand. At harvesting time, the sand and its bio-life are liquified up to three feet deep with a hydraulic hose so the geoducks can be extracted.
A CUP process does not dictate the outcome of a commercial geoduck application. Rather, it
allows a neutral decision-maker to evaluate the potential effects of commercial geoduck operations on a particular site: on critical eelgrass, on estuarial life, on local endangered species, on recreational activities, and on disturbances to neighbors. The process allows all interested parties to present evidence and participate in a public hearing before a decision is
made.
Shine Neighbors and Supporters Ltr to Jefferson County Planning Commission October 2, 2023
2
In a similar vein, the Planning Commission need not decide whether commercial geoduck farms are good or bad. It’s the job of the Planning Commisssion to recommend a fair process for
making such a decision on a particular application for a particular site. That process is the CUP process, and we urge the Planning Commission to recommend it to the Board of County Commissioners.
Sincerely,
Sue Corbett
Sue Corbett
31 Churchill Lane
Port Ludlow, WA 98365 suec71@gmail.com
and the following 55 neighbors and supporters:
Randy Corbett 31 Churchill Lane Port Ludlow, WA 98365 rlcor@msn.com
John Fabian 100 Shine Road Port Ludlow, WA 98365 fabianj@olympus.net
Donna Fabian 100 Shine Road Port Ludlow, WA 98365 Donna.fabian@rocketmail.com
Ed Davis 1254 Shine Road Port Ludlow, WA 98365 Ed47inshine@gmail.com
Sara Davis 1254 Shine Road Port Ludlow, WA 98365 saraonshine@gmail.com
Shine Neighbors and Supporters Ltr to Jefferson County Planning Commission October 2, 2023
3
Marilyn Showalter 1596 Shine Rd Port Ludlow, WA 98365 marilyn.showalter@gmail.com
Steve Aos 1596 Shine Rd. Port Ludlow, WA 98365
steveaos@msn.com
Marcia Case 531 Shine Road Port Ludlow, WA 98365
Casemarcia@gmail.com
Bruce Case 531 Shine Road Port Ludlow, WA 98365
bruce.marciacase@gmail.com
Tony Brenna 110 Harborview Place Port Ludlow, WA 98365
brengun@olympus.net
Elena Rodriguez 110 Harborview Place Port Ludlow, WA 98365
emrod@olympus.net
Marcia Schwendiman 23 Longmire Lane Port Ludlow, WA 98365
marciaschwendiman@gmail.com
Jim Weitkamp 641 Shine Road Port Ludlow, WA 98365
shjw2510@msn.com
Stephanie Harlow 641 Shine Road Port Ludlow, WA 98365
sharlow623@hotmail.com
Jan Wold POB 1340 Poulsbo, WA 98370 jestuary@hotmail.com
Paul Steenberg POB 1340 Poulsbo, WA 98370
tanevaho@hotmail.com
Mike Harris 157 Leslie Lane Sequim, WA 98382
mccash70@gmail.com
Dawn Harris 157 Leslie Lane Sequim, WA 98382
dawnhew65@gmail.com
Bob Gebo 295 Margaret Street Port Ludlow, WA 98365
sjora36@gmail.com
Sue Heston 295 Margaret Street Port Ludlow, WA 98365
sjora36@gmail.com
Barry Cullen 23 Longmire Lane Port Ludlow,WA 98365
Barryjc758@gmail.com
Michael Tripp 1680 Shine Road Port Ludlow, WA 98365
michae@shirtco.com
Ann Johnson 101 Merredith Street Port Ludlow, WA 98365
annwjohnson@hotmail.com
Shine Neighbors and Supporters Ltr to Jefferson County Planning Commission October 2, 2023
4
Charlie Marquis 1662 Shine Road Port Ludlow, WA 98365 cpmarquis777@gmail.com
Patti Marquis 1662 Shine Road Port Ludlow, WA 98365 cpmarquis@yahoo.com
Cindy Harris 60 Churchill Lane Port Ludlow, WA 98365 cindyh2@comcast.net
George Harris 60 Churchill Lane Port Ludlow, WA 98365 gomblu51@gmail.com
Bill West 1482 Shine Road Port Ludlow, WA 98365 bcwest0101@gmail.com
Cheryl West 1482 Shine Road Port Ludlow, WA 98365 bcwest0101@gmail.com
Jim Simpkins 1290 Shine Road Port Ludlow, WA 98365 jimsimpkins1958@gmail.com
Susan Simpkins 1290 Shine Road Port Ludlow, WA 98365 jimsimpkins1958@gmail.com
Chris Eagan 235 Margaret St Port Ludlow, WA 98365 Chris_Eagan@hotmail.com
Steve Dittmar 30 Watney Lane Port Ludlow, WA 98365 SWDittmar@gmail.com
Kathy Dittmar 30 Watney Lane Port Ludlow, WA 98365 kathydittmar@hotmail.com
Scott Anderson 90 Churchill Lane Port Ludlow, WA 98365 sda_const3@gmail.com
Cindy Anderson 90 Churchill Lane Port Ludlow, WA 98365 cindycaland@gmail.com
Nezam Tooloee 162 Longmire Lane Port Ludlow, WA 98365 Nezam@earthlink.net
Nellie Andersen 162 Longmire Lane Port Ludlow, WA 98365 nelliac@hotmail.com
Ronald Hildebrandt 262 Margaret St Port Ludlow, WA. 98365 rdhildebrandt@hotmail.com
Marcia Hildebrandt 262 Margaret St Port Ludlow, WA 98365 winged_monkeys@hotmail.com
Carolyn Eagan 235 Margaret St Port Ludlow, WA 98365 Carolyn.a.eagan@gmail.com
Shine Neighbors and Supporters Ltr to Jefferson County Planning Commission October 2, 2023
5
Steve Fling 122 Longmire Lane Port Ludlow, WA 98365 spfling@comcast.net
Michael Abramson 1520 Shine Road Port Ludlow, WA 98365 mabromson@telus.net
Karen Lopilato 1520 Shine Road Port Ludlow, WA 98365 Karen.lopilato@gmail.com
Kerri Patterson [owner 1342 Shine Road] 932 110th Ave SE Bellevue, WA 98004
kerripatterson@msn.com
Mike Patterson [owner 1342 Shine Road] 932 110th Ave SE
Bellevue, WA 98004
spikeap@gmail.com
Bernadette Olson 2460 Tekiu Road NW
P.O. Box 655
Seabeck, WA 98380 bernadetteolson@hotmail.com
Nan Woodman
2401 NE Trail Way
Poulsbo, WA 98370 nanwoodman@gmail.com
Celine Santiago 3229 State Route 20 Port Townsend, WA 98368 celine@ptalliance.org
Darlene Schanfeld, Ph.D. 160 Kane Lane Sequim, WA98382 darlene@olympus.net
Bruce Morse, Ph.D. 14708 Sherman Dr NW Gig Harbor, WA 98332 Bruce_Morse@msn.com
Dan Merkle (Shine resident 2004 - 2020) 1325 4th Ave., #940 Seattle, WA 98101
danm@msfseattle.com
Val Martinson [owner Dabob Bay property] 1852 Sherman Hill Road
Poulsbo, WA 98370
donnvalm@msn.com
Carolyn Fairbanks 313 Margaret Street
Port Ludlow, WA 98365
carolynfairbanks@gmail.com
Russ Fairbanks 313 Margaret Street
Port Ludlow, WA98365
russfairbanks@gmail.com
From:Johnson & Gunstone Shellfish
To:Josh Peters
Cc:jeffbocc
Subject:Comments on Revised Shoreline Master Program
Date:Monday, October 2, 2023 8:29:37 PM
Attachments:Comments_SMP.pdf
ALERT: BE CAUTIOUS This email originated outside the organization. Do not open
attachments or click on links if you are not expecting them.
To the members and staff of the Jefferson County Planning Commission,
Please see my attached comments for the upcoming public hearing.
Thank you,
Reed GunstoneJ&G Gunstone Clams, Inc.
--
Confidentiality Notice: This e-mail and document(s) accompanying this e-mail contain confidential
information that is legally privileged. The information is intended only for the use of the
intended recipient(s) named above. If you are not the intended recipient, you are hereby
notified that any disclosure, copying, distribution, or the taking of any action in reliance on
the contents of this e-mail and its attachments, except its direct delivery to the
intended recipient(s) named above, is strictly prohibited. If you have received this e-mail in error,
please notify us immediately by telephone.
8
From:Marie Godfrey
To:Josh Peters; Planning Commission Desk
Cc:celine@ptpalliance.org
Subject:Fwd: FW: Urgent Request for a Conditional Use Permit for New Geoduck Operations
Date:Tuesday, October 3, 2023 9:46:39 AM
Attachments:Shellfish CUP 09272023.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 Josh,
I am forwarding this email on behalf of Celine Santriago, who was unable to send this becauseof email issues. I also signed the attached letter, along with several concerned neighbors.
Thank you for your time and consideration,
Marie Godfrey
Please
---------- Forwarded message ---------From: <celine@ptpalliance.org>
Date: Tue, Oct 3, 2023 at 6:35 AMSubject: FW: Urgent Request for a Conditional Use Permit for New Geoduck Operations
To: Marie Godfrey <mgodfrey011@gmail.com>
9
DISCOVERY BAY NEIGHBORS AND SUPPORTERS
DISCOVERY BAY, JEFFERSON COUNTY, WA
September 27, 2023
To: Jefferson County Planning Commission c/o Josh Peters, Director, Jefferson Count DCD
jpeters@co.jefferson.wa.us
Dear Jefferson County Planning Commission,
Re: Urging Requirement for Conditional Use Permit for New Geoduck Operations
We urge the Jefferson County Planning Commission to maintain the requirement, included in its September
20, 2023, draft Shoreline Master Plan (SMP), for a standard Conditional Use Permit (CUP) for any new
geoduck operations on Jefferson tidelands, including expansions and conversions of other shellfish to
geoduck.
More than two years ago, residents of Shine and Stewards of Hood Canal, wrote to the Planning Commission
in support of such a provision. Residents of Discovery Bay support those efforts. We strongly urge that the
Planning Commission included this requirement in the draft that was sent to the state Department of
Ecology for review.
The Department of Ecology, in its initial review, approved this requirement, as it similarly did (in final form)
for Kitsap and Clallam counties. Jefferson lies in close shoreline-proximity to these counties, sharing Hood
Canal, Discovery Bay, and other waters of the Salish Sea. Notably, all of Hood Canal, including its tidelands
and shoreline, and most of Puget Sound and the Strait of Juan de Fuca are Shorelines of Statewide
Significance, under the state Shoreline Management Act. By adopting the CUP process, Jefferson County
will harmonize with Kitsap and Clallam counties in how they review commercial geoduck operations in our
common waters.
Almost six years ago, Taylor Shellfish began an unauthorized operation in Discovery Bay in an area known as
Woodman Village. Despite efforts to inform the Army Corps of Engineers, the WA State Department of
Ecology and Jefferson County, the operations expanded unfettered without a site review to establish an
environmental baseline or to discover its archeological significance. The operation received an “After the
Fact” permit in late 2022. Not only have Native American remains been discovered at this site but
degradation of the local marine environment has occurred. We have witnessed the recession of the wetlands
and the disappearance of keystone intertidal marine species such as moon snail and sand dollars. Our
shorebirds have nearly disappeared. Specifically, our heron population is no longer able to access the smelt,
Pacific herring, and sand lance within this spawning ground. The constant ATV use has compacted the
estuary. With the Spring 2023, fifteen-acre installation of geoduck, thousands of pounds of eelgrass and other
algae washed ashore to decompose on the beach. Because of the ever-growing sand spit to the north, there
has been significant downdrift erosion, which has been documented with photographs. It is estimated that
we have lost a minimum four feet of the southern uplands along with the trees as a result. The intertidal
zone to the north used for the shellfishery has become nothing but a wasteland for shells, shellfish, and
plastic.
We disposed of shellfish debris monthly in the years prior to the geoduck installation and since. The plastics
and debris will only intensify. At seeding time, commercial geoduck farms insert approximately 43,560 PVC
tubes per acre (one per square foot) into the tideland. At ten inches per tube, that’s about 7 miles of PVC—
the distance between the QFC/Jefferson County Planning office and the county library in Irondale— shoved
into one acre. Many geoduck farms are five to ten acres or more. The Discovery Bay operation is 15 acres.
That is about 15 tons of plastic per acre or approximately 225 tons, plunged into the grinding sand. This
volume of plastic displaces the same volume of water. This water has nowhere to go but upland, thus
causing downdrift erosion south of the operation. This should not be confused with sea level rise due to
climate change. At harvesting time, the sand, and its bio- life are liquified up to three feet deep with a
hydraulic hose so the geoducks can be extracted.
We understand that Washington State sees Shellfish operations as a rich and viable opportunity for
commerce. A CUP process does not dictate the outcome of a commercial geoduck application. Rather, it
allows a neutral decision-maker to evaluate the potential effects of commercial geoduck operations on a
particular site: on critical eelgrass, on estuarial life, on local endangered species, on recreational activities,
and on disturbances to neighbors. It is crucial for the health of the Salish Sea to establish a baseline and
develop a wholistic understanding of the local marine environments before allowing any alteration. The
process allows all interested parties to present evidence and participate in a public hearing before a
decision is made.
In a similar vein, the Planning Commission need not decide whether commercial geoduck farms are good or
bad. It’s the job of the Planning Commisssion to recommend a fair process for making such a decision on a
particular application for a particular site. That process is the CUP process, and we urge the Planning
Commission to recommend it to the Board of County Commissioners.
Sincerely,
Celine and Vince Santiago
3229 Sate Route 20
Port Townsend, WA 98368
celine@go-vetrans.com
and the following neighbors and supporters
Marie and Derek Godfrey Angela Watson
3225 State Route 20 Palo Alto Road
Port Townsend, WA 98368 Sequim, WA 983682
Marika and Jacob Montgomery Sheri and Richard Suryan
71 Woodman Road (360) 316-9784
Port Townsend, WA 98368
Doug Kurata MD Jim and Noreen Mc Carron
71 Woodman Road 4875 State Route 20
Port Townsend, WA Port Townsend WA 98368
360-643-2846
Linda Lowe
10 Woodman Road Karen Hackenberg
Port Townsend, WA 98368 5413 State Route 20
Port Townsend, WA 98368
Ann Dutton
PO Box 65349
Port Ludlow, WA 98365
Eelgrass provides a surface for eggs for spawning by species such as the Pacific herring and a foraging area with
shelter for young fish and invertebrates (“The Importance,” 2014).
Beds of eelgrass also stabilize the sediment and reduce the force of waves, which in turn slows erosion. Eelgrass can
work as a filtration system as well for product runoff (“The Importance,” 2014).
It is important to note that the main argument for expanding oyster aquaculture is that these shellfish make the
water clearer through their filtering mechanisms (Couranz, 2016).
Eelgrass also works as a filtration system, so it seems rather unnecessary to try to replace a working filtration system
with a man-made, perhaps destructive, oyster aquaculture farm.
The above ground biomass of eelgrass was found to be 32% lower in aquaculture areas as compared with
uncultivated areas (Tallis et al., 2009). On top of this, the total number of eelgrass plants was 70% lower than
uncultivated areas in dredged beds and 30% lower in hand-picked beds (Tallis et al., 2009) again indicating that the
method of collection does not change the general negative effects of oyster aquaculture.
Sample Area Pre-Taylor Sample
2023
2023 – No more eelgrass
Discovery Bay / Woodman Village Forage Fish Spawning Ground
2015 Eelgrass beds 2023
Before Taylor begins aquaculture operation After 6 yrs of unauthorized operations and 15 acres of shellfish
2023
Taylor Shellfish destroying spawning ground with hand dredging and ATV use for 3 wks in March 2022
+
2023
Pre Geoduck 15 acre Geoduck installation begins with further eelgrass eradication
Researchers are concerned about the effects of shoreline development and activity, which can disrupt natural
processes that replenish sandy beaches; destroy eelgrass beds; alter predator-prey interactions; and generally disturb
fish behavior. (The real story of Puget Sound’s Disappearing Herring, Sightline Institute)
Discovery Bay DNR Designated Fish Stream Map at Woodman Village
Woodman Village delta prior to Taylor aquaculture 2015
Taylor Shellfish Illegal Alteration of the Woodman Village DNR Designated Fish Stream in 2018 with 2-foot increase in
elevation using sandbags. Upland work diminished flow.
Woodman Village wetlands prior to Taylor aquaculture 2016
Taylor Shellfish destroying Woodman Village wetland environment by cutting up stabilizing logs 2018
2018 Day after wetland stabilizing logs were cut 2019 Significant wetland recession in one year later
Rods removed after photos were presented to the Army Corps of Engineers. Greater wetland recession has occurred
since.
Taylor Shellfish Expansion requires a CUP from Jefferson County PUD. Greater than 25% expansion since 2016!
Pre Taylor 2015
Taylor begins 2016
2017
2021
2022 More than 25% Expansion with no CUP or permit.
Woodman Village Archeological Site of Significance
Bones excavated near Discovery Bay determined to be Native American
Former S’Klallam village at Discovery Bay site
•By Brian McLean
•Friday, September 6, 2019 1:26pm
DISCOVERY BAY — Bones that included a human skull unearthed last month during an excavation
have been determined to be Native American, a state historic preservation officer said.
Allyson Brooks, the director of the state Department of Archaeology and Historic Preservation,
confirmed the findings late Tuesday and said her agency is working with tribes on next steps.
The state still has the remains and is conducting an analysis, said David Brownell, the historic
preservation officer for the Jamestown S’Klallam Tribe late Wednesday.
Brownell said Wednesday the remains include at least two individuals, both Native American and
“definitely” from one of the S’Klallam tribes.
A homeowner in the 3200 block of state Highway 20 near Discovery Bay had hired an excavation
company, which was digging on the property Aug. 21 when the skull was found.
The homeowner called the Jefferson County Sheriff’s Office to investigate, and the agency
contacted the state archaeology department with photos of the bones.
Brownell said the state has a mandated process after it determines remains are Native American to
contact tribes to see if they have interest. The state typically contacts all of the Salish Sea tribes, he
said.
Brownell confirmed the Jamestown S’Klallam Tribe has expressed interest in the remains.
“It was at one of our old village sites that was on Discovery Bay,” he said.
Undersheriff Andy Pernsteiner said last month the skull was “quite old” based on the condition of
the teeth, which didn’t have any dental work. The skull and the rest of the bones initially were
stored at the sheriff’s office in Port Hadlock.
Brownell said the tribe typically doesn’t release public information about reburials. His office
handles about six to 12 similar cases per year, he said.
________
Jefferson County Managing Editor Brian McLean can be reached at 360-385-2335, ext. 6, or
at bmclean@peninsuladailynews.com.
Location of Native American Remains
Downdrift Erosion on southern properties from Taylor aquaculture shoreline alterations of enhancing a sand jetty
(Marine / Shoreline Assessment in progress)
Littoral processes and sediment budget occur along the west side of Woodman Village, Discovery Bay, between two
protruding points at right angles to the shoreline. The sand jetty was extended to the north and widen to the west
preventing the natural shifting of sediments. Because the jetty forms the distal end of a terminal littoral cell, it has an
important effect on the regional sediment budget. The Santiago property, oriented at right angles and located
immediately downdrift of Taylor oyster jetty, suffers high erosion rates in its central section from lack of sediment input
from the updrift direction.
2022 – Sandy beach
2023 – Rocks exposed, no more beach sand, mature Big Leaf Maple has fallen
Water Quality
Plastic pollution ongoing and the responsibility of the community
Collection from Feb-March 2022 April - June 2023
(“Not ours” says Taylor crew, but it is the only shellfishery anywhere near Woodman Village)
Shorebird Foraging Behavior Changes
Heron fishing from kelp island Bald eagle fringe fishing
Canadian Geese circumvent geoduck netting and oysters bags
From:Laura Hendricks
To:Josh Peters
Subject:Request Requirement for Conditional Use Permit for New Geoduck Operations
Date:Tuesday, October 3, 2023 11:50:04 AM
Attachments:Jefferson County Request for Geoduck Conditional Use Permit RR (1).docx
Complaint - 2021-12-20--ecf-01.pdf
Army Corps NWP Washington State Unlawful-Oct 2019 Federal Decision (1) (2) (1) (1) (1) (2).pdf
9th Circuit Court of Appeals Feb 11 2021 Decision (1) (1).pdf
Industrial Shellfish Aquaculture Threats Oct 26 2018 Letterhead (4) (2) (1).pdf
Industrial Shellfish Aquaculture Plastic Pollution-March 2019 (1)F (1) (1) (1) (1) (3) (1).pdf
ALERT: BE CAUTIOUS This email originated outside the organization. Do not openattachments or click on links if you are not expecting them.
Dear Mr. Peters,
We have attached our request letter, the 2019 Army Corps lawsuit with 2/11/21 9th Circuit Appeals win, new 2021Coalition/Corps lawsuit and two supporting documents for your review.
Thank you,Laura HendricksDirector, Coalition To Protect Puget Sound Habitat
10
P.O. Box 233Burley, WA 98322
coalitiontoprotectpugetsound.org
October 3, 2023
Jefferson County Planning Commission
c/o Josh Peters, Director Jefferson County DCD jpeters@co.jefferson.wa.us
Re: Requesting Requirement for Conditional Use Permit for New Geoduck Operations
Dear Jefferson County Planning Commission,
We request that the Planning Commission maintain the requirement, included in its September 20, 2023, draft Shoreline Master Plan (SMP), for a standard Conditional Use
Permit (CUP) for any new geoduck operations on Jefferson tidelands, including
expansions and conversions of other shellfish to geoduck.
We support the residents of Shine and stewards of Hood Canal where many of these citizens wrote to the Planning Commission in support of such a provision. We appreciate
that the Planning Commission included this requirement in the draft it sent to the state
Department of Ecology for review.
The Coalition To Protect Puget Sound Habitat (Coalition) has members throughout Washington State, including members in the Jefferson and Hood Canal area. Citizens
have been urging officials for years to require regulations for industrial shellfish
aquaculture that protect our dwindling marine resources which need protection. Our members have felt so strongly about protecting our marine life against industrial aquaculture, that the Coalition on 10/10/2019 won the attached lawsuit presided by Federal Judge Lasnik against the Corps of Engineers. The Corps ignored Judge Lasnik’s
findings/orders, so we filed another lawsuit (see attached) against the Corps on 12/20/21.
This Corps lawsuit is still in litigation and demands the Corps protect Washington State shorelines from industrial shellfish aquaculture destructive impacts as ordered by Judge Lasnik.
As Jefferson County is aware, there are no protective environmental State regulations for
industrial aquaculture. Until the Corps does their job of protecting our marine life, it is left up to the County to protect their marine resources.
We appreciate your consideration and attention to this important matter. Attached are two
summary documents regarding industrial shellfish aquaculture that may be helpful in
your review.
Sincerely, Laura Hendricks
Director
(253) 509-4987
COMPLAINT – 1 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Karl G. Anuta (WSB No. 21346) Law Office of Karl G. Anuta, P.C.
735 SW 1st Avenue, 2nd Floor
Portland, OR 97204 T: (503) 827-0320 kga@integra.net
Counsel for Plaintiff Coalition
George A. Kimbrell (WSB No. 36050)
Amy van Saun (pro hac vice) Center for Food Safety 2009 NE Alberta Street, Suite 207 Portland, OR 97211
T: (971) 271-7372
gkimbrell@centerforfoodsafety.org avansaun@centerforfoodsafety.org
Counsel for Plaintiff CFS
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE
COALITION TO PROTECT PUGET SOUND HABITAT, and CENTER FOR FOOD SAFETY, Plaintiffs,
vs. U.S. ARMY CORPS OF ENGINEERS, an agency of the United States; LIEUTENANT
GENERAL SCOTT A. SPELLMON, in his Official capacity as Chief of Engineers of the U.S. Army Corps of Engineers; COLONEL GEOFF VAN EPPS, in his Official Capacity as the Commander of the Northwestern Division of
the U.S. Army Corps of Engineers; and COLONEL ALEXANDER L. BULLOCK, in his Official Capacity as Commander of the Seattle District of the U.S. Army Corps of Engineers,
Defendants.
Case No. 2:21-cv-1685
COMPLAINT (Environmental and Administrative
Procedure Act Claims)
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 1 of 53
COMPLAINT – 2 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
SUMMARY
1. Washington state is home to unique and invaluable coastal ecosystems, which are
unfortunately being threatened by the excessive expansion of industrial commercial shellfish
aquaculture. This action presents as-applied and facial challenges to decisions of the United States
Army Corps of Engineers (“the Corps”) authorizing commercial aquaculture operations in
tidelands throughout Washington, including Puget Sound and Willapa Bay, under the 2021
issuance of Nationwide Permit 48 (NWP 48) and through “Letters of Permission” (LOPs) under
the Rivers and Harbors Act. These challenges are based on the Corps’ failure to comply with (1)
the National Environmental Policy Act (NEPA); (2) the Clean Water Act (CWA); (3) the
Endangered Species Act (ESA); (4) the Rivers and Harbors Act (RHA); and/or (5) the
Administrative Procedure Act (APA), when authorizing such expansion.
2. Defendants violated NEPA because they (1) improperly determined that activities
authorized under NWP 48 would not significantly adversely affect the environment, and (2) failed
to rest a Finding of No Significant Impact (FONSI) on an adequate Environmental Assessment,
including a hard look at all direct, indirect, and cumulative impacts of shellfish aquaculture
permitting—or alternatively to complete an Environmental Impact Statement (EIS) with proper
NEPA analysis in it. Defendants violated the CWA in the issuance and administration of NWP 48
by authorizing activities that result in more than minimal adverse environmental impacts and
contribute to significant degradation of waters of the United States. Defendants violated RHA
Section 10 and their own regulations by (1) failing to notify the public and provide opportunity to
comment on LOPs, and (2) authorizing activities that result in more than minimal adverse
environmental impacts. Defendants violated the ESA by failing to initiate consultation on 2021
NWP 48 as required by Section 7. Defendants violated the APA by making arbitrary and
capricious decisions not in accordance with the law.
3. By initiating this action, Plaintiffs seek to:
a) Obtain a declaration that the Corps violated (again) NEPA and its
implementing regulations when it improperly found when issuing NWP 48 that
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 2 of 53
COMPLAINT – 3 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
activities in Puget Sound authorized under NWP 48 would not significantly
adversely affect the environment, and decided not to prepare an EIS;
b) Obtain a declaration that the Corps (again) violated the CWA and its
implementing regulations when it issued NWP 48;
c) Obtain a declaration that the Corps (again) violated the CWA and its
implementing regulations when it failed to take required actions to ensure that
activities authorized under NWP 48 would not have more than minimal adverse
impacts on the environment or significantly degrade waters of the United States;
d) Obtain a declaration that the Corps violated the CWA and RHA, including its
own regulations, when it issued hundreds of LOPs to commercial shellfish
activities previously authorized under NWP 48, despite those activities’ potentially
significant individual or cumulative impacts on environmental values, and when
the Corps knew or should have known that those activities would have
encountered appreciable opposition;
e) Obtain a declaration that the Corps violated the ESA and its implementing
regulations when it issued NWP 48;
f) Obtain an order vacating, setting aside, and/or remanding the Corps’ (1)
authorizations of activities under NWP 48 since the 2021 issuance of that permit;
and (2) the LOPs for projects previously authorized under NWP 48;
g) Obtain an order enjoining the Corps from issuing any further authorizations
under NWP 48 in Washington, and any further LOPs for projects previously
authorized under NWP 48, until the Corps complies with NEPA by producing a
new supplemental document; and/or complies with the ESA by completing
consultation; and/or complies with the CWA by completing adequate effects
analyses, to ensure that authorized activities will have minimal effects on the
environment and comply with 33 U.S.C. § 1344(b)(1) and the regulations adopted
under that law; and/or the RHA and the regulations for issuance of LOPs.
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 3 of 53
COMPLAINT – 4 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
JURISDICTION
4. Jurisdiction is proper in this Court pursuant to 28 U.S.C. §§ 1331 (federal
question); § 1346(a)(2) (civil action against the United States); § 1361 (action to compel officer of
the United States to perform his or her duty); § 2201 (authorizing declaratory relief); and § 2202
(authorizing injunctive relief and any other “necessary and proper relief”), and 5 U.S.C. § 702
(judicial review of agency action under the APA). This action arises under the laws of the United
States, including the APA, 5 U.S.C. §§ 701–706; NEPA, 42 U.S.C. §§ 4321–4370m; ESA, 16
U.S.C. §§ 1531–44; RHA, 33 U.S.C. § 403; and CWA, 33 U.S.C. § 1244. An actual, justiciable
controversy exists between Plaintiff and Defendants. The requested relief is proper under 28
U.S.C. §§ 2201 (declaratory relief) and § 2202 (injunctive relief), and 5 U.S.C. §§ 705 and § 706.
VENUE
5. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e). A substantial part of
the events or omissions giving rise to the claims occurred within this District. The Seattle District
of the U.S. Army Corps is the responsible for substantial portions of the actions and omissions
giving rise to this case, and it is also located in within this District, in Seattle, King County,
Washington. In addition, Plaintiffs have several members who reside in this District.
PARTIES
6. Plaintiff Coalition to Protect Puget Sound Habitat (“Coalition”) is a non-profit
organization incorporated under the laws of the state of Washington. The Coalition is an alliance
of interested citizens, environmentalists, scientists, and recreational users who reside on or near
Puget Sound, and study, work to protect and recreate in the waters of Puget Sound. The
Coalition’s mission is to protect the habitat of Puget Sound tidelands from the expansion of new
intensive shellfish aquaculture methods and practice. The Coalition and its members are directly
affected by the expansion of industrial aquaculture operations in both the coastal and nearshore
areas of Puget Sound, and its impact on plants, animals, and ecological function. The expansion
of these operations directly impairs the Coalition and its members’ personal, recreational, and
aesthetic enjoyment of tidelands near their homes and other parts of Puget Sound. The Coalition
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 4 of 53
COMPLAINT – 5 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
and its members have repeatedly submitted comments raising these concerns to the Corps and/or
other agencies before the Corps’ issuance of the 2012 NWP 48, the 2017 NWP 48, the 2021 NWP
48, and the individual authorizations and/or LOPs at issue in this case. In addition, the Coalition
previously brought a successful suit against the Corps for improper issuance of the 2017 NWP 48,
challenging some of the same conduct at issue in this case, and obtained a favorable ruling on the
merits and on remedy. The Coalition then successfully defended those rulings on appeal at the
Ninth Circuit.
7. The Coalition seeks to give a voice to citizens’ concerns about aquaculture and its
impact on the health and quality of the shoreline and waters of Puget Sound, as well as the flora
and fauna that depend upon these irreplaceable resources. Members of the Coalition live in and/or
use Puget Sound and are and will be directly and adversely affected by the rapid and massive
expansion of the aquaculture industry of the type at issue under NWP 48 and under the new LOPs
for previous NWP 48 projects. This type of expansion can potentially undermine the protection
and enhancement of the quality of the waters of Puget Sound, as well as the many plant and
marine species that depend upon those waters for food and habitat. As such, the industrialization
of aquaculture that is being allowed by the Seattle District of the Corps interferes with the ability
of the plaintiff’s members to enjoy and recreate in the waters of the Sound.
8. The Coalition has representational standing to bring this action. The Defendants’
violations of the CWA, RHA, APA and NEPA have had an adverse impact on Plaintiff’s
members’ ability to use and enjoy the waters of Puget Sound, and the Defendants’ actions have
injured the health, recreational, environmental, aesthetic, commercial and/or other interests of
Plaintiff’s members. These injuries are fairly traceable to the Defendants’ violations and are
capable of redress by this Court.
9. The Coalition also has organizational standing to bring this action. Plaintiff has
long been engaged in a variety of educational and advocacy efforts to call attention to and
challenge the dramatic expansion of the commercial shellfish industry in Puget Sound, so as to try
to improve water quality and ecological function in its waters. This has included filing of a
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 5 of 53
COMPLAINT – 6 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Petition with the Corps in May 2015 to suspend or revoke NWP 48, which the Corps ignored. The
Coalition then successfully sued the Corps to overturn the previous NWP 48 and its
authorizations. The Defendants’ failures to comply with the requirements of the law, and the prior
rulings of this court, have or will adversely affect Plaintiff’s abilities to fulfill its mission and
purpose, and these injuries are fairly traceable to Defendants’ violations. These injuries are also
capable of redress by this Court.
10. Plaintiff Center for Food Safety (“CFS”) is a public interest nonprofit
organization whose mission is to empower people, support farmers, and protect the earth from the
adverse impacts of industrial food production, including the adverse environmental and wildlife
impacts of industrial shellfish operations. CFS has more than one million members across the
country, including tens of thousands of members in Washington State. CFS has offices in
Portland, Oregon; San Francisco, California; and Washington, D.C. CFS is a nationally
recognized leader on the issue of industrial agriculture and its impacts to public health and the
environment. Through science-based regulatory advocacy, public engagement, and
groundbreaking litigation, CFS protects its members and the public from the harmful effects of
industrial agriculture and promotes transparency and accountability in the food system. CFS also
acts as a watchdog of the federal agencies tasked with regulating different aspects of food
production, such as the Corps, which is the only federal agency with permitting authority over
industrial shellfish operations. If necessary, CFS utilizes public education, public notice and
comment, regulatory action, and litigation to ensure that federal agencies comply with their
statutory mandates and other federal laws designed to prevent and reduce the harmful impacts of
industrial agriculture.
11. CFS has long had an aquaculture program, including numerous policy, scientific,
and legal staff, dedicated to addressing the adverse environmental and public health impacts of
industrial aquaculture. CFS strives to improve oversight and regulation of aquaculture operations
by promoting policy and cultural dialogue between regulatory agencies, policymakers, and
legislators and affected groups, including residents, consumers, chefs, and environmental
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 6 of 53
COMPLAINT – 7 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
advocates, to protect public health and the environment from industrial aquaculture, including
specifically shellfish aquaculture, and to promote and protect more sustainable alternatives.
12. Specifically, regarding the challenged action, in 2017, CFS actively engaged with
the Corps on the proposed reissuance of NWP 48, including the submission of several comments
urging the Corps to forgo adopting NWP 48, at least in its current form, and to protect the unique
and essential aquatic ecosystems and shorelines in Washington. When the Corps issued 2017
NWP 48, CFS brought a lawsuit in this Court challenging the Corps’ compliance with the CWA,
NEPA, ESA, and the APA. Coal. to Protect Puget Sound Habitat v. U.S. Army Corps of Eng’rs,
417 F. Supp. 3d 1354 (W.D. Wash. 2019). This Court vacated that permit and remanded to the
Corps to comply with the CWA and NEPA, 466 F. Supp. 3d 1217 (W.D. Wash. 2020), and the
Ninth Circuit affirmed. 843 F. App’x 77 (9th Cir. 2021). When the Corps first announced that it
planned to reissue the NWP 48 in September 2020, CFS commented on the draft permit and again
urged the Corps to follow CWA, NEPA, and the ESA, as well as this Court’s order. See
Comments Submitted on Proposal to Reissue and Modify Nationwide Permits, COE-2020-0002
(Nov. 16, 2020).
13. CFS has representation and organizational standing. CFS has thousands of
members who live, work, and recreate in areas affected by commercial shellfish aquaculture in
Washington, including Willapa Bay and Puget Sound. Specifically, these members’ personal,
economic, recreational, aesthetic, property, and other interests are harmed by the unchecked
expansion of industrial shellfish activities in Washington’s tidelands, including the use of
pesticides and plastics, and the conversion of shorelines and native vegetation to commercial
shellfish growing beds and other aquaculture operations. In addition, CFS has long worked to
prevent and reduce the harmful impacts of aquaculture. Because the Corps continues to fail to
comply with federal law and judicial orders, CFS must divert substantial organizational resources
that would have otherwise been used to improve other aspects of aquaculture, such as offshore
and state finfish farming, to bring costly, resource-intensive regulatory and legal challenges
against the Corps.
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 7 of 53
COMPLAINT – 8 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
14. Defendant United Sates Army Corps of Engineers is an agency of the U.S.
Department of Defense. The Corps has a District Office in Seattle, Washington. The Corps and its
officers are responsible for the lawful execution of the CWA, NEPA, and the APA, as they
pertain to dredge and fill activities of commercial shellfish aquaculture in coastal waters.
15. Defendant Lieutenant General Scott A. Spellmon is the Commanding General
and Chief of Engineers of the Corps. Lieutenant General Spellmon is named as a defendant solely
in his official capacity. The Commanding General and Chief of Engineers is charged with
supervising and managing all Corps’ decisions and actions, including the evaluation of Corps’
decisions and actions under NEPA and section 404 of the CWA. The Chief of Engineers is
authorized to issue NWPs and charged with reviewing NWPs and proposing modifications,
revocations, and reissuance, as well as preparing NEPA documents and Section 404(b)(1)
Guidelines compliance analyses for proposed NWPs.
16. Defendant Colonel Geoff Van Epps is the Commander and Division Engineer of
the Northwestern Division of the Corps, which includes the Seattle District. Colonel Van Epps is
named as a defendant solely in his official capacity. Division engineers are authorized to modify,
suspend, or revoke NWP authorizations within their divisions, and are responsible for preparing
supplemental documentation for modifications or revocations made as a result of their authority.
Division engineers are also responsible for imposing regional conditions on NWPs at their
discretion, and to prepare supplemental documentation for modifications or revocations made as a
result of their authority. The Northwestern Division is responsible for a substantial portion of the
actions or omissions at issue in this lawsuit, including regional effects analysis and determination
that NWP 48, as well as the terms and conditions, all regional conditions, and limitations, and the
finding that NWP 48 allegedly would (or would not) have only minimal and not significant
effects on the aquatic environment here.
17. Defendant Colonel Alexander L. Bullock is the Commander of the Seattle
District of the Corps. Colonel Bullock is named as a defendant solely in his official capacity.
Under Corps regulations, district commanders are responsible for compliance with NEPA for
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 8 of 53
COMPLAINT – 9 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503)827-0320 (971)271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
actions within district boundaries, and CWA § 404 permitting. The Seattle District is responsible
for a substantial portion of the actions or omissions at issue in this lawsuit, including, but not
limited to, the issuance of regional conditions for NWP 48 and supplemental analysis and findings
in support of those conditions. The Seattle District Engineer is authorized to add, modify, or
delete special conditions in permits, and to modify, suspend and revoke permits, such as regional
permits or authorizations under NWP 48.
LEGAL BACKGROUND
I.ADMINISTRATIVE PROCEDURE ACT
18. The APA authorizes any person who has been adversely affected by an agency
action to seek judicial review of the action. 5 U.S.C. § 702. The APA provides a cause of action
to challenge agency actions “made reviewable by statute,” or final actions “for which there is no
other adequate remedy in a court.” Id. § 704. In addition, the APA provides standards for judicial
review of agency action. The APA directs reviewing courts to “compel agency action [that is]
unlawfully withheld or unreasonably delayed.” Id. § 706(1). The APA also directs courts to “hold
unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(1)(A).
19. The APA provides a cause of action for challenging the Corps’ actions under
NEPA; section 404 of the CWA, 33 U.S.C. § 1344; and section 10 of the RHA, 33 U.S.C. § 403
because “there is no other adequate remedy in a court” with respect to these actions. As a result,
Plaintiffs’ claims arising under NEPA, the CWA, and the RHA are reviewable under the APA.
II.CLEAN WATER ACT
20. The purpose of the CWA is “to restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.” 33 U.S.C. § 1251. To achieve this objective, section
404 of the CWA establishes a program for regulating the discharge of dredge or fill material into
waters of the United States, including wetlands. Id. § 1344. Section 404 requires a permit for
discharges of dredged or fill material into waters of the United States. Section 404 authorizes the
Secretary of the Corps, acting through the Chief of Engineers, to issue permits for the discharge
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 9 of 53
COMPLAINT – 10 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
of dredged or fill material into waters of the United States when certain conditions are met.
Concurrent regulatory authority exists under section 10 of the RHA, 33 U.S.C. § 403.
21. Under this program, the Corps must issue individual permits for proposed
activities with potentially significant impacts. The Corps can issue a general permit for an entire
category of activities on a regional or nationwide basis “if the Secretary determines that the
activities in such category are similar in nature, will cause only minimal adverse environmental
effects when performed separately, and will have only minimal cumulative adverse effect on the
environment.” Id. § 1344(e)(1); see also 40 CFR § 230.7. A nationwide permit (NWP) is a
general permit that authorizes specific activities across the country, unless a district or division
commander revokes the NWP in a state or other geographic region. See 33 CFR § 330.1. If a
proposed activity falls under an existing NWP, an applicant may request authorization under the
existing NWP rather than applying for an individual permit. Id. §§ 320.1(a)(3), § 330.6(a).
22. Before issuing any NWPs, the Corps must conduct analyses of compliance with
Section 404(b)(1) Guidelines and prepare a statement of findings. See 40 CFR § 230.7(b). The
Corps must deny a permit that does not comply with those Guidelines.
23. Under Section 404(b)(1) Guidelines, developed in conjunction with the Secretary
of the Army and published in 40 CFR § 230, cumulative impacts include “the changes in an
aquatic ecosystem that are attributable to the collective effect of a number of individual
discharges of dredged or fill material.” Section 404(b)(1) Guidelines require the Corps to predict
cumulative effects by evaluating the number of individual discharges that already exist, and “the
number of individual discharge activities likely to be regulated under a General permit until its
expiration, including repetitions of individual discharge activities at a single location.”
24. Section 404(b)(1) Guidelines prohibit the Corps from issuing a permit or NWP
authorization if the discharge will cause or contribute to significant degradation of the waters of
the United States. “Significant degradation” includes significantly adverse effects on fish,
shellfish, wildlife, and special aquatic sites, as well as the life stages of aquatic life, and the
diversity, productivity, and stability of aquatic ecosystems.
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 10 of 53
COMPLAINT – 11 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
25. Section 404(b)(1) Guidelines, specifically 40 C.F.R. § 230.12(a)(3), prohibit the
Corps from issuing a permit or an NWP authorization if:
a) There is a practicable alternative to the proposed discharge that would have
less adverse effect on the aquatic ecosystem, so long as such alternative does
not have other significant adverse environmental consequences; or
b) The proposed discharge will result in significant degradation of the aquatic
ecosystem; or
c) The proposed discharge does not include all appropriate and practicable
measures to minimize potential harm to the aquatic ecosystem; or
d) There does not exist sufficient information to make a reasonable judgment as
to whether the proposed discharge will comply with the Guidelines.
26. In addition, the Corps’ own “public interest review” rules prohibit the issuance of a
Section 404 permit or an NWP authorization if it would be contrary to the public interest. 33
C.F.R. § 320.4. In evaluating this issue, the Corps must weigh the benefits of a proposed project
against its reasonably foreseeable detriments, considering all relevant factors and their cumulative
impacts. Relevant factors include conservation, general environmental concerns, fish and wildlife
values, water quality, and the general needs and welfare of the people.
27. Under Corps regulations, a division engineer may modify, suspend, or revoke a
NWP authorization by geographic area, class of activity, or class of waters within their division to
address effects of authorized activities under Section 404(b)(1) Guidelines or any factor of the
public interest or that otherwise may be more than minimal. Some NWPs, including NWP 48,
require pre-construction notification (PCN) or application to the district engineer prior to
undertaking covered activities.
28. Upon receipt of a PCN or application, the district engineer must determine whether
the activity will result in more than minimal individual or cumulative adverse environmental
effects or may be contrary to the public interest. A district engineer must perform a case-by-case
review of each PCN or application submitted under an NWP to make these determinations. In
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 11 of 53
COMPLAINT – 12 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
doing so, the district engineer must consider the environmental setting, the resources affected, the
functions of affected resources, the degree to which resources perform those functions, the extent
of loss of aquatic resource functions, the duration of adverse effects, the importance of lost
aquatic resource functions, and required mitigation.
29. When determining appropriate mitigation, a district engineer must consider its
adequacy to ensure that adverse environmental effects are minimized. If a district engineer
reviewing a PCN or application finds that a proposed activity would have more than minimal
individual or cumulative adverse effects or is otherwise contrary to the public interest, the district
engineer must either modify the NWP authorization to reduce or eliminate such effects or instruct
the permittee to apply for a regional general permit (if one exists) or individual permit.
III. RIVERS AND HARBORS ACT
30. Under Section 10 of the RHA, 33 U.S.C. § 403, a Corps permit is required for
work or structures affecting navigable waters of the United States.
31. Under Corps regulations, specifically 33 C.F.R. § 320.2(b) and § 322, “[t]he
construction of any structure in or over any navigable water of the United States, the excavating
from or depositing of material in such waters, or the accomplishment of any other work affecting
the course, location, condition, or capacity of such waters is unlawful unless the work has been
recommended by the Chief of Engineers and authorized by the Secretary of the Army.”
32. In cases where the district engineer determines that the proposed work or structure
“would be minor, would not have significant individual or cumulative impacts on environmental
values, and should encounter no appreciable opposition,” the Corps may issue a letter of
permission (or LOP) “through an abbreviated processing procedure which includes coordination
with Federal and state fish and wildlife agencies, as required by the Fish and Wildlife
Coordination Act, and a public interest evaluation, but without the publishing of an individual
public notice.” 33 C.F.R. § 325.2(e).
IV. NATIONAL ENVIRONMENTAL POLICY ACT
33. Pursuant to 42 U.S.C. §§ 4321–4370m, NEPA is our basic national charter for
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 12 of 53
COMPLAINT – 13 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
protection of the environment. Regulations promulgated by the Council on Environmental Quality
(“CEQ”) establish that NEPA’s twin aims are to (1) ensure fully informed decision-making, and
(2) provide for public participation in environmental analysis and decision-making.
34. As provided by law, the Corps has adopted regulations to implement NEPA. The
Corps’ NEPA regulations supplement—and do not supersede—other NEPA regulations.
35. Under both the 1978 CEQ Regulations and the 2020 Revisions, the Corps is
required to conduct a thorough analysis of cumulative impacts under NEPA. The 2020 Revisions
required the Corps to fully consider reasonably foreseeable effects, including those categorized as
“cumulative impacts” under the 1978 CEQ Regulations. The consideration of cumulative impacts
follows longstanding legal precedent interpreting NEPA to require agencies to consider
cumulative effects. Even before CEQ issued its 1978 regulations, the U.S. Supreme Court
interpreted NEPA to require consideration of cumulative effects “when several proposals . . . that
will have cumulative or synergistic environmental impact upon a region are pending concurrently
before an agency.” Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976) (emphasis added).
36. NEPA requires that agencies and the public have access to high-quality
environmental information before making decisions or taking action. Accurate scientific analysis,
expert agency comments, and public scrutiny are essential to implementing NEPA.
37. NEPA imposes procedural requirements on federal agencies to make sure that they
take a ‘hard look’ at the environmental effects of their actions. Pursuant to 42 U.S.C. § 4332(c),
NEPA requires agencies to prepare an Environmental Impact Statement (“EIS”) for “major
Federal actions significantly affecting the quality of the human environment.” For all actions not
subject to a Categorical Exclusion, agencies must prepare either an EIS or an Environmental
Assessment (“EA”), a public document that provides sufficient evidence and analysis to
determine whether to prepare an EIS.
38. An agency may prepare an EA to determine whether an action requires an EIS. If
the agency concludes that an action will not significantly affect the environment in its EA, the
agency may issue a Finding of No Significant Impact (“FONSI”) in lieu of preparing an EIS. A
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 13 of 53
COMPLAINT – 14 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
FONSI is a document in which the agency briefly explains the reasons why an action will not
have a significant effect on the environment and the reasons an EIS will not be prepared. A
FONSI must include the EA or a summary of it and note all related environmental documents.
39. Under NEPA, major federal actions may include new and continuing activities,
including projects and programs entirely or partly financed or approved by federal agencies; new
or revised agency rules, regulations, plans, policies, or procedures.
40. An agency must consider the impacts from a proposed action. An impact means
changes to the human environment from the proposed action or alternatives that are reasonably
foreseeable, including effects that are later in time or farther removed in distance from the
proposed action or alternatives. Effects include ecological, aesthetic, historic, cultural, economic,
social, or health effects.
41. In considering whether the effects of a proposed action are significant, agencies
shall analyze the potentially affected environment and degree of the effects of the action. When a
proposed action is likely to have significant effects, the agency should prepare an EIS.
42. Section 102(2)(E) requires agencies to “study, develop, and describe appropriate
alternatives to recommended courses of action in any proposal which involves unresolved
conflicts concerning alternative uses of available resources.” Section 102(2)(E) applies to both
EAs and EISs, so an EA must include “appropriate alternatives” when a proposal involves
unresolved conflicts concerning alternatives uses of available resources.
43. A FONSI must be supported, and if mitigation measures are relied upon to avoid
significance, they must be developed to a reasonable degree: a perfunctory description, or mere
listing of mitigation measures, without supporting analytical data, is insufficient to support a
finding of no significant impact. Particularly in situations where the agency is relying upon
mitigation to support a decision to rely upon an EA and a FONSI—and therefore not to prepare an
EIS—the agency must carefully evaluate any proposed mitigation and engage in on-going
monitoring to ensure that mitigation measures are being followed. Mitigation measures used to
support a FONSI must be enforceable and the agency must have sufficient resources to perform or
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 14 of 53
COMPLAINT – 15 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
ensure performance of mitigation measures.
44. NEPA requires that an agency incorporate its environmental analysis into its
decision-making process. NEPA’s purpose is not to generate paperwork or litigation, but to
provide for informed decision making and foster excellent action.
V. ENDANGERED SPECIES ACT
45. When a species is listed as threatened or endangered under the ESA,
section 7(a)(2) requires that all federal agencies “insure” their actions “are not likely to jeopardize
the continued existence of any endangered species or threatened species or result in the
destruction or adverse modification of [their critical habitat].”
46. ESA establishes an interagency consultation process to assist federal agencies in
complying with their substantive) duty to guard against jeopardy to listed species or destruction or
adverse modification of critical habitat. Under Section 7(a)(2), federal agencies must consult with
the appropriate expert fish and wildlife agency to determine whether their actions will jeopardize
any listed species’ survival or adversely modify designated critical habitat and, if so, to identify
ways to modify the action to avoid that result. The National Marine Fisheries Service (NMFS) is
the expert for most anadromous and marine species, and the Fish and Wildlife Service (FWS) is
the expert for many terrestrial and freshwater species.
47. The Services have adopted joint regulations governing the ESA Section 7(a)(2)
consultation process. Under the joint regulations, a federal agency must initiate Section 7(a)(2)
consultation with NMFS or FWS whenever it undertakes an “action” that “may affect” a listed
species or critical habitat. 50 C.F.R. § 402.14(a). The threshold for a “may affect” determination
and the required Section 7(a)(2) consultation is low.
48. To complete formal consultation, NMFS and/or FWS must provide the Corps with
a “biological opinion” explaining how the proposed action will affect the listed species or habitat.
In ensuring that any action is not likely to jeopardize a listed species or result in the adverse
modification of critical habitat, the ESA requires every agency to use only the best scientific and
commercial data available at every step of the process. Until consultation is complete, agencies
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 15 of 53
COMPLAINT – 16 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
may not commence the action or make any irreversible or irretrievable commitment of resources
which may foreclose the formulation or implementation of any reasonable and prudent alternative
measures.
49. If either of the Services concludes that the proposed action “will jeopardize the
continued existence” of a listed species, the biological opinion must outline “reasonable and
prudent alternatives.” If the biological opinion concludes that the action is not likely to jeopardize
the continued existence of a listed species, and will not result in the destruction or adverse
modification of critical habitat, the Services must provide an incidental take statement specifying
the amount or extent of such incidental taking on the listed species and any “reasonable and
prudent measures” that they consider necessary or appropriate to minimize such impact, and also
setting forth the “terms and conditions” that must be complied with by the Corps to implement
those measures.
50. Formal consultation must be reinitiated by the Corps or the Services if
discretionary federal involvement or control over the action has been retained or is authorized by
law, and:
a) the amount or extent of taking specified in the incidental take statement is
exceeded;
b) new information reveals effects of the action that may affect listed species or
critical habitat in a manner or to an extent not previously considered;
c) the action is modified in a manner that causes an effect to the listed species or
critical habitat that was not considered in the biological opinion; or
d) a new species is listed or critical habitat designated that may be affected by the
identified action.
51. Section 7(a)(1) requires the Corps, in consultation with and with the assistance of
the Services, to utilize its authority in furtherance of the purposes of the ESA by carrying out
programs for the conservation of endangered and threatened species. Federal agencies have an
independent and substantive obligation to insure that their actions are not likely to jeopardize the
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 16 of 53
COMPLAINT – 17 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
continued existence of endangered or threatened species or adversely modify critical habitat.
Indeed, a “no jeopardy” biological opinion from NMFS or FWS does not absolve the action
agency of its independent duty to ensure that its actions comply with the ESA.
FACTUAL BACKGROUND
I. INDUSTRIAL SHELLFISH AQUACULTURE IN WASHINGTON
52. Shellfish, including oysters, clams (including geoducks), and mussels, have been
harvested and grown in Washington for over 150 years, but cultivation has expanded significantly
since the Corps’ initial issuance of NWP 48 in 2007, and continued maintenance of the NWP 48
program until it was vacated in 2020. Today, industrial shellfish aquaculture exist throughout
Washington’s coast and intertidal areas, including Willapa Bay, Grays Harbor, Hood Canal, and
Puget Sound. In 2015, commercial shellfish aquaculture occupied one-quarter of the state’s total
shoreline, roughly 50,000 shoreline acres. Today, this number has increased due to the Corps’
issuance of the 2017 and 2021 NWP 48. According to the Corps’ estimates, commercial shellfish
operations authorized under the 2017 NWP 48 cover 72,000 coastal acres, covering roughly one-
third of Washington’s total shoreline.
Washington Inland Waters in U.S. Army Corps, Programmatic Biological Assessment (2015)
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 17 of 53
COMPLAINT – 18 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
53. The vast majority of this acreage (approximately 90%) is found in Willapa Bay, a
large bay located in Pacific County, Washington. The 2017 NWP 48 authorized 50,000 acres of
commercial shellfish aquaculture operations in Willapa Bay. In comparison, the 2012 NWP 48
authorized only 36,000 acres. Willapa Bay is a major estuary located along Washington’s Pacific
Coast, covering 88,000 acres of diverse ecosystems that provides essential nearshore habitat for
several aquatic species, including endangered and threatened fish, whales, and shorebirds. The
2017 NWP 48 also authorized over 7,500 acres of commercial shellfish operations in Grays
Harbor, another estuary located on the Washington’s Pacific Coast, just north of Willapa Bay.
54. Additionally, nearly 15,000 acres of commercial shellfish operations are found in
Puget Sound and Hood Canal. Puget Sound is a large inland estuary connected to the Pacific
Ocean. It is the second-largest estuary in the United States, covering more than 2,000 miles of
shoreline and 8.3 million acres of watershed. It is divided into South Puget Sound, a deep basin
drained by many small streams with sheltered, nutrient rich waterways that are highly conducive
to shellfish growing. North Puget Sound includes Whidbey Basin, Admiralty Inlet, Strait of Juan
de Fuca, and the San Juan Archipelago. Another major waterbody associated with Puget Sound is
Hood Canal, a long, narrow inlet of sea located in Mason County. Together, these areas have tens
of thousands of acres of commercial shellfish aquaculture, overlapping with essential nearshore
habitats for eelgrass, salmon, whales, and other aquatic species. The number of aquaculture
operations is likely to increase dramatically in the future because this area is slated for much of
the expansion of this industry in the future.
55. Oyster and clam operations are concentrated in Willapa Bay and Grays Harbor.
Over 25% of all U.S. oyster aquaculture takes place in this area. A wider variety of
shellfish are cultivated in Puget Sound, including geoduck clams (produced almost exclusively for
export to luxury food markets in Asia and other countries). Most geoducks are grown in Puget
Sound/Hood Canal. Washington’s shellfish aquaculture industry is growing and expected to
continue to grow, meaning more tidelands will be authorized for shellfish production.
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 18 of 53
COMPLAINT – 19 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
56. Shellfish are raised either directly on the tidal bed (“bottom culture”), or with some
kind of support (“off-bottom culture”), often using plastic gear like polyvinyl chloride (PVC) and
high-density polyethylene (HDPE). Oysters may be grown using bottom culture; long lines
(oysters suspended on nylon ropes strung on stakes in rows in tidal bed); rack and bag culture
(plastic net bags hold oysters, rack suspends off ground, including emerging “flip bag”
technique); or stake culture (oyster attached to stakes in tidal bed). Clams are also grown with
bottom culture, often with anti-predator netting, and geoducks are grown inside PCV tubes
inserted into the tidal bed (at a rate of 42,000 tubes per acre), which are then covered with the
anti-predator netting.
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 19 of 53
COMPLAINT – 20 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
57. The same intertidal areas and inland bays that support shellfish aquaculture are
also home to numerous wildlife species, including threatened and endangered species. This
shoreline habitat is essential for many species, including invertebrates (such as benthic
invertebrates that are the backbone of the food chain and larger, commercially important
Dungeness crab); finfish (including forage fish like herring and many varieties of salmon); and
birds (migratory and shorebirds). These areas serve as nurseries, feeding grounds, and have
important roles in cycling nutrients.
58. Commercial shellfish aquaculture harms the aquatic ecosystem. Coal. to Protect
Puget Sound Habitat, 417 F. Supp. 3d at 1359, 1362–63. The 2021 EA is less protective than the
prior iterations of NWP 48 because it removes restrictions on acreage and time.
59. Shellfish aquaculture degrades water quality, reduces seagrass populations, and
destroys aquatic habitats by depositing food and shellfish waste; disrupting sediments, water flow,
and water turbidity; installing large-scale plastic structures and gear; and applying chemical
pesticides to clear growing areas of native plants and species; and continuously using mechanical
equipment to maintain growing areas and cultivate shellfish. Because the Corps estimated that
shellfish aquaculture covered one-third of Washington’s total shoreline in 2017, the potential for
cumulative impacts from this industry is significant. Moreover, because the Corps also predicts
that the number of acres authorized for commercial shellfish aquaculture will continue to increase
due to the expansion of the industry, the industry’s cumulative and individual impacts pose a
growing threat to the local environment and wildlife
60. Shellfish aquaculture activities fall into the general categories of bed preparation,
seeding, grow out, and harvest. Bed preparation and harvest activities can temporarily increase
turbidity and total suspended solids. Bed preparation also involves the removal and destruction of
species like snails, starfish, and sand dollars. Some activities, e.g., tilling, harrowing, dredge
harvest and geoduck harvest, can remove submerged aquatic grass, like eelgrass. The use of
chemicals (i.e., imazamox herbicide to kill non-native eelgrass) also affects water quality and
removes eelgrass. During grow out, plastic gear remains on the beach continuously. Finally,
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 20 of 53
COMPLAINT – 21 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
shellfish aquaculture activities can cause benthic disturbance.
61. Despite the unfounded claims of the industry, there is no evidence that intensively
concentrated shellfish aquaculture in Washington has a positive impact on water quality. In fact,
these concentrated shellfish operations are consuming nutrients previously relied on by wild
species, while depositing waste on the seabed, and changing the physical dynamics of an
environment.
62. Geoduck aquaculture involves the use of a massive number of PVC tubes inserted
into the substrate, then covered in anti-predator netting. At a rate of 42,000 tubes per acre, the
shore is covered with plastic. This gear can and does become dislodged during storms and other
weather events, spreading plastics pollution into other areas of the marine environment. Once the
geoducks are ready for harvest, they are removed from the substrate via high-pressure water
hoses, which liquefy the sediments, disrupting and harming benthic organisms and spreading
suspended sediment in the water column.
63. Clam culture, including geoduck, involves acres and acres of anti-predator netting,
typically plastic, to exclude predators (i.e., wildlife) like crabs and birds. Although evidence
suggests that ironically these nets are not highly effective at deterring predators, they do,
however, change the intertidal coastline resulting in lower species richness, accumulation of fine
silt and organic matter, and trapping wildlife (crabs, fish, birds). Nets pose a particular threat to
forage fish like herring that use the intertidal regions for spawning. The accumulation of silt and
reduction of eelgrass provides perfect habitat for, and correlates with an increase in, native
burrowing and ghost shrimp, which at high enough numbers cause the substrate to loosen and
clams to sink and suffocate. Anti-predator nets can also become dislodged and wash up on the
shore providing hazards to humans and wildlife alike. The expert wildlife agencies NMFS and
FWS both recognized the harm these nets pose to wildlife from trapping, entanglement, and
blocking movement/migration.
64. Commercial shellfish aquaculture operations also impact forage fish, like Pacific
herring (a keystone forage fish species in the area), surf smelt, and sand lance. Forage fish are an
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 21 of 53
COMPLAINT – 22 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
important prey resource for many species including Chinook salmon, steelhead, bull trout, and
marbled murrelet. Many types of shellfish aquaculture equipment result in loss of spawning
habitat for these crucial fish, netting can entangle fish, and harvesting can destroy forage fish
eggs. Active aquaculture, including fallow acreage, is co-located with herring, surf smelt, and
sand lance in Puget Sound and Hood Canal, and with herring in Willapa Bay/Grays Harbor. The
Corps estimates that in Willapa Bay, shellfish aquaculture currently overlaps with over 50% of
the total herring spawning area mapped by the Washington Department of Fish and Wildlife.
65. Shellfish aquaculture also has negative aesthetic impacts, as well as impacts to
public beach access and recreation. Shellfish operations, particularly those using a lot of plastic
gear, mar views of the beaches, inlets, and bays along Washington shorelines, to the detriment of
residents and visitors. These operations often involve heavy machinery, and some activities
involve significant noise and light pollution. Shellfish aquaculture’s presence and gear prevents
residents and visitors from walking and other recreational activities on beaches. The harm to
wildlife, including endangered species, impacts residents’ and visitors’ ability to view these
species, and recreationally fish or harvest wild shellfish.
A. IMPACTS TO EELGRASS
66. One major impact from shellfish aquaculture is the reduction and removal of
eelgrass and other submerged aquatic vegetation.
67. Much of the intertidal area in Washington still supports eelgrass (zostera marina
and other varieties) and other submerged aquatic vegetation, although it is declining across the
state and in the rest of the world. Eelgrass is a highly valued and protected native habitat for many
species of fish, invertebrates, and birds. Eelgrass is known as an “ecosystem engineer” because it
can partially create its own habitat by slowing down water flow, while its roots and rhizomes bind
and stabilize sediments. Eelgrass is a direct food source for many organisms and serves as
nurseries and juvenile habitat for various fauna, including herring, Dungeness crab, and several
species of juvenile salmon. Further, eelgrass provides organic material, aids in sediment/substrate
nutrient cycling and release, and improves water quality through oxygen production and nutrient
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 22 of 53
COMPLAINT – 23 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
absorption. Because eelgrass absorbs carbon dioxide and produces oxygen, it provides mitigation
against ocean acidification (decrease in ocean pH caused by increasing atmospheric CO2 levels).
68. The vegetated shallows that support eelgrass are considered “special aquatic sites”
under the CWA Section 404(b) Guidelines.
69. The Puget Sound Partnership, the state agency leading the region’s collective
effort to restore and protect Puget Sound, has identified eelgrass as a prime indicator of estuarine
ecosystem health and aimed to increase eelgrass area in Puget Sound by 20% by the year 2020.
70. Japanese eelgrass (zostera japonica) was introduced to the Pacific Northwest
nearly a century ago and now grows along the entire Pacific coast from Humboldt, California to
British Columbia. Like the native z. marina, Japanese eelgrass provides many of the same food,
shelter, and habitat functions in Washington and was long protected and highly valued. Its
regulatory status only changed after shellfish growers lobbied the State Noxious Weed Control
Board to list Japanese eelgrass as a Class C noxious weed to commercial shellfish beds.
71. Shellfish aquaculture significantly overlaps with eelgrass. The Corps estimates that
66% of the active aquaculture acreage overlaps with eelgrass, not including the authorized
acreage currently fallow, which is even more likely to support eelgrass. Aquaculture exists in
about 50% of the eelgrass in Willapa Bay, as shown below.
Figure 5: Willapa Bay Continuing Acres and Eelgrass from U.S. Army Corps, Programmatic Biological Assessment (2015)
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 23 of 53
COMPLAINT – 24 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
72. Studies find negative correlations between shellfish aquaculture and eelgrass
density and extent. (Dumbauld and McCoy 2015; Wilson and Atkinson 1995). This is no surprise
given that industrial shellfish aquaculture often involves the intentional removal of eelgrass, either
through mechanical or chemical means. Many shellfish operations use heavy machinery like
tractors on the tidal bed, outfitted with city street sweepers (to remove aquatic vegetation), plows,
and pesticide injectors. In addition to intentional/actual removal of submerged aquatic vegetation,
nets and other equipment used in commercial shellfish aquaculture can reduce or eliminate
eelgrass and other vegetation due to shading.
73. The Corps has recognized that these impacts are continuous for the permit period
authorizing aquaculture activities, because there is often no return to the prior substrate and
habitat conditions; new equipment is placed shortly after harvest of the prior crop, and equipment
use occurs in all regions of Washington. Corps, PBA (2015). Thus, while eelgrass may recover or
re-colonize areas after shellfish aquaculture has ceased (recovery estimated to take about five
years in Washington), the continuous nature of production makes this impossible.
B. PESTICIDE USE IN SHELLFISH AQUACULTURE
74. Another harmful consequence of industrial shellfish operations in Washington is
the introduction pesticides into the marine environment. Pesticides are biocides meant to kill
living things, and as such have an enormous potential to harm non-target organisms, especially
when used in aquatic areas where they are certain to move and disperse into the environment.
Figure 6: Tractor with Street Sweeper, Willapa Bay
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 24 of 53
COMPLAINT – 25 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
75. Washington is the only state that allows pesticide use on shellfish beds. Currently,
one herbicide is allowed in Willapa Bay/Grays Harbor, and another application for insecticide use
is pending.
76. Once the shellfish industry succeeded in having Japanese eelgrass designated a
noxious weed, they were able to secure a permit to remove it through chemical means. In 2014
the Washington Department of Ecology, the agency responsible for administering water pollution
discharge permitting under CWA § 402, granted commercial clam growers a permit to spray the
herbicide Imazamox on clam beds in Willapa Bay and Grays Harbor.
77. The Imazamox NPDES Permit was opposed by numerous groups and agencies,
including the United States Fish and Wildlife Service (FWS), based on potential impacts to native
eelgrass both in mixed beds and off-site and the ecological benefits of Japanese eelgrass.
Imazamox is an ALS-inhibiting systemic herbicide that kills all types of eelgrass. While Japanese
eelgrass grows at slightly higher elevations than z. marina eelgrass, Willapa Bay is very shallow
and many mixed beds of both eelgrasses exist. The Permit did not prohibit the spraying native
eelgrass on clam beds, nor did the permit include requirements to monitor impacts to native and
off-site eelgrasses. No monitoring is required if spraying does not occur up to a 10 meter property
line buffer. Imazamox NPDES Permit at 12. In the three years between 2014 and 2017, only one
grower has ever been required to monitor impacts in the 10m buffer (on 2.5% of the total acreage
sprayed). The Washington Department of Ecology modified the permit in 2017 to allow
continued spraying for the remaining two years of the permit, despite a failure to adequately
verify that 10m buffers are sufficient to prevent off-site impacts to eelgrass (either through the
Buffer Validation study or monitoring by permittees).
78. In addition to the ongoing use of herbicide to kill eelgrass in Willapa Bay/Grays
Harbor, oyster growers recently attempted to obtain a NPDES permit from the Washington
Department of Ecology for imidacloprid, a systemic neurotoxin, to kill burrowing and ghost
shrimp. As a neonicotinoid, imidacloprid is especially toxic to invertebrates, highly effective in
small doses, persistent in the environment, and moves easily in water. Imidacloprid was selected
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 25 of 53
COMPLAINT – 26 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
as a replacement to the phased-out carbaryl, a likely carcinogen harmful to ESA-listed species
like green sturgeon and salmon.
79. In 2015, the Department of Ecology initially granted a NPDES permit that would
have allowed aerial spraying of thousands of acres of shellfish beds. Numerous conservation
groups, residents, and other agencies objected to the permit. NMFS objected that burrowing
shrimp are native to the area and play an important role in the ecosystem, including as prey for
species like Dungeness crab, green sturgeon, and salmon. In addition to reducing prey, NMFS
stated that imidacloprid would “kill nearly all benthic organisms on the acreage directly treated.”
Indeed, imidacloprid product labels expressly prohibit use in water because of its high toxicity to
aquatic invertebrates. The permit was cancelled after major shellfish companies like Taylor
Shellfish pulled out, due to customer pressure, including from major restaurant chefs in Seattle
citing food safety concerns with serving shellfish directly sprayed with neurotoxin and refusing to
serve it.
80. In 2017, growers’ association again applied for a permit to spray imidacloprid on
shellfish beds, but this time the Department of Ecology found that the proposal did meet
Washington’s environmental sediment and water quality protection laws and denied the permit in
2018. The Willapa-Grays Harbor oyster growers appealed Ecology’s permit denial to the
Pollution Control Hearings Board, and although the growers settled their appeal, they intend to
find alternative chemicals and may request an imidacloprid permit in the future.
C. PLASTICS USE IN SHELLFISH AQUACULTURE
81. Another consequence of industrial shellfish aquaculture is the introduction of
plastic pollution to the intertidal waters and beaches, with grave impacts to wildlife, aesthetics,
recreation, and food safety.
82. According to the Corps, there are currently 34,441 acres of shellfish operations
with artificial structure. The Corps also estimates that 23,409 acres of commercial shellfish
operations currently use plastic gear, which is roughly half of all acres the Corps says it
authorized under the previous iteration of NWP 48 in 2012.
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 26 of 53
COMPLAINT – 27 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
83. As noted above, plastic PVC tubes and anti-predator netting (HDPE) are heavily
used in clam and geoduck culture, and other types of plastics like racks and bags and PVC stakes
and polyolefin ropes are used for oyster culture. Shellfish plastic gear can exclude native species
from their habitat, especially the anti-predator netting used to protect farmed shellfish from
predators in the local environment. Anti-predator nets are harmful to wildlife that are exposed to
debris or trapped in loose netting. Plastic cages and other artificial structures can also significantly
change the habitat, inhibiting wildlife movement and increasing habitat fragmentation. Despite
providing little benefit to shellfish producers, and posing a serious threat to wildlife, plastic
structures and gear are frequently used in commercial shellfish aquaculture.
84. This plastic gear degrades over time and breaks down into smaller and smaller
pieces called microplastics, which act as an additional source of plastic pollution in the ocean.
Microplastics adsorb toxic pollutants already present in the water, creating a poison pill for
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 27 of 53
COMPLAINT – 28 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
wildlife that become exposed to microplastics in the food supply. Aquatic species at the top of the
food chain, such as large fish, birds, and whales, have higher exposure to microplastics due to
bioaccumulation.
85. Microplastics have been shown to reduce shellfish reproductivity, mobility, and
survival, and they are often ingested by farmed shellfish grown in Washington’s coastal waters
for human consumption. In addition, strands of polyolefin ropes from oyster longlines have been
found inside shellfish grown near operations that use this type of plastic gear. Hence, not only is
the shellfish industry contributing to the global issue of marine plastic pollution, but they are also
hurting themselves by polluting the waters in which they produce shellfish and threatening the
health and survival of their very own product.
D. HARM TO MARINE LIFE
86. Large populations of industrially grown organisms require a proportional amount
of food. These shellfish compete with forage fish for not only habitat, but also in many cases the
zooplankton and phytoplankton on which they rely.
87. The impacts that result from that competition are obvious and reverberate
throughout the food chain. Less food for forage fish means a reduced environmental carrying
capacity for those forage fish. Fewer forage fish means a reduced carrying capacity for often-
endangered salmonids. Fewer salmonids mean less food for Orca whales, and other large
predators that rely upon the existence of healthy populations of those fish.
88. Industrial shellfish operations rely heavily on plastic nets and lines to anchor
farmed shellfish to structures in the water and to protect shellfish from predators. For example,
geoduck operations stick PVC tubes into sandy substrate at a rate of 42,000 tubes per acre, and
then cover the tubes with anti-predator nets. These PVC tubes, lines, and nets erode over time,
increasing plastic waste and microplastics in Washington’s coastal waters.
89. Plastic pollution from aquaculture operations adversely affects marine ecosystems.
When aquatic species (including farmed shellfish) ingest debris, they can suffer abrasions,
obstructions, and other serious physical injuries. Further, microplastics are a “poison pill” to
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 28 of 53
COMPLAINT – 29 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
wildlife, impairing shellfish growth, development, mobility, reproductivity, and survival.
Microplastics absorb pollutants in the environment, increasing toxicity and bioaccumulation for
species that ingest microplastics, such as forage fish at the bottom of the food chain and shellfish
produced for human consumption. In addition, entanglements with hanging lines or detached gear
can cause death or serious injury to wildlife, including endangered whales. These injuries are
particularly harmful for juvenile salmon and other species that travel long distances for feeding
and rearing.
II. CORPS’ INDUSTRIAL SHELLFISH AQUACULTURE PERMITTING
A. CORPS’ PERMITTING PRIOR TO 2021 NWP 48
90. The Corps’ shellfish aquaculture permitting history is one of varied effort and
urgency. Apparently recognizing the existence of impacts from discharges into jurisdictional
waters because of shellfish aquaculture activities, the Corps issued the first iteration of NWP 48
beginning around 2007. The Seattle District adopted NWP 48 beginning in 2007.
91. The 2007 NWP 48 only included existing operations as of 2007 (an operation “that
has been granted a permit, license, or lease from a state or local agency specifically authorizing
commercial aquaculture activities and which has undertaken such activities”). 72 Fed. Reg.
11,092, 11,145 (Mar. 17, 2007). Like later iterations, it authorized the installation of buoys, floats,
racks, trays, nets, lines, tubes, containers, and other structures necessary for commercial
aquaculture activity, and discharges of dredged or fill material necessary for shellfish seeding,
rearing, cultivating, transplanting, and harvesting activities. The Seattle District adopted this
NWP and consulted with NMFS regarding impacts to listed species, including as part of the
action several conservation measures to be attached to authorizations under nationwide permit.
92. In 2012, the Corps reissued NWP 48, this time extending the permit to cover new
shellfish aquaculture operations, although any new activity could not directly affect more than
1/2-acre of submerged aquatic vegetation beds (e.g., eelgrass). 77 Fed. Reg. 10.184, 10,228-
10,232 (Feb. 21, 2012). An activity was considered “existing” if it was within “the area in which
the operator is currently authorized to conduct commercial shellfish aquaculture activities, as
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 29 of 53
COMPLAINT – 30 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503)827-0320 (971)271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
identified through a lease or permit issued by an appropriate state or local government agency, a
treaty, or any other easement, lease, deed, or contract which establishes an enforceable property
interest for the operator.”
93. The Seattle District adopted the renewed 2012 NWP 48 for Washington, with ten
general conditions and one regional condition specifically for NWP 48: “The commercial harvest
of clams by means of hydraulic escalator harvester equipment is not authorized by this NWP.”
Seattle District, Supplement to National Decision Document for 2012 Nationwide Permit 48 and
Regional General Conditions, 42–45 (March 19, 2012). In its Supplemental Decision Document,
the Seattle District stated that it already completed a programmatic ESA consultation for existing
commercial shellfish aquaculture in 2009 and attached 16 special conditions to all activities
authorized under the 2012 NWP 48.
94. Although the Seattle District predicted that 2012 NWP 48 would only be used 50
times a year, or 250 times over its five-year life, id. at 31, it was actually used over 1,000 times
from 2012 to 2016. The Seattle District issued 92% of all NWP 48 authorizations in the nation, so
the industrialized shellfish aquaculture production challenged here is particularly centralized and
unique to Washington State.
95. Despite the significant overuse of the 2012 permit, far beyond what was
considered and analyzed during its adoption, the Corps never completed any supplemental
impacts analysis to determine whether the massive expansion of operations under the 2012 permit
had adverse cumulative impacts that are more than minimal (CWA) or significant impacts the
environment (NEPA). Instead, the overuse of this permit has allowed significant expansion of
commercial shellfish aquaculture, onto thousands of never-before cultivated acres, or acres that
had been fallow since (at least) before 2007, with no analysis of their environmental impacts.
96. The Corps reissued NWP 48 again in 2017. Like previous versions of the permit,
NWP 48 authorizes “the installation of buoys, floats, racks, trays, nets, lines, tubes, containers,
and other structures into navigable waters of the United States . . . . NWP [48] also authorizes
discharges of dredged or fill material into waters of the United States necessary for shellfish
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 30 of 53
COMPLAINT – 31 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
seeding, rearing, cultivating, transplanting, and harvesting activities.” Issuance and Reissuance of
Nationwide Permits, 82 Fed. Reg. 1,860, 1,995 (Jan. 1, 2017).
97. The 2017 permit included several significant changes, the biggest of which is a
revised definition of “new” commercial aquaculture, to “an operation in a project area where
commercial shellfish aquaculture activities have not been conducted during the last 100 years.”
Id. at 1,995 (emphasis added). This definition of “new” was not in the 2012 permit. Instead, a new
project area was one not “currently authorized,” and new operations were prohibited from directly
affecting more than 1/2-acre of submerged aquatic vegetation beds. The 2017 revised definition of
“new” means that any operation is considered “existing” rather than “new” so long as some
manner of commercial shellfish activity was conducted there in the last 100 years. This was a
significant departure from the previous definitions of existing operations: the 2007 permit
included as “existing” only operations were actually authorized and operating at the time the
permit was adopted, in 2007, and the 2012 permit defined “existing” as the “area in which the
operator is currently authorized to conduct commercial shellfish aquaculture activities, as
identified through a lease or permit issued by an appropriate state or local government agency, a
treaty, or any other easement, lease, deed, or contract which establishes an enforceable property
interest for the operator.” Being considered an “existing” operation, rather than “new,” allows a
commercial shellfish operation to avoid specific protections, including the prohibition on
affecting more than 1/2 acre of submerged aquatic vegetation (i.e., eelgrass), and to avoid having
to submit a Pre-Construction Notice (PCN) to the Corps (including various information about the
proposed operation). Id. at 1,995-1,996. The Corps also removed the Pre-Construction Notice
requirement for dredge harvesting, tilling, or harrowing in eelgrass, and for changing from bottom
culture to floating/suspended culture. Id. at 1,995.
98. In its environmental assessment, the Corps predicted that approximately 1,625
activities could be authorized over a five-year period under the 2017 permit, resulting in impacts
to approximately 56,250 acres of waters of the United States, including jurisdictional wetlands.
Corps, Decision Document NWP 48, 65 (Dec. 21, 2016) (2017 Decision Document).
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 31 of 53
COMPLAINT – 32 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
99. Plaintiffs and others commented to the Corps that the permit approval would cause
cumulatively adverse impacts, especially with the new 100-year loophole definition for “new”
operations. Plaintiffs urged the Corps not to re-issue NWP 48 as written, to allow regional and
District Engineers to utilize regional general or individual permits, or if the Corps did decide to
move forward with NWP 48, to complete a full EIS rather than an EA and to undertake ESA
consultation with the Services. CFS, Comments on Proposal to Reissue and Modify Nationwide
Permits; Docket Number COE-2015-0017/RIN 0710-AA73 (August 1, 2016).
100. The Corps stated in the 2017 Decision Document that while individual
authorizations or verifications under NWP 48 would not require any additional NEPA, regional
Corps divisions and districts are required to prepare supplemental decision documents to provide
regional analyses of environmental effects of a NWP, including a regional cumulative effects
analysis. Corps Decision Doc. NWP 48 at 6.
101. The Corps’ 2017 Decision Document for NWP 48 did not address pesticide or
plastic gear use on shellfish beds: “The Corps does not have the authority to regulate discharges
of pesticides. Discharges of pesticides may require authorization by states or the U.S. EPA under
section 402 of the Clean Water Act. Division engineers can impose regional conditions to address
the use of plastics, if plastic materials are used for the activities regulated under the Corps’
authorities.” Id. at 9.
102. The Corps did not complete any ESA Section 7 consultation with the Services
regarding the renewal of NWP 48, instead relying on a general condition requiring all non-federal
permittees to submit a Pre-Construction Notice “if any listed species or designated critical habitat
might be affected or is in the vicinity of the activity, or if the activity is located in designated
critical habitat.” General Condition 18, 82 Fed. Reg. at 1,999.
103. Plaintiff Coalition challenged the 2012 issuance of NWP 48, and collectively,
Plaintiffs Coalition and CFS challenged the 2017 issuance of NWP 48. See 2:16-cv-00950-RSL;
2:17-cv-01209-RSL. In October 2019, the U.S. District Court for the Western District of
Washington held that the 2017 permit violated the CWA and NEPA because the Corps failed to
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 32 of 53
COMPLAINT – 33 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
adequately consider the individual and cumulative impacts on the environment. Coal. to Protect
Puget Sound Habitat, 417 F. Supp. 3d at 1367. Specifically, the court held that the Corps’
minimal impacts finding was improperly based on “(1) selectively chosen statements from the
scientific literature, (2) the imposition of general conditions with which all activities under
nationwide permits must comply, and (3) the hope that regional Corps districts will impose
additional conditions and/or require applicants to obtain individual permits if necessary to ensure
that the adverse impacts will be minimal.” Id. at 1359. In June 2020, the district court vacated the
permit, and in February 2021, the Ninth Circuit affirmed the district court’s decision. Coal. to
Protect Puget Sound Habitat, 466 F. Supp. 3d 1217 (W.D. Wash. 2020), aff’d, 843 F. App’x 77
(9th Cir. 2021).
B. 2021 NWP 48 ISSUANCE
i. National Headquarters
104. On September 15, 2020, the Corps published a proposed regulation to reissue with
modifications the existing NWPs and associated general conditions and definitions, along with
five new NWPs. 85 Fed. Reg. 57298.
105. On January 4, 2021, the Corps issued the Decision Document, which acts as the
agency’s Environmental Assessment (EA) for NWP 48 under NEPA. Exhibit B.
106. On January 13, 2021, the Corps reissued several NWPs authorizing certain
activities that require Corps permits under CWA Section 404 and/or RHA Section 10, 33 U.S.C. §
403, including NWP 48 for commercial shellfish aquaculture (re-titled as commercial shellfish
mariculture activities). Reissuance and Modification of Nationwide Permits, 86 Fed. Reg. 2744.
NWP 48 went into effect on March 15, 2021.
107. The Corps’ issuance of NWP 48 constitutes a final agency action.
108. The Corps estimated that the 2021 NWP 48 “will be used approximately 331 times
per year on a national basis, resulting in impacts to approximately 13,684 acres of waters of the
United States [per year],” or 68,420 acres of water over a five-year period. 2021 HQ Decision
Doc. at 123. The Corps further estimated that “approximately 1,805 activities could be authorized
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 33 of 53
COMPLAINT – 34 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
over a five-year period until this NWP expires, resulting in impacts to approximately 69,420 acres
of waters of the United States, including jurisdictional wetlands.” Id. at 123–24.
109. The 2021 NWP 48 Decision Document contains almost no new analysis compared
with the prior 2017 NWP 48 and eliminates one of the only ostensible protective measures
contained in the prior permit, which limited authorizations based on a 100-year “lookback,”
allowing authorizations for only those areas which has been cultivated in some manner in the
previous 100 years. Decision Document at 5. The Corps also removed the prior ½-acre limit for
new activities. Id. at 5, 13.
110. The Corps did not analyze site-specific or regional impacts before issuing the 2021
NWP 48. In the 2021 NWP 48 Decision Document, the Corps expressly admits to limiting its
impact analysis to national-scale impacts. 2021 HQ Decision Doc. at 41, 75–76. The Corps
bluntly claims that information regarding site-specific impacts is not readily available. See, e.g.,
id. at 36 (“The environmental impacts of authorized activities during the period the NWP is in
effect is dependent on the current environmental settings in which these activities will occur, and
quantitative data on those current environmental settings is not available.”); 41 (“Due to the large
geographic scale of the affected environment (i.e., the entire United States), . . . it is only practical
to describe the affected environment in general terms. In addition, it is not possible to describe the
environmental conditions for specific sites where the NWPs may be used to authorize eligible
activities.”). The 2021 NWP 48 Decision Document also uses identical language to describe the
“affected environment” as the 2017 Decision Document. Compare id. at 41 with 2017 HQ
Decision Document at 25.
111. In addition, the Corps did not analyze quantitative data regarding potential
impacts. In the 2021 NWP 48 Decision Document, the Corps expressly admits to limiting its
impact analysis to a “qualitative analysis” of the general, national-scale impacts. 2021 HQ
Decision Document at 75–76 (“Given the geographic scope in which this NWP can be used to
authorize activities . . . and the wide variability in aquatic resource[s] . . . from site to site and from
region to region, the analysis of environmental consequences is a qualitative analysis.”) (emphasis
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 34 of 53
COMPLAINT – 35 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
added). The Corps bluntly claims that quantitative data regarding nationwide impacts is not
available. See, e.g., id. at 60 (“There is little national-level information on the current ecological
state of the Nation’s wetlands, streams, and other aquatic resources, or the general degree to
which they perform various ecological functions . . .”); 75 (“The analysis of environmental
consequences in this environmental assessment is a qualitative analysis because of the lack of
quantitative data at a national scale on the various human activities and natural factors that may
concurrently alter the current environmental setting during the 5-year period this NWP is
expected to be in effect . . . .”).
112. The Corps also fails to provide quantitative data regarding the cumulative effects
of NWP 48 other than the estimated number of times the permit will be used on a national basis
over five years. 2021 HQ Decision Doc. at 123–24. Despite recognizing that “repetitive
disturbances at a single site over time” and “multiple activities occurring in a geographic area
over time” can have cumulative effects, the Corps admits to limiting its cumulative analysis to the
agency’s estimates on the number of activities authorized on a nationwide scale, ignoring data on
the nature or location of the estimated uses. Id. at 36, 67–68 (“[T]he cumulative impacts of this
NWP are the product of how many times this NWP is used . . . across the country during the 5-
year period this NWP is anticipated to be in effect.”).
113. The Corps relies on limited studies to make broad generalizations about the
potential impacts. For example, despite failing to quantify any of the impacts to benthic
organisms, the Corps broadly asserts that “[m]ost of the impacts to benthic organisms may be
temporary, as these organisms can recover after various natural and anthropogenic disturbances
that occur in these dynamic coastal ecosystems.” Decision Document at 121. The only cited
source for this broad assertion is an example focusing on “certain seagrass species in certain
locations have in some cases exhibited capacity to recover and reproduce after dredge harvesting
activities for commercial shellfish mariculture activities.” Id.
114. The Corps also limits its evaluation of cumulative impacts to certain activities. For
example, the Corps ignores shellfish seeding and other activities that will increase as a result of
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 35 of 53
COMPLAINT – 36 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
permitted activities because these activities “by themselves are not considered to be discharges of
fill material regulated under section 404.” Decision Document at 122. Likewise, Corps refuses to
analyze the foreseeable impacts of pesticide use because it does not have direct permitting
authority over pesticides. Id. at 10, 81, 96.
115. The Corps continues to analyze the potential impacts of permitted activities in
comparison to past degradation and other human activities. See, e.g., 57 (“The affected
environment (i.e., the current environmental setting) has been shaped
by a wide variety of human activities.”); 67 (“The current environmental setting is the product of
the cumulative or aggregated effects of human activities that have persisted over time. . . .The
current environmental setting is dependent in part on the degree to which past and present human
activities have altered aquatic and terrestrial resources in a particular geographic area over time.
The Corps does not provide any site-specific information or quantitative data when comparing the
estimated number of authorized activities on a national basis to past degradation. See, e.g., id. at
76–77 (“Because the activities authorized by this NWP constitute only a small proportion of the
categories of human activities that directly and indirectly affect ocean waters . . . . and other
aquatic resources, the activities authorized by this NWP over the next 5 years are likely to result
in only a minor incremental change to the current environmental setting for ocean waters,
estuarine waters.”) (emphasis added).
116. In the 2021 NWP 48 issuance, the Corps declined to impose new protections for
seagrass impacts, referring to the prospect as “impractical.” Decision Document at 14.
117. The Corps proposed three alternatives in its EA. First, a “no action” alternative;
second, reissuance of NWP 48 “with modifications;” and third, reissuance “without
modifications.” Dec Doc at 40. Despite a clear and unequivocal Order from this Court, and
affirmed by the Ninth Circuit Court of Appeals, the Corps decided to reissue “with
modifications,” but without conducting the analysis required by 42 U.S.C. § 4321 et seq or 40
C.F.R. §230.7(a) to determine whether the activities will have only minimal cumulative adverse
effects on the aquatic environment.
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 36 of 53
COMPLAINT – 37 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
118. Before the Corps re-issued the 2021 NWP 48, Plaintiffs and others submitted
comments to the Corps to warn the agency that approving the proposed permit would cause
significant direct, indirect, and cumulative adverse impacts. Plaintiffs urged the Corps to conduct
a thorough analysis of all potential impacts of issuing the 2021 NWP 48.
119. Neither the final 2021 NWP 48 nor the Decision Document address the concerns
Plaintiffs raised during the public comment period. For example, the Decision Document does not
fully consider the adverse impacts of pesticide use or plastics on commercial shellfish operations.
Nor does the agency analyze the potential impacts on salmonids, Orca whales, and other
threatened and endangered species.
120. The Corps did not complete any ESA Section 7 consultation with the Services
regarding the renewal of NWP 48, and instead relies on a general condition requiring all non-
federal permittees to submit pre-construction notice “if any listed species or designated critical
habitat might be affected or is in the vicinity of the activity, or if the activity is located in
designated critical habitat” at page 2773.
ii. Seattle District
121. On September 30, 2021, the Seattle District of the Corps issued Special Public
Notice for its proposed adoption of NWP 48, and the accompanying proposed regional conditions.
This Special Public Notice was not published in the Federal Register, and the comment period for
this Special Public Notice differed significantly from the opportunities to comment during the
prior issuances of NWP 48.
122. The only proposed Regional Condition specific to NWP 48 stated that
“commercial harvest of clams by means of hydraulic escalator harvester equipment is not
authorized by NWP.” SPN at 18.
123. Plaintiffs and other members of the public provided comments to the Seattle
District urging it to forego NWP 48, and instead use individual permits, or regional general
permits, but only following the requisite impact analyses pursuant to NEPA and CWA.
124. On information and belief, the Seattle District has authorized 85 operations under
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 37 of 53
COMPLAINT – 38 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
the 2021 NWP 48.
C. LETTERS OF PERMISSION
125. Despite an order from this Court requiring the Corps to comply with CWA and
NEPA requirements and fully consider the individual and cumulative impacts of its shellfish
permitting before issuing any further permits and vacating the 2017 NWP 48 (requiring entities
previously authorized under NWP 48 to seek individual permits), the Seattle District proceeded to
authorize most industrial shellfish aquaculture operations with LOPs, without any cumulative
impacts analysis, contrary to the Corps’ own regulations.
126. Most of the re-permitted operations following this Court’s vacatur of 2017 NWP
48 were started as individual permits (or “standard permits”) and then withdrawn to become
LOPs. As of the date of this filing, the Seattle District has issued 325 LOPs to shellfish operations
in Washington’s tidelands in 2021. Exhibit A. On information and belief, based on permit
information released to Plaintiffs under the Freedom of Information Act, the Seattle District has
granted 274 LOPs following vacatur of 2017 NWP 48, 141 of which were formerly authorized
under the 2012 and 2017 NWP 48.
127. From January to August 2021, the Corps issued 123 LOPs for aquaculture
operations in Puget Sound and Hood Canal, covering over 522 acres of diverse ecosystems for the
cultivation of geoduck clams, oysters, mussels, and other shellfish types. From March to July
2021, the Corps issued 4 LOPs for oyster operations in Grays Harbor, covering over 570 acres of
Washington’s tidelands. During this same period, the Corps issued 4 LOPs for oyster operations
in Willapa Bay, covering over 457 acres.
128. From May to July 2021, the Corps issued several LOPs for new aquaculture
operations across Washington, covering over 226 acres for the cultivation of geoduck clams,
oysters, and other shellfish types.
i. Wildlife Impacts
129. The Corps issued LOPs for operations with adverse effects on aquatic species and
federally threatened or protected species. In multiple decision documents, the Corps
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 38 of 53
COMPLAINT – 39 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
acknowledged that the potential effects on local wildlife and their habitats but failed to specify or
quantify these effects. See, e.g., Decision Document (“DD”) (NWS-2007-01147-AQ) at 16
(approving 15 acres for oyster cultivation, despite acknowledging that the “proposed shellfish
operation may alter the habitat characteristics of tidal waters which provide habitat to many
species of fish and wildlife within Grays Harbor”); DD (NWS-2020-00356-AQ) at 14, 18
(acknowledging that the “proposed shellfish operation may alter the habitat . . . within Pickering
Passage”); DD (NWS-2020-01154-AQ) at 15 (acknowledging that some “species would be
adversely affected” by changes); DD (NWS-2020-00592-AQ) at 17 (concluding that wildlife
impacts “will be temporary and minimal” despite acknowledging that the “[e]quipment used for
the proposed shellfish aquaculture activities, such as project specific tubes and netting,
may . . . entangle birds and other types of aquatic species such as forage fish and crabs”).For
example, on July 2, 2021, the Corps issued an LOP to Taylor Shellfish Farms “to commercially
cultivate geoduck clams for human consumption” on one acre of tidelands in South Puget Sound,
despite recognizing that “species may be temporarily adversely affected.” Decision Document
(NWS-2020-943-AQ) at 4–5, 17. The Corps also recognized that “South Puget Sound is occupied
by Puget Sound Chinook salmon, Puget Sound steelhead, canary rockfish, and their designated
critical habitat (programmatic consultation).” Id. at 5. However, the Corps failed to discuss the
specific risks to wildlife, given the nature of the proposed operation, the number of years in
operation, and the affected area. Id. Nor did the Corps attempt to quantify the potential effects on
certain aquatic species and their habitats before summarily concluding the effects were temporary
and negligible. Id.
ii. Environmental Impacts
130. The Corps issued LOPs for operations with adverse effects on the environment. In
multiple decision documents, the Corps failed to describe the potential adverse effects. For
example, in issuing an LOP to a new geoduck operation in Eld Inlet, the Corps claimed that the
“effects” of the proposed activities would be “extremely short in duration and temporary in nature
and would not result in detectable individual or cumulative adverse impacts,” but failed to
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 39 of 53
COMPLAINT – 40 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
describe those potential effects with specificity. DD (NWS-2020-00060-AQ) at 3, 13-14.
131. In multiple LOP decision documents, the Corps generally acknowledged the
potential adverse effects of aquaculture on the environment but failed to specify or quantity these
effects. See, e.g., DD (NWS-2020-01154-AQ) at 13, 18 (acknowledging that “[g]eneral
environmental concerns such as water, air, noise and pollution may be positively or negatively
affected by commercial shellfish aquaculture activity”); DD (NWS-2020-00592-AQ) at 15. For
example, in issuing an LOP to an existing oyster operation on 100 acres of cultivation area in
Willapa Bay, the Corps acknowledged that “[i]mpacts including water, air, noise pollution may be
positively or negatively affected depending on the specific aquaculture activity proposed.” DD
(NWS-2020-559) at 13; see also id. at 15 (noting that “[s]ome species of aquatic organisms may
temporarily benefit from those changes, while other species may temporarily be adversely
affected.” Id. at 15. However, the Corps failed to discuss the specific risks to wildlife and the
environment, given the nature of the proposed operation, the number of years in operation, and
the affected area. Id. Nor did the Corps attempt to quantify the potential effects on certain aquatic
resources or characteristics before summarily concluding the effects were temporary and
negligible. Id.
iii. Plastic Use
132. The Corps issued LOPs for operations without full consideration of the potential
impacts of plastic use. In multiple LOP decision documents, the Corps also generally
acknowledged the environmental effects of plastic use in shellfish aquaculture but failed to
quantify or specify these effects. See, e.g., Decision Document (“DD”) (NWS-2007-01209-AQ)
at 12 (approving 12 acres for geoduck clam cultivation in Puget Sound, despite plastic use); DD
(NWS-2007-01219-AQ) at 12; DD (NWS-2020-00899-AQ) at 17. For example, in issuing an
LOP to Taylor Shellfish for a geoduck operation, the Corps acknowledged that “[t]here are
legitimate concerns about the impacts of plastics in our environment, particularly on the aquatic
environment and within the food chain.” Decision Document (NWS-2020-943-AQ) at 15.
However, the Corps failed to discuss the specific risks of pesticide use to wildlife and the
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 40 of 53
COMPLAINT – 41 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
environment, given the nature of the proposed operation and the affected area. Id. The Corps also
claimed that the potential impacts of plastic use were negligible due to proposed mitigation
measures, without any quantitative analysis or public notice, or describing how the proposed
mitigation measures would actually prevent the harms from plastic use. See, e.g., DD (NWS-
2020-00060-AQ) at 13 (concluding that “[t]he nets used in commercial shellfish aquaculture
activities are minor and temporary, there are general and special conditions included to minimize
discarded and escaped equipment”).
iv. Pesticide Use
133. The Corps issued LOPs for operations without full consideration of the potential
impacts of pesticide use. In all the LOPs and associated decision documents released thus far to
Plaintiffs, the Corps ignored the potential impacts of pesticide use on proposed operations. For
example, in issuing an LOP to a 35-acre oyster operation in North Grays Harbor, owned by Lone
Tree Oyster Company, and a 97.5-acre oyster operation in North/Central Willapa Bay, owned by
Petit and Sons Oyster, the Corps fails to describe or analyze any of the potential individual or
cumulative effects of pesticide use. See DD (NWS-2007-1140-AQ); DD (NWS-2012-0609).
Despite not prohibiting pesticide use by permittees, the Corps failed to account for its impacts
where permitted operations use pesticides to eradicate species that they consider pests.
v. Cumulative Impacts
134. The Corps issued LOPs for operations without full consideration of the cumulative
impacts. In multiple LOP decision documents, the Corps summarily concluded that operations
would not have significant cumulative impacts on the environment because there were existing
shellfish aquaculture operations in the area. See, e.g., DD (NWS-2020-01183-AQ) at 28
(concluding that operation will have no significant cumulative effects because it will “perpetuate
the status quo of 42 acres of shellfish cultivation occurring in [the] action area”); DD at 28DD
(NWS-2020-00590-AQ) at 29 (operation “will perpetuate the status quo of 4.09-acres of shellfish
cultivation occurring in this action area”). For example, in issuing a LOP to a geoduck operation
owned by Taylor Shellfish, the Corps determined that “[i]mpacts from the continuation of [the
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 41 of 53
COMPLAINT – 42 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
proposed geoduck aquaculture operation] at this location would not have a significant cumulative
impact on the area since the aquaculture activities are existing and ongoing.” Decision Document
(NWS-2020-943-AQ) at 15, 31. However, the Corps failed to specify or quantify the proposed
operation’s potential cumulative impacts. Id. Rather than analyze the potential cumulative impacts
against the environmental baseline, the Corps compared the proposed operation with existing
shellfish activities, even when those activities were never approved by the Corps. See, e.g., DD
(NWS-2007-01219-AQ) at 3 (approving 1.67 acres for geoduck clam cultivation in Puget Sound,
even though “[t]he applicant had deviated from the approved plans by using plastic cups for
geoduck cultivation”); DD (NWS-2020-01154-AQ) at 5 (concluding that there are no cumulative
impacts because operation was previously verified in 2012 and 2017, even though proposed
operation expands the area for geoduck cultivation, which has greater impacts than oyster
culture). For new operations, the Corps focused on the proposed mitigation measures, rather than
analyzing the potential cumulative impacts, as required. See, e.g., DD (NWS-2021-00124-AQ) at
9 (“The proposed work would not have significant or cumulative impacts on environmental
values because the proposed project has avoided and minimized effects to environmental values
and would not have significant individual or cumulative impacts on such values.”).
D. PLAINTIFFS’ INTERESTS
135. Plaintiffs and their members are injured by the challenged actions because
Defendants negated their procedural rights, as stakeholders, consumers of shellfish, and residents
and visitors of the impacted areas, to meaningfully participate in important permit approval
processes. The Corps failed to adequately evaluate the significant adverse impacts likely to result
from the 2021 NWP 48 permit or any of the hundreds of LOPs issued to shellfish operations
across the state of Washington. Nor did the Corps ensure that its re-issuance of the NWP 48
complied with the CWA and NEPA, as required by this Court’s Order. As a result, the Corps
caused procedural injury to Plaintiffs and their members.
136. Plaintiffs’ members live, work, and recreate on or near Washington’s shorelines,
where shellfish aquaculture is or will be approved under the 2021 NWP 48 or an LOP. These
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 42 of 53
COMPLAINT – 43 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
members enjoy recreation along Washington’s shorelines, including observing wildlife, walking
along the beach, recreational shellfish harvest, and other activities. Some members have
businesses that rely on the natural beauty and ecological health of Washington’s marine aquatic
ecosystems. Many of these members also consume shellfish, including commercially produced
shellfish in Washington. These interests are harmed by the impacts of industrial shellfish
aquaculture, including pesticide use and drift, physical barriers to beach access, impairment of
aesthetics, light and sound pollution, and reduction in biodiversity. Some members are afraid to
consume shellfish on their own property due to pesticide use in adjacent areas, while other
members are concerned about health impacts from consuming commercial shellfish grown using
industrial methods or near these operations.
137. Plaintiffs’ members include people who have aesthetic, recreational, cultural,
scientific, and economic interests in the health of Washington’s aquatic ecosystems and the
wildlife they support, including threatened and endangered species, like salmon. These members’
interest in the species, including listed species, that require tidal waters for spawning, rearing,
and/or feeding, is injured by the Corps’ 2020-21 approvals. Plaintiffs and their members are
injured by the Corps’ approval of 2021 NWP 48 and LOPs that will have more than minimal
adverse cumulative impacts to Washington’s shorelines and bays, without adequate analysis of
these impacts or mitigation to avoid cumulative impacts.
138. If the Court declares the 2021 NWP 48 unlawful, and vacates the permit, the Corps
would no longer be able to rely on the permit to authorize shellfish operations that directly impair
Plaintiffs’ and their members’ interests in Washington’s shorelines, aquatic ecosystems, wildlife,
and surrounding communities. Moreover, the Court could further prevent and reduce injuries to
Plaintiffs and their members by ordering the Corps to fully consider the potential impacts before
re-issuing NWP 48, as required by federal statutes and the agency’s own regulations.
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 43 of 53
COMPLAINT – 44 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
FIRST CLAIM FOR RELIEF
VIOLATION OF CWA AND APA
ADOPTION OF NWP WITH ADVERSE CUMULATIVE IMPACTS
139. Plaintiffs re-allege paragraphs 1–138.
140. The Corps may issue general permits (including nationwide permits) only for
activities that are similar in nature, and that will cause no more than minimal adverse effects to
the environment, either separately or cumulatively. In issuing a nationwide permit, the Corps
must consider the separate and cumulative impacts, and make a finding that the permit will not
have more than minimally adverse cumulative impacts. As alleged herein, the Corps has violated
the CWA and its implementing regulations by issuing a nationwide clean water act permit that
will have more than minimal adverse cumulative impacts on the environment and cause or
contribute to significant degradation of the aquatic ecosystem, due to the nature and extent of the
commercial shellfish aquaculture activities authorized under NWP 48.
141. The Corps’ adoption of NWP 48 in Washington, which will result in more than
minimal adverse cumulative impacts and which may cause or contribute to significant
degradation, and which is contrary to the public interest was arbitrary, capricious, an abuse of
discretion, not in accordance with law, and without observance of procedures required by law, in
violation of CWA, 33 U.S.C. § 1344, its implementing regulations, and the APA, 5 U.S.C. §§
701–706.The actions and inactions of the Corps described in this Claim for Relief are causing
injuries to the Plaintiffs, for which they have no adequate remedy at law.
142. Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, Plaintiff should be
awarded its costs, expenses, expert witness fees, and reasonable attorney fees associated with this
litigation.
SECOND CLAIM FOR RELIEF
VIOLATION OF CWA AND APA
FAILURE TO DOCUMENT IMPACTS AND MITIGATION MEASURES
143. Plaintiffs re-allege paragraphs 1–138 and 142.
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 44 of 53
COMPLAINT – 45 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
144. The Corps must set forth in writing an evaluation of the potential individual and
cumulative impacts of the category of activities to be regulated under a NWP permit, and provide
documentation to support each factual determination, including the cumulative impacts.
145. By failing to adequately document and support the Corps’ factual determinations
as to the impacts of NWP 48, including the cumulative impacts, the Corps’ adoption of NWP 48
in Washington was arbitrary, capricious, an abuse of discretion, not in accordance with law, and
without observance of procedures required by law, in violation of CWA, 33 U.S.C. § 1344, its
implementing regulations, and the APA. 5 U.S.C. §§ 701-706.
146. The actions and inactions of the Corps described in this Claim for Relief are
causing injuries to the Plaintiffs, for which they have no adequate remedy at law.
THIRD CLAIM FOR RELIEF
VIOLATION OF NEPA AND APA
FAILURE TO PREPARE AN ENVIRONMENTAL IMPACT STATEMENT
147. Plaintiffs re-allege paragraphs 1–138 and 142.
148. The Corps’ issuance of the NWP 48 is a major federal action that will significantly
affect the quality of the human environment.
149. Mitigation measures may be used when an agency seeks to forego issuing an EIS.
However, proposed mitigation measures must be developed to a reasonable degree, and a
perfunctory description, or mere listing of mitigation measures without supporting analysis, is
insufficient to support a Finding of No Significant Impact.
150. The Corps’ Finding of No Significant Impact for NWP 48 fails to establish or
describe how the mitigation measures, framed as general conditions and unanalyzed discretion
from District Engineers, would practically mitigate impacts.
151. The Corps’ conclusion that issuance of NWP 48 would not significantly affect the
quality of the human environment was arbitrary, capricious, or otherwise violates federal law as
alleged herein.
152. The Corps’ improper reliance on mitigation is arbitrary, capricious, and otherwise
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 45 of 53
COMPLAINT – 46 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
violates federal law.
153. The actions and inactions of the Corps described in this Claim for Relief are
causing injuries to the Plaintiffs, for which they have no adequate remedy at law.
FORTH CLAIM FOR RELIEF
VIOLATION OF NEPA AND APA
FAILURE TO PROPERLY ANALYZE DIRECT, INDIRECT, AND CUMULATIVE IMPACTS
OR DEVELOP REASONABLE RANGE OF ALTERNATIVES
154. Plaintiffs re-allege paragraphs 1–138 and 142.
155. When preparing an EA and issuing a Finding on No Significant Impact, NEPA
requires that agencies take a hard look at the reasonably foreseeable direct, indirect, cumulative,
or synergistic environmental impacts from proposed actions.
156. The Corps relied on the 1978 CEQ Regulations in preparing the environmental
assessment for the 2021 NWP 48. In the 2021 NWP 48 Decision Document, the Corps’ impact
analysis “focuse[d] on the impacts or effects that are reasonably foreseeable and have a
reasonably close causal relationship to the activities authorized by this NWP under the Corps’
permitting authorities.” 2021 HQ Decision Doc. at 70. In doing so, the Corps used the 1978
Regulations, which required the agency to review “reasonably foreseeable” “indirect effects.” See
40 CFR 1508.8(a) (1978).
157. Under the Trump Administration, CEQ revised its NEPA regulations for the first
time in over 40 years by removing the definition of “cumulative impact” and the terms “direct”
and “indirect” to encourage agencies to focus on “whether the proposed action causes an effect
rather than on categorizing the type of effect.” Update to the Regulations Implementing the
Procedural Provisions of the NEPA, 85 Fed. Reg. 43,343 (Jul. 16, 2020). The 2020 Revisions
went into effect on September 14, 2020, one day after the Corps announced the proposed permit
and four months before the Corps issued the final 2021 NWP 48. Although the Corps had the
option to “choose whether to apply the revised regulations or proceed under the 1978 regulations
and [its] existing agency NEPA procedures,” id., the Corps has long operated under the definition
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 46 of 53
COMPLAINT – 47 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
of “effects” as defined in the 1978 NEPA Regulations, and the agency has existing NEPA
procedures aligned with the 1978 definitions. Moreover, the 2020 Revisions were not fully
consistent with NEPA. See NEPA Implementing Regulations Revisions, 86 Fed. Reg. 55,757
(Oct. 7, 2021) (proposed rule) (proposing to “generally revert[] to the language from the 1978
NEPA Regulations that was in effect for more than 40 years prior to 2020”). To the extent the
2020 Revisions allowed the Corps to omit critical categories of effects from analysis and
disclosure, contrary to NEPA's statutory purpose to promote informed decision making, the
Corps’ implementing regulations, and the Corps’ longstanding practice, the 1978 CEQ
Regulations applied.
158. Under both the 1978 CEQ Regulations and the 2020 Revisions, the Corps is
required to conduct a thorough analysis of cumulative impacts under NEPA. The 2020 Revisions
required the Corps to fully consider reasonably foreseeable effects, including those categorized as
“cumulative impacts” under the 1978 CEQ Regulations. 40 CFR 1508.1(g) (2020); see 85 Fed.
Reg. 43,355 (“In general, the changes . . . retain[] requirements to analyze all activities and
environmental impacts covered within the scope of the statute.”). The consideration of cumulative
impacts follows longstanding legal precedent interpreting NEPA to require agencies to consider
cumulative effects. Even before CEQ issued its 1978 regulations, the U.S. Supreme Court
interpreted NEPA to require consideration of cumulative effects “when several proposals . . . that
will have cumulative or synergistic environmental impact upon a region are pending concurrently
before an agency.” Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976) (emphasis added).
159. The Corps failed to take the requisite hard look at the reasonably foreseeable
direct, indirect, cumulative, or synergistic environmental impacts likely to result from the
issuance of NWP 48.
160. The Corps’ Finding of No Significant Impact was the result of a failure to consider
the impacts described by Plaintiffs and others in public comments, as well as those described
herein was arbitrary, capricious, or otherwise violates federal law.
161. An environmental assessment must include a purpose and need statement and
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 47 of 53
COMPLAINT – 48 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
define the scope of reasonable alternatives that would satisfy the purpose.
162. The Corps’ Decision Document failed to include a purpose and need statement,
and therefore failed to define the scope of reasonable alternatives in a manner arbitrary,
capricious, or that otherwise violates federal law as alleged herein.
163. The actions and inactions of the Corps described in this Claim for Relief are
causing injuries to the Plaintiffs, for which they have no adequate remedy at law.
FIFTH CLAIM FOR RELIEF
VIOLATION OF RIVERS AND HARBORS ACT AND APA
ISSUANCE OF LETTERS OF PERMISSION WITHOUT PROPER EVALUATION
164. Plaintiffs re-allege paragraphs 1–138 and 142.
165. Section 10 of the RHA, 33 U.S.C. § 403, and the Corps’ implementing regulations
limit use of LOPs to activities where the Corps properly concludes that the proposed activities
“would be minor, would not have significant individual or cumulative impacts on environmental
values, and should encounter no appreciable opposition.” 33 C.F.R. § 325.2(e). The use of “and”
makes it clear that all three conditions must be met for an LOP, as opposed to a standard
individual permit, to be appropriate.
166. The Corps has issued at least 325 LOPs to shellfish operations with potentially
significant adverse environmental impacts on Washington’s tidelands. Exhibit A. Some of these
operations cover hundreds of acres of Washington’s shoreline, and many of them overlap with
areas listed as essential habitats for threatened or endangered species.
167. In the decision documents associated with these LOPs released to Plaintiffs
through requests submitted under the Freedom of Information Act, the Corps failed to adequately
consider whether these LOPs would have significant adverse impacts on the environment and
wildlife. Although the Corps’ decision documents expressly acknowledged that plastics from
shellfish operations pose a threat to the environment and wildlife, the Corps failed to describe or
quantify these impacts, much less analyze them in their environmental assessment. The decision
documents also confirmed that the Corps failed to consider adverse impacts to wildlife and their
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 48 of 53
COMPLAINT – 49 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
habitats, despite evidence that the operations were in areas with known threatened or endangered
species, protected habitats, or other important features. Further, the Corps ignored some known
impacts, such as pesticide use, entirely. Thus, because an LOP may only be issued in cases where
proposed work would be minor and would not have significant individual impacts on the
environment, the Corps improperly issued LOPs to shellfish operations without fully considering
the potentially significant adverse impacts of the proposed shellfish operation on the local
environment.
168. In the decision documents associated with these LOPs, only made public through
Freedom of Information Act requests submitted by Plaintiffs, the Corps failed to adequately
consider whether these LOPs would have cumulative impacts to the environment and wildlife.
Although the Corps acknowledged that these operations are located in sensitive areas and areas
with a high pollution burden, the Corps failed to describe or quantify how proposed operations
would contribute or exacerbate existing threats. The Corps also failed to consider the full range of
impacts from proposed and existing commercial shellfish operations in surrounding areas and
connected waterbodies. Thus, because an LOP may only be issued in cases where proposed work
would be minor and would not have significant cumulative impacts on the environment, the Corps
improperly issued LOPs to shellfish operations without fully considering the potentially
significant cumulative impacts of the proposed operation on the local environment and wildlife.
169. In addition, the Corps failed to fully consider the public interest before issuing
LOPs, some of which cover hundreds of acres of tidelands in sensitive areas, without any public
notice or comment. Given Plaintiffs’ interest in improving federal permitting and regulation of
commercial shellfish aquaculture in Washington, as well as Plaintiffs’ previous litigation and
public comments on this matter, the Corps should have known that the agency would “encounter
appreciable opposition” from the Plaintiffs in this case, at the very least. Thus, because an LOP
may only be issued in cases where proposed work would be minor and encounter no appreciable
opposition, the Corps improperly issued LOPs to shellfish operations with significant adverse
impacts that would have certainly received opposition from Plaintiffs, and potentially other
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 49 of 53
COMPLAINT – 50 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
residents, community groups, and environmental organizations. Rather than provide public notice
and opportunity for comment, as required for standard individual permits, the Corps instead
choose to hide from public view its shellfish aquaculture permitting activities following the
vacatur of NWP 48.
170. The Corps failed to adequately consider the cumulative impacts of these
operations. Instead of analyzing the cumulative effects of each proposed operation on the
environment and local wildlife against the environmental baseline, the Corps compared proposed
operations with existing degradation to conclude that there were no significant cumulative
impacts on the environment. The Corps also failed to consider the cumulative impact of
approving multiple projects in the same area. Consequently, the Corps issued LOPs based on
improper cumulative impacts determinations. In issuing LOPs without conducting a proper
cumulative impacts analysis, the Corps’ decisions have violated the Rivers and Harbors Act, and
arbitrary, capricious, an abuse of discretion, not in accordance with law, and without observance
of procedures required by law, 33 U.S.C. § 403, its implementing regulations, and the APA. 5
U.S.C. §§ 701–706.
171. The actions and inactions of the Corps described in this Claim for Relief are
causing injuries to the Plaintiffs, for which they have no adequate remedy at law.
SIXTH CLAIM FOR RELIEF
VIOLATION OF ESA:
FAILURE TO CONSULT REGARDING ADOPTION OF NWP 48
172. Plaintiffs re-allege paragraphs 1–138 and further allege:
173. Section 7(a)(2) of the ESA prohibits agency actions that jeopardize the survival of
listed species, or that destroy, or adversely modify their critical habitat 16 U.S.C. § 1536(a)(2).
174. An agency must engage in consultation with the Services for every agency
action—including “all activities or programs of any kind authorized, funded, or carried out,” by
an agency, 50 C.F.R. § 402.02 (emphasis added)—that “may affect” a federally listed species or
critical habitat in any manner, id. § 402.14(a), (g).
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 50 of 53
COMPLAINT – 51 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
175. The Services’ regulations recognize that certain programmatic actions, such as the
Corps’ issuance of the NWP program, “approve[] a framework for the development of future
action(s),” and thus, “any take of a listed species would not occur unless and until those future
action(s) are authorized, funded, or carried out.” Id. § 402.02 (defining “framework programmatic
action”).
176. The Corps has erroneously and unlawfully determined that the NWP program does
not require programmatic ESA consultation. However, the agency’s “no effect” determination for
the NWP program is legally and factually flawed. Indeed, the Corps’ reliance on project-specific
reviews to avoid programmatic consultation is completely inconsistent with the Services’
implementing regulations. See 50 C.F.R. § 402.14(c)
177. The Corps’ failure to undertake programmatic consultation on NWP 48 also
constitutes a violation of ESA Section 7(a)(1), which requires the Corps to “carry[] out [a]
program[] for the conservation of endangered species and threatened species.” 16 U.S.C. §
1636(a)(1).
178. Plaintiffs provided the Corps a 60-day notice letter outlining these violations on
February 4, 2021. Exhibit C.
179. The actions and inactions of the Corps described in this Claim for Relief are
causing injuries to the Plaintiffs, for which they have no adequate remedy at law.
180. Plaintiffs are entitled to fees, costs, expenses, and disbursements, including
reasonable attorneys’ fees, associated with this litigation under the ESA, 16 U.S.C.§ 1540.
PRAYERS FOR RELIEF
WHEREFORE, the Plaintiffs respectfully request that the Court:
1. Adjudge and declare that the Corps’ decision to adopt 2021 NWP 48 in
Washington, as well as the Decision Document, EA, and FONSI issued by the
Corps in connection with that approval, are in violation of the CWA, NEPA, ESA,
RHA, and APA;
2. Adjudge and declare that the Corps violated NEPA and the APA by failing to
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 51 of 53
COMPLAINT – 52 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
prepare an EIS prior to adopting 2021 NWP 48 in Washington;
3. Adjudge and declare that the Corps violated the CWA and its implementing
regulations when it adopted 2021 NWP 48 in Washington without adequately
supporting its determination that it would not cause more than minimal cumulative
adverse impacts or the effectiveness of its mitigation measures;
4. Adjudge and declare that the Corps violated the RHA in issuing LOPs for work in
jurisdictional waters without adequately supporting its determination that the
proposed work would be minor and not have significant individual or cumulative
impacts on environmental values and would encounter no appreciable opposition;
5. Adjudge and declare that the Corps violated the ESA and its implementing
regulations when it adopted 2021 NWP 48 in Washington without consulting with
NMFS and FWS under Section 7 of the ESA;
6. Vacate, set aside, and/or enjoin the Corps’ decision to adopt 2021 NWP 48 in
Washington, and declare that the Corps must comply with all requirements of
NEPA, the CWA, the ESA, and the APA, including preparing an EIS and
reinitiating consultation, if the agency proposes to adopt a new general permit for
commercial shellfish aquaculture in Washington;
7. Award the Plaintiffs their fees, costs, expenses, and disbursements, including
reasonable attorneys’ fees, associated with this litigation under the Equal Access to
Justice Act, 28 U.S.C. § 2412 and the ESA, 16 U.S.C.§ 1540; and
8. Grant such other relief as this Court deems just and proper.
DATED: December 20, 2021 Respectfully Submitted,
/s/ Karl G. Anuta
Karl G. Anuta (WSB No. 21346) kga@integra.net
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 52 of 53
COMPLAINT – 53 Law Office of Karl G. Anuta, P.C. Center for Food Safety
Case No. 2:21-cv-1685 735 SW 1st Ave., 2nd Floor 2009 NE Alberta St, Ste 207 Portland, OR 97204 Portland, OR 97211 (503) 827-0320 (971) 271-7372
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Counsel for Plaintiff Coalition
/s/ George A. Kimbrell
George A. Kimbrell (WSB No. 36050) gkimbrell@centerforfoodsafety.org
Counsel for Plaintiff CFS
Case 2:21-cv-01685 Document 1 Filed 12/20/21 Page 53 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTONAT SEATTLE
THE COALITION TO PROTECT PUGETSOUND HABITAT,
Plaintiff,
v.
U.S. ARMY CORPS. OF ENGINEERS, et al.,
Defendants,
and
TAYLOR SHELLFISH COMPANY, INC.,
Intervenor - Defendant._____________________________________
CENTER FOR FOOD SAFETY,
Plaintiff,
v.
U.S. ARMY CORPS OF ENGINEERS, et al.,
Defendants,
and
PACIFIC COAST SHELLFISH GROWERSASSOCIATION,
Intervenor - Defendant.
Case No. C16-0950RSL
Case No. 17-1209RSL
ORDER HOLDING NWP 48UNLAWFUL IN THE STATE OFWASHINGTON ANDREQUESTING ADDITIONALBRIEFING
This matter comes before the Court on cross-motions for summary judgment filed by the
parties and intervenors in the above-captioned matters. Dkt. # 36, # 44, and # 45 in C16-
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 1 of 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
0950RSL; Dkt. # 31, # 43, and # 44 in C17-1209RSL. The Court has also considered the
Swinomish Indian Tribal Community’s submission in a related case, C18-0598RSL (Dkt. # 28).
Plaintiffs challenge the U.S. Army Corps of Engineers’ issuance of Nationwide Permit 48
(“NWP 48”) authorizing discharges, structures, and work in the waters of the United States
related to commercial shellfish aquaculture activities. Plaintiffs argue that the Corps failed to
comply with the Clean Water Act (“CWA”), the National Environmental Policy Act (“NEPA”),
and the Endangered Species Act (“ESA”) when it reissued NWP 48 in 2017. They request that
the decision to adopt NWP 48 in Washington1 be vacated under the Administrative Procedures
Act (“APA”) and that the Corps be required to comply with the environmental statutes before
issuing any new permits or verifications for commercial shellfish aquaculture in this State.2
BACKGROUND
The CWA authorizes the Army Corps of Engineers to issue permits for the discharge of
dredged or fill material into the navigable waters of the United States. 33 U.S.C. § 1344(a). If the
Corps determines that activities involving discharges of dredged or fill material “are similar in
nature, will cause only minimal adverse environmental effects when performed separately, and
will have only minimal cumulative adverse effect on the environment,” it may issue general
permits on a state, regional or nationwide basis permitting the activities for a five year period. 33
1 The Coalition to Protect Puget Sound Habitat seeks to bar the use of NWP 48 only in Puget
Sound.
2 The Court finds that one or more members of plaintiff Center for Food Safety has/have
standing to pursue the CWA, NEPA, and ESA claims based on their concrete, particularized, and
imminent injuries arising from activities in Washington that are permitted under the 2017 version of
NWP 48.
ORDER HOLDING NWP 48 UNLAWFUL
IN THE STATE OF WASHINGTON AND
REQUESTING ADDITIONAL BRIEFING - 2
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 2 of 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
U.S.C. § 1344(e). “[T]he CWA imposes substantive restrictions on agency action” (Greater
Yellowstone Coalition v. Flowers, 359 F.3d 1257, 1273 (10th Cir. 2004)): if “the effect of a
general permit will be more than minimal, either individually or cumulatively, the Corps cannot
issue the permit” (Wyoming Outdoor Council v. U.S. Army Corps of Eng’rs, 351 F. Supp. 2d
1232, 1255-57 (D. Wyo. 2005)). General permits often impose requirements and standards that
govern the activities undertaken pursuant to the permit, but they relieve operators from the more
burdensome process of obtaining an individual, project-based permit.
In 2017, the Corps reissued NWP 48, thereby authorizing “the installation of buoys,
floats, racks, trays, nets, lines, tubes, containers, and other structures into navigable waters of the
United States. This NWP also authorizes discharges of dredged or fill material into waters of the
United States necessary for shellfish seeding, rearing, cultivating, transplanting, and harvesting
activities.” NWP003034. The nationwide permit authorizes(a) the cultivation of nonindigenous
shellfish species as long as the species has previously been cultivated in the body of water at
issue, (b) all shellfish operations affecting ½ acre or less of submerged aquatic vegetation, and
(c) theall operations affecting more than ½ acre of submerged aquatic vegetation if the area had
been used for commercial shellfish aquaculture activities at any point in the past 100 years.
NWP003034-35.3
In addition to the CWA’s requirement that the Corps make “minimal adverse effect”
findings before issuing a general permit, “NEPA imposes procedural requirements on federal
agencies to analyze the environmental impact of their proposals and actions.” O’Reilly v. U.S.
3 The 100-year look back provision was not in the 2012 version of NWP 48.
ORDER HOLDING NWP 48 UNLAWFUL
IN THE STATE OF WASHINGTON AND
REQUESTING ADDITIONAL BRIEFING - 3
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 3 of 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Army Corps of Engr’s, 477 F.3d 225, 228 (5th Cir. 2007). Federal agencies are required to do an
environmental assessment (“EA”) of their proposed action, providing a brief discussion of the
anticipated environmental impacts and enough evidence and analysis to justify a no-significant-
impact determination. 40 C.F.R. § 1508.9. If the agency, after conducting an EA, is unable to
state that the proposed action “will not have a significant effect on the human environment,” a
more detailed and comprehensive environmental impact statement (“EIS”) must be prepared. 40
C.F.R. § 1508.11 and § 1508.13.4
The Corps’ EA regarding the 2017 reissuance of NWP 48 is presented in a Decision
Document dated December 21, 2016. NWP003034-3116. An additional condition was later
imposed by the Seattle District through its Supplemental Decision Document dated March 19,
2017. COE 127485-611. The Court has considered both Decision Documents to the extent they
reflect the Corps’ analysis of the anticipated environmental impacts of issuing the nationwide
permit and imposing the additional regional condition. The Decision Documents set forth the
Corps’ discussion of anticipated environmental impacts and the evidence and analysis justifying
its determination “that the issuance of [NWP 48] will not have a significant impact on the quality
of the human environment,” making an EIS unnecessary under NEPA. NWP003106. The
Decision Documents also reflect the Corps’ determination that the “activities authorized by
[NWP 48] will result in no more than minimal individual and cumulative adverse effects on the
aquatic environment” for purposes of the CWA. NWP003107. The Seattle District, for its part,
concluded that if it added a regional condition preventing the commercial harvest of clams by
4 “Impact” and “effect” are used interchangeably in the regulations and are deemed synonymous.
40 C.F.R. § 1508.8.
ORDER HOLDING NWP 48 UNLAWFUL
IN THE STATE OF WASHINGTON AND
REQUESTING ADDITIONAL BRIEFING - 4
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 4 of 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
means of hydraulic escalator equipment and evaluated proposed activities as they were verified
under the reissued permit, the effects of the permitted activities would be individually and
cumulatively minimal. COE 127592-93.
Plaintiffs argue that these conclusions must be invalidated under the APA because the
record does not support the Corps’ conclusions regarding the environmental effects of individual
shellfish aquaculture activities or their cumulative impacts and the EA does not accurately
describe the anticipated environmental impacts of NWP 48 or otherwise justify a no-significant-
impact determination. Under the APA, a reviewing court must set aside agency actions, findings,
or conclusions that are “arbitrary, capricious, an abuse of discretion, [] otherwise not in
accordance with law” or “without observance of procedure required by law.” 5 U.S.C.
§ 706(2)(A) and (D). Agency action is arbitrary and capricious “if the agency has relied on
factors which Congress has not intended it to consider, entirely failed to consider an important
aspect of the problem, offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983). Although agency predictions within the agency’s area of expertise are
entitled to the highest deference, they must nevertheless have a substantial basis in fact. Ctr. for
Biological Diversity v. Zinke, 900 F.3d 1053, 1067 (9th Cir. 2018). In determining whether a
decision is supported by substantial evidence in the record, the Court will not substitute its own
judgment for that of the agency but rather considers whether the decision is based on relevant
evidence that a reasonable mind might accept as adequate to support the agency’s conclusion.
ORDER HOLDING NWP 48 UNLAWFUL
IN THE STATE OF WASHINGTON AND
REQUESTING ADDITIONAL BRIEFING - 5
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 5 of 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014).5
DISCUSSION
Having reviewed the submissions of the parties and the administrative record, and having
heard the arguments of counsel, the Court finds that there is insufficient evidence in the record to
support the agency’s conclusion that the reissuance of NWP 48 in 2017 would have minimal
individual and cumulative adverse impacts on the aquatic environment for purposes of the CWA
and that the Corps’ environmental assessment does not satisfy NEPA’s requirements. Although
the minimal impacts finding is repeated throughout the Corps’ Decision Document (see
NWP003038, NWP003045-46, NWP003049, NWP003051, NWP003091, NWP003107), it is
based on little more than (1) selectively chosen statements from the scientific literature, (2) the
imposition of general conditions with which all activities under nationwide permits must
comply, and (3) the hope that regional Corps districts will impose additional conditions and/or
require applicants to obtain individual permits if necessary to ensure that the adverse impacts
will be minimal. Each of these considerations is discussed below.
(1) Effects Analysis
At various points in its analysis, the Corps acknowledges that commercial shellfish
aquaculture activities can have adverse environmental impacts. See NWP003040 (commercial
5 Plaintiffs also argue that the agency action should be invalidated because the Corps (a) failed to
analyze a reasonable range of alternative actions in the EA, (b) failed to allow for meaningful public
participation, and (c) failed to re-initiate consultation with expert wildlife agencies under the ESA when
the 2017 version of NWP 48 was modified to increase the acreage on which commercial shellfish
production was authorized, failed to incorporate assumed conservation measures and conditions, and
failed to analyze the impacts of pesticides on endangered species. Because the Court finds that the Corps
violated the CWA and NEPA, it has not considered these alternative theories for why NWP 48 should
be invalidated.
ORDER HOLDING NWP 48 UNLAWFUL
IN THE STATE OF WASHINGTON AND
REQUESTING ADDITIONAL BRIEFING - 6
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 6 of 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
shellfish aquaculture activities “have some adverse effects on the biotic and abiotic components
of coastal waters, including intertidal and subtidal areas”); Id. (noting that “at a small spacial
scale (e.g., the site directly impacted by a specific aquaculture activity) there will be an adverse
effect.”); NWP003041 (acknowledging “some impacts on intertidal and subtidal habitats, fish,
eelgrass, and birds”); NWP003042 (recognizing that “commercial shellfish aquaculture activities
do have some adverse effects on eelgrass and other species that inhabit coastal waters”); COE
127559 (stating that “marine debris is a serious impact on the marine environment”); COE
127570 (acknowledging “potential adverse impacts” to riffle and pool complexes); COE 127584
(noting that “[c]ommercial shellfish aquaculture activities can result in conversion of substrates
(e.g. mudflats to gravel bars), impacts to submerged aquatic vegetation, alteration in aquatic
communities from native to non-native shellfish species, and water quality impacts from harvest
activities”). It concludes that these impacts are no more than minimal, however, (a) when
considered on a landscape rather than a site-by-site scale, (b) because the relevant ecosystems
are resilient, and (c) because the impacts are “relatively mild” in comparison “to the disturbances
and degradation caused by coastal development, pollution, and other human activities in coastal
areas.” NWP003040 and NWP003044.
(a) Scale of Impacts Evaluation
In determining the potential effects of a proposed discharge of dredged or fill material in
an aquatic environment, the Corps is required to determine the nature and degree of the
environmental impact the discharge will have, both individually and cumulatively.
“Consideration shall be given to the effect at the proposed disposal site of potential changes in
substrate characteristics and elevation, water or substrate chemistry, nutrients, currents,
ORDER HOLDING NWP 48 UNLAWFUL
IN THE STATE OF WASHINGTON AND
REQUESTING ADDITIONAL BRIEFING - 7
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 7 of 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
circulation, fluctuation, and salinity, on the recolonization and existence of indigenous aquatic
organisms or communities.” 40 C.F.R. § 230.11(e) (emphasis added). Ignoring or diluting site-
specific, individual impacts by focusing solely on a cumulative, landscape-scale analysis is not
consistent with the governing regulations.
(b) Resilient Ecosystems
The Decision Document issued by Corps Headquarters acknowledges that “[t]he effects
of commercial shellfish aquaculture activities on the structure, dynamics, and functions of
marine and estuarine waters are complicated, and there has been much discussion in the
scientific literature on whether those effects are beneficial or adverse.” NWP003040. Relying in
large part on a paper published by Dumbauld and McCoy for the U.S. Department of Agriculture
in 2015, the Corps concluded that the individual and cumulative impacts of the activities
authorized by NWP 48 would be minimal “because the disturbances caused by these activities
on intertidal and subtidal ecosystems are temporary and those ecosystems have demonstrated
their ability to recover from those temporary disturbances.” NWP003045-46.6
6 The Corps also cites a 2009 paper co-written by Dumbauld, which it describes as “a review of
empirical evidence of the resilience of estuarine ecosystems and their recovery (including the recovery
of eelgrass) after disturbances caused by shellfish aquaculture activities.” NWP003044. The Corps relies
on the 2009 Dumbauld paper to support its conclusion that commercial shellfish production can have
beneficial impacts on some aspects of the aquatic environment. See NWP003406 (“Many species co-
exist with commercial shellfish aquaculture activities and many species benefit from these activities.”);
NWP003086 (noting improved water and habitat quality at moderate shellfish population densities);
NWP003087 (“Activities authorized by this NWP may alter habitat characteristics of tidal waters. Some
species of aquatic organisms will benefit from those changes, while others will be adversely affected.”);
NWP003104 (“Sessile or slow-moving animals in the path of discharges of dredged or fill material and
aquaculture equipment may be destroyed. Some aquatic animals may be smothered by the placement of
fill materials. Some aquatic organisms will inhabit the physical structure created by equipment used for
commercial shellfish aquaculture activities.”). The fact that there are environmental winners and losers
when activities authorized under NWP 48 are undertaken does not resolve the issue of whether the
ORDER HOLDING NWP 48 UNLAWFUL
IN THE STATE OF WASHINGTON AND
REQUESTING ADDITIONAL BRIEFING - 8
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 8 of 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Dumbauld and McCoy’s research cannot justify such a broad, sweeping conclusion
regarding the resilience of entire ecosystems in both the intertidal and subtidal zones. According
to the Corps’ own summary of the paper, the authors evaluated only the effects of oyster
aquaculture activities on submerged aquatic vegetation. NWP003044. The paper itself shows
that Dumbauld and McCoy were studying the effects of intertidal oyster aquaculture on the
seagrass Zostera marina. There is no discussion of the impacts on other types of aquatic
vegetation, on the benthic community, on fish, on birds, on water quality/chemistry/structures, or
on substrate characteristics. There is no discussion of the subtidal zone. There is no discussion
regarding the impacts of plastic use in shellfish aquaculture and only a passing reference to a
possible side effect of pesticide use. The Corps itself does not remedy these deficiencies:
although it identifies various resources that will be adversely impacted by issuance of the
national permit (along with resources that may benefit from shellfish production), it makes
virtually no effort to characterize the nature or degree of those impacts. The Decision
Document’s “Impact Analysis” consists of little more than an assurance that district engineers
will consider the direct and indirect effects caused by the permitted activity on a regional or
case-by-case basis. NWP003073-74.
proposed agency action has more than minimal impacts or obviate the need for a “hard look” at all
impacts, beneficial and adverse. Native Ecosys. Council v. U.S. Forest Serv., 428 F.3d 1233, 1238-39
(9th Cir. 2005). The 2009 review clearly shows, and the Corps acknowledges, that at least some aquatic
species and characteristics are adversely affected by commercial shellfish aquaculture. The Ninth
Circuit, faced with a similar situation under NEPA, noted that “even if we had some basis for assuming
that [the agency’s] implementation of the BiOp would have exclusively beneficial impacts on the
environment, we would still lack a firm foundation for holding that [the agency] need not prepare an EA
and, if necessary, an EIS.” San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 652 n.52
(9th Cir. 2014).
ORDER HOLDING NWP 48 UNLAWFUL
IN THE STATE OF WASHINGTON AND
REQUESTING ADDITIONAL BRIEFING - 9
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 9 of 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Under the CWA, the Corps must find that the proposed activity “will cause only minimal
adverse environmental effects when performed separately, and will have only minimal
cumulative adverse effect on the environment” before it issues a general permit. 33 U.S.C.
§ 1344(e). Under NEPA, the Corps is required to “[b]riefly provide sufficient evidence and
analysis for determining whether to prepare an environmental impact statement or a finding of
no significant impact.” 40 C.F.R. § 1508.9(a)(1). The agency is required to take a “hard look” at
the likely environmental impacts of the proposed action and prepare an EA to determine whether
the impacts are significant enough to necessitate the preparation of an EIS. Native Ecosys.
Council, 428 F.3d at 1238-39. The analysis, though brief, “must be more than perfunctory” and
must be based on “some quantified or detailed information; . . . [g]eneral statements about
possible effects and some risk do not constitute a hard look absent a justification regarding why
more definitive information could not be provided.” Klamath-Siskiyou Wildlands Ctr. v. Bureau
of Land Mgmt., 387 F.3d 989, 993-94 (9th Cir. 2004) (alteration in original, citations omitted).
In this case, the Corps acknowledged that reissuance of NWP 48 would have foreseeable
environmental impacts on the biotic and abiotic components of coastal waters, the intertidal and
subtidal habitats of fish, eelgass, and birds, the marine substrate, the balance between native and
non-native species, pollution, and water quality, chemistry, and structure, but failed to describe,
much less quantify, these consequences. The Corps cites the two Dumbauld papers for general
statements regarding the positive or negative effects of shellfish aquaculture on certain aquatic
resources or characteristics (focusing on seagrass), but it makes no attempt to quantify the
effects or to support its conclusion that the effects are no more than minimal.
Even if the health and resilience of seagrass were the only concern - and, as discussed
ORDER HOLDING NWP 48 UNLAWFUL
IN THE STATE OF WASHINGTON AND
REQUESTING ADDITIONAL BRIEFING - 10
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 10 of 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
above, it is not - the 2015 Dumbauld and McCoy paper cannot reasonably be interpreted as
evidence that seagrass is only minimally impacted by commercial shellfish aquaculture. As
noted above, the paper evaluated only the effect of oyster aquaculture. In that context, it
recognized the research suggesting that oyster aquaculture has direct impacts on native
seagrasses at the site of the activity and in short temporal spans. These impacts are then ignored
by both Dumbauld and the Corps in favor of a landscape, cumulative analysis which, as
discussed above, is inadequate. Just as importantly, NWP 48 authorizes the discharge of dredged
and fill material from not only oyster operations, but also from mussel, clam, and geoduck
operations carried out on bottom substrate, in containers, and/or on rafts or floats. Thus,
Dumbauld and McCoy did not evaluate, and drew no conclusions regarding, the impact that
many of the activities authorized by NWP 48 would have on seagrass (much less other aquatic
resources). The Seattle District, for its part, acknowledged the breadth of species and cultivation
techniques that are encompassed in the phrase “commercial shellfish aquaculture.” A draft
cumulative impact assessment generated in February 2017 dedicated twenty-five pages to
discussing the wide range of work and activities covered by NWP 48 and noting the species-
dependent variability in cultivation techniques, gear, and timing. COE 125591-616.7 These
variations gave rise to a wide array of effects on the aquatic habitat (COE 125635-36), none of
which is acknowledged or evaluated in the national Decision Document. In its Supplement, the
Seattle District noted:
7 The Corps acknowledges that the draft regional impact assessment “was a NEPA-level
analysis,” but faulted the author because that level of analysis should be performed by Headquarters for
a nationwide permit. COE 125856. No comparable analysis is included in the national Decision
Document, however.
ORDER HOLDING NWP 48 UNLAWFUL
IN THE STATE OF WASHINGTON AND
REQUESTING ADDITIONAL BRIEFING - 11
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 11 of 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The impacts to eelgrass from aquaculture can be temporary, depending on the
activity, because the habitat conditions themselves (elevation, water quality, etc.)
are not permanently altered which allows eelgrass to eventually recover given
sufficient time. In Washington State, the timeframe for recovery has been
documented to be about 5 years depending on the activity and other factors. For
example, when a geoduck farm is seeded it is covered with tubes and nets for 2 or
more years and then the tubes and nets are removed until harvest, 3-5 years later.
The eelgrass would have died back under the nets, had a chance to return when
nets were removed, and then eelgrass is disturbed/removed again when harvest
occurs. While this process allows for eelgrass return at the site, the frequency of
disturbance and relatively long recovery times result in a local habitat condition
where eelgrass more often than not is either not present or present at a much
reduced functional state. This effect would persist as long as aquaculture is
occurring at the site. In some cases, such as when nets are placed over planted
clam beds, any eelgrass is likely to be permanently smothered and not recover.
This is because of the permanence of the nets, which are only removed between
harvest and the next planting cycle. The time between harvest and planting may
only be a matter of weeks or months. Other impacts are discussed in the national
decision document. This existing cycle of impacts to eelgrass represents the
existing environment from aquaculture activities authorized under NWP [48] 2012;
and these or similar effects may continue if verification under NWP 48 2017 is
requested and received.
COE 127587-88.
Agency predictions within their areas of expertise are entitled to the highest deference,
but they must have a substantial basis in fact. The Corps recognized that certain shellfish
operations would displace eelgrass entirely for extended periods of time. In some cases, nets are
used to smother the vegetation, precluding any chance of recovery. Where smothering nets are
not in use, the eelgrass may recover to some extent, but was not likely to return to is full
functional state before being disturbed and/or removed again for the next harvest or seeding
ORDER HOLDING NWP 48 UNLAWFUL
IN THE STATE OF WASHINGTON AND
REQUESTING ADDITIONAL BRIEFING - 12
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 12 of 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
activity. The impacts of commercial shellfish aquaculture on eelgrass (and presumably on all
species that rely on eelgrass) would continue as long as the permitted activity continued. Under
the 2017 version of NWP 48, a significant number of additional acres that were not cultivated
under the 2012 NWP could be put into shellfish aquaculture if the area had been commercially
productive during the past 100 years. See COE 118145-49; COE 127584. Any such “reopened”
beds could result in additional losses of seagrass and the benefits it provides. COE 127589
(“[F]or many current operations, verification under NWP 2017 will create no appreciable change
to the baseline environmental conditions, and the impacts will be minimal both individually and
cumulatively.8 For other operations, however, activities may create a change in current
conditions, for example if activities are proposed on land populated with recovered eelgrass.”).
The national Decision Document does not quantify the periodic and permanent losses of
seagrass9 or the impact on the wider aquatic environment. A reasonable mind reviewing the
8 By quoting this portion of the Seattle District Supplement, the Court is not adopting its
reasoning. National, regional, and state permits issued under the authority of the CWA last for only five
years. When a NWP is reissued, the environmental impacts of the agency action logically include all
activities conducted under the auspices of the permit, regardless of whether those operations are brand
new or are simply “verified” as covered by the reissued NWP. The governing regulations expressly
impose upon the Corps the obligation to consider the ongoing effects of past actions when conducting a
cumulative impacts analysis. 40 C.F.R. § 1508.7. See Ohio Valley Envtl. Coalition v. Hurst, 604 F.
Supp. 2d 860, 886-87 (S.D. W. Va. 2009) (rejecting the Corps’ post hoc rationalization that past
authorizations of moutaintop mining had no continuing effects and noting that, in the court’s “common
sense judgment,” “[t]hese losses and impacts do not exist in a vacuum; they are not corrected or cured
every five years with the renewal of a new nationwide permit. Nor do these accumulated harms become
the baseline from which future impacts are measured. Before authorizing future activities with such
tremendous impacts, the Corps must at least consider the present effects of past activities . . . .”).
9 The cumulative impacts of reissuing NWP 48 are to be analyzed in accordance with 40 C.F.R.
§ 230.7(b)(3), pursuant to which the Corps must predict “the number of activities expected to occur until
the general permit expires.” NWP003043. The Corps’ estimates of how many acres are likely to be
cultivated under the reissued national permit vary widely, however. The estimate provided in Section
ORDER HOLDING NWP 48 UNLAWFUL
IN THE STATE OF WASHINGTON AND
REQUESTING ADDITIONAL BRIEFING - 13
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 13 of 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
record as a whole would not accept Dumbauld and McCoy’s limited findings regarding the
landscape-level impact of oyster cultivation on a species of seagrass in the intertidal zone as
support for the conclusion that entire ecosystems are resilient to the disturbances caused by
shellfish aquaculture or that the impacts of those operations were either individually or
cumulatively minimal.
(c) Impacts of Other Human Activity
Although the Corps does not rely on this line of reasoning in opposing plaintiffs’ motions
for summary judgment, its Decision Document is replete with various forms of the following
statement: “[c]ommercial shellfish aquaculture activities are a minor subset of human activities
that affect coastal intertidal and subtidal habitats and contribute to cumulative effects to those
coastal habitats.” NWP003041. See also NWP003040; NWP003042-44; NWP003061;
NWP003068; NWP003075-76; NWP003081; NWP003083-85. To the extent the Corps’
minimal impacts determination is based on some sort of comparison between the environmental
impacts of shellfish aquaculture and the environmental impacts of the rest of human activity (see
7.2.2 of the Decision Document states that NWP 48 will be utilized 1,625 times over the five-year
period, resulting in impacts to approximately 56,250 acres of water. NWP003098. Those numbers are
reportedly based on past uses of the NWP plus an estimate of the number of activities that did not
require pre-construction notification and were not voluntarily reported to the Corps district. Id.
According to the Seattle District, however, over 56,000 acres of marine tidelands were permitted under
the 2012 version of NWP 48 in Washington State alone, and that number was only going to increase
under the 2017 version. COE 127590. Recognizing the long history of commercial shellfish operations
in the State’s waters and the 100-year look back for identifying “existing” operations, the Seattle
District estimated that 72,300 acres of Washington tidelands could be authorized for commercial
shellfish production under the 2017 NWP 48. COE 127590-92. Thus, even if Headquarters had
attempted to quantify the proposed action’s impacts on seagrass (or any other aquatic resource) before
reissuing NWP 48, its data regarding past uses of the permit was incorrect and its estimates of future
uses are suspect.
ORDER HOLDING NWP 48 UNLAWFUL
IN THE STATE OF WASHINGTON AND
REQUESTING ADDITIONAL BRIEFING - 14
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 14 of 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
NWP003046 (commercial shellfish aquaculture activities “cause far less change to the
environmental baseline than the adverse effects caused by development activities, pollution, and
changing hydrology that results from the people living and working in the watersheds that drain
to coastal waters . . .”); NWP003078 (“[T]here are many categories of activities that contribute
to cumulative effects to the human environment. The activities authorized by this NWP during
the 5-year period it will be in effect will result in no more than minimal incremental
contributions to the cumulative effects to these resource categories.”); NWP003081 (“The
activities authorized by this NWP will result in a minor incremental contribution to the
cumulative effects to wetlands, streams, and other aquatic resources in the United States
because, as discussed in this section, they are one category of many categories of activities that
affect those aquatic resources.”)), the analysis is inadequate. NEPA and the CWA were enacted
because humans were adversely affecting the environment to a noticeable and detrimental extent.
See 42 U.S.C. § 4331(a) (Congressional recognition of “the profound impact of man’s activity
on the interrelations of all components of the natural environment”); 33 U.S.C. § 1251(a) (“The
objective of [the CWA] is to restore and maintain the chemical, physical, and biological integrity
of the Nation’s waters.”). Noting that a particular environmental resource is degraded is not an
excuse or justification for further degradation. The Corps must analyze the individual and
cumulative impacts of the proposed activity against the environmental baseline, not as a
percentage of the decades or centuries of degrading activities that came before.
The Corps makes a similarly untenable argument whenever the use of pesticides in a
shellfish operation permitted under NWP 48 is discussed. While acknowledging that these
substances are used and released into the environment during permitted activities, the Corps
ORDER HOLDING NWP 48 UNLAWFUL
IN THE STATE OF WASHINGTON AND
REQUESTING ADDITIONAL BRIEFING - 15
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 15 of 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
declines to consider the environmental impacts of pesticides because they are regulated by some
other entity. See NWP003077. Even if the Corps does not have jurisdiction to permit or prohibit
the use of pesticides, it is obligated to consider “other past, present, and reasonably foreseeable
future actions regardless of what agency (Federal or non-Federal) or person undertakes such
other actions.” NWP003074 (quoting 40 C.F.R. § 1508.7). The Corps’ decision to ignore the
foreseeable uses and impacts of pesticides in the activities it permitted on a nationwide basis
does not comport with the mandate of NEPA or with its obligations under the CWA. Having
eschewed any attempt to describe the uses of pesticides in commercial shellfish aquaculture or to
analyze their likely environmental impacts, the decision to permit such activities through NWP
48 cannot stand.
(2) General Conditions of NWP 48
In making its minimal impact determinations, the Corps relied in part on the general
conditions imposed on all nationwide permits. NWP003072. According to the Corps, the
prohibitions it has imposed against impacts on the life cycle movements of indigenous aquatic
species (general condition 2), spawning areas (general condition 3), migratory bird breeding
areas (general condition 4), concentrated shellfish beds (general condition 5), and endangered or
threatened species (general condition 18), and the requirements that permittees use non-toxic
materials (general condition 6) and confer with other regulatory agencies as needed (general
condition 19) will ensure that the individual and cumulative environmental effects of NWP 48
are minimal. Even if the Court were to assume that the general conditions will be universally
heeded, regulatory fiat does not satisfy NEPA’s requirement that the EA contain “sufficient
evidence and analysis for determining whether to prepare an environmental impact statement or
ORDER HOLDING NWP 48 UNLAWFUL
IN THE STATE OF WASHINGTON AND
REQUESTING ADDITIONAL BRIEFING - 16
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 16 of 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
a finding of no significant impact.” 40 C.F.R. § 1508.9(a)(1). The general conditions are just
that: general. They apply to all NWPs and do not reflect a “hard look” at the environmental
sequellae of commercial shellfish aquaculture. For purposes of the CWA, the general conditions
on which the Corps relies do not necessarily prohibit substantial impacts: general condition 3,
for example, precludes the most destructive of activities in spawning areas but leaves
unregulated many activities that could significantly impact those areas. In addition, the general
conditions relate to only some of the environmental resources the Corps acknowledges are
impacted by the permitted activities and do not address the cumulative impacts of commercial
shellfish aquaculture at all. 40 C.F.R. § 1508.7 (“Cumulative impacts can result from
individually minor but collectively significant actions taking place over a period of time.”).
The Court does not intend to suggest, and is not suggesting, that the general terms and
conditions imposed on a nationwide, regional, or state permit cannot be relevant to and
supportive of a finding of minimal impacts. They are simply too general to be the primary “data”
on which the agency relies when evaluating the impacts of the permitted activities.
(3) Regional Conditions and District Engineers
Any permit authorizing activities on a nationwide level runs the risk of sanctioning
activities that have more than minimal environmental impacts. In order to safeguard against that
risk, regional district engineers have the discretionary authority to modify, suspend, or revoke
the NWP within a particular region or class of waters, to add regional conditions to the NWP, to
impose special conditions on a particular project, and/or to require an applicant to seek an
individual permit. NWP003037 (citing 33 C.F.R. §§ 330.4(e) and 330.5). Although permittees
may generally proceed with activities authorized by an NWP without notifying the district
ORDER HOLDING NWP 48 UNLAWFUL
IN THE STATE OF WASHINGTON AND
REQUESTING ADDITIONAL BRIEFING - 17
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 17 of 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
engineer, (33 C.F.R. § 330.1(e)(1)), general condition 18(c) requires the submission of a pre-
construction notification (“PCN”) if the proposed activity may affect or is in the vicinity of a
species listed or habitat designated as critical under the ESA. Because all aquaculture operations
in the State of Washington occur in waters where there are threatened/endangered species and/or
critical habitat, applicants who seek to operate under the auspices of NWP 48 in this State must
submit a PCN and obtain a “verification” that the activity falls within the terms of the permit and
that the requirements of the ESA have been satisfied. COE 127592. “For a project to qualify for
verification under a general permit, a Corps District Engineer must conclude that it complies
with the general permit’s conditions, will cause no more than minimal adverse effects on the
environment, and will serve the public interest.” Sierra Club v. U.S. Army Corps of Eng’rs, 803
F.3d 31, 39 (D.C. Cir. 2015) (citing 33 C.F.R. §§ 330.1(e)(2), 330.6(a)(3)(i)).
There is nothing arbitrary, capricious, or unlawful about having the regional district
engineer review site-specific proposals to “cement [Headquarters’] determination that the
projects it has authorized will have only minimal environmental impacts.” Ohio Valley Envtl.
Coalition v. Bulen, 429 F.3d 493, 501 (4th Cir. 2005). Tiering the review and decision-making
tasks is permissible, but there must be a national decision document that actually evaluates the
impacts of the proposed activity in light of any regional conditions imposed. The problems here
are that the Corps’ minimal impact determinations were entirely conclusory and the regional
conditions that it assumed would minimize impacts were not in place at the time NWP 48 was
adopted. The record is devoid of any indication that the Corps considered regional data,
catalogued the species in and characteristics of the aquatic environments in which commercial
shellfish aquaculture activities occur, considered the myriad techniques, equipment, and
ORDER HOLDING NWP 48 UNLAWFUL
IN THE STATE OF WASHINGTON AND
REQUESTING ADDITIONAL BRIEFING - 18
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 18 of 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
materials used in shellfish aquaculture, attempted to quantify the impacts the permitted activity
would likely have on the identified species and characteristics, or evaluated the impacts of the
as-yet-unknown regional conditions.
Faced with incredible diversity in both the environment and the activities permitted under
NWP 48, the Corps effectively threw up its hands and turned the impact analyses over to the
district engineers. The “Impact Analysis” section of the national Decision Document simply
reiterates the district engineer’s powers to revoke, modify, or condition the NWP and directs the
district engineers to make minimal adverse environmental effects determinations after
considering certain factors. NWP003073-74. Its “Cumulative Effects” analysis bluntly
acknowledges that “[i]t is not practical or feasible to provide quantitative data” regarding the
cumulative effects of NWP 48 other than the estimated number of times the permit will be used.
NWP003081.
Because a nationwide analysis was impossible, the task of conducting a cumulative
impacts analysis in specific watersheds was devolved to the district engineers. NWP003077.
Even where adverse impacts are acknowledged, the Corps ignores its obligation to analyze and
quantify them, instead relying on the district engineers to perform the analysis on a project-by-
project basis. In the context of the public interest discussion regarding impacts to fish and
wildlife, for example, the Corps recognizes that NWP 48 may “alter the habitat characteristics of
tidal waters,” that “[s]ome species of aquatic organisms will benefit from those changes, while
other species will be adversely affected,” and that equipment used in commercial shellfish
operations may impede bird feeding activities and trap birds.” NWP003087. It then states:
The pre-construction notification requirement[] provides the district engineer with
ORDER HOLDING NWP 48 UNLAWFUL
IN THE STATE OF WASHINGTON AND
REQUESTING ADDITIONAL BRIEFING - 19
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 19 of 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
an opportunity to review those activities and assess potential impacts on fish and
wildlife values and ensure that the authorized activity results in no more than
minimal adverse environmental effects.
Id. This abdication of responsibility is not authorized under the CWA or NEPA.10
As discussed in the preceding sections, Headquarters’ prediction that the issuance of
NWP 48 would have minimal individual and cumulative impacts on the environment, though
repeatedly stated in the Decision Document, is not based on relevant evidence that a reasonable
mind might accept as adequate to support the agency’s conclusion, and the inclusion of general
permit conditions does not obviate the need to analyze the impacts of proposed federal action.
Thus, the Corps’ impact analyses are based in large part on the hope that district engineers will
mitigate any adverse environmental effects by revoking NWP 48, imposing regional or project-
based conditions, and/or requiring an applicant to seek an individual permit. In this context, the
Court finds that the Corps may not rely solely on post-issuance procedures to make its pre-
issuance minimal impact determinations. See Bulen, 429 F.3d at 502 (“We would have
substantial doubts about the Corps’ ability to issue a nationwide permit that relied solely on post-
10 The Corps’ analysis with regards to plastic debris discharged into the marine environment is
even more problematic. The Corps acknowledges the many public comments raising concerns about the
introduction of plastics into the marine food web, but relies on the fact that “[d]ivision engineers can
impose regional conditions to address the use of plastics” in response to these concerns. NWP003402.
The Seattle District, for its part, declined to quantify the impact of plastics, instead noting that “it would
not be a practicable solution to regionally condition NWP 48 to not allow the use of PVC and HDPE
gear as there are no current practicable alternatives to use of the materials.” COE 127559. The CWA
requires the Corps to make minimal adverse effect findings before issuing a general permit. If, as
appears to be the case with regards to the discharge of plastics from the permitted operations, the Corps
is unable to make such a finding, a general permit cannot issue. The Corps has essentially acknowledged
that it needs to individually evaluate the impacts of a particular operation, including the species grown,
the cultivation techniques/gear used, and the specific location, before it can determine the extent of the
impacts the operation will have.
ORDER HOLDING NWP 48 UNLAWFUL
IN THE STATE OF WASHINGTON AND
REQUESTING ADDITIONAL BRIEFING - 20
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 20 of 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
issuance, case-by-case determinations of minimal impact, with no general pre-issuance
determinations. In such a case, the Corps’ ‘determinations’ would consist of little more than its
own promise to obey the law.”).
CONCLUSION
A nationwide permit can be used to authorize activities involving the discharge of
dredged or fill material only if the Corps makes a determination that the activity will have only
minimal individual and cumulative adverse effects on the environment. In issuing NWP 48, the
Corps has opted to interpret the “similar in nature” requirement of 33 U.S.C. § 1344(e)(1)
broadly so that all commercial shellfish aquaculture activities in the United States could be
addressed in a single nationwide permit. That choice has made assessing the impacts of disparate
operations difficult: the Corps essentially acknowledges that the permitted activity is performed
in such different ways and in such varying ecosystems that evaluating impacts on a nationwide
level is nearly impossible. It tries to avoid its “statutory obligations to thoroughly examine the
environmental impacts of permitted activities” by promising that the district engineers will do it.
Hurst, 604 F. Supp. 2d at 901-02. The Court finds that the Corps has failed to adequately
consider the impacts of commercial shellfish aquaculture activities authorized by NWP 48, that
its conclusory findings of minimal individual and cumulative impacts are not supported by
substantial evidence in the record, and that its EA does not satisfy the requirements of NEPA
and the governing regulations.
For all of the foregoing reasons, plaintiffs’ motions for summary judgment (Dkt. # 36 in
C16-0950RSL and Dkt. # 31 in C17-1209RSL) are GRANTED and defendant’s and intervenors’
cross-motions (Dkt. # 44 and # 45 in C16-0950RSL and Dkt. # 43 and # 44 in C17-1209RSL)
ORDER HOLDING NWP 48 UNLAWFUL
IN THE STATE OF WASHINGTON AND
REQUESTING ADDITIONAL BRIEFING - 21
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 21 of 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
are DENIED. The Corps’ issuance of a nationwide permit, at least with respect to activities in
the waters of the State of Washington, was arbitrary and capricious and not in accordance with
NEPA or the CWA. Pursuant to 5 U.S.C. § 706(2), the Court holds unlawful and sets aside NWP
48 insofar as it authorizes activities in Washington.
The only remaining issue is whether NWP 48 should be vacated outright to the extent it
has been applied in Washington, thereby invalidating all existing verifications, or whether equity
requires that the permit be left in place while the agency performs an adequate impact analysis
and environmental assessment to correct its unlawful actions. Idaho Farm Bureau Fed’n v.
Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995).
Although not without exception, vacatur of an unlawful agency action normally
accompanies a remand. Alsea Valley All. v. Dep’t of Commerce, 358 F.3d 1181,
1185 (9th Cir. 2004). This is because “[o]rdinarily when a regulation is not
promulgated in compliance with the APA, the regulation is invalid.” Idaho Farm
Bureau Fed’n[, 58 F.3d at 1405]. When equity demands, however, the regulation
can be left in place while the agency reconsiders or replaces the action, or to give
the agency time to follow the necessary procedures. See Humane Soc. of U.S. v.
Locke, 626 F.3d 1040, 1053 n.7 (9th Cir. 2010); Idaho Farm Bureau Fed’n, 58
F.3d at 1405. A federal court “is not required to set aside every unlawful agency
action,” and the “decision to grant or deny injunctive or declaratory relief under
APA is controlled by principles of equity.” Nat’l Wildlife Fed’n v. Espy, 45 F.3d
1337, 1343 (9th Cir. 1995) (citations omitted).
All. for the Wild Rockies v. United States Forest Serv., 907 F.3d 1105, 1121 (9th Cir. 2018).
Courts “leave an invalid rule in place only when equity demands that we do so.” Pollinator
Stewardship Council v. U.S. E.P.A., 806 F.3d 520, 532 (9th Cir. 2015) (internal quotation marks
and citation omitted). When determining whether to leave an agency action in place on remand,
ORDER HOLDING NWP 48 UNLAWFUL
IN THE STATE OF WASHINGTON AND
REQUESTING ADDITIONAL BRIEFING - 22
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 22 of 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
we weigh the seriousness of the agency’s errors against “the disruptive consequences of an
interim change that may itself be changed.” Cal. Cmties. Against Toxics v. U.S. E.P.A., 688
F.3d 989, 992 (9th Cir. 2012). In the context of environmental regulation, courts consider
whether vacating the invalid rule would risk environmental harm and whether the agency could
legitimately adopt the same rule on remand or whether the flaws were so fundamental that it is
unlikely the same rule would result after further analysis. Pollinator Stewardship, 806 F.3d at
532.
Despite the fact that both plaintiffs clearly requested vacatur as the remedy for unlawful
agency action, defendants provided very little evidence that would justify a departure from the
presumptive relief in this APA action. The federal defendants state that additional briefing as to
remedy should be permitted once the seriousness of the agency’s error is determined. The
intervenors assert that vacatur would cause disruption in the Washington shellfish farms and
industry, including significant impacts to employees and the communities in which they live.
Neither tact is compelling. The substantive defects in the agency’s analysis when adopting the
2017 NWP are significant, the existing record suggests that adverse environmental impacts will
arise if NWP 48 is not vacated, and, given the nature of the analytical defects and record
evidence that seagrass is adversely impacted in the immediate vicinity of shellfish aquaculture, it
seems unlikely that the same permit could issue following remand. As for the disruptive
consequences to Washington businesses, employees, and communities, more information is
required. As plaintiffs point out, shellfish growers can apply for individual permits (as they did
before 2007). In addition, the Court has the equitable power to allow a period of time in which
growers can avail themselves of that process before the existing verifications would be
ORDER HOLDING NWP 48 UNLAWFUL
IN THE STATE OF WASHINGTON AND
REQUESTING ADDITIONAL BRIEFING - 23
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 23 of 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
invalidated or to fashion some other equitable remedy to minimize both the risks of
environmental harm and any disruptive consequences.
While the current record does not support deviation from the presumptive remedy for an
APA violation, the Swinomish Indian Tribal Community has requested an opportunity to be
heard regarding the scope of the remedy. C18-0598RSL (Dkt. # 28). Swinomish also challenge
the Corps’ minimal impacts analyses in reissuing NWP 48, but, unlike the plaintiffs in the
above-captioned matters, does not seek vacatur of verifications or permits issued under the
NWP. The Court will accept additional briefing regarding the appropriate remedy.
Because there is a presumption in favor of vacatur, defendants, intervenors, and
Swinomish will be the moving parties and may file motions, not to exceed 15 pages, regarding
the appropriate relief for the APA violations discussed above. Only one motion may be filed in
each of the three cause numbers at issue, C16-0950RSL, C17-1209RSL, and C18-0598RSL. The
motions, if any, shall be filed on or before October 30, 2019, and shall be noted for consideration
on November 15, 2019. Plaintiffs’ responses, if any, shall not exceed 15 pages. Replies shall not
exceed 8 pages.
The Clerk of Court is directed to docket a copy of this order in Swinomish Indian Tribal
Community v. Army Corps of Engineers, C18-0598RSL.
Dated this 10th day of October, 2019.
A
Robert S. Lasnik
United States District Judge
ORDER HOLDING NWP 48 UNLAWFUL
IN THE STATE OF WASHINGTON AND
REQUESTING ADDITIONAL BRIEFING - 24
Case 2:16-cv-00950-RSL Document 61 Filed 10/10/19 Page 24 of 24
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE COALITION TO PROTECT PUGET
SOUND HABITAT, a non-profit
corporation,
Plaintiff-Appellee,
v.
UNITED STATES ARMY CORPS OF
ENGINEERS, an agency of the United
States of America; et al.,
Defendants,
and
TAYLOR SHELLFISH COMPANY, INC.,
Intervenor-Defendant-
Appellant.
No. 20-35546
D.C. No. 2:16-cv-00950-RSL
MEMORANDUM*
CENTER FOR FOOD SAFETY, a non-
profit corporation,
Plaintiff-Appellee,
v.
UNITED STATES ARMY CORPS OF
No. 20-35547
D.C. No. 2:17-cv-01209-RSL
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
FEB 11 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Case: 20-35546, 02/11/2021, ID: 12000449, DktEntry: 71-1, Page 1 of 6
(1 of 10)
2
ENGINEERS, an agency of the United
States of America; et al.,
Defendants,
NISBET OYSTER CO., INC.,
Intervenor-Defendant,
and
PACIFIC COAST SHELLFISH GROWERS
ASSOCIATION,
Intervenor-Defendant-
Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted February 2, 2021
Seattle, Washington
Before: GRABER, McKEOWN, and PAEZ, Circuit Judges.
Intervenors Taylor Shellfish Company and Pacific Coast Shellfish Growers
Association timely appeal (a) the summary judgment in favor of Plaintiffs
Coalition to Protect Puget Sound Habitat and Center for Food Safety, following the
district court’s holding that the United States Army Corps of Engineers violated
the Clean Water Act and the National Environmental Policy Act ("NEPA") in
issuing the 2017 version of nationwide permit ("NWP") 48; and (b) the district
Case: 20-35546, 02/11/2021, ID: 12000449, DktEntry: 71-1, Page 2 of 6
(2 of 10)
3
court’s order remedying the legal errors by vacating the permit and the associated
verifications and by staying the vacatur in some respects. We affirm.
1. We have appellate jurisdiction under 28 U.S.C. § 1291, even though only
Intervenors, and not the agency, have appealed. The district court’s order finally
resolved all claims and did not require the agency to take any action at all. The
order therefore was not a "remand order" in the sense described by Alsea Valley
Alliance v. Department of Commerce, 358 F.3d 1181 (9th Cir. 2004), and Pit River
Tribe v. U.S. Forest Service, 615 F.3d 1069 (9th Cir. 2010). See generally Sierra
Forest Legacy v. Sherman, 646 F.3d 1161, 1175 (9th Cir. 2011) ("The requirement
of finality is to be given a practical rather than a technical construction." (alteration
and internal quotation marks omitted) (quoting Gillespie v. U.S. Steel Corp., 379
U.S. 148, 152 (1964))).
2. The appeal is not moot. Although the Corps provisionally issued a 2021
version of NWP 48, Reissuance and Modification of Nationwide Permits, 86 Fed.
Reg. 2744 (Jan. 13, 2021), that permit has not taken effect and, even if it goes into
effect on schedule in mid-March, will not necessarily grant Intervenors full relief.
3. The district court correctly held that the agency abused its discretion, 5
U.S.C. § 706(2), by failing to explain adequately its conclusions that the 2017
version of NWP 48 will have "no significant impact" pursuant to NEPA, and "will
have only minimal cumulative adverse effect on the environment," 33 U.S.C.
Case: 20-35546, 02/11/2021, ID: 12000449, DktEntry: 71-1, Page 3 of 6
(3 of 10)
4
§ 1344(e)(1). See Bair v. Cal. Dep’t of Transp., 982 F.3d 569, 577 (9th Cir. 2020)
(describing NEPA’s requirements). The Corps expressly acknowledged the
negative effects on the environment from aquaculture activities but did not explain
adequately why those effects were insignificant or minimal.
Several of the Corps’ reasons were illogical. For example, the Corps
explained that many other sources caused even greater harm to the aquatic
environment than aquaculture, which is a reason that suggests there is a cumulative
impact. See 40 C.F.R. § 1508.7 (2017) (defining cumulative impact as "the impact
on the environment which results from the incremental impact of the action when
added to other past, present, and reasonably foreseeable future actions regardless of
what agency . . . undertakes such other actions." (emphasis added)). Similarly, the
Corps responded to a concern about pesticides with the irrelevant explanation that
the Corps does not regulate pesticides.
The Corps’ citation to a limited scientific study of the effects of one type of
shellfish on one natural resource, where the study did not consider a wide range of
environmental stressors, does not suffice—without further explanation—to justify
the Corps’ much broader determination that at least five types of shellfish will have
insignificant and minimal effects on the full aquatic environment. We also reject
Intervenors’ argument that certain programmatic documents (which were issued
for a different purpose and which applied different legal standards) supply the
Case: 20-35546, 02/11/2021, ID: 12000449, DktEntry: 71-1, Page 4 of 6
(4 of 10)
5
missing explanation. In issuing its national decision, which was the only document
to make a finding under NEPA, the Corps indisputably did not cite or otherwise
mention those documents. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983) ("We may not supply a reasoned basis for
the agency’s action that the agency itself has not given." (quoting SEC v. Chenery
Corp., 332 U.S. 194, 196 (1947))). Finally, Intervenors’ lawyer conceded, during
oral argument, that an agency may not rely exclusively on a tiered review to justify
its nationwide environmental assessments. Accord Sierra Club, Inc. v. Bostick,
787 F.3d 1043 (10th Cir. 2015); Kentucky Riverkeeper, Inc. v. Rowlette, 714 F.3d
402 (6th Cir. 2013); Ohio Valley Env’t Coal. v. Bulen, 429 F.3d 493 (4th Cir.
2005).
4. The district court did not abuse its discretion in crafting an equitable
remedy. See, e.g., Teutscher v. Woodson, 835 F.3d 936, 942 (9th Cir. 2016)
(holding that we review for abuse of discretion an equitable remedy). Full vacatur
is the ordinary remedy when a rule violates the Administrative Procedure Act, and
courts deviate "only when equity demands." Pollinator Stewardship Council v.
U.S. EPA, 806 F.3d 520, 532 (9th Cir. 2015) (internal quotation marks omitted).
Here, the court ordered briefing from the parties on the appropriate remedy and
carefully crafted a hybrid remedy that reasonably balanced the competing risks of
environmental and economic harms. The court allowed many aquaculture
Case: 20-35546, 02/11/2021, ID: 12000449, DktEntry: 71-1, Page 5 of 6
(5 of 10)
6
activities to continue while applicants seek an individualized permit from the
Corps, and the court permissibly accepted the good-faith compromise reached by
some parties.
Before the district court and before us, Intervenors have not sought a
nuanced adjustment to the court’s arrangement. Instead, Intervenors assert that
anything short of a vacatur only with respect to new applicants, allowing nearly
900 aquaculturists to continue their operations in full without any further review by
the Corps, constituted an abuse of discretion. Particularly because vacatur is the
presumptive remedy, and because aquaculturists may seek individualized permits,
we are unpersuaded that the district court’s discretion was so constrained.
AFFIRMED.
Case: 20-35546, 02/11/2021, ID: 12000449, DktEntry: 71-1, Page 6 of 6
(6 of 10)
1 Post Judgment Form - Rev. 12/2018
United States Court of Appeals for the Ninth Circuit
Office of the Clerk 95 Seventh Street San Francisco, CA 94103
Information Regarding Judgment and Post-Judgment Proceedings
Judgment •This Court has filed and entered the attached judgment in your case.Fed. R. App. P. 36. Please note the filed date on the attached
decision because all of the dates described below run from that date,
not from the date you receive this notice.
Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2) •The mandate will issue 7 days after the expiration of the time for
filing a petition for rehearing or 7 days from the denial of a petition
for rehearing, unless the Court directs otherwise. To file a motion tostay the mandate, file it electronically via the appellate ECF system
or, if you are a pro se litigant or an attorney with an exemption from
using appellate ECF, file one original motion on paper.
Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1)
Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)
(1)A. Purpose (Panel Rehearing):
•A party should seek panel rehearing only if one or more of the following
grounds exist:
►A material point of fact or law was overlooked in the decision;
►A change in the law occurred after the case was submitted which
appears to have been overlooked by the panel; or
►An apparent conflict with another decision of the Court was notaddressed in the opinion.
•Do not file a petition for panel rehearing merely to reargue the case.
B.Purpose (Rehearing En Banc)• A party should seek en banc rehearing only if one or more of the following
grounds exist:
Case: 20-35546, 02/11/2021, ID: 12000449, DktEntry: 71-2, Page 1 of 4
(7 of 10)
2 Post Judgment Form - Rev. 12/2018
►Consideration by the full Court is necessary to secure or maintain
uniformity of the Court’s decisions; or
►The proceeding involves a question of exceptional importance; or
►The opinion directly conflicts with an existing opinion by another
court of appeals or the Supreme Court and substantially affects a
rule of national application in which there is an overriding need for
national uniformity.
(2)Deadlines for Filing:
• A petition for rehearing may be filed within 14 days after entry of
judgment. Fed. R. App. P. 40(a)(1).
•If the United States or an agency or officer thereof is a party in a civil case,
the time for filing a petition for rehearing is 45 days after entry of judgment.
Fed. R. App. P. 40(a)(1).
•If the mandate has issued, the petition for rehearing should be
accompanied by a motion to recall the mandate.
•See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the
due date).
•An order to publish a previously unpublished memorandum disposition
extends the time to file a petition for rehearing to 14 days after the date of
the order of publication or, in all civil cases in which the United States or an
agency or officer thereof is a party, 45 days after the date of the order of
publication. 9th Cir. R. 40-2.
(3)Statement of Counsel
• A petition should contain an introduction stating that, in counsel’s
judgment, one or more of the situations described in the “purpose” section
above exist. The points to be raised must be stated clearly.
(4)Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2))
•The petition shall not exceed 15 pages unless it complies with the
alternative length limitations of 4,200 words or 390 lines of text.
•The petition must be accompanied by a copy of the panel’s decision being
challenged.
•An answer, when ordered by the Court, shall comply with the same length
limitations as the petition.
•If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a
petition for panel rehearing or for rehearing en banc need not comply with
Fed. R. App. P. 32.
Case: 20-35546, 02/11/2021, ID: 12000449, DktEntry: 71-2, Page 2 of 4
(8 of 10)
3 Post Judgment Form - Rev. 12/2018
•The petition or answer must be accompanied by a Certificate of Compliance
found at Form 11, available on our website at www.ca9.uscourts.gov under
Forms.
•You may file a petition electronically via the appellate ECF system. No paper copies are
required unless the Court orders otherwise. If you are a pro se litigant or an attorney
exempted from using the appellate ECF system, file one original petition on paper. No
additional paper copies are required unless the Court orders otherwise.
Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1)
•The Bill of Costs must be filed within 14 days after entry of judgment.
•See Form 10 for additional information, available on our website at
www.ca9.uscourts.gov under Forms.
Attorneys Fees
•Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees
applications.
•All relevant forms are available on our website at www.ca9.uscourts.gov under Forms
or by telephoning (415) 355-7806.
Petition for a Writ of Certiorari
•Please refer to the Rules of the United States Supreme Court at
www.supremecourt.gov
Counsel Listing in Published Opinions
•Please check counsel listing on the attached decision.
•If there are any errors in a published opinion, please send a letter in writing
within 10 days to:
►Thomson Reuters; 610 Opperman Drive; PO Box 64526; Eagan, MN 55123(Attn: Jean Green, Senior Publications Coordinator);
►and electronically file a copy of the letter via the appellate ECF system by using
“File Correspondence to Court,” or if you are an attorney exempted from using
the appellate ECF system, mail the Court one copy of the letter.
Case: 20-35546, 02/11/2021, ID: 12000449, DktEntry: 71-2, Page 3 of 4
(9 of 10)
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Form 10. Bill of Costs
Instructions for this form: http://www.ca9.uscourts.gov/forms/form10instructions.pdf
9th Cir. Case Number(s)
Case Name
The Clerk is requested to award costs to (party name(s)):
I swear under penalty of perjury that the copies for which costs are requested were
actually and necessarily produced, and that the requested costs were actually
expended.
Signature Date
(use “s/[typed name]” to sign electronically-filed documents)
COST TAXABLE REQUESTED
(each column must be completed)
DOCUMENTS / FEE PAID No. of Copies Pages per Copy Cost per Page TOTAL COST
Excerpts of Record*$$
Principal Brief(s) (Opening Brief; Answering
Brief; 1st, 2nd , and/or 3rd Brief on Cross-Appeal;
Intervenor Brief)
$$
Reply Brief / Cross-Appeal Reply Brief $$
Supplemental Brief(s)$$
Petition for Review Docket Fee / Petition for Writ of Mandamus Docket Fee $
TOTAL:$
*Example: Calculate 4 copies of 3 volumes of excerpts of record that total 500 pages [Vol. 1 (10 pgs.) +
Vol. 2 (250 pgs.) + Vol. 3 (240 pgs.)] as:
No. of Copies: 4; Pages per Copy: 500; Cost per Page: $.10 (or actual cost IF less than $.10);
TOTAL: 4 x 500 x $.10 = $200.
Feedback or questions about this form? Email us at forms@ca9.uscourts.gov
Form 10 Rev. 12/01/2018
Case: 20-35546, 02/11/2021, ID: 12000449, DktEntry: 71-2, Page 4 of 4
(10 of 10)
1
Scientific Evidence that Industrial Shellfish
Aquaculture Adversely Affects Washington Marine
Life
Introduction
Washington State’s iconic aquatic species are suffering even as Governor Inslee’s new Executive Order1 to protect salmon and orca is signed. Despite the widely recognized urgency, regulators continue to ignore the significant adverse impacts from industrial
shellfish aquaculture that continues to convert natural habitat to industrial uses. The following scientific findings document the need to limit further expansion and to monitor the existing adverse impacts of roughly 50,000 acres of industrial shellfish aquaculture. Section I - Scientific Studies Documenting Adverse Impacts
Summary of Recent Science: Shellfish aquaculture adversely affects marine life, including Chinook salmon which are essential to Southern Resident Killer Whale (Orca) survival.
1a. 2017 Army Corps Draft Cumulative Impacts Analysis (CIA): This 117 page detailed draft Cumulative Impact Analysis (CIA) is an astonishingly frank assessment of what the science shows will likely happen if this industrial scale
aquaculture is allowed to continue. The Corps concluded:
“The proposed action (shellfish aquaculture permitting) is likely to adversely affect designated critical habitat for several species listed under the ESA including Puget Sound Chinook salmon, Hood Canal summer run chum salmon, and Puget Sound
steelhead.” Page 101
“Given the magnitude of the impacts in acreage, the importance of eelgrass to the marine ecosystem, and the scale of the aquaculture impacts relative to other stressors, the impacts are considered significant (emphasis added).” Page 103
1 Governor Inslee’s New 2018 Salmon and Orca Protection Executive Order
https://www.governor.wa.gov/sites/default/files/exe_order/eo_18-02_1.pdf
P.O. Box 233 Burley, WA 98322
coalitiontoprotectpugetsound.org
2
For those who care about State and Federal law, the Corps also noted that in their view:
“The action (shellfish aquaculture permitting) does threaten a violation of State requirements under the Shoreline Management Act to achieve no net loss of eelgrass
and Federal requirements to protect eelgrass imposed under the ESA for aquaculture
activities. The proposed action is not consistent with either of these requirements.” Page 101 Similarly, for key forage fish species such as Pacific Sand Lance (sometimes called
Candlefish) and Surf Smelt, on which salmon and Orca rely, the Corps concluded in the
analysis that:
“The conclusion therefore is that significant (emphasis added) cumulative effects to surf smelt and sand lance spawning habitat would occur due to the proposed action
(shellfish aquaculture permitting).” Page 112
And with regard to compliance with State law related to these forage fish, the Corps concluded:
“The proposed action (shellfish aquaculture permitting) is inconsistent with State
requirements under the SMA to protect forage fish spawning habitat.” Page 111
Link: Army Corps Draft Cumulative Impacts Analysis: http://users.neo.registeredsite.com/3/7/5/12218573/assets/2017_NWP48_Draft_Cumulative_Imapct_Analysis.pdf
1b. 2015: Army Corps of Engineers Latest Biological Assessment: Per the Assessment: “Determination that shellfish aquaculture: “may affect, likely to
adversely affect.”
“8.1.3. Effect Determination The proposed action (shellfish aquaculture permitting) may affect, likely to adversely affect Puget Sound Chinook salmon and Puget Sound
Chinook salmon designated critical habitat.” [Page 106] “8.3.3. Effect Determination The proposed action may affect, likely to adversely affect
Hood Canal summer chum salmon and Hood Canal summer chum salmon designated
critical habitat”. [Page 109]
“8.6.3. Effect Determination The proposed action may affect, likely to adversely affect bull trout and bull trout designated critical habitat.” [Page 112]
“8.7.3. Effect Determination The proposed action may affect, likely to adversely affect
green sturgeon and may affect, not likely to adversely affect green sturgeon designated
critical habitat.” [Page 115]
Important Study Findings:
1c. Even with mitigation, shellfish aquaculture still results in adverse impacts.
See below
“9.2. Conclusion As discussed in the PBA and summarized above, the activities authorized under the proposed action would affect EFH (Essential Fish Habitat). While
these effects would be minimized by the implementation of the many Conservation
3
Measures, the proposed action would result in adverse effects to EFH for groundfish,
coastal pelagic, and Pacific salmon species.” [Page 126]
1d. Summary of Active and Fallow Shellfish Aquaculture Co-located with eelgrass
and forage fish spawning Eelgrass Beds-Table D-1 Forage Fish Spawning-E-9, E-10
Active and Fallow Areas Active Areas Fallow Areas
(but allowed) Grays Harbor 65% 6% 0% Willapa Bay 76 13 5 Hood Canal 51 54 37
South Puget Sound 9 29 50
North Puget Sound 91 46 96 Link: Army Corps October 2015 Biological Assessment: http://www.nws.usace.army.mil/Portals/27/docs/regulatory/160907/Shellfish%20PBA_%
20Oct30_2015_final.pdf
2. 2016: National Marine Fisheries Service (NMFS) Latest Biological Opinion: Stated in the Biological Opinion: NMFS Shellfish Aquaculture Determination shellfish aquaculture is: “Likely to Adversely Affect” various species. [Page 1]
“NMFS also concludes that “the proposed action [shellfish aquaculture permitting] is likely to adversely affect Puget Sound (PS) Chinook salmon (Onchorhynchus
tshawytscha), Hood Canal summer-run chum salmon (O. keta), North American green sturgeon (Acipenser medirostris) and their designated critical habitat, but is not likely to
jeopardize the continued existence of these species or to adversely modify their critical
habitat.” Page 1 Link: NMFS 2016 Opinion: http://www.nws.usace.army.mil/Portals/27/docs/regulatory/160907/NMFS_2016_09-
02_WA%20Shellfish%20Aquaculture_WCR-2014-1502.pdf
Note: This 2016 NMFS Biological Opinion is Elevated from the 2009 NMFS Opinion which failed to recognize any harm at that time, stating that shellfish aquaculture was
“not likely to jeopardize the continued existence of the . . . marine and anadromous
species listed under the ESA:”
3. 2015: “Evaluating Trophic and Non-Trophic Effects of Shellfish Aquaculture in a Coastal Estuarine Foodweb”. Ferriss et al., ICES Journal of Marine Science, October 13, 2015.
4
Data from the study: a. Geoduck Aquaculture decreases Aquatic Life: [Pages 8-9] Herons (-23%)
Resident Birds (-17%)
Juvenile Wild Salmon (-7%) Flatfish (no number given) b. Recognizes "Habitat Modification" from geoduck aquaculture which industry denies. [Page 9]
c. States “Understanding these relationships can inform management decisions by
clarifying trade-offs in ecosystem functions and services in Puget Sound and facilitates estimation of direct and cumulative effects of bivalve aquaculture at a food
web scale.” [Page 1] d. We note that Central Puget Sound, where the study was conducted, has only
one geoduck operation at 1.79% of total geoduck production, which is not a
representative sample of geoduck operations in Puget Sound. Most geoduck industrial sites are located in South Puget Sound covering over extensive acres of habitat. Increases in additional acreage would create significantly greater impacts.
Link: Sea Grant Ferriss et al. study:: https://www.dropbox.com/sh/ptotz2w4jj36bia/AAAxd5GSV7mnZqmvCLZ-aTEha?amp%3Bpreview=(17)+Charles+Moore+Algalita+Power+point.pdf&dl=0&preview=(62)+SeaGrant+%26+Ferriss+2015+-+Evaluating+birds+%26+puget+geoducks+effects+shellfish+aquaculture+coastal+estua
rine+foodweb..pdf
4. 2007: Puget Sound Salmon Recovery Plan, adopted by NMFS
“Shellfish Aquaculture Cultivating shellfish in the South Sound results in the loss of shallow nearshore habitat and habitat diversity that is important to salmon. These
impacts can be potentially positive or negative depending on the type of aquaculture
practice.” [Page 299] Comment from Puget Sound Nearshore and Restoration Biologist: In the Summary of
Aquaculture: “They did not include the full “model” provided in the draft, but the
conclusion is the same, albeit a bit watered down. But the model could be included by
reference, since it was used to help make that determination. Regardless, they clearly identify aquaculture as a key stressor, stating it will affect juvenile salmon habitat and
survivability.”
Link: Chinook and Bull Trout Shellfish Aquaculture Chart
http://users.neo.registeredsite.com/3/7/5/12218573/assets/2005_South_Sound_Puget_Sound_Salmon_Recovery_Group_Chinook_and_Bull_Trout_Shellfish_Aquaculture_Chart.pdf
Comment: It should be noted that the only "improved" category on the Aquaculture
Model [water quality] has not been scientifically proven as per the following US
5
Geological Services (USGS) study, however the shellfish industry incorrectly states that
shellfish in Washington State “clean the water/improve water quality” in support of their efforts to be permitted to expand aquaculture
.
Link: Puget Sound Salmon Recovery Plan: http://www.westcoast.fisheries.noaa.gov/publications/recovery_planning/salmon_steelhead/domains/puget_sound/chinook/pugetsoundchinookrecoveryplan.pdf
Comment: At the December 8, 2014 Department of Ecology seminar on aquaculture,
USGS presented "Approaches for evaluating the effects of bivalve filter feeding on nutrient dynamics in Puget Sound Washington." The USGS presenter publicly confirmed that they found no science that supports the shellfish industry claim that shellfish improve water quality. According to the presentation: "The water quality effects
of bivalves are not understood in much of Puget Sound." [Page 4]
Link: USGS-Approaches for Evaluating the Effects of Bivalve Filter Feeding: https://www.dropbox.com/sh/ptotz2w4jj36bia/AAAxd5GSV7mnZqmvCLZ-aTEha?dl=0&preview=(12)+Approaches+for+evaluating+the+effects+of+bivalve+filter+f
eeding+on+nutrient+dynamics+in+Puget+Sound%2C+Washington.pdf
5. 2008 Regarding Non-Native Invasive Species-Pacific Oysters “Assessing the Global Threat of Invasive Species to Marine Biodiversity” Jennifer Molnar et al., Front Ecol Environ 2008: 6 (9): 485-492
“For example, oysters have been deliberately introduced into coastal waters worldwide, to be cultured for food. One species in particular, Crassostrea gigas, (Pacific Oyster), has been introduced in at least 45 ecoregions (Figure 4). Its high ecological impact score should cause decision makers and regulators to reconsider plans for introduction
of this oyster into new areas. While its harvest brings economic gains, the ecological
impact of introductions of this species are potentially dramatic. Oysters play a role in many estuarine ecosystem processes; altering their abundance or distribution causes
complex changes.” [Page 491] Link: Assessing the Global Threat of Invasive Species
http://users.neo.registeredsite.com/3/7/5/12218573/assets/2008_Molnar_EcologySoc_Assessing_Global_Threat_Invasive_Species.pdf
6. 2013 Adverse Impacts to Forage Fish explained by Dan Penttila, Washington
State’s foremost forage fish expert before Shoreline Hearings Board (Testimony under oath) [Pages 20-21]
• “From the published scientific literature, it is clear that all bivalve species tested were found to consume zooplankton of a wide variety of forms during feeding/respiration of activities. “
• “While published data on the diet of Salish Sea geoducks seems to be lacking, it
can only be assumed, at present, that they will readily consume zooplankton as
6
well. Given the concerns raised, in the absence of data, to assume that they do
not would be unwise.”
• Published data also suggest that zooplankton filtration rates and prey sizes can
increase with increasing body size of the filtering animals.
• “Thus, it should be assumed that geoducks reported to be among the largest clams in the region, may be capable of ingesting significant amounts and
relatively large sizes of organisms from the nearshore zooplankton community.”
• According to the USF&W NWP48 Consultation: “Since it is plausible that geoducks will compete for prey resources (particularly in sheltered bays and coves and when they are planted in high densities) and dominate as a consumer
of the local food web, and then you must assume that juvenile salmonids and
forage fish will have less to eat which will lower their growth and survival…” Page 25. According to Mr. Penttila, “I think it would be prudent to alleviate this uncertainty prior to the Corps allowing more widespread geoduck culture given
the tenuous condition of salmonids and bull trout populations in Puget Sound.”
Link: Penttila SHB Presentation https://www.dropbox.com/sh/ptotz2w4jj36bia/AAAxd5GSV7mnZqmvCLZ-aTEha?dl=0&preview=(30)+Daniel+E.+Penttila%2C+Salish+Sea+Biological%2C+Anacortes%2C+WA.+A+Review+of+Effects+on+Forage+Fishes%2C+Zooplankton+and+Mar
ine+Vegetation+from+Three+Geoduck-
Clam+Farm+Proposals+in+Henderson+Inlet+and+One+Proposal+in+Eld+Inlet.pdf Section II - Aquaculture Gear and Toxic Plastic Pollution
Summary of Recent Science
Since the late 1990’s, Washington State has allowed unlimited toxic, polluting plastics used in over 40,000 acres for geoduck, oysters and clams. PVC tubes, High Density Polyethylene (HDPE) canopy nets, HDPE oyster bags, HDPE zipties, HDPE oyster
purses, HDPE mesh tubes and Polypropylene blue oyster ropes are routinely used. These materials have been scientifically examined and are a major threat to our marine life as documented in the studies cited below.
1. 2018 “Abundance and Distribution of Microplastics within Surface Sediments of
Key Shellfish Growing Regions of Canada” Bendell et al., PLOS One, May 23, 2018.
Associated news article: “Alarmingly High Amounts of Plastic Microbeads Found
in BC Shellfish Farming Areas” “Researcher says better standards needed for shellfish industry.” “We found microbeads in the smallest bits of sediment and in a
concentration equal to the amounts of silt and organic matter,” Leah Bendell, Professor of Marine Ecology and Ecotoxicology at Simon Fraser University (SFU), said in the statement.
7
Study states: “ . . the industry also makes extensive use of High Density Polyethylene (HDPE), in the form of netting, oyster bags, trays, cages and fences (e.g., vexar) [37]. Each year, 3–4 tonnes of debris, comprised primarily of these
plastic materials is recovered from the intertidal regions of Baynes Sound [38].
Sites where the greatest number of microfragments and microfibers were found
also coincide with regions of extensive shellfish aquaculture equipment.”
Link: New Article: Abundance and Distribution of Microplastics - Bendell Article:
’Alarmingly high’ amount of plastic microbeads found in B.C. shellfish farming areas:
http://www.cbc.ca/news/canada/british-columbia/shellfish-microplastics-bc-aquaculture-
1.4675672
Link: PLOS Journal Study: http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0196005
2. 2018 “Macro and Micro Plastics Sorb and Desorb Metals and Act As A Point
Source of Trace Metals To Coastal Ecosystems.” Bendell et al., PLOS One
published February 14, 2018.
Associated news article: “Heavy Metals: The New Toxic Danger Posed by Ocean Plastic Trash” “For example, PVC, the most commonly found plastic, had high levels of lead and copper attached to its surface. The comparison of the
new and debris plastic also showed how some of the chemicals used in plastic
production may release over time – including cadmium, which is used to make plastic rigid and resistant to UV light. The researchers found that new PVC releases zinc and cadmium. “
The study found: “Field samples of PVC, HDPE and LDPE had significantly
greater amounts of acid extracted copper and HDPE, LDPE and PUR
significantly greater amounts of acid extracted zinc. PVC and LDPE had significantly greater amounts of acid extracted cadmium and PVC tended to have greater levels of acid extracted lead, significantly so for HDPE… Plastic debris will affect metals within coastal ecosystems by; 1) providing a sorption site
(copper and lead), notably for PVC; 2) desorption from the plastic i.e., the
“inherent” load (cadmium and zinc) and 3) serving as a point source of acute trace metal exposure to coastal ecosystems. All three mechanisms will put
coastal ecosystems at risk to the toxic effects of these metals.”
Link: Macro and Micro Plastics. Bendel Article:
https://www.newsdeeply.com/oceans/articles/2018/04/03/heavy-metal-the-new-toxic-
danger-posed-by-ocean-plastic-trash
8
Link: PLOS Journal Study: http://journals..org/plosone/article?id=10.1371/journal.pone.0191759
3. 2017 KCTS 9 Interview with Dudas: “How Much Plastic Do You Want In Your Oysters and Clams?”
“Others note that the world consumes hundreds of millions of tons of plastic annually -- like food packaging and straws. Dudas said that, while she is finding
that farmed shellfish don’t contain any more plastic than non-farmed shellfish, she has no doubt that nets and ropes from shellfish aquaculture sites also shed
fibers into the ocean.” Link: Dudas KCTS 9 Story:
https://kcts9.org/programs/earthfix-local-stories/how-much-plastic-do-you-want-in-your-oysters-and-clams
4. 2016 Microplastic Ingestion by Wild and Cultured Manila Clams from Baynes
Sound, BC. Katie Davidson, Sarah Dudas.
Aquaculture Gear Microplastics:
“The most commonly observed fibers in our study were colourless (36 %), followed by dark gray (26 %); in contrast with Desforges et al. (2014), blue, red,
and purple fibers were considerably lower in abundance. Of the gray fibers
recorded, 87 % were from farmed clams. It is possible the source of these dark gray fibers is the black anti-predator netting (APN) located directly above the clams, although without spectroscopic analysis (e.g., FT-IR) this cannot be verified. It has been suggested that clams might have highest concentrations of
blue fibers due to the widespread use of blue polypropylene rope used on oyster
farms located near clam farms throughout Baynes Sound. (Bendell 2015).” [Page 153, Last Paragraph]. Link: Microplastic Ingestion by Wild and Cultured Manilla Clams http://users.neo.registeredsite.com/3/7/5/12218573/assets/2016_Davidson_Dudas_Micr
oplastic_Ingestion_by_Wild_and_Cultured_Manila_Clams.pdf
5. 2014 “Rapidly Increasing Plastic Pollution from Aquaculture Threatens Marine Life”. Moore, Charles. 27 Tulane Env Law Journal 205
“CONCLUSION: Unmonitored and unregulated aquaculture activities around the world are poisoning and choking the marine environment with their lost
and derelict plastic gear…. At the present time, it does not appear possible to introduce any conventional plastic into the marine environment without harmful
consequences.”
9
Link: Charles Moore Tulane Environmental Law Journal: http://users.neo.registeredsite.com/3/7/5/12218573/assets/2014_CharlesMoore_Tulane_Plastic_Pollution_Threatens_Marine_Life.pdf
6. 2015 Bivalve Aquaculture Associated Plastic Pollution in South Puget Sound. Charles Moore, Renowned Marine Plastic Expert, Washington State Shorelines Hearings Board Presentation.
Mr. Moore tested the PVC, HDPE and Polypropylene blue oyster rope gear used by Taylor Shellfish which are the standard plastics used by the aquaculture industry throughout the world. At the hearing, under oath, he stated: “The plastic gear used on the 11-acre site and the gear and parts of gear that leave the site
are a significant adverse impact. No baseline is available to determine current
levels of aquaculture debris in the subject inlets or South Sound aquaculture sites. The mitigation of beach cleanups is only a very partial solution to the
impact problem and ignores microplastic pollution.”
Link: Charles Moore Presentation:
https://www.dropbox.com/sh/ptotz2w4jj36bia/AAAxd5GSV7mnZqmvCLZ-aTEha?dl=0&preview=(17)+Charles+Moore+Algalita+Power+point.pdf
7. 2015 Confluence Shellfish Industry Report Documents Birds Foraging on
Harmful HDPE Plastic Oyster Bags-
“Foraging in Shellfish Beds – in the photos note least sandpipers on oyster bags,
dunlins on oyster bags, and godwits around and on oyster bags.”
Link: Confluence Report https://www.dropbox.com/sh/ptotz2w4jj36bia/AAAxd5GSV7mnZqmvCLZ-aTEha?dl=0&preview=(18)+Confluence+Report%2C+Bird+Interactions+with+Shellfish+Aquaculture+Gear+and+Operations.pdf
8. 2014 Calculation of Per Acre Plastic Pollution From Geoduck Aquaculture. Note: This calculation does not include the tons of plastics from oyster and clam aquaculture.
“The geoduck aquaculture industry embeds approximately 8 miles of PVC pipe
per acre in pristine intertidal habitat areas of Puget Sound, mostly in South Sound. Based on the approximate weight per acre calculations provided by the geoduck industry, 4 inch schedule 10 PVC tubes, the smallest size used, weigh about 32,000 pounds, or 16 tons per acre of PVC. The best current estimate
according to the Shellfish Aquaculture Regulatory Commission, as of June 1,
2010, suggests there are currently 364 acres of active geoduck farms in Puget Sound. This represents nearly 3 thousand miles, 12 million pounds or 6 thousand
10
tons of PVC in Puget Sound from geoduck aquaculture. If one assumes that at any given time only one-third of all geoduck farms have PVC tubes installed in the tidelands, then this would yield about 1 thousand miles, 4 million pounds or 2
thousand tons of PVC.” 1.
Link: Calculation of Geoduck Plastic Pollution: Link http://www.caseinlet.org/uploads/PVC.pdf
Section III – 2010 Shellfish Industry Pest Management Plan
Introduction
In order to protect the introduced shellfish species planted by industry, current practice calls for the removal of all other flora and fauna on the sites owned or leased by the
industry. Many of these identified “pest” species play an important role in the nearshore ecosystem and in some cases, have an economic value independent of the shellfish
industry.
1. The Pest Management Plan documents the shellfish industry’s known practice of removing Washington marine life including Dungeness and red rock crabs, shrimp, sea stars, moon snails, horse clams, sand dollars and
eelgrass which are vital to Puget Sound marine life. [Summary Page 27] Link: Pest Management Strategic Plan for Bivalves in Oregon and Washington https://www.dropbox.com/sh/ptotz2w4jj36bia/AAAxd5GSV7mnZqmvCLZ-aTEha?dl=0&preview=(51)+Pest+Management+Integrated+Plan+for+Bivalves+in+Oreg
on+and+Washington.pdf
2. The 2018 Salmon Study documents the importance of the shrimp larvae, shrimp, crab larvae, crab, polychaetes and eelgrass to the survival of Chinook
salmon. [Page 38]
Link: Nisqually Reach Reserve Salmon Study http://users.neo.registeredsite.com/3/7/5/12218573/assets/2017_Nisqually_Reach_Reserve_Salmon_Study_Ellings_NRAR.pdf
Section IV – Washington’s Shellfish Initiative Industry Lobbying
Effort
Introduction
The state’s shellfish initiative is not state law; rather it is the result of lobbying by the
shellfish industry to attempt to encourage support for the expansion of the industrial use
of the state’s tidelands and public waters.
11
The Shellfish Initiative – A Law Review Article
2014 “The Legal and Environmental Implications of the Washington Shellfish Initiative:
Is it Sustainable?” Ward, Lindsey, 4 Seattle Journal of Environmental Law 1, 162.
“VIII. CONCLUSION: According to a 2009 State of the Sound Report, Puget Sound is in danger of losing many of its most valuable plant and animal species and the unique ecological functions they serve during our lifetimes. Given this risk, protecting our shorelines is of paramount interest to ensure that future generations may enjoy the same natural splendor, abundant resources, and scientific opportunity. The Washington
Shellfish Initiative seeks to capitalize economically on an already harmful industry, thereby further jeopardizing delicate ecosystems and making it difficult, if not impossible, for them to ever recover. In order to protect our precious coastal resources, community lawmakers must enforce existing laws: the Shoreline Management Act, Endangered Species Act, the Clean Water Act, and local policies and statutes. While
the Washington Shellfish Initiative purports to comply with these critical doctrines, its policies and recommendations actually run counter to them in many areas because the underlying objectives are economical rather than environmental. In order to ensure a
sustainable shellfish industry for years to come and preserve our State’s unique shoreline habitat, the Washington Shellfish Initiative must be revised so that it complies
with federal, state, and local regulations. “ Link: Shellfish Initiative Law Review: http://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1034&context=sjel
Section V – Need for Current Research to Evaluate Industrial Shellfish Industry Harm to Washington’s Marine Life
Introduction For a number of years, the studies conducted on the environmental impacts of industrial
aquaculture were very limited in scope and in breadth of the study. In the past few
years, the gap has been filled as researchers not affiliated with the federal and state agencies promoting this industry have published scientific studies. Some of the studies relied upon by the Washington state agencies regulating industrial-scale aquaculture are now out-of-date and need to be replaced by more recent scientific information.
1. Washington State Sea Grant issued their final geoduck research report in November 2013, documenting the studies that were done prior to 2013. Many of the studies listed in the material above, especially regarding plastics, have been published after the Sea Grant report.
2. Sea Grant studied only a few small nearshore geoduck plots based on planting or
harvesting impacts but did not evaluate the total clearing, planting, netting and harvesting practices or the impacts from industrial-scale growing of other species. No repeat long-term studies were done.
12
3. Sea Grant studies considered geoduck aquaculture as only a “periodic disturbance” which is not consistent with the forever permits issued for industrial aquaculture with concomitant permanent adverse impacts.
4. No peer-reviewed studies have been conducted in Washington State to evaluate
the impacts on orcas, salmon or forage fish, despite the co-locations. 5. No peer-reviewed studies have been conducted in Washington State to evaluate the impacts of aquaculture plastic gear and shed microplastics from operations on the shorelines as well as extent and impacts of derelict gear. Massive amounts of
toxic PVC and HDPE aquaculture plastic gear are intentionally placed in the
sensitive nearshore area even as there are worldwide efforts to eliminate plastic bags and single use plastics that unintentionally end up in marine waters. 6. No peer-reviewed cumulative impact studies have been conducted in Washington State to assess the cumulative impacts of the forever aquaculture permits or the
cumulative impacts from roughly 50,000 acres of industrial aquaculture in
Washington State.
October 26, 2018
1
P.O. Box 233 Burley, WA 98322
coalitiontoprotectpugetsound.org
Scientific Evidence that Industrial Shellfish
Aquaculture “Is Poisoning Our Shorelines”
Section I - Aquaculture Gear and Toxic Plastic Pollution
Summary of Recent Science
Since the late 1990’s, Washington State has allowed unlimited toxic, polluting plastics authorized in over 50,000 shoreline acres for geoduck, oysters and clams. PVC tubes, High Density Polyethylene (HDPE) canopy nets, HDPE oyster bags, HDPE zipties, HDPE oyster purses, HDPE mesh tubes and Polypropylene blue oyster ropes are routinely used. Carbon Black, the same additive used for
tires, is added to the HDPE to absorb sunlight radiation. Shellfish industry plastic aquaculture gear has been scientifically examined and is a major threat to our marine life as documented in the studies cited below.
1. 2018 “Abundance and Distribution of Microplastics within Surface
Sediments of Key Shellfish Growing Regions of Canada. Bendell et al., PLOS One, May 23, 2018.
Associated news article: “Alarmingly High Amounts of Plastic Microbeads
Found in BC Shellfish Farming Areas” “Researcher says better standards needed for shellfish industry.” “We found (shellfish industry) microbeads in
the smallest bits of sediment and in a concentration equal to the amounts of silt and organic matter,” Leah Bendell, Professor of Marine Ecology and Ecotoxicology at Simon Fraser University (SFU), said in the statement.
Study states: “..the industry also makes extensive use of High Density Polyethylene (HDPE), in the form of netting, oyster bags, trays, cages and
fences (e.g., vexar) [37]. Each year, 3–4 tonnes of debris, comprised
primarily of these plastic materials is recovered from the intertidal regions of Baynes Sound [38]. Sites where the greatest number of microfragments and microfibers were found also coincide with regions of extensive shellfish
aquaculture equipment.”
Link: PLOS Journal Study:
http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0196005
2
P.O. Box 233 Burley, WA 98322
coalitiontoprotectpugetsound.org
Link: New Article: Abundance and Distribution of Microplastics - Bendell Article:
’Alarmingly high’ amount of plastic microbeads found in B.C. shellfish farming areas:
http://www.cbc.ca/news/canada/british-columbia/shellfish-microplastics-bc-
aquaculture-1.4675672
2. 2018 “Macro and Micro Plastics Sorb and Desorb Metals and Act As A Point Source of Trace Metals To Coastal Ecosystems.” Bendell et al., PLOS One published February 14, 2018.
Associated news article: “Heavy Metals: The New Toxic Danger Posed by
Ocean Plastic Trash.” “For example, PVC, the most commonly found plastic, had high levels of lead and copper attached to its surface. The comparison of the new and debris plastic also showed how some of the chemicals used in plastic production may release over time – including
cadmium, which is used to make plastic rigid and resistant to UV light. The
researchers found that new PVC releases zinc and cadmium. “
The study found: “Field samples of PVC, HDPE and LDPE had significantly greater amounts of acid extracted copper and HDPE, LDPE and PUR significantly greater amounts of acid extracted zinc. PVC and
LDPE had significantly greater amounts of acid extracted cadmium and
PVC tended to have greater levels of acid extracted lead, significantly so
for HDPE… Plastic debris will affect metals within coastal ecosystems by; 1) providing a sorption site (copper and lead), notably for PVC; 2) desorption from the plastic i.e., the “inherent” load (cadmium and zinc) and
3) serving as a point source of acute trace metal exposure to coastal
ecosystems. All three mechanisms will put coastal ecosystems at risk to
the toxic effects of these metals.”
Link: PLOS Journal Study: http://journals..org/plosone/article?id=10.1371/journal.pone.0191759
Link: Macro and Micro Plastics. Bendel Article: https://www.newsdeeply.com/oceans/articles/2018/04/03/heavy-metal-the-new-toxic-danger-posed-by-ocean-plastic-trash
3
P.O. Box 233 Burley, WA 98322
coalitiontoprotectpugetsound.org
3. 2016 Microplastic Ingestion by Wild and Cultured Manila Clams from
Baynes Sound, BC. Katie Davidson, Sarah Dudas. Arch Environ Contam
Toxicol (2016) 71:147–156.
Aquaculture Gear Microplastics:
“The most commonly observed fibers in our study were colourless (36 %), followed by dark gray (26 %); in contrast with Desforges et al. (2014),
blue, red, and purple fibers were considerably lower in abundance. Of the gray fibers recorded, 87 % were from farmed clams. It is possible the source of these dark gray fibers is the black anti-predator netting (APN) located directly above the clams, although without spectroscopic analysis (e.g., FT-IR) this cannot be verified. It has been suggested that clams
might have highest concentrations of blue fibers due to the widespread use of blue polypropylene rope used on oyster farms located near clam farms throughout Baynes Sound.” Link: Microplastic Ingestion by Wild and Cultured Manilla Clams
http://users.neo.registeredsite.com/3/7/5/12218573/assets/2016_Davidson_Dudas_Microplastic_Ingestion_by_Wild_and_Cultured_Manila_Clams.pdf
2017 KCTS 9 Interview with Dudas: “How Much Plastic Do You Want In
Your Oysters and Clams?”
“Others note that the world consumes hundreds of millions of tons of plastic annually -- like food packaging and straws. Dudas said that, while
she is finding that farmed shellfish don’t contain any more plastic than
non-farmed shellfish, she has no doubt that nets and ropes from shellfish
aquaculture sites also shed fibers into the ocean.” Link: Dudas KCTS 9 Story: https://kcts9.org/programs/earthfix-local-stories/how-much-plastic-do-you-want-
in-your-oysters-and-clams
4. 2014 “Rapidly Increasing Plastic Pollution from Aquaculture Threatens Marine
Life”. Moore, Charles. 27 Tulane Env Law Journal 205
“CONCLUSION: Unmonitored and unregulated aquaculture activities
around the world are poisoning and choking the marine environment with
their lost and derelict plastic gear…. At the present time, it does not
4
P.O. Box 233 Burley, WA 98322
coalitiontoprotectpugetsound.org
appear possible to introduce any conventional plastic into the marine
environment without harmful consequences.”
Link: Charles Moore Tulane Environmental Law Journal:
http://users.neo.registeredsite.com/3/7/5/12218573/assets/2014_CharlesMoore_Tulane_Plastic_Pollution_Threatens_Marine_Life.pdf
5. 2015 Bivalve Aquaculture Associated Plastic Pollution in South Puget Sound.
Charles Moore, Renowned Marine Plastic Expert, Washington State Shorelines
Hearings Board Presentation.
Mr. Moore tested the PVC, HDPE and Polypropylene blue oyster rope gear used by Taylor Shellfish which are the standard plastics used by the aquaculture industry throughout the world. At the hearing, under oath, he stated: “The plastic gear used on the 11-acre site and the gear and parts
of gear that leave the site are a significant adverse impact. No baseline is available to determine current levels of aquaculture debris in the subject inlets or South Sound aquaculture sites. The mitigation of beach cleanups is only a very partial solution to the impact problem and ignores
microplastic pollution.”
Link: Charles Moore Presentation: https://www.dropbox.com/sh/ptotz2w4jj36bia/AAAxd5GSV7mnZqmvCLZ-aTEha?dl=0&preview=(17)+Charles+Moore+Algalita+Power+point.pdf
6. 2013. Long-Term Field Measurement of Sorption of Organic
Contaminants to Five Types of Plastic Pellets: Implications for Plastic
Marine Debris. Chelsea M. Rochman, Eunha Hoh, Brian T. Hentschel and
Shawn Kaye. Environ. Sci. Technol. 2013, 47, 1646−1654.
“The ingestion of plastic debris by marine animals, including invertebrates,
fishes, sea turtles, seabirds, and whales, raises concerns that plastic is
another mechanism for such chemicals to enter food webs. This mixture of
hazardous monomers, plastic additives, and sorbed pollutants, may
impose a multiple stressor to marine organisms upon ingestion.” “Our
data suggest that for PAHs and PCBs, PET and PVC reach equilibrium in
the marine environment much faster than HDPE, LDPE, and PP. Most
importantly, concentrations of PAHs and PCBs sorbed to HDPE, LDPE,
and PP were consistently much greater than concentrations sorbed to
PET and PVC. These data imply that products made from HDPE, LDPE,
5
P.O. Box 233 Burley, WA 98322
coalitiontoprotectpugetsound.org
and PP pose a greater risk than products made from PET and PVC of
concentrating these hazardous chemicals onto fragmented plastic debris
ingested by marine animals. (See attached Rochman et. al study).
Study News Link:
https://www.ucdavis.edu/news/plastics-and-chemicals-they-absorb-pose-double-
threat-marine-life
7. 2015 Confluence Shellfish Industry Report Documents Birds Foraging on Harmful HDPE Plastic Oyster Bags-
“Foraging in Shellfish Beds – in the photos note least sandpipers on oyster
bags, dunlins on oyster bags, and godwits around and on oyster bags.” Link: Confluence Report
https://www.dropbox.com/sh/ptotz2w4jj36bia/AAAxd5GSV7mnZqmvCLZ-aTEha?dl=0&preview=(18)+Confluence+Report%2C+Bird+Interactions+with+Shellfish+Aquaculture+Gear+and+Operations.pdf
8. 2014 Calculation of Per Acre Plastic Pollution From Geoduck Aquaculture. Note:
This calculation does not include the tons of plastics from oyster and clam
aquaculture
“The geoduck aquaculture industry embeds approximately 8 miles of PVC pipe per acre in pristine intertidal habitat areas of Puget Sound, mostly in South Sound. Based on the approximate weight per acre calculations
provided by the geoduck industry, 4 inch schedule 10 PVC tubes, the smallest size used, weigh about 32,000 pounds, or 16 tons per acre of PVC. The best current estimate according to the Shellfish Aquaculture Regulatory Commission, as of June 1, 2010, suggests there are currently 364 acres of active geoduck farms in Puget Sound. This represents nearly
3 thousand miles, 12 million pounds or 6 thousand tons of PVC in Puget Sound from geoduck aquaculture. If one assumes that at any given time only one-third of all geoduck farms have PVC tubes installed in the tidelands, then this would yield about 1 thousand miles, 4 million pounds or 2 thousand tons of PVC.”
Link: Calculation of Geoduck Plastic Pollution: Link http://www.caseinlet.org/uploads/PVC.pdf
6
P.O. Box 233 Burley, WA 98322
coalitiontoprotectpugetsound.org
9. Number of Geoduck Aquaculture Acres and Aquaculture Plastic Pollution
According to industry figures, there are approximately 500 acres of geoduck
aquaculture in Puget Sound. If the shellfish industry standard practice of 40,000
PVC or HDPE mesh tubes are inserted in the tidelands per acre, over 20 million
pieces of polluting plastics will be “poisoning our shorelines.” If the industry
standard practice of using HDPE net caps and HDPE zipties are added to those
PVC tubes, over 20 million-40 million more polluting plastics will be “poisoning
our shorelines.”
10. Carbon Black Shellfish-UV Stabilizer
According to the September 28, 2016 email from Joth Davis, Taylor Shellfish biologist:: “Norplex manufactures shellfish cages that are used in the industry along with mesh tubes used for geoduck aquaculture and other netting products used by shellfish growers.” “Mr Sanford reported that Norplex
adds 6% “small carbon black” to the HDPE during the manufacturing
process…” Carbon Black “is on the Right to Know Hazardous Substance List because it is cited by OSHA, ACGIH, NIOSH and IARC (NJ Department of Health Right To Know Hazardous Substance Fact Sheet).
Fact Sheet Link:
https://nj.gov/health/eoh/rtkweb/documents/fs/0342.pdf Section II-Shellfish Industry Use of Pesticides
The shellfish industry has been spraying pesticides in Willapa Bay and Grays Harbor for over 50 years to eradicate both non-native Zostera japonica eelgrass and Spartina as well as native aquatic vegetation/eelgrass and native burrowing
shrimp. The shellfish industry accidently brought in both Zostera japonica and
Spartina with their non-native oysters. In addition, citizens in Puget Sound have reported to the Coalition and state agencies that shellfish industry growers have applied pesticides to shorelines
where they have aquaculture sites. For more information on this issue, read the
true story Toxic Pearl. Toxic Pearl Website: http://www.toxicpearl.com/
1. 2014. Major Pesticides Are More Toxic to Human Cells Than
Their Declared Active Principles
Mesnage, Defarge, de Vendomois, Seralini. 2014. BioMed Research
International.
7
P.O. Box 233 Burley, WA 98322
coalitiontoprotectpugetsound.org
“Glyphosate, isoproturon, fluroxpyr, pirimicarb, imidacloprid, acetamiprid, tebuconazole, epoxiconazole and prochloraz constitute, respectively, the active principles of 3 major herbicides, 3 insecticides, and 3 fungicides.”
“Most importantly, 8 formulations out of 9 were up to one thousand more toxic
than their active principles. Our results challenge the relevance of the acceptable daily intake for pesticides because this norm is calculated from the toxicity of the active principle along. Chronic tests on pesticides may not reflect relevant environmental exposures if only one ingredient of these
mixtures is tested alone.” Page 1
Study Link: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3955666/
Section III-Mussel Cage Scientific Analysis-Per Mussel Cage
Leader Maradel Gale, Bainbridge Island.
“Every other year since 2011 at more than 70 sites around Puget Sound,
mussels are set out in cages for three months over the winter and then analyzed to determine the contaminants in their bodies. Like other bivalves (clams, oysters, geoducks), mussels are filter feeders, which means they in-filter whatever is in the water around them. The most abundant contaminants.
measured were PAHs, PCB’s, PBDE’s and DDT’s (see technical names
below). The first two organic contaminants were found in mussels from every site. The amount of contamination varied and was higher at more urban sites, as measured by land use classifications and by the percent of impervious surface in the upland watersheds adjacent to the nearshore where
the mussels were placed. Additionally, heavy metals (zinc, arsenic, cadmium,
copper and mercury) were found in mussels from all of the study sites; lead was found in mussels from most sites, but not all. Issues with microplastics and persistent organic pollutants are closely interrelated. This is because the organic pollutants are hydrophobic and adsorb onto the microplastics, which
are the same size as zooplankton and thus are in-filtered by the bivalves,
where the organic pollutants desorb in the gut of the animal.”
PAH-Polycyclic aromatic hydrocarbon
PCB-Polychlorinated biphenyl PBDE-Polybrominted diphenyl ethers DDT-Dichlorodiphenyltrichloroethane
8
P.O. Box 233 Burley, WA 98322
coalitiontoprotectpugetsound.org
Section IV-Lack of Testing of Toxins in Washington State Shellfish By the Washington State Department of Health
Email from the Washington Department of Health
From: Toy, Mark C (DOH) <Mark.Toy@doh.wa.gov>
Date: Tue, Feb 12, 2019 at 12:09 PM
Subject: Shellfish question
Dear Stella – You asked Can you tell me if the DOH routinely tests commercial and
recreational shellfish for pesticides and heavy metals?
Anyway, that question got bounced to me so I will take a stab at it and am cc:’ing everyone else you e-mailed so they have a future reference.
The short answer is no, except for geoducks which are tested for arsenic routinely because that is a requirement for export to China
(https://www.doh.wa.gov/CommunityandEnvironment/Shellfish/CommercialShellfish/Export/ExporttoChina) .
DOH did a comprehensive survey of toxics in shellfish in the 90’s (see attached report) and found generally low (or below limits of detection) concentrations of
105 contaminants (see page 8 for list) except for Eagle Harbor (Prohibited area).
NOAA implements Mussel Watch nationally (https://en.wikipedia.org/wiki/Mussel_Watch_Program), and WDFW implements this in Washington State. Here is a good local presentation on the Mussel Watch
program, which tests (ideally on a biennial basis) for a variety of contaminants (including organochlorine pesticides) https://soundwaterstewards.org/web/wp-content/uploads/2014/09/MusselWatchProgram-presentation-
WhidbeyIslandBeachWatchers-9-8-2014.pdf
DOH does environmental site assessments where we have concerns about legacy pollution, particularly in areas where we are considering an initial classification. There are three site assessments done in Pierce County for
shellfish and
sediments: https://www.doh.wa.gov/DataandStatisticalReports/EnvironmentalHealth/SiteAssessments#Pierce On this website you will find other assessments in Oakland Bay, Port Gamble, Irondale, and Port Angeles Harbor (to name a few).
Hopefully this satisfactorily answers your question. Let me know if you have any
additional questions or concerns.
9
P.O. Box 233 Burley, WA 98322
coalitiontoprotectpugetsound.org
Mark Toy
Environmental Engineer
Office of Environmental Health & Safety
Environmental Public Health Division
Washington State Department of Health
Summary
Our Question-Would you eat food raised in toxic PVC, HDPE or Rubber Tires? Should our native species be subjected to these toxic plastics and pesticides when their populations are dramatically declining in favor of shellfish exports? Tell your local, state and Federal officials that these polluting plastics and pesticides should not be allowed in Washington State marine
waters!
Compiled by the Coalition To Protect Puget Sound March 2019
From:Marilyn Showalter
To:Josh Peters
Subject:Showalter Public Hearing Comments on SMP
Date:Tuesday, October 3, 2023 1:43:35 PM
Attachments:Showalter pkt JCP 10-03-2023.pdf
ALERT: BE CAUTIOUS This email originated outside the organization. Do not openattachments or click on links if you are not expecting them.
Josh,
Please find attached my comments in anticipation of tomorrow's Planning Commission PublicHearing on the draft SMP.
Thanks--Marilyn
Marilyn Showalter
1596 Shine RdPort Ludlow, WA 98365
(360) 259-1700 (cell)marilyn.showalter@gmail.com
11
M A R I L Y N S H O W A L T E R
1596 Shine Road Port Ludlow, WA 98365 marilyn.showalter@gmail.com, 360-259-1700
October 3, 2023 Jefferson County Planning Commission c/o Josh Peters, jpeters@co.jefferson.wa.us
Dear Planning Commission Members: Re: Comment on Geoduck Regulation in the Shoreline Master Program (SMP) I have been a Jefferson County property owner for 47 years. I live on Hood Canal, Squamish
Harbor, where I have observed the consequences of a geoduck farmer unregulated by Jefferson County (because the farm was “grandfathered” from before any county permit was required). My comments here relate only to geoduck cultivation, not to all shellfish or other SMP subjects. I urge the Planning Commission to adopt the geoduck provisions—specifically the requirement for a standard Conditional Use Permit (CUP)—in the Public Hearing draft.
• Geoduck cultivation is relatively new and uses massive amounts of plastic in the water and substrate. Geoduck cultivation is highly concentrated, with 2-3 geoducks
planted inside a PVC or HDPE tube in every square foot of tideland. One acre of PVC tubing is more than 7 miles and 11 tons of plastic1.
• Geoduck cultivation requires deep, sandy tidelands, which are often estuarial and
habitat for other critical marine life. At harvest, a hydraulic hose liquifies the
substrate up to three feet deep in order to extract the geoduck. After the geoduck is harvested, the cycle begins again.
• Requiring a CUP in the SMP does not determine whether geoduck cultivation is allowed or not allowed. The CUP process allows a neutral decision maker to evaluate the effects of a geoduck cultivation proposal on a particular site, and, if permitted, to order appropriate conditions.
• Both Kitsap and Clallam counties require CUPs for geoduck cultivation. Jefferson should join its neighbors so that our facing shorelines on common waters have consistent processes.
• The Public Hearing draft has been provisionally approved by the state Department of Ecology. If the Board of County Commissioner adopts the Public Hearing draft, the Department of Ecology will almost certainly approve it.
1 This is a conservative estimate, based on 10” long, 4”diameter tubes. If the tubes are longer, wider, or made of heavier PVC, the miles and mass increase.
1
• Proposals to significantly modify the geoduck provisions of this Public Hearing draft should be reserved for the next round of SMP review. It’s been:
Twenty-seven months since geoduck regulation was raised at the Planning Commission’s last public hearing.
Two years since the county submitted a draft (which contained the CUP provision) to the Department of Ecology for review.
One year since the County received Ecology’s Initial Determination with required
and recommended changes—which are substantially included in the Public Hearing
draft and maintain the CUP provisions. At any time during these periods, anyone could have engaged with the Planning Commission on this subject. Anyone attending or reviewing Planning Commission
public meetings or correspondence would have seen activity on the subject. It’s time to
move this draft forward to the Board of County Commssioners. Any proposals for significant changes to the geoduck provisions should be reserved for the next SMP review.
Please approve and recommend to the Board of County Commissioners the requirement for a
standard CUP for all new geoduck cultivation, including expansion or conversion of existing shellfish operations. For ease of reference, and in order to ensure a complete record, I’ve attached my prior
correspondence to the Planning Commission on this subject, in reverse chronological order. I
also signed the Shine community letters of June 15, 2021, and October 2, 2023. Thank you for considering these comments.
Sincerely,
Marilyn Showalter
Marilyn Showalter
Attached letters, Showalter to Planning Commission: 09-15-2023
06-26-2023
08-24-2021 07-13-2021 06-29-2021 06-11-2021
05-03-2021
2
M A R I L Y N S H O W A L T E R
1596 Shine Road Port Ludlow, WA 98365 marilyn.showalter@gmail.com, 360-259-1700
September 15, 2023
Jefferson County Planning Commission c/o Josh Peters, jpeters@co.jefferson.wa.us
Dear Planning Commission Members:
Re: Response to Comments Made at August 2, 2023, Planning Commission Meeting
I didn’t have the opportunity to respond to some of the comments made at the Planning Commission’s August 2, 2023, meeting, so I am responding in this letter. With the exception of the Jamestown S’Kallam letter, comments from commercial shellfish operators were generally vague complaints without language-specific recommendations, but I want to address a few
points:
A.“[T]he process of updating the SMP went dark” . . “It was very difficult to get intothe meetings and we had no clue what was going on.” [Gordon King]
Mr. King, who had no trouble getting seven shellfish representatives to the August 2, 2023, meeting, is in an awkward position to assert his inability to follow the SMP process. As a member of its advisory committee, he had at least as much opportunity as any citizen to participate in a process that did not “go dark.” The meetings were publicly noticed, open to the public, and could be attended online. At any point in the past two-plus years, Mr. King or any
other commercial shellfish operator could have participated in or followed the proceedings.
Per Gordon King, Squamish Harbor is home to:
B.“a small group of shine waterfront property owners with a badly run geoduck farm in
their neighborhood” [Gordon King]
Mr. King implies that one bad apple shouldn’t ruin the rest of the barrel, but an irresponsible grower is exactly why you do need adequate review and conditions—which the CUP process affords. Further, the Squamish Harbor grower is not the only problematic grower in Jefferson
County, as neighbors in Discovery Bay and elsewhere can attest.
3
Showalter ltr Planning Commission September 15, 2023
2
C. “[W]e're required to have permits through the US Army Corps of Engineers and
those those permits come with a number of conditions that we're required to
follow.”[Adam James, Hama Hama Oyster]
“We conduct monthly beach cleanups” [Lisa Carleton Long, Rock Point Oyster]
Federal permitting conditions are not sufficient to protect Jefferson county’s marine environment. First, the federal courts determined that the Army Corps’ permits failed to comply with federal law, in part because the permits failed to take into account the cumulative effects of commercial shellfish operations in Puget Sound. The Army Corps’ subsequent attempt at
compliance has also been challenged in federal court.
Second, the conditions imposed by the Army Corps are not adequate and not enforced. For example, beach cleanups are required, but only for a linear half-mile of beach, which is ineffective when equipment floats away. Also, all oyster bags are required to carry the label of
the operator, but evidence suggests this requirement isn’t followed in practice. Below are photos
of two different collections of washed up oyster bags on DNR Beach 59 in Squamish Harbor, which my house fronts. The nearest oyster operation is Rock Point Oyster farm, two miles across the bay on the south end of Squamish Harbor. There is no way to know if all of these bags are from Rock Point Oyster, as only a couple of them carry the required label, but if any are
not from Rock Point Oyster, they came from even farther away, further demonstrating the
inadequacy of the federal beach cleanup requirement.
DNR Beach 59, Squamish Harbor, collected over previous months and photographed by Marilyn Showalter, May 10, 2022
4
Showalter ltr Planning Commission September 15, 2023
3
Oyster Bag with label, taken on DNR Beach 59, Squamish Harbor, February 1, 2022 by Marilyn Showalter
Items collected from DNR Beach 59 over winter/spring 2023. Photo by Marilyn Showalter, April 21, 2023. Rock Point Oyster Co farm is in the distance near the point on the far side of the bay.
5
Showalter ltr Planning Commission September 15, 2023
4
Similarly, as shown in the photos below, PVC tubes from the BDN commercial geoduck operation have dislodged and washed up in Squamish Harbor. Jefferson County should have a
process—the CUP process—that allows for conditions and enforcement mechanisms sufficient
to address site-specific features of a proposed commercial shellfish site.
Right: Dislodged PVC tubes on BDN’s current Squamish Harbor site. Photo by Sue Corbett, March 24, 2015.
Left: Tubes strewn on beach west of BDN’s farm. Photo by Sue Corbett, December 27, 2014. D. “Kitsap is not a shellfish aquaculture friendly county” (Gordon King)
Kitsap County has plenty of shellfish aquaculture. (See map below.) More to the point, Kitsap
County and Clallam County both have shoreline directly across the water from Jefferson County shoreline (Hood Canal and Discovery Bay), whereas Mason County shoreline is linearly related.
Permits from US Army Corp of Engineers (gray point are shellfish permits) (Downloaded from Seattle District > Missions > Civil Works > Regulatory > Permit Decisions/Appeals (army.mil) November 3, 2022)
6
Showalter ltr Planning Commission September 15, 2023
5
Both Kitsap County and Clallam County require a conditional use permit for geoduck operations, whether new or converted from other shellfish uses. Here is Clallam’s code:
35.15.080 Regulations – Commercial geoduck aquaculture.
(1)Commercial geoduck aquaculture may be permitted in all shoreline environmentdesignations through a conditional use permit as indicated by Table 2-2 when it complies
with this Program. Conversion of existing nongeoduck aquacultureto geoduck aquaculture shall require a conditional use permit.
. . .
By joining Kitsap and Clallam, Jefferson County will ensure that upper Hood Canal, Puget
Sound, and the Strait of Juan de Fuca have a similar regulation (that is already approved by the
state Department of Ecology for Kitsap and Clallam).
E.“I was hard pressed to think how that study would change necessarily the code
requirements that we have.” (Commissioner Kevin Coker)
This observation is correct. It’s not the job of the Planning Commission to decide if a single, small study was persuasive or misguided. The job of the Planning Commission is to set up a process where such a study can be reviewed by a neutral decision maker as to its relevancy,
validity, and applicability to a specific site. That process is the standard Conditional Use Permit
process (where, for example, one might point out that of three original one-acre plots, one had previously been farmed, rendering the results on that plot useless, and of the two other plots, one showed harm and the other minor changes—hardly an endorsement of geoduck farming).
Thank you for considering these points. Please join maintain the current draft’s requirement for a standard Conditional Use Permit for any new geoduck operations in Jefferson County, whether by expansion, by conversion from other shellfish areas, or on new tidelands.
Sincerely,
Marilyn Showalter
Marilyn Showalter
7
M A R I L Y N S H O W A L T E R
1596 Shine Road Port Ludlow, WA 98365
marilyn.showalter@gmail.com, 360-259-1700
June 26, 2023
Jefferson County Planning Commission
c/o Josh Peters, jpeters@co.jefferson.wa.us
Dear Planning Commission Members:
Re: June 29, 2023, Planning Commission Meeting on the Shoreline Master Program
My comments here concern only draft JCC 18.25.440 (6) Geoducks. Specifically, I recommend
the Planning Commission adopt all changes in its Fall 2021 draft, including required and
recommended changes by the Department of Ecology (ECY) in September 2022.
In its Draft SMP, the Commission required a standard Conditional Use Permit (CUP) for new
geoduck operations, including expansions of and conversions to geoducks. ECY has maintained
this important requirement, albeit with some revised language. ECY’s required language
changes are not debatable, so I will not address them. But given ECY’s required changes, I think
ECY’s recommended changes should be embraced, because:
ECY’s changes have been preliminarily “approved” by ECY, presumably minimizing the
need for ECY to revisit this provision if it is finally adopted by the County
Commissioners with ECY’s changes.
Given ECY’s required changes, ECY’s recommended changes improve the clarity,
readability, and functioning of this section.
As Attachments A, B, and C demonstrate, there are two ECY recommended changes that the
latest Staff draft (in the 6-23-2023 agenda packet) has left out. Because they have been omitted
without any explanation, these omissions may have been an oversight. They should be kept:
In draft 18.25.440 (6) (a) (ii), Staff has omitted the word “authorized,” which ECY
recommended. Given what ECY required to be removed, this word is an important
addition. Without it, this section could be construed to allow unauthorized activity.
In draft 18.25.440 (6) (b), Staff has omitted ECY’s recommended change from “should”
to “shall.” As ECY has commented, “shall,” not “should,” is appropriate for laws and
regulations. “Should” is more appropriate for policies and guidelines.
For readability purposes, Attachments A, B, and C show:
a) What subsection (6) would look like if all of ECY’s required and recommended were
adopted and put into the County code;
b) The same text as (a) but highlighting the two ECY word-changes that Staff omitted;
c) A comparison of ECY’s and Staff’s marked up versions;
Finally, Attachment D is a critique of ECY Comment 29 in ECY’s Attachment 1. Read only if
concerned, as Comment 29 is not ECY’s official required or recommended changes. Thx--Marilyn 1 8
This is what the County Code would look like if all of the Department of Ecology’s required and
recommended changes were embraced by the Planning Commission and adopted by the Board of
County Commissioners.*
(6) Regulations – Geoduck.
(a) Conditional use permits.
(i) CUPs are required for new commercial geoduck aquaculture including conversion of
existing nongeoduck aquaculture to commercial geoduck aquaculture and expansions of
existing commercial geoduck aquaculture.
(ii) All subsequent cycles of authorized planting and harvest shall not require a new
conditional use permit
(iii) A single conditional use permit may be submitted for multiple sites within an inlet, bay or
other defined feature, provided the sites are all under control of the same applicant and
within the same shoreline permitting jurisdiction.
(iv) The CUP issued by the county shall include monitoring and reporting requirements
necessary to verify that geoduck aquaculture operations are in compliance with conditions
set forth in the CUP.
(v) The county shall review the considerations listed in WAC 173-26-241(3)(b)(iv)(L)(I)-(XII)
during development of permit conditions necessary to avoid or limit impacts from geoduck
aquaculture siting and operations and to achieve no net loss of ecological functions. The
listed considerations are regarding impervious materials, motorized vehicles, time periods
for limited activities, site alterations, property corner markers, mitigation measures,
predator exclusion devices, turbidity minimization, use of barges/vessels, navigation rights,
housekeeping practices, and public access.
(b) Siting and design. In addition to the siting provisions of subsection (4), commercial geoduck
aquaculture shall only be allowed where sediments, topography, and land and water access
support geoduck aquaculture operations without significant clearing or grading.
(c) Commercial geoduck aquaculture workers shall be allowed to accomplish on-site work during
low tides, which may occur at night or on weekends. Where such activities are necessary, noise
and light impacts to nearby residents shall be mitigated to the greatest extent practicable.
*[PLEASE NOTE: This is not an official draft. This is a version of a Word document supplied by ECY to
Marilyn Showalter, to which she then applied an “accept all” command. All text should be compared
against the official pdf called “Attachment 2” that was supplied by ECY to Jefferson County Planning
Commission.]
2
This is what the County Code would look like if all of the Department of Ecology’s required and
recommended changes were embraced by the Planning Commission and adopted by the Board of
This is what the County Code would look like if all of the Department of Ecology’s required and
recommended changes were embraced by the Planning Commission and adopted by the Board of
This is what the County Code would look like if all of the Department of Ecology’s required and This is what the County Code would look like if all of the Department of Ecology’s required and This is what the County Code would look like if all of the Department of Ecology’s required and
Geoduck.Geoduck.
..
(ii)All subsequent cycl
conditional use permit
(ii)All subsequent cycl
conditional use permit
(ii)(ii)(ii)
(iv)
necessary to verify that geoduck aquaculture operations are in compliance with conditions
(iv T
necessary to verify that geoduck aquaculture operations are in compliance with conditions
(iv)(iv)(iv)
atest extent practicableatest extent practicableatest extent practicableatest extent practicableatest extent practicable
9
This draft is identical to the previous page (which accepts all ECY’s required and recommended
changes), but with yellow highlighting showing substantive ECY language that has been omitted by
county staff in its latest staff draft (6-23-2023 agenda packet).* [I recommend the highlighted
language be maintained.]
(6) Regulations – Geoduck.
(a) Conditional use permits.
(i) CUPs are required for new commercial geoduck aquaculture including conversion of
existing nongeoduck aquaculture to commercial geoduck aquaculture and expansions of
existing commercial geoduck aquaculture.
(ii) All subsequent cycles of authorized planting and harvest shall not require a new
conditional use permit
(iii) A single conditional use permit may be submitted for multiple sites within an inlet, bay or
other defined feature, provided the sites are all under control of the same applicant and
within the same shoreline permitting jurisdiction.
(iv) The CUP issued by the county shall include monitoring and reporting requirements
necessary to verify that geoduck aquaculture operations are in compliance with conditions
set forth in the CUP.
(v) The county shall review the considerations listed in WAC 173-26-241(3)(b)(iv)(L)(I)-(XII)
during development of permit conditions necessary to avoid or limit impacts from geoduck
aquaculture siting and operations and to achieve no net loss of ecological functions. The
listed considerations are regarding impervious materials, motorized vehicles, time periods
for limited activities, site alterations, property corner markers, mitigation measures,
predator exclusion devices, turbidity minimization, use of barges/vessels, navigation rights,
housekeeping practices, and public access.
(b) Siting and design. In addition to the siting provisions of subsection (4), commercial geoduck
aquaculture shall only be allowed where sediments, topography, and land and water access
support geoduck aquaculture operations without significant clearing or grading.
(c) Commercial geoduck aquaculture workers shall be allowed to accomplish on-site work during
low tides, which may occur at night or on weekends. Where such activities are necessary, noise
and light impacts to nearby residents shall be mitigated to the greatest extent practicable.
3
Geoduck.Geoduck.
..
(ii)All subsequent cycles of
conditional use permit
(ii)All subsequent cycles of
conditional use permit
(ii)(ii)(ii)
to the greatest extent to the greatest extentto the greatest extentto the greatest extentto the greatest extent
10
4 11
In the event the Commission has reason to review ECY’s Comment 29, in ECY’s September 2022,
Attachment 2, here are my responses the first two sentences.
ECY’s Comment 29, First two sentences Response by Marilyn Showalter
Recommended Change: County’s intent to
provide more specific provisions akin to Kitsap
SMP in response to a handful of public comments
may be acceptable as local discretion, but
collectively the many added requirements set a
strong tone that nearly contradicts .440 Policy
(1)(a) that “Aquaculture is a preferred, water-
dependent use of regional and statewide
interest”, and the .210(3)(a) locally-tailored
Priority Aquatic SED, including designation
criterion (F) Important intertidal and subtidal
shellfish areas (clam, oyster, crab, shrimp, and
geoduck).
County needs to further consider all factors to
ensure the collective result is not internal conflict
or a ‘de facto’ ban.
There was not a “handful of public comments” or
commenters. Sue Corbett submitted a letter with
42 signatures, and many individual comments
were also submitted over several months and
years of review—I suspect more than on any other
issue.
The requirements don’t contradict or nearly
contradict the Policy. First, the Kitsap provisions
(which were suggested by a Commission member,
not the public) have been approved by ECY.
Second, RCW 90.58.020 lists other priorities not
mentioned in Comment 29, all of which are
relevant here:
(1) Recognize and protect the statewide interest
over local interest;
(2) Preserve the natural character of the shoreline;
(3) Result in long term over short term benefit;
(4) Protect the resources and ecology of the
shoreline;
(5) Increase public access to publicly owned areas
of the shorelines;
(6) Increase recreational opportunities for the
public in the shoreline;
(7) Provide for any other element as defined in
RCW 90.58.100 deemed appropriate or necessary.
ECY uses the inflammatory and unjustified term
“de facto ban” but does not detail how such a ban
might be effectuated by the County draft. Nor are
ECY’s required and recommended changes so
drastic as to suggest there would be a “ban”
without them.
The net effect of ECY’s sentences here is to
minimize and discount the sum and
substance of the public comments, and to
exaggerate dangers without explication.
The Planning Commission should rely on
ECY’s actual required and recommended
provisions, not this rather sour Comment
29.
5 12
M A R I L Y N S H O W A L T E R
1596 SHINE ROAD
PORT LUDLOW, WA 98365 marilyn.showalter@gmail.com 360-259-1700 (cell)
August 24, 2021
Jefferson County Planning Commission Port Townsend, WA
djohnson@co.jefferson.wa.us Re: Follow-up Comments to August 18, 2021 Planning Commission Meeting
Dear Members of the Planning Commission: At your August 18, 2021, several issues were raised in discussion, and at one or more points, Commission Planning members asked for feedback from the community. Because the meeting
was by telephone for members of the community, I’m not sure who raised which issues, but I
would like to provide feedback on the issues, as I have paraphrased them here. My overriding point is this: The Planning Commission need not and should not determine if geoduck farming is “good” or “bad.” The job of the Planning Commission is to
recommend to the County Commissioners the appropriate standards and process to use when geoduck applications are submitted to the County, including any need for a Hearing Examiner. 1. “Follow the Science.” One or two scientific studies on a controversial subject are not
going to be definitive. Science evolves over time. Studies are more or less rigorous.
Studies are funded by different interests. A Hearing Examiner, not the Planning
Commission, is able to review studies presented by the parties for rigor and relevance to a
particular site, and to hear critiques of those studies by the parties. This is a normal part of
the hearing process and why we are asking that geoduck applications go through it.
It's also the case that “science” is not the only factor relevant to an application for a geoduck farm. How a geoduck farm would affect such things as navigation and
recreation is also relevant, as is the cumulative effects of a particular shellfish farm in combination with all of the others.
2. “Do Hearing Examiners Have Leeway to Make Decisions?” The Hearing Examiner
determines the facts and applies the law to those facts. Because the facts are site-specific, the outcome of a case is also, generally, site-specific. So, for example, a small protected
bay may not get a lot of wind and tidal action but might suffer from low oxygen.
Another bay might have the reverse conditions: high winds and big tides with adequate
oxygen. These kinds of facts—which are not givens but rather determined by the
Hearing Examiner after examining the evidence—may be relevant to the standards that
must be met for an application to be approved, and therefore can affect the outcome.
13
Showalter-JCPC ltr August 24, 2021
2
3. “I’d like to see some first-hand evidence” of the effects of a geoduck farm. On August
19, 2021, 70 members and supporters of the Shine Community sent a letter to Jefferson
County opposing an application for a geoduck farm in Squamish Harbor. Brad Nelson (BDN, operator) and James Smersh (property owner) propose to plant 224,330 PVC
tubes on 5.15 acres immediately adjoining Hicks County Park, where people clam, crab,
paddle, float, and swim, among other activities. The letter, with plenty of first-hand evidence is attached, but here are three photos, two of Hicks Park (now), the other of
BDN’s current 3.58-acre commercial geoduck farm in Squamish Harbor, ½ mile west of
the proposed Smersh site. (BDN’s current farm has no county permit because it was “grandfathered,” having been established just before the County’s first regulations of
shellfish farming became effective in 2014.)
Families, including wading and swimming children, enjoying Hicks Park. Rock jetty and fencing
mark boundary line of Smersh property and proposed geoduck site. By Marilyn Showalter, July 29, 2020.
BDN’s current geoduck farm in Squamish Harbor
Photo by Sue Corbett, March 24, 2015
Paddleboarders at Hick Park. PVC tubes would
pose extreme danger to paddlers, waders, and swimmers. Photo by Marilyn Showalter, July 3, 2017
14
Showalter-JCPC ltr August 24, 2021
3
4. “Why are the tubes necessary?” The tubes protect the baby geoduck from predation until they are about two years old, when the tubes are removed.
5. “Are PVC tubes ‘structures?’” PVC tubes are not considered “structures,” only because
they have been explicitly exempted by law. Otherwise, they would fall within the definition of structures under the Jefferson County Code 18.25.100 (19) (rr):
“Structure” means a permanent or temporary edifice or building or any piece of work artificially built up or composed of parts joined together in some definite manner, whether installed on, above, or below the surface of the ground or water, except for vessels (WAC 173-27-030). Retaining walls, bulkheads, fences,
landscaping walls/decorative rockeries, and similar improvements to real property
are examples of structures. Geoduck tubes are not considered structures for purposes of this program. (emphasis added) So, a decorative rockery on land is a structure, but 224, 330 PVC tubes (61 tons of plastic) inserted directly into 5.1 acres of tidelands is not—only because it has been
carved out of the legal definition. 6. “How are geoducks harvested?” For each geoduck to be harvested, a person on the
tidelands or a diver underwater uses a diesel-powered high-volume hydraulic hose to
inject water (not air) into the substrate to a depth of about three feet. This liquifies the
sediment, allowing the harvester to reach down through the liquified material and extract the geoduck. The liquified sediment is then sprayed back onto the tidelands or into the
water column. Here are two photos of the process, taken of BDN’s current site in Shine.
Harvesting with diesel powered hydraulic hose on BDN’s current geoduck farm in Squamish Harbor, ½ mile west
of Smersh tidelands. Left photo by Marilyn Showalter, June 22, 2020. Right photo by Sue Corbett, Oct 3, 2020
Note: This is the process for intertidal cultivated geoducks, i.e., geoducks planted in the
tidelands, which the County SMP regulates. Subtidal (fully underwater) plots of wild geoducks are overseen by the Department of Natural Resources, which leases the plots for harvest (by divers) and shares the revenue with the lessee.
15
Showalter-JCPC ltr August 24, 2021
4
7. “PVC Tubes Attract Algae and Other Seaweed.” This is true, but the vegetation is
removed by the geoduck operators and placed in concentrated piles on the beach. At
harvesting, everything is obliterated to three feet deep, whether above or below the
surface. This process goes on in continuous cycles.
Workers removing vegetation from PVC tubes
on BDN’s current geoduck farm in Squamish
Harbor. Photo by Sue Corbett, May 18, 2015
8. “I want to hear the business perspective.” The overwhelming majority of harvested
geoducks go to China. The number of fulltime-equivalent employees is low. Temporary
workers are hired part-time to plant the geoducks, initially, and to remove vegetation on
occasion. Harvesting with hydraulic hose, when geoducks are about 5 -7 years old,
usually involves two or three people, part-time.
Regarding direct tax revenues, wholesale fish products are exempt from the state business
and occupation tax.1 Local tax revenue is very low. For example, BDN pays only $160.07 in property taxes, and less than 8% of that is attributable to his tidelands.2 I hope these comments answer some of your questions. I’m glad you are asking them. These are
also the kinds of questions an impartial Hearing Examiner might ask, in reviewing or deciding a
particular case. In that setting, the Hearing Examiner can read, probe, and compare the evidence and arguments of the parties, before coming to a conclusion. That is why applications for commercial geoduck cultivation, which is complex, site-specific, and relatively new to our region, should receive a public hearing before and a decision by a Hearing Examiner.
Sincerely,
Marilyn Showalter
Showalter Attachment: Shine Community Letter on BDN-Smersh Application
1 RCW 82.04.4269: Exemptions—Seafood product businesses. (Expires July 1, 2025.) (wa.gov).
2 Jefferson County Tax Assessor. Parcel # 821334011, valued at $13,500, including the tidelands, which
are valued at $1000. State and local property taxes and assessments are $160.07 in 2021.
16
M A R I L Y N S H O W A L T E R
1596 SHINE ROAD
PORT LUDLOW, WA 98365 marilyn.showalter@gmail.com 360-259-1700 (cell)
July 13, 2021
Jefferson County Planning Commission Port Townsend, WA
djohnson@co.jefferson.wa.us Dear Members of the Planning Commission:
Re: Options Between C and Cd), Regarding Geoducks in the Shoreline Master Program (SMP) I listened with interest to your July 7 discussion on what type of Conditional Use Permit (CUP)
to require for geoduck operations. The group focused on whether to require a public hearing
before a hearing examiner, who would then make the decision (a “C” or “Type III” process) vs a Discretionary CUP (“C(d)”), in which the Administrator decides whether to use a Type III process or instead to make the decision at the administrative level (appealable to the hearing examiner).
It’s still my view that a full “C” offers the most protection of marine life, as well as the most consistency with other jurisdictions. However, I want to suggest some ways the Planning Commission might “split the difference” between “C” and “C(d).”
The SMP could provide that all geoduck operations are subject to a Discretionary CUP (“C(d)”)
but list two factors that [require] [weigh in favor of] a Type III process: a) Any party of record prior to the close of the public comment period requests a public hearing; [OR] [AND]
b) The proposed site is located in a Shoreline of Statewide Significance.
• The strongest option would be [require] and [OR]
• Medium strong would be [require] and [AND]
• More discretionary would be [weigh in favor of] and [OR]
Factor (a) ensures that there is interest in having a public hearing. Factor (b) increases comity
among the counties that jointly steward important shorelines (Hood Canal and Puget Sound). Kitsap and Clallam counties require a Type III process for all geoduck proposals, whether new, expansions, or conversions. The text of the SMP would read as follows. My language is in red. [Choices are indicated by
brackets.]
17
Showalter-JCPC ltr July 13, 2021
2
JCC 18.25.440 (4) Regulations – General.
(b) Ongoing maintenance, harvest, replanting, restocking of or changing the species cultivated in any
existing or permitted aquaculture operation is not considered new use/development, and shall not
require a new permit, unless or until:
(i) For non-geoduck aquaculture, Tthe physical extent of the facility or farm is expanded by more than 25
percent. If the amount of expansion exceeds 25 percent in any 10-year period, the entire operation shall
be considered new aquaculture and shall be subject to applicable permit requirements of this section.
This calculation of 25% expansion applies to both in-water and above OHWM development but the
calculation of in-water expansion cannot exceed 25% of in-water original area [SEE FOOTNOTE].1 Any
expansions of existing geoduck aquaculture operations require a permit for the expanded area if the
existing operation is already permitted or for the entire operation if not already permitted; or
(ii) or mMore than 25 percent of the facility/farm changes operational/cultivation methods compared to
the conditions that existed as of the effective date of this program or any amendment thereto. If the
amount of expansion or change in cultivation method exceeds 25 percent in any 10-year period, the
entire operation shall be considered new aquaculture and shall be subject to applicable permit
requirements of this section. This calculation of 25% expansion applies to both in-water and above
OHWM development; or
. . .
JCC 18.25.440 (6) Regulations – Geoduck.
(a) Conditional use permits.
(i) CUPs are required for new commercial geoduck aquaculture, including . Where the applicant
proposes to conversion of existing non-geoduck aquaculture to commercial geoduck aquaculture and
expansions of existing commercial geoduck aquaculture. a conditional use permit is only required if the
conversion includes an increase of more than 25% of either the in-water or above-OHWM operations
area or facilities. If the expansion exceeds 25%, the entire operation shall be considered new
aquaculture and shall be subject to applicable permit requirements of this section. [Notwithstanding
the provisions of JCC 18.40.520, a CUP under this section shall be conducted as a Type III review if (A )
Any party of record prior to the close of the public comment period requests a public hearing, or (B) The
site is located in a Shoreline of Statewide Significance.] or [In determining under JCC 18.40.520 whether
to conduct a Type III review, factors weighing in favor of a Type III review include: (A ) Any party of
record prior to the close of the public comment period requests a public hearing, or (B) The site is
located in a Shoreline of Statewide Significance.]
Table 18.25.220
C=Type III Conditional Use Permit
Priority Aquatic Aquatic Natural Conservancy Shoreline Residential High Intensity
Aquaculture
Geoduck (new or expansion or conversion from non-geoduck to geoduck) C(d)* C(d)* C(d)* C(d)* C(d)* C(d)* Thank you for considering these comments, Marilyn Showalter
1 I’ve made this suggestion before, but it may have gone unnoticed. The red underlined text is important as a
qualifier to the black underlined text. Without it, one acre of tidelands could be expanded by five acres of tidelands if it were attached to 20 acres of uplands. The permissible expansion of tidelands (before triggering a CUP) should be based on the area of currently cultivated tidelands, not the whole parcel including uplands.
18
M A R I L Y N S H O W A L T E R
1596 SHINE ROAD
PORT LUDLOW, WA 98365 marilyn.showalter@gmail.com 360-259-1700 (cell)
June 29, 2021
Jefferson County Planning Commission Port Townsend, WA
djohnson@co.jefferson.wa.us Dear Members of the Planning Commission:
Re: Options Presented by Consulting Staff on June 16, 2021 On June 16, 2021, the Jefferson County Planning Commission and the Washington State Department of Ecology held a public Zoom hearing for the purpose of allowing members of the
public to comment on the May 14, 2021 Draft Shoreline Master Program (Draft SMP). At the
hearing and before public comment, the consulting staff gave a presentation on the Draft SMP. However, in presenting proposed changes to JCC 18.25.440, consulting staff indicated they had abandoned parts of Draft SMP. Instead they presented new language, including some different options, for proposed amendments to that section regarding geoduck cultivation. This new
language was not available before the hearing and was presented on Power Point slides that were
shown on the Zoom screen in fairly quick succession. I attended the Zoom hearing and came prepared to comment on the May 14, 2021 Draft SMP. Because it was impossible to fully understand, on the fly, the import of the new language, or to
formulate comments to it, I am providing my thoughts, now, which in summary:
A) Support a Type III conditional use permit (CUP), which includes a public hearing, for geoduck cultivation on new tidelands, whether stand-alone or as an expansion of an existing shellfish farm;
B) Oppose “Option 1,” which would allow an existing shellfish farm, including one without any prior permit, to convert non-geoduck tidelands to geoduck cultivation without any permit or county or public review;
C)
Oppose “Option 2,” which would allow an existing shellfish farm, including one without any prior permit, to convert non-geoduck tidelands to geoduck cultivation, upon securing merely an Administrative CUP with no possibility of a public hearing prior to the decision;
D)
Support an “Option 3,” which would require a Type III CUP, which includes a
public hearing prior to a decision, for conversions of non-geoduck shellfish tidelands to geoduck cultivation.
19
Showalter-JCPC ltr June 29, 2021
2
The key principles behind these positions are:
1. Geoduck cultivation is fundamentally different from other shellfish cultivation. It
uses plastic tubes inserted into the tidelands at a density of one per square foot, for two years. For harvesting, it uses a hydraulic hose to liquify the tideland to three feet deep,
obliterating the rich marine life in that layer and redepositing it into the water or on the
beach. These methods are not “traditional” or “time-honored” in any way. On the
contrary, they are a new physical assault on our public waters and on the marine life
above and below the floor of the sea. Hydraulic liquefaction of the sea floor also releases
carbon into the water and into the air, contributing to ocean acidification and global
warming.
2. Geoduck cultivation directly uses and disturbs public waters, affecting public uses
and public interests in marine life. Unlike a business or use that sits on private land,
aquaculture uses waters belonging to the public. We recognize that a private shellfish
farmer should be able to present to the county information relevant to a proposal for
cultivating geoducks. By the same principle, members of the public should be able to
present information to the county relevant to the effects of geoduck cultivation on public
uses and interests. Without adequate public input, the county is likely not to have
complete information on which to base a CUP decision. Often, the shellfish operator and
even the tideland owner does not live on or near the site and may be unaware of (or not interested in finding out about) important local features. Neighbors often are aware of
these features—such as a creek that has hosted salmon, or saltwater recreation, or
endangered birds that feed in a bay—and they can bring this important information to the attention of the county. Other community interests, including tourism, boating, fishing,
birdwatching, and naturalists, to name a few, may also have valuable opinions to express.
3. All or nearly all shellfish farms that might convert to geoduck have never been reviewed by the county or been the subject of a public hearing, because they were
“grandfathered” (exempted from a permit requirement) in 2014, when the current SMP
became effective. Having escaped public scrutiny once, they should not escape again,
especially when they are planning on doing something new and different from what they
were doing historically.
4. Jefferson County, in common with other shoreline counties, belongs to a marine
community larger than itself. Our county policies affect the shorelines and waters and
marine life of other counties, and their policies affect ours. Moreover, all of Puget Sound
and all of Hood Canal are Shorelines of Statewide Significance. Jefferson County has
an obligation to its own citizens as well as the broader community to allow the public a
voice regarding the private use of public waters.
With these principles in mind, I will address the new concepts presented on June 16.
20
Showalter-JCPC ltr June 29, 2021
3
Geoduck Cultivation on New Tidelands Should Require a Type III CUP process. The staff position offered June 16, 2021, is a welcome movement toward recognizing that
geoduck cultivation is not the same as traditional shellfish cultivation, but it does not guarantee a
public hearing before a CUP can be issued. Instead, it allows the administrator to elect whether to have a Type II or Type III process. Only in a Type III process is there a public hearing before a neutral officer before the CUP decision. The problem with a Type II process is that without a public hearing—and the notice it requires—members of the public may never learn about the
geoduck proposal, and may never bring to the county’s attention important information and
opinions. Jefferson County, like its neighbors Callam and Kitsap counties, should require a Type III process for any CUP application for cultivation of geoducks on new tidelands. Conversion of Non-geoduck Tidelands to Geoduck Cultivation Should Also Be Type III.
There is no compelling reason existing shellfish beds should be treated differently from new
tidelands when considering a proposal for geoduck cultivation. In both cases, geoducks have not previously been cultivated there, and neither the public nor the county has reviewed the effects, including cumulative effects, this new use would have. Geoduck cultivation uses different cultivation methods (tubes and hydraulic harvesting), with different effects, from cultivation of
oysters and small clams. As in Clallam and Kitsap counties, all forms of geoduck cultivation
should require a public hearing before a decision is made, i.e., a Type III process. Option 1 is wholly deficient because it requires no permit or review at all. Option 1, presented by staff, requires no permit or hearing or any county review at all. This is
clearly insufficient to protect the public interest, especially when the likely farms applying for it
have never had any previous county review or public hearing. All kinds of important information will not be brought to the county’s attention—by the applicant, the public, or anyone else.
Option 2 is deficient because it precludes a public hearing before a decision is made.
Option 2, presented by staff, requires an Administrative CUP, which adds criteria for county review, but precludes the possibility of a public hearing to give input before a decision is made on the CUP. Notice requirements are limited to the very-near neighbors, even though the effects of a commercial geoduck operation are felt much more broadly. [I live a mile away from a
geoduck farm, and I have heard, from inside my house, during day-long harvesting, words
spoken over a speaker system as well as the engine of the harvesting boat. As everyone knows, water carries sound long distances. What no-one knows is how these sounds disturb endangered species, such as Marbled Murrelets that feed in our bay, or disturb Orcas, who have been seen twice in Hood Canal in just the last two weeks.] New uses of the tidelands, such as conversion to
geoduck cultivation, should allow an opportunity for a public hearing before a decision is made.
This is especially true for Shorelines of Statewide Significance. Option 3 appropriately affords a public hearing before a CUP decision is made. Option 3, presented here, requires a Type III process, including a public hearing, before non-
geoduck shellfish tidelands can be converted to cultivation of geoducks. This is especially
important, since all or nearly all current shellfish farms have never been reviewed for a permit by the public or the county, having been grandfathered in 2014. Before a new and different use is permitted, the public should be allowed to voice its concerns at a public hearing.
21
Showalter-JCPC ltr June 29, 2021
4
Clallam and Kitsap Counties Require a Type III Process for All Geoduck CUPs
Notably, both our neighbors Clallam County and Kitsap County require a Type III CUP for all
commercial geoduck cultivation, whether on new tidelands or converted tidelands. We should join them, especially as we are common stewards of Shorelines of Statewide Significance. Clallam County SMP:
Table 2-2
Use-
Development
Aquatic-
Straits
Aquatic
Pacific
Ocean
Marine
Waterfront
Shoreline
Residential
Intensive
Shoreline
Residential
Conservancy
Resource
conservancy
Natural
Geoduck C C C C C C C
3.2.3 Regulations – Commercial Geoduck Aquaculture
1. Commercial geoduck aquaculture may be permitted in all shoreline environment designations
through a conditional use permit as indicated by Table 2-2 when it complies with this Program.
Conversion of existing non geoduck aquaculture to geoduck aquaculture shall require a conditional
use permit.
10.2.2.3 Applications for shoreline conditional use permits shall be processed as Type III decisions
pursuant to Clallam County Code Chapter 26.10. Kitsap County SMP
Legend:
P = Permitted with substantial development permit (SDP) or exempt if exemption criteria in
Section 22.500.100(C) are met
C = Conditional use permit (CUP)
C(A) = Administrative CUP X = Prohibited
Use-
Development
Natural Rural
Conservancy
Urban
Conservancy
Shoreline
Residential
High
Intensity
Aquatic
Commercial
Geoduck
C C C C C 2
2. Adjoining upland designation applies; see applicable regulations.
22.600.115 (3)
Geoduck Aquaculture in All Designations.
a. A CUP shall be required for all new commercial geoduck aquaculture and existing
aquaculture being converted to commercial geoduck aquaculture.
22.500.100 (D) (2)
2. CUPs shall be classified as a Type III permit under Chapter 21.04. Where administrative CUPs
are allowed, they shall be classified as a Type II permit under Chapter 21.04.
22
Showalter-JCPC ltr June 29, 2021
5
Employing Option 3, the SMP would be amended as follows. (Black underline reflects changes proposed by staff; red underline reflects my additions/changes.)
JCC 18.25.440 (4) Regulations – General.
(b)Ongoing maintenance, harvest, replanting, restocking of or changing the species cultivated in any
existing or permitted aquaculture operation is not considered new use/development, and shall not
require a new permit, unless or until:
(i)For non-geoduck aquaculture, Tthe physical extent of the facility or farm is expanded by more than 25
percent. If the amount of expansion exceeds 25 percent in any 10-year period, the entire operation shall
be considered new aquaculture and shall be subject to applicable permit requirements of this section.
This calculation of 25% expansion applies to both in-water and above OHWM development but in-water
expansion is limited to 25% of in-water original area.1 Any expansions of existing geoduck aquaculture
operations require a permit for the expanded area if the existing operation is already permitted or for
the entire operation if not already permitted; or
(ii)or mMore than 25 percent of the facility/farm changes operational/cultivation methods compared to
the conditions that existed as of the effective date of this program or any amendment thereto. If the
amount of expansion or change in cultivation method exceeds 25 percent in any 10-year period, the
entire operation shall be considered new aquaculture and shall be subject to applicable permit
requirements of this section. This calculation of 25% expansion applies to both in-water and above
OHWM development; or
. . .
JCC 18.25.440 (6) Regulations – Geoduck.
(a)Conditional use permits.
(i)Type III CUPs are required for new commercial geoduck aquaculture, including . Where the applicant
proposes to conversion of existing non-geoduck aquaculture to commercial geoduck aquaculture and
expansions of existing commercial geoduck aquaculture, a conditional use permit is only required if the
conversion includes an increase of more than 25% of either the in-water or above-OHWM operations
area or facilities. If the expansion exceeds 25%, the entire operation shall be considered new
aquaculture and shall be subject to applicable permit requirements of this section.
Table 18.25.220
C=Type III Conditional Use Permit
Priority
Aquatic
Aquatic Natural Conservancy Shoreline
Residential
High
Intensity
Aquaculture
Geoduck (new or expansion or conversion from
non-geoduck to geoduck) C C C C C C
1 The red underlined text is important as a qualifier on the black underlined text. Without it, a parcel with 20 acres
of uplands could expand its tidelands by 5 acres, even if its current cultivation acreage were one acre. The amount of permissible expansion of tidelands (before triggering a CUP) should be based on the area of currently cultivated tidelands, not the whole parcel including uplands.
23
Showalter-JCPC ltr June 29, 2021
6
Alternatively, if the County wants to maintain its SMP-wide scheme of Discretionary CUPs for
all CUPs other than Administrative CUPs, it could keep the C(d)* designation in the table, but make clear in the text of the geoduck regulations (as is done in the red underlined text above) that geoduck CUPs require a Type III process. At a bare minimum, the County could keep the C(d)* designation, but require a Type III process upon request by any party of record prior to the
close of the public comment period. And/or, the SMP could require a Type III process for any
CUP in Shorelines of Statewide Significance. While these alternatives are not as straightforward as Option 3, and are not as consistent with Clallam and Kitsap counties, they do offer a public hearing before the CUP decision if a party of record requests it and/or the site is in a Shoreline of Statewide Significance—situations in which there is likely to be broad or intense interest.
The bottom line: this is not a request to bar cultivation of geoducks. It is a request to allow the public an appropriate voice at an appropriate time in the process, before a decision on a CUP is made. It is also consistent with and respects our neighboring counties in our joint stewardship of public waters.
Thank you for considering these comments. Sincerely,
Marilyn Showalter
Marilyn Showalter
24
M A R I L Y N S H O W A L T E R
1596 SHINE ROAD
PORT LUDLOW, WA 98365 marilyn.showalter@gmail.com 360-259-1700 (cell)
June 11, 2021
Jefferson County Planning Commission Washington State Department of Ecology
djohnson@co.jefferson.wa.us Dear Members of the Planning Commission and state Department of Ecology,
Re: Urging Revisions to May 14, 2021 SMP Draft re “New Geoduck” Provisions in JCC 18.25.440(4) and (6) I have owned property on Hood Canal (Shine Road, Squamish Harbor) for 45 years. As outlined
below, I offer these comments on the May 14, 2021 draft (“Draft SMP”) that is before the
Jefferson County Planning Commission in its review of the Jefferson Shoreline Master Program. In summary, the SMP should for public review and a conditional use permit for geoduck cultivation on tidelands not previously used for that purpose.
A) Text of my proposed amendments to the Draft SMP. B) The current Draft SMP allows inconsistent and arbitrary application of the permit process for geoduck operations.
C) The current Draft SMP precludes public review and County evaluation of geoduck cultivation on tidelands that have never been used for geoduck cultivation. D) Under the current Draft SMP, the tideland acreage that could be converted or added for
geoduck cultivation without a permit process is substantial and significant.
E) Under the current Draft SMP, it is impossible to evaluate the cumulative impact of a proposed shellfish farm (which evaluation is required under county, state, and federal law) because one can’t know how much acreage might, in the short or long term, be
dedicated to geoduck operations, either on that farm or on others. F) The language of the current Draft SMP is confusing and linguistically dishonest. G) The language in the current Draft SMP is not required by The Washington
Administrative Code (WAC), and a portion of it in fact violates the WAC. H) This letter proposes amendments consistent with the WAC and with neighboring jurisdictions whose SMPs have already been approved by the Department of Ecology.
25
Showalter-JCPC SMP ltr June 11, 2021
2
A) Text of proposed amendments to the Draft SMP
The Draft SMP makes some welcome distinctions between geoduck cultivation and the cultivation of other shellfish species. There is one subject, however, “new geoduck” operations, that needs further revision so as to be internally consistent, to allow for required evaluation of local and cumulative effects, to be linguistically clear and honest, to be consistent with
neighboring jurisdictions, and to comply with the WAC. I urge the Planning Commission to amend its May 14 Draft SMP in JCC 18.25.440(4)(b) and (6), regarding when a new permit application is required, as follows. (My proposed language shown in black bold underline italics; my proposed deletions shown in red or black strike-
through; red text shows amendatory language already in the Draft SMP):
JCC 18.25.440(4)(b) [Draft SMP p130, pdf p131]
(b) Ongoing maintenance, harvest, replanting, restocking of or changing the species cultivated in
any existing or permitted aquaculture operation is not considered new use/development, and
shall not require a new permit, unless or until: (i) The physical extent of the facility or farm is
expanded by more than 25 percent or more than 25 percent of the facility/farm changes
operational/cultivation methods compared to the conditions that existed as of the effective
date of this program or any amendment thereto. If the amount of expansion or change in
cultivation method exceeds 25 percent in any 10-year period, the entire operation shall be
considered new aquaculture and shall be subject to applicable permit requirements of this
section; or. This calculation of 25% expansion applies to both in-water and above OHWM
development but in-water expansion cannot exceed 25% of in-water development;
or (ii) The activity qualifies as new geoduck cultivation under subsection (6) (“Regulations –
Geoducks”) of this section;
or (iii) The facility proposes to cultivate species not previously cultivated in the state of
Washington.
JCC 18.25.440 (6) [Draft SMP p138, pdf p139]
6) Regulations – Geoduck.
(a) Conditional use permits.
(i) CUPs are required for new commercial geoduck aquaculture, including for tidelands not
previously used for aquaculture, tidelands previously used for nongeoduck aquaculture, or
tidelands that expand an area of existing aquaculture. Where the applicant proposes to
convert existing nongeoduck aquaculture to commercial geoduck aquaculture, a conditional
use permit is only required if the conversion includes an increase of more than 25% of either
the in-water or above-OHWM operations area or facilities. If the expansion exceeds 25%, the
entire operation shall be considered new aquaculture and shall be subject to applicable
permit requirements of this section.
(ii) All subsequent cycles of planting and harvest shall not require a new conditional use permit
unless a specific project or practice would substantially interfere with normal public use of the
surface waters, including public access or passage, and was not considered during review orand
approved approval of the original under a previous and most-recent conditional use permit.
26
Showalter-JCPC SMP ltr June 11, 2021
3
If the changes recommended in this letter are accepted by the Planning Commission, the draft put
forward to the County Commissioners would read as follows. (Amendments to current code shown in red underline for new text, red strike-through for deleted text.) JCC 18.25.440(4)(b)
(b) Ongoing maintenance, harvest, replanting, restocking of or changing the species cultivated in
any existing or permitted aquaculture operation is not considered new use/development, and
shall not require a new permit, unless or until: (i) The physical extent of the facility or farm is
expanded by more than 25 percent or more than 25 percent of the facility/farm changes
operational/cultivation methods compared to the conditions that existed as of the effective
date of this program or any amendment thereto. If the amount of expansion or change in
cultivation method exceeds 25 percent in any 10-year period, the entire operation shall be
considered new aquaculture and shall be subject to applicable permit requirements of this
section; or. This calculation of 25% expansion applies to both in-water and above OHWM
development, but in-water expansion cannot exceed 25% of in-water development;
or (ii) The activity qualifies as new geoduck cultivation under subsection (6) (“Regulations –
Geoducks”) of this section;
or (iii) The facility proposes to cultivate species not previously cultivated in the state of
Washington.
JCC 18.25.440 (6)
6) Regulations – Geoduck.
(a) Conditional use permits.
(i) CUPs are required for new commercial geoduck aquaculture, including for tidelands not
previously used for aquaculture, tidelands previously used for nongeoduck aquaculture,
or tidelands that expand an area of existing aquaculture.
(ii) All subsequent cycles of planting and harvest shall not require a new conditional use
permit unless a specific project or practice would substantially interfere with normal
public use of the surface waters, including public access or passage, and was not
considered during review and approved under a previous and most-recent conditional
use permit.
The new language proposed here would require an opportunity for public review and require a CUP, before additional acreage could be devoted to geoduck cultivation, whether the additional acreage is brand new, converted from oyster or clam acreage, or added to an existing geoduck operation. Arguments in support of the proposed language follow.
27
Showalter-JCPC SMP ltr June 11, 2021
4
B) The current Draft SMP allows inconsistent and arbitrary application of the permit process for geoduck operations.
Consider whether a Conditional Use Permit (CUP) (or any permit) is needed under the current Draft SMP in the following situations, where a shellfish farmer plans to cultivate geoducks on
five acres of tidelands not previously used for that purpose:
Under May 14, 2021 Draft SMP:
Five stand-alone acres planned for geoducks that have not
been used for shellfish before or after adoption of the 2014
SMP, and are not part of another shellfish facility
CUP required
Five acres are converted to geoduck from a 50-acre oyster
farm that already has a CUP
No new CUP required
(5 is less than 25% of 50)
Five acres are converted to geoduck from a
“grandfathered” 50-acre oyster farm that has never had a
permit
No permit (at all) required
(5 is less than 25% of 50)
Five acres are converted to geoduck from a 15-acre oyster
farm that already has a CUP
New CUP required
(5 is more than 25% of 15)
Five acres are converted to geoduck from a 15-acre
“grandfathered” oyster farm that has never had a permit
CUP required
(5 is more than 25% of 15)
Five acres are converted to geoduck from a “grand-
fathered” farm of 15 acres of oysters plus 15 acres of clams
No permit (at all) required
(5 is less than 25% of 30)
Five acres are added onto a 2-acre geoduck or oyster
grandfathered farm that has no permit
CUP required
(5 is more than 25% of 2)
Five acres are added onto grandfathered 2 acres of
tidelands attached to 20 acres of uplands
No permit (at all) required if uplands
are included in 25% calculation
(5 is less than 25% of 22)
Five stand-alone acres are “added” onto grandfathered 20
acres of shellfish a half-mile away in the same bay
No permit required if code allows 25%
of a multi-site operation in one bay
(5 is less than 25% of 25)
The distinctions above wrought by the current Draft SMP are irrational and indefensible. The
ecological impact, including cumulative impacts, would be the same in all of these situations, and yet in most of them, there would be no opportunity for public review, and no requirement for a new (or any) permit. This inconsistency is just the type of problem that a limited SMP review is intended to cure. The proposed amendment presented in this letter would cure this consistency
problem by making all of these situations subject to CUP review.
28
Showalter-JCPC SMP ltr June 11, 2021
5
C) The current Draft SMP precludes public review and County evaluation of geoduck cultivation on tidelands that have never been used for geoduck cultivation.
Implicitly, by establishing different provisions for geoducks, the WAC and current Draft SMP recognize that geoduck cultivation entails consequences different from other shellfish operations.
Geoduck cultivation involves planting PVC or HDPE tubes in every square foot of planted
tidelands. It involves small nets, big nets, rubber bands, and rebar—all of which can injure and interfere with marine life and uses. At harvest, it involves liquifying a three-foot layer of substrate that obliterates benthic life and redistributes the sediment. It also releases carbon into the atmosphere or water, increasing acidification.
The public deserves to review—and the county should review for a CUP—the effects, including cumulative effects, of these activities on the environment, marine life, recreational life, navigation, and all of the other factors relevant to a CUP.
And yet, the current Draft SMP precludes review in many situations. The amendments proposed
in this letter cure this problem by requiring review. Note: The amendments don’t bar any activity; they merely allow for review and a permit process. D) Under the current Draft SMP, the tideland acreage that could be converted or added
for geoduck cultivation without a permit process is substantial and significant.
Appendix A to this letter is a table of shellfish farms in Jefferson County. This list may be
incomplete, but it shows that under current County code, more than 164 acres could be converted
or added to geoduck cultivation without public or county review. That is 164 x 40,000 tubes per
acre, or 6.56 million tubes. These tubes are inserted one per square foot. At 9” long, these tubes,
if placed end to end would reach 4.92 million feet, or 932 miles—roughly the distance from Port
Townsend to Las Vegas (as the crow flies).
By any definition, that is substantial and significant, and could occur without a permit. Worse, virtually all of these 164 acres belong to or would be a part of shellfish farms that have never
been reviewed or received a permit at all by the County. These “grandfathered” farms now get
to spawn many “grandchildren,” allowing a substantial impact without any review or permit, old
or new. Such a scheme is irrational. The county requires a permit for geoducks in identical
situations, except for how they are attached to or converted within other plots.
Throughout its SEPA Checklist, the staff asserts that the Draft SMP is not a project, and that
effects on air, water, and marine life can be evaluated when an individual project is proposed.
That assertion, however, is not true for at least 164 acres of potential geoduck cultivation.
Instead, this Draft SMP, if adopted by Jefferson County, by itself could allow 6.56 million tubes
to be planted and 96, 213 cubic yards of benthic life to be obliterated without review or permit.
Unless amended, the Draft SMP itself allows serious and significant environmental effects, and a
Declaration of Nonsignificance would be inappropriate. The amendments proposed in this letter
address that issue.
29
Showalter-JCPC SMP ltr June 11, 2021
6
E) Under the current Draft SMP, it is impossible to evaluate the cumulative impact of a
proposed shellfish farm (which evaluation is required under county, state, and federal law) because one can’t know how much acreage might, in the short or long
term, be dedicated to geoduck operations, either on that farm or on others.
The normal county SMP-CUP process requires review of the cumulative impacts of a proposal, as does state law/WAC, as well as federal law. (Recently, the Federal District Court of Western Washington invalidated all federal shellfish permits in Washington, citing failure to adequately evaluate the cumulative impacts of some 900 or more shellfish farms in Washington. The case
was upheld on appeal by the U.S. Court of Appeals for the 9th Circuit.)
There is no way to evaluate the cumulative impact of a proposed shellfish operation if one can’t estimate how many acres that operation or any nearby operation might employ for geoducks in the near future. The Draft SMP is thus at war with itself: it requires evaluation of cumulative
effects but precludes the ability to make an informed evaluation. As such, it may be legally
vulnerable for reasons similar to the Federal case. The proposed amendments in this letter cure this problem by requiring a CUP for any plan to cultivate geoducks in acreage previously not used to cultivate geoducks. That way, all geoduck
acreage is accounted-for, and cannot be increased except by a new permit, with a new evaluation
of cumulative effects. F) The language of the current Draft SMP is confusing and linguistically dishonest.
The current Draft SMP twists the English language (and good statutory drafting) by saying
“new” is “not new.” It says “CUPs are required for new commercial geoduck aquaculture” but that aquaculture is “not considered new” if it converts or expands an existing farm by up to 25% of its current acreage. Thus, under the Draft SMP, pristine tidelands never before used for any commercial purposes whatsoever are not “new” if they are attached to a sufficiently larger parcel
that is cultivated. Tidelands are not “new” if they have never before been used for geoducks but
are part of a sufficiently large oyster farm. If the County is going to exempt these clearly new uses for tidelands, it could call them something other than “not new.” But because they are in fact new uses, i.e., for geoduck operations, they should be called “new” and subject to a CUP.
The proposed amendments in this letter cure this problem, by using the term “new” in its
customary sense: tidelands newly used for geoducks need a CUP. Also confusing is JCC 18.25.440 (6)(a)(ii) of the Draft SMP. It should be clarified to ensure that a subsequent substantial interference that has not been reviewed and approved needs a CUP
(including grandfathered facilities that have no permit).
(ii) All subsequent cycles of planting and harvest shall not require a new conditional use permit
unless a specific project or practice would substantially interfere with normal public use of the
surface waters, including public access or passage, and was not considered during review orand
approved approval of the original under a previous and most-recent conditional use permit.
30
Showalter-JCPC SMP ltr June 11, 2021
7
G) The language in the current Draft SMP is not required by the WAC, and a portion of
it in fact violates the WAC.
The current Draft SMP, on page 138 (or 139 of the pdf) contains a sidenote to the Draft SMP’s
new geoduck CUP requirements, stating in full: “Commented [GU92] AJS: Requirements for CUP for new commercial geoduck aquaculture added per WAC 173-26-241(3)(b)(iv)(A).” The location of this comment implies that the ensuing subsection, which lays out the process for
geoduck CUPs, is required by the WAC. This is not the case, at least for the subject of this
letter. Here is what WAC 173-26-241(3)(b)(iv)(A) says: WAC 173-26-241(3)(b)
iv) Conditional use permits for commercial geoduck aquaculture.
(A) Conditional use permits are required for new commercial geoduck aquaculture only.
Where the applicant proposes to convert existing nongeoduck aquaculture to geoduck
aquaculture, the requirement for a conditional use permit is at the discretion of local
government. (Emphasis added.)
In the first sentence, the WAC requires a CUP for “new” commercial geoduck. The common
understanding of “new” is tidelands that previously have not been used for geoducks. Nowhere in the WAC does it permit—in fact here it prohibits—geoduck farming on previously unfarmed tidelands, without a CUP. The current Draft SMP tortures the English language by declaring such previously unfarmed tidelands “not new” if attached to a shellfish farm at least three times
the area of the acreage newly planned for geoducks. The WAC itself does not use this tortured
language, explicitly or implicitly. It means what it says: new geoduck aquaculture requires a CUP. The current Draft SMP violates this provision of the WAC. In the second sentence, the WAC treats conversions of non-geoduck differently. In that instance
(converting non-geoduck aquaculture to geoduck aquaculture), it is “at the discretion of local
government” whether to require a CUP. Far from prohibiting a CUP (as the staff comment implies), the WAC permits it. Indeed, as the next section shows, neighboring local governments, as approved by the state Department of Ecology, do require CUPs when acreage, whether brand new or converted from non-geoduck, is devoted to geoducks.
The amendments proposed in this letter comply with the WAC and cure a violation of it.
31
Showalter-JCPC SMP ltr June 11, 2021
8
H) This letter proposes amendments that are consistent with the WAC and with neighboring local governments whose SMPs have already been approved by the
Department of Ecology.
Kitsap County, Clallam County, and the City of Bainbridge Island have all adopted language similar to the amendments proposed in this letter. Their language has been approved by the state Department of Ecology.
Kitsap County Code 22.600.115 (3)
Geoduck Aquaculture in All Designations.
a. A CUP shall be required for all new commercial geoduck
aquaculture and existing aquaculture being converted to commercial
geoduck aquaculture.
Bainbridge Island Code
5.2.7 Commercial Geoduck Requirements
2. A conditional use permit is required for all new commercial geoduck
aquaculture and conversions from existing non-geoduck aquaculture to geoduck
aquaculture. CUPs for new commercial geoduck and conversions will be
administered consistent with WAC 173-26-241(3)(b)(ii), (iii), and (iv).
Clallam County Code
3.2.3 Regulations – Commercial Geoduck Aquaculture 1. Commercial geoduck aquaculture may be permitted in all shoreline environment designations through a conditional use permit as indicated by Table 2-2 when it complies with
this Program. Conversion of existing non geoduck aquaculture to geoduck aquaculture shall require a conditional use permit. [Note: Mason County is currently reviewing its SMP and is at a similar stage as Jefferson. Its
existing SMP allows for a 10% expansion or conversion to geoducks. Thurston County’s latest draft SMP (October 21, 2020), Section 19.600.115 A.3(a) provides “A CUP shall be required for all new commercial geoduck aquaculture and an administrative CUP for existing aquaculture being converted to commercial geoduck aquaculture.”]
By adopting the amendments proposed in this letter, Jefferson County would join its neighbors, who share the same water and marine life, in a consistent program that complies with the WAC and would be approved by the state Department of Ecology.
32
Showalter-JCPC SMP ltr June 11, 2021
9
Conclusion
Commercial geoduck cultivation occurs in some of the best ecological tidelands Jefferson
County has to offer. Plastic tubes and nets are inserted every square foot for up to two years.
The tidelands are later liquified by hydraulic hose, in order to extract the geoducks at maturity.
These cultivation methods carry a host of potential consequences, including: noise disturbance
of endangered species and nearby residents; turbidity and redistribution of sediment; release of carbon from the substrate; ocean acidification; microplastics in marine and human food chains;
plastic debris on beaches and in the water; trapping and choking of marine life; interference with
the use and enjoyment of public waters and parks, and more.
All sites that plan to add, introduce, or convert to geoducks should be evaluated for the effects,
including cumulative effects, of their plans. It is impossible to evaluate these effects, including cumulative effects, if the amount of existing acreage (or acreage soon to be converted or added)
is unknown, as it would be without the amendments proposed in this letter.
The amendments proposed in this letter require a conditional use permit for tidelands newly
planned for geoduck cultivation, and are similar to language already adopted by other local
governments and already approved by the state Department Ecology.
Thank you for considering these comments.
Sincerely,
Marilyn Showalter
Marilyn Showalter
Appendix A (included in pagination): Table of Jefferson County shellfish farms
33
Showalter-JCPC SMP ltr June 11, 2021
10
APPENDIX A: SHELLFISH FARMS IN JEFFERSON COUNTY, WA
(This list may be incomplete; information is taken from Washington State Department of
Ecology applications and decisions for Water Quality and Coastal Zone Management
certification, Aquatics Public Decisions (wa.gov), Aquatics Public Notices (wa.gov))
Name and Site of Shellfish Farm
Existing
County
shellfish
cultivation
permit?
Current
farmed
acreage
25% of
current acreage
(I.e., can
be added
or
converted
to
geoducks
without a
permit)
Aquatics Id #: 138725 Project Name: Rock Point Oyster
Tarboo Bay Farm Applicant: Rock Point Oyster Company Inc.
Project Location: 1733 Dabob Post Office Road at Quilcene,
Jefferson County. Project Description: Cultivate and harvest
Pacific oysters, Kumamoto oysters, and Manila clams. NO 174 43.25
Aquatics Id #: 139198 Project Name: Rock Point Oyster -
Case Shoal Applicant: Rock Point Oyster Company Inc.
Project Location: 1823 South Point Road at Port Ludlow,
Jefferson County. Project Description: Plant and harvest by
hand Pacific oysters on ground and off-bottom (flip bags and
rack & bag). Plant and harvest by hand Manila clams. Plant
and harvest Geoduck clams. NO 44 11
Aquatics Id #: 138689 Project Name: Orndorff Lease
Applicant: Taylor Shellfish Farms Discovery Bay at Port
Townsend, Jefferson County. Project Description: Ongoing
commercial intertidal culture of geoduck and oysters for
human consumption. Parcel acreage: 64 acres. Oyster culture
at tidal elevation +5' to -4.5': Approximately 20 acres.
Geoduck culture at tidal elevation +3' to -4'; Approximately 5
acres. NO 25 6.25
Aquatics Id #: 139572 Project Name: Skokomish Dabob Lease
- Aquaculture Applicant: Skokomish Tribe Project Location:
City of Quilcene, Jefferson County. Project Description:
Skokomish Tribe wishes to lease 50.3 acres property to
protect and enhance cultural and subsistence resources as
well as pursue commercial shellfish aquaculture for the
benefit of Skokomish tribal members. Pending?
(Proposed?)
50 12.5
34
Showalter-JCPC SMP ltr June 11, 2021
11
Aquatics Id #: 138688 Project Name: Gunstone Taylor
Shellfish Discovery Bay at Port Townsend, Jefferson County.
Project Description: Ongoing commercial intertidal culture of
geoduck, clam and oysters for human consumption Parcel
acreage: 81 Acres. Project Area: Approximately 50 Acres. NO 50 12.5
ORDER No. 19784 Corps Reference No. 200701413
Dosewallips Farm located on tidelands within Dabob Bay,
near Brinnon, Jefferson County, Washington Taylor Shellfish
Farms Attn: Erin Ewald 130 SE Lynch Road Shelton, WA
98584 On June 18, 2020, Taylor Shellfish This project
proposes to commercially cultivate up to 90 acres of
geoducks, clams and oysters between +3.0 foot (ft.) and -4.0
ft. Mean Lower Low Water (MLLW) tidal elevations on
privately owned tidelands identified by Washington State
Department of Natural Resources as aquatic parcels
1974069, 1974933, 1973957, and 1974965. NO 90 22.5
ORDER No. 19743 Corps Reference No. 200901397 Taylor
Shellfish Dosewallips Brinnon Dabob Bay, Jefferson County,
Washington Taylor Shellfish Farms Attn: Erin Ewald 130 SE
Lynch Road Shelton, WA 98584 This project proposes to
commercially cultivate up to 42 acres of clams and oysters
between +3.0 foot (ft.) and -3.0 Mean Lower Low Water
(MLLW) tidal elevations on parcel number 60235010. Access
to tidelands is by boat or uplands adjacent to operation site
off of Highway 101 in Brinnon. NO 42 10.5
Coastal Zone Consistency for Corps Reference No.
200701156, Taylor Shellfish Holway Lease, Jefferson County
Washington This determination is for the proposed project to
commercially cultivate up to 128 acres of geoducks, clams
and oysters between +3.0 foot (ft.) and -4.0 ft. Mean Lower
Low Water (MLLW) tidal elevations on parcel numbers
502021002, 602353038, and 602352019. Access to tidelands
is by boat or upland through locked gate off Hwy 101 North
of milepost 306 and crossing over privately owned tidelands. NO 128 32
Coastal Zone Consistency for Corps Reference No.
200701415, Taylor Shellfish Dabob Farm, Jefferson County
Washington This determination is for the proposed project to
commercially cultivate up to 20 acres of geoducks, clams and
oysters between +3.0 foot (ft.) and -4.0 ft. Mean Lower Low
Water (MLLW) tidal elevations on parcel number 701201004. NO 20 5
35
Showalter-JCPC SMP ltr June 11, 2021
12
Coastal Zone Consistency for Corps Reference No.
200701153, Baywater Shellfish Farm, Jefferson County,
Washington. This determination is to continue existing
commercial aquaculture operations by cultivating 5.67 acres
of Pacific oysters (Crassostrea gigas), Olympia Oysters
(Ostrea lurida) and Kumamoto oysters (C. sikamea) between
+3.5 feet and -2.0 feet mean low lower water (MLLW) tidal
elevations; 13.71 acres Geoduck clams (Panopea abrupta)
between +1.5 feet and -2.0 feet MLLW tidal elevations; and
wild harvest of 10.87 acres Manila clam (Venerupis
philippinarum), Varnish clams (Nuttallia obscurata), and
Pacific oysters (naturalized) between +6.5 feet and +3.0 30 7.5
Aquatics Id #: 139208 Project Name: Deep Blue Sea LLC
Applicant: Deep Blue Seafood Project Location: 22 Groves
Way at Port Ludlow, Jefferson County. Project Description:
Planting geoduck seed in extruded tubes. NO 4 1
Aquatics Id #: 135454 Project Name: BDN Geoduck Farm -
Mocean WA Shellfish and BDN Parcels Applicant: BDN LLC
Project Location: Near Port Ludlow in Jefferson County.
Project Description: Cultivation of Pacific geoduck at: Site 1
(the former Washington Shellfish Site) - .65 acres, Site 2 (BDN
Site) - .28 acres, and Site 3 (the former Mocean Site) - 2.65
acres, all generally between approx. +2 ft. MLLW and a 5-
meter (16.4 ft.) buffer of the established native eelgrass
(Zostera marina) bed edge, located between approx. -1MLLW
and -2 MLLW NO 3.58 .89
Additional geoduck acreage not subject to County CUP of
farms listed (note: list may not be complete) 164.89
36
M A R I L Y N S H O W A L T E R
1596 SHINE ROAD
PORT LUDLOW, WA 98365 marilyn.showalter@gmail.com 360-259-1700 (cell)
May 3, 2021 David Wayne Johnson - LEED AP - Neighborhood Development
Associate Planner - Port Ludlow Lead Planner
Department of Community Development (DCD), Jefferson County
djohnson@co.jefferson.wa.us Dear Planner Johnson, Re: Request to Modify JCC 18.25.440(4) I will make a similar comment later, in the public comment period, but since that may be some weeks or months away, I am submitting it to you now, for your consideration.
The current SMP draft makes some welcome distinctions between geoduck cultivation and the cultivation of other shellfish species. There is one more place, however, where it is important to make a similar distinction. In JCC 18.25.440(4)(b), p.107 of the Draft, regarding when a new permit application is required, I recommend the following language (shown in black bold underline):
(b) Ongoing maintenance, harvest, replanting, restocking of or changing the species cultivated in any existing or permitted aquaculture operation is not considered new use/development, and shall not require a new permit, unless or until: (i) The physical extent of the facility or farm is expanded by more than 25 percent or more than 25
percent of the facility/farm changes operational/cultivation methods compared to the conditions that existed as of the effective date of this program or any amendment thereto. If the amount of expansion or change in cultivation method exceeds 25 percent in any 10-year period, the entire operation shall be considered new aquaculture and shall be subject to applicable permit requirements of this section; or. This calculation of 25% expansion
applies to both in-water and above OHWM development; or (ii) The facility proposes to expand or change an area to the cultivation of geoducks; or (iii) The facility proposes to cultivate species not previously cultivated in the state of Washington. The proposed bolded underlined language would require an opportunity for public and County
permit review, before additional acreage could be devoted to geoduck cultivation.
37
Showalter-Johnson ltr May 3, 2021
2
Under the current County code, there are several situations that unreasonably escape adequate
review:
1) Today, a large oyster and Manilla clam farm, e.g., of 160 acres, can convert up to 40
acres to geoduck cultivation without any county review. If the farm was “grandfathered”
in 2014 (because it was already under cultivation), there will be NO review, ever. But
even if a farm did receive an initial permit, that review and permit was for oysters and
small clams, not for geoducks, which use unique methods of cultivation, notably plastic
tubes implanted in the substrate (plus netting) and hydraulic liquification of the substrate during harvest. The County would never review the effects of geoduck cultivation.
2) Today, without review, a geoduck farm (or partially geoduck farm) can expand its geoduck operations by 25% of its total area. A large farm, e.g., of 60 acres, can expand
by 15 acres without review, whereas a smaller farm, e.g., of 10 acres, can expand by 2.5
acres without review. Even more illogically, the 15-acre expansion requires no review, whereas a proposed new 5-acre farm does require review.
3) Today, regarding a brand new site that proposes to cultivate geoducks, there is no
adequate way to evaluate the cumulative effect of the proposal—because any other site
anywhere in the County can increase its geoduck acreage by 25% without informing the
County.
4) Today, a brand new site that proposes to cultivate oysters could, if granted a permit,
quickly convert 25% of its acreage to geoducks without County or public review.
Jefferson County has several farms that fit the profiles just noted. For example:
• Rock Point Oyster – Dabob Bay raises oysters and Manila clams on 173.62 acres. It has no County permit. Under current County code, it could devote 43.4 acres to geoducks
with no county review and no county permit.
• Rock Point Oyster – Case Shoal, Squamish Harbor raises mostly oysters and Manila clams on 44.35 acres, but eight of those acres are devoted to geoducks. The farm has no
County permit. Under current County code, it could devote 11 more acres to geoducks,
for a total of 18 geoduck acres, without no County review and no County permit.
Appendix A to this letter is a Table of known shellfish farms in Jefferson County. This list may
be incomplete, but it shows that under current County code, 164 acres could be converted or
added to geoduck cultivation without public or county review. That is 164 x 40,000 tubes per
acre, or 6.56 Million tubes. These tubes are inserted one per square foot. At 9” long, these
tubes, if placed end to end would reach 4.92 million feet, or 932 miles—roughly the distance
from Port Townsend to Las Vegas (as the crow flies).
38
Showalter-Johnson ltr May 3, 2021
3
These tubes are inserted into some of the best ecological tidelands Jefferson County has to offer. These same tidelands are then liquified by hydraulic hose, in order to extract the geoducks at
maturity.
These cultivation methods should be evaluated before being employed on new acreage, for a host
of potential consequences, including: noise disturbance of endangered species; turbidity; release
of carbon from the substrate; microplastics in marine and human food chains; macro plastic trapping or choking marine life; interference with the use and enjoyment of public waters and
parks, and many more. (Regarding carbon release, see my letter to the Army Corps and state
Department of Ecology, dated March
The right policy is: any new or converted or additional acreage devoted to geoduck cultivation
should be subject to public and County permit review. Sites that have never been used for
geoduck cultivation should be analyzed for the new equipment and methods to be employed.
Sites that have had some geoduck cultivation should be analyzed for the impact of the additional
acreage.
All sites, including brand new sites, that plan to add, introduce, or convert to geoducks should be
evaluated for the cumulative effects of their plans. It is impossible to evaluate cumulative effects
if the amount of existing acreage (or acreage soon to be converted or added) is unknown, as it would be under the current code.
Of course, it may be that some of the “available” 25% acreage is not suitable for geoducks or will never be used for that purpose. In that case, the grower won’t be affected by the change in
code proposed here.
Conclusion
If Jefferson County does not amend the code in the manner suggested, it will have no way of
knowing how many acres are devoted to geoduck farming. It will have no way to know the
cumulative effect of the total acres of geoduck farming. These effects are serious enough that
the County and the public should be able to evaluate them, so that the County can decide whether
to grant a permit for the expansion.
Thank you for considering these comments.
Sincerely,
Marilyn Showalter
Marilyn Showalter
Appendix A included in pagination: Table of known Jefferson County shellfish farms
Attachment: Letter 3-22-2021 from M. Showalter to US Army Corps and WA Dept of Ecology
39
Showalter-Johnson ltr May 3, 2021
4
APPENDIX A: KNOWN SHELLFISH FARMS IN JEFFERSON COUNTY, WASHINGTON
(Incomplete list; information taken from Washington State Department of Ecology applications
and decisions for Water Quality and Coastal Zone Management certification, Aquatics Public
Decisions (wa.gov), Aquatics Public Notices (wa.gov)
Name and Site of Shellfish Farm
County
permit?
Current
farmed
or
proposed
acreage
25% of
current acreage
(I.e., can
be added
or
converted
to
geoducks
without
review)
Aquatics Id #: 138725 Project Name: Rock Point Oyster Tarboo
Bay Farm Applicant: Rock Point Oyster Company Inc. Project
Location: 1733 Dabob Post Office Road at Quilcene, Jefferson
County. Project Description: Cultivate and harvest Pacific oysters,
Kumamoto oysters, and Manila clams. All oyster cultivation and
harvest is done by hand. Clam cultivation is naturally occurring
and harvest is done by hand or with a mechanical harvest
machine. NO 174 43.25
Aquatics Id #: 139198 Project Name: Rock Point Oyster - Case
Shoal Applicant: Rock Point Oyster Company Inc. Project
Location: 1823 South Point Road at Port Ludlow, Jefferson
County. Project Description: Plant and harvest by hand Pacific
oysters on ground and off-bottom (flip bags and rack & bag).
Plant and harvest by hand Manila clams. Plant and harvest
Geoduck clams. NO 44 11
Aquatics Id #: 138689 Project Name: Orndorff Lease Applicant:
Taylor Shellfish Farms Discovery Bay at Port Townsend,
Jefferson County. Project Description: Ongoing commercial
intertidal culture of geoduck and oysters for human
consumption. Shellfish are cultured at this site using a variety of
methods consistent with descriptions in the Corps' 2015 PBA for
shellfish farming activities in WA State. The project is designed
and managed to avoid significant negative impacts. Parcel
acreage: 64 acres. Oyster culture at tidal elevation +5' to -4.5':
Approximately 20 acres. Geoduck culture at tidal elevation +3' to
-4'; Approximately 5 acres.NO 25 6.25
40
Showalter-Johnson ltr May 3, 2021
5
Aquatics Id #: 139572 Project Name: Skokomish Dabob Lease -
Aquaculture Applicant: Skokomish Tribe Project Location: City of
Quilcene, Jefferson County. Project Description: Skokomish Tribe
wishes to lease 50.3 acres property to protect and enhance
cultural and subsistence resources as well as pursue commercial
shellfish aquaculture for the benefit of Skokomish tribal
members. Pending? 50 12.5
Aquatics Id #: 138688 Project Name: Gunstone Taylor Shellfish
Discovery Bay at Port Townsend, Jefferson County. Project
Description: Ongoing commercial intertidal culture of geoduck,
clam and oysters for human consumption. Shellfish are cultured
at this site using a variety of methods consistent with
descriptions in the Corps' 2015 PBA for shellfish farming activities
in WA State. The project is designed and managed to avoid
significant negative impacts. Parcel acreage: 81 Acres. Project
Area: Approximately 50 Acres. N0 50 12.5
ORDER No. 19784 Corps Reference No. 200701413 Dosewallips
Farm located on tidelands within Dabob Bay, near Brinnon,
Jefferson County, Washington Taylor Shellfish Farms Attn: Erin
Ewald 130 SE Lynch Road Shelton, WA 98584 On June 18, 2020,
Taylor Shellfish Farms submitted a request for a Section 401
Water Quality Certification (WQC) under the federal Clean Water
Act for the Dosewallips Farm, Jefferson County, Washington. The
Department of Ecology (Ecology) issued a public notice for the
project on October 14, 2020. This project proposes to
commercially cultivate up to 90 acres of geoducks, clams and
oysters between +3.0 foot (ft.) and -4.0 ft. Mean Lower Low
Water (MLLW) tidal elevations on privately owned tidelands
identified by Washington State Department of Natural Resources
as aquatic parcels 1974069, 1974933, 1973957, and 1974965. NO 90 22.5
ORDER No. 19743 Corps Reference No. 200901397 Taylor
Shellfish Dosewallips Brinnon Dabob Bay, Jefferson County,
Washington Taylor Shellfish Farms Attn: Erin Ewald 130 SE Lynch
Road Shelton, WA 98584 On June 18, 2020, Taylor Shellfish
Farms submitted a request for a Section 401 Water Quality
Certification (WQC) under the federal Clean Water Act for the
Taylor Shellfish Dosewallips State Lease - Brinnon, Jefferson
County, Washington. The Department of Ecology (Ecology) issued
a public notice for the project on October 14, 2020. This project
proposes to commercially cultivate up to 42 acres of clams and
oysters between +3.0 foot (ft.) and -3.0 Mean Lower Low Water
(MLLW) tidal elevations on parcel number 60235010. Access to
tidelands is by boat or uplands adjacent to operation site off of
Highway 101 in Brinnon. NO 42 10.5
41
Showalter-Johnson ltr May 3, 2021
6
Coastal Zone Consistency for Corps Reference No. 200701156,
Taylor Shellfish Holway Lease, Jefferson County Washington This
determination is for the proposed project to commercially
cultivate up to 128 acres of geoducks, clams and oysters between
+3.0 foot (ft.) and -4.0 ft. Mean Lower Low Water (MLLW) tidal
elevations on parcel numbers 502021002, 602353038, and
602352019. Access to tidelands is by boat or upland through
locked gate off Hwy 101 North of milepost 306 and crossing over
privately owned tidelands.NO 128 32
Coastal Zone Consistency for Corps Reference No. 200701415, Taylor Shellfish Dabob Farm, Jefferson County Washington This
determination is for the proposed project to commercially
cultivate up to 20 acres of geoducks, clams and oysters between
+3.0 foot (ft.) and -4.0 ft. Mean Lower Low Water (MLLW) tidal
elevations on parcel number 701201004. Access to tidelands is
via upland off Taylor owned property located at 701 Broadspit
Road, Quilcene, Washington.NO 20 5
Coastal Zone Consistency for Corps Reference No. 200701153,
Baywater Shellfish Farm, Jefferson County, Washington. This
determination is to continue existing commercial aquaculture
operations by cultivating 5.67 acres of Pacific oysters
(Crassostrea gigas), Olympia Oysters (Ostrea lurida) and
Kumamoto oysters (C. sikamea) between +3.5 feet and -2.0 feet
mean low lower water (MLLW) tidal elevations; 13.71 acres
Geoduck clams (Panopea abrupta) between +1.5 feet and -2.0
feet MLLW tidal elevations; and wild harvest of 10.87 acres
Manila clam (Venerupis philippinarum), Varnish clams (Nuttallia
obscurata), and Pacific oysters (naturalized) between +6.5 feet
and +3.0 30 7.5
Aquatics Id #: 139208 Project Name: Deep Blue Sea LLC
Applicant: Deep Blue Seafood Project Location: 22 Groves Way at
Port Ludlow, Jefferson County. Project Description: Planting
geoduck seed in extruded tubes. Tubes are removed with
harvest. Ong NO
BDN LLC Squamish Harbor, 3.58 acres geoducks , NWS 2017-230 NO 3.58 .89
Maximum additional geoduck acreage not subject to County
review of farms listed (list is not complete) 163.89
42
From:Paul Steenberg
To:Josh Peters
Cc:tanevaho@hotmail.com
Subject:Jefferson County Shoreline Master Plan Input
Date:Tuesday, October 3, 2023 11:19:51 PM
Attachments:SMP JeffCoHear Paul 10423.docx
ALERT: BE CAUTIOUS This email originated outside the organization. Do not open
attachments or click on links if you are not expecting them.
Attached is my input for your consideration and use in tomorrow's Shoreline Master Plan
meeting.
Thank you.
/s/Paul E. Steenberg
12
Paul E. Steenberg P. O. Box 1340 Poulsbo, WA 98370 October 4, 2023
Jefferson County Planning Commission
c/o Josh Peters, Director
Jefferson County DCD
jpeters@co.Jefferson.wa.us
Dear Jefferson County Planning Commission,
I have lived next to Squamish Harbor, Hood Canal, in Jefferson County for the last decade. I am providing input on the Jefferson County Shoreline Master Plan (SMP) on two issues: 1) geoduck regulation, and 2) shoreline buffers near roads.
1). Geoduck Regulation
I am urging the Jefferson County Planning Commission to continue including the
wording in its September 20, 2023, draft Shoreline Master Plan (SMP), requiring a standard Conditional Use Permit (CUP) for any new geoduck operations in Jefferson County, including expansions and conversions of other shellfish to geoducks. This wording has been preliminarily approved by the Department of Ecology. The Department of Ecology also approved the inclusion of this wording in both the final Kitsap County and Clallam County SMPs.
The requirement for a CUP allows for evaluation of the potential impacts of
geoduck farms on the area where the farms are being proposed by a neutral
decision-maker. The CUP process allows all interested parties to provide evidence
and take part in a public hearing before a Hearing Examiner.
It is important to review the impact of geoduck farms on the waters of Jefferson County and Hood Canal. Hood Canal, like the rest of Puget Sound, the Strait of Juan de Fuca, and adjacent saltwater areas lying waterward of the extreme low tide
are Shorelines of Statewide Significance. Hood Canal has an additional
designation as a Shoreline of Statewide Significance for those areas between the
ordinary high-water mark and the extreme low tide line and the associated
shorelands.
Geoduck farms are planted with approximately 43,560 PVC tubes (about four inches wide by ten inches long) per acre. Each of these PVC tubes are driven into the tideland, one every square foot. This is about 15 tons of plastic per acre. Small plastic nets are then attached to the top of each PVC tube. At harvest time the tideland substrate and all life growing in it are liquified up to three feet deep with a
high-pressure hydraulic hose that is used to extract each geoduck. These rounds of
planting and harvesting then continue in six- to seven-year cycles nonstop in
perpetuity.
2). Shoreline Buffers Near Roads
I also urge the Jefferson County Planning Commission to better protect the entirety of the county shoreline buffers. Shoreline buffers are very important habitat for numerous species of plants and animals in Washington state, including many that are threatened or endangered. A large percentage of our shoreline buffers have been lost over the years, making the remaining shoreline buffers even more
critical. This is especially evident on the north side of Squamish Harbor. The
existing Jefferson County Shoreline Master Program states at 18.25.270 (4) (c)
(about page 70):
Critical area buffers shall apply to all critical areas located in shoreline jurisdiction. All buffers shall be maintained in a predominantly natural, undisturbed, undeveloped, and vegetated condition. Buffers shall not extend across lawfully established paved roads or hardened surfaces to include areas which are functionally isolated from the shoreline or critical area.
The last sentence, quoted above, beginning with “Buffers” and ending with
“critical area,” should be deleted from the Jefferson SMP. This deletion would
result in the entire shoreline buffer, with or without a roadway, being treated the same.
In cases where roadways are unfortunately located in the critical shoreline buffer areas, those remaining buffers above the roadway become even more important. These narrower buffers are often all that is left of important wildlife corridors and
habitat. These buffers also provide safe resting spots for animals attempting to
cross the roadway to the shoreline.
Many of the vegetated buffer areas along our Jefferson County shorelines have already been lost. We have an opportunity to afford some protection for these smaller vegetated areas that remain within the 150-foot shoreline buffers even if some have been impacted by roadways. Under the present shoreline wording it appears that a property owner can chainsaw or mow to the ground the entire remaining vegetated 150-foot buffer above a roadway, eliminating most or all of
the remaining natural vegetation buffer along a shoreline.
We will be losing additional portions of this important habitat as we see the
impacts of global warming and rise of sea level eating away at the remaining
limited shoreline habitat. These vegetated shoreline areas are also important to help hold together the banks and cliffs above the water’s edge and for maintaining water quality.
A second alternative approach that could be taken to preserve some of the remaining vegetated shoreline buffers above paved roads in Jefferson County is to adopt the same two additional sentences that have been included in the approved
Mason County SMP. The Mason County SMP’s two additional sentences state as
follows (page 45):
Buffer reductions under this provision are allowed only when the functional disconnection has been documented through a report by a qualified professional that demonstrates the area is functionally isolated. The County shall consider the hydrologic, geologic, and/or biological habitat connection potential and the extent and permanence of the physical separation.
The addition of these two sentences should not impact any existing public or
private use. Another benefit of maintaining these smaller buffer sections above
roads is to help maintain or improve water quality in our marine waters, including
Hood Canal.
Sincerely,
Paul E. Steenberg
From:DFW R6CSplanning
To:Josh Peters
Cc:Lentes, Gwendolen A (DFW); Spoon, Amy K (DFW); Bryant, Jessica (DFW); Whittaker, Kara A (DFW); Berejikian,
Marian (DFW); Zitomer, Danielle R (DFW)
Subject:WDFW Comments on Jefferson County SEPA Determination for SMP update - 10/4/23
Date:Wednesday, October 4, 2023 11:54:59 AM
Attachments:WDFW Comment Letter For Jefferson County SMP Update 10.04.2023.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 Josh,
Please see the attached WDFW comments for Jefferson County’s SMP update. Let me know if you
have any questions regarding these comments.
Thank you,
Jessica Bryant (she/her)
Regional Land Use Planner – Region 6
Washington Department of Fish and Wildlife
Jessica.Bryant@dfw.wa.gov
(564) 669-4755
From: Josh Peters <JPeters@co.jefferson.wa.us>
Sent: Wednesday, September 20, 2023 1:56 PM
To: Planning Commission Desk <PlanComm@JeffersonCounty580.onmicrosoft.com>; Planning
<planning@co.jefferson.wa.us>
Subject: Notice of Public Hearing and SEPA Determination for SMP update - 10/4/23
External Email
Greetings:
A public hearing will be held at the October 4, 2023 meeting of the Planning Commission related to
proposed updates to Jefferson County Shoreline Master Program (SMP) to fulfill state periodic
review requirements.
Notice was published on September 20, 2023 in The Leader. The notice included a threshold
determination under the State Environmental Policy Act (SEPA). The public comment period
commences on September 20 and may conclude after the public hearing on October 4 at the
Planning Commission meeting.
More information—including meeting details, a staff report, the proposed SMP amendments, and
other supporting documentation—may be accessed through our SMP Periodic Review project
13
website: https://www.co.jefferson.wa.us/1481/Shoreline-Master-Program-Periodic-Review
Next steps in the county’s adoption process, followed by Department of Ecology review and
approval, are outlined on the project website.
If you have any questions or wish to submit a written public comment (per instructions in the
published notice), please email me at jpeters@co.jefferson.wa.us.
Regards,
Josh D. Peters, AICP (he/him/his)
Director
Jefferson County Department of Community Development (DCD)
360-379-4488
Note: email subject to disclosure per Public Records Act, RCW 42.56
State of Washington DEPARTMENT OF FISH AND WILDLIFE
Coastal Region • Region 6 • 48 Devonshire Road, Montesano, WA 98563-9618 Telephone: (360) 249-4628 • Fax: (360) 249-1229
October 4, 2023
Jefferson County Josh Peters, DCD Director 1820 Jefferson Street
Port Townsend, WA 98368
Subject: WDFW Comment on Jefferson County Draft Shoreline Master Program Update
Dear Josh Peters,
On behalf of the Washington Department of Fish and Wildlife (WDFW), we offer our comments on the proposed “Hearing Draft September 20, 2023” for Jefferson County’s updates to the
Shoreline Master Program (SMP), as part of the current periodic review under the Shoreline
Management Act (SMA). WDFW is dedicated to preserving, protecting, and perpetuating the state’s fish, wildlife, and ecosystems while providing sustainable fish and wildlife recreational and commercial opportunities. In recognition of our responsibilities, we submit the following comments for the SMP update draft; other comments may be offered in the future. We strive to
maintain contact throughout this update process and look forward to continued engagement as
the process moves toward completion.
Overarching Comments:
WDFW acknowledges the thorough and detailed updates added in this periodic update of
Jefferson County’s Shoreline Master Program. Several of WDFW’s previous suggestions have been incorporated into the draft including WAC 220-660-150 and -390 for boat launches, the sequential order of permits for mooring buoys, the language expansion in 18.25.350 (7) (d) (i), and the shoreline armoring application requirements in section 18.25.410 (11) (a).
WDFW has remaining previous concerns that have not been adequately addressed in this update. We wish to emphasize further improvements to the draft shoreline protection update where additional inclusion of the most up to date Best Available Science (BAS) may increase the long-term resilience of the county’s riparian ecosystem and their extensive co-benefits. WDFW
recommends our resources, including (but not limited to) the Riparian Ecosystems, Volume 1:
Science Synthesis and Management Implications, Volume 2: Management Recommendations, and the SPTH200 GIS mapping tool for update guidance.
Page 2
18.25.660 Nonconforming Development
Section (8) Waterward Standards(d) and Nonwaterward Standards (e)
(d)Expansion that further encroaches into the standard shoreline buffer closer to OHWM shall not be
allowed, except ‘footprint infill’ of the main structure only, limited…
(e)Expansion that further encroaches into the standard shoreline buffer but does not get closer to
OHWM, including lateral (parallel to OHWM), landward (away from OHWM), and/or vertical increasedheight not to exceed 35’), shall only be allowed…
WDFW opposes the waterward expansion of a building footprint towards the OHWL, regardless of whether that area is already under a roofline. Waterward expansions of building foundations, such as encompassing areas like decks, increase the need and incentive to armor shorelines and
are counterproductive to our shared resource management goals. Even if the current buffer is
grass lawn or similar area, waterward building expansion results in decreased function and prevents the possibility of future enhancement. Additionally, waterward expansion to encompass structures, lessens the practicality of future retreat due to sea level rise and therefore does not serve the long-term safety or best interest of the citizens of Jefferson County.
Similarly, WDFW does not support lateral expansions where they encroach on riparian areas. These encroachments, either to an existing buffer or shoreline set back, create a loss of riparian function.
WDFW holds that these activities are not cohesive with restoring and protecting shoreline
function. We support that expansions should be away from the shorelines and that any unavoidable expansions occurring laterally or waterward be appropriately coupled with mitigation sequencing to ensure no net loss from the immediate and ongoing impact of such expansion.
18.25.270 Critical Areas, Shoreline Buffers and Ecological Protection
Section (4) (d) Standard Shoreline Buffer. Standard Shoreline Buffer. The standard shoreline buffer shall be measured landward in a 2422 horizontal direction perpendicular to the ordinary high water mark (OHWM) of the shoreline water 2423
body, and is a three dimensional space that includes the airspace above, as follows: (i)Marine Shores. A minimum buffer of 150 feet shall be maintained in all shoreline environments.
(ii)Lake Shores. A minimum buffer of 100 feet shall be maintained in all shoreline environments.
(iii)Stream/River Shores. A minimum buffer of 150 feet shall be maintained in all shoreline
environments.
Protection and restoration of riparian ecosystems continues to be critically important for aquatic
species and terrestrial wildlife. In accordance with the current BAS, WDFW recommends using
Site Potential Tree Height (SPTH) to determine riparian protection buffer widths. The width of the riparian ecosystem is estimated by one 200-year SPTH measured from the edge of the active channel or floodplain. Protection of 200-year SPTH is a scientifically supported approach to protecting and maintaining the full function of the riparian ecosystem. WDFW recommends
Page 3
ensuring that these buffer widths match SPTH200 recommendations to protect the full function of the riparian areas.
Section (4) (i) Buffer Reduction or Averaging.
Buffer Reduction or Averaging. Proposals that request a decrease in the standard shoreline buffer of this program shall not require a shoreline variance if all of the shoreline critical area approval criteria in
JCC 18.22.640(1) and (2) are met, with the addition of a 50% maximum buffer reduction in JCC
18.22.640(1)(b). All other shoreline buffer reduction or shoreline buffer averaging proposals shall require a shoreline variance.
WDFW emphasizes an exploration of other alternatives to buffer reductions to sequentially avoid, minimize, and compensate for any impacts to the waterbody. WDFW advises that a consideration of the mitigation sequence if the County allows buffer alteration exceptions.
The effects of building within the riparian buffer are permanent. Therefore, the benefits of the mitigation by buffer enhancement need to be permanent, too. Unfortunately, riparian buffers initially enhanced as mitigation by a landowner for encroachment will often later degrade or be neglected and thus lose the value that was necessary to offset the permanent buffer reduction.
Similarly, as property ownership changes, the obligation of maintaining the enhancements is often overlooked over the years and replaced by ornamental landscaping.
WDFW values the relationship that we have with Jefferson County. We ask that you carefully consider our comments as you move forward with the periodic update of the SMP to protect
riparian ecosystems consistent with the goals of the SMA. If you have any questions or concerns, please feel free to contact me at (564) 669-4755 or at Jessica.Bryant@dfw.wa.gov.
Sincerely,
Jessica Bryant WDFW Regional Land Use Planner
1111 Washington St. SE
Olympia, WA 98501
Cc: Gwen Lentes, Regional Habitat Program Manager (Gwendolen.Lentes@dfw.wa.gov)
Amy Spoon, Assistant Regional Habitat Program Manager (Amy.Spoon@dfw.wa.gov)
Kara Whittaker, LUCP Section Manager (Kara.Whittaker@dfw.wa.gov)
Marian Berejikian, Environmental Planner (Marian.Berejikian@dfw.wa.gov)
Danielle Zitomer, Area Habitat Biologist (Danielle.Zitomer@dfw.wa.gov)
From:Montgomery, Monica
To:Josh Peters
Cc:jeffbocc
Subject:Jefferson MRC"s SMP Periodic Review Comments
Date:Wednesday, October 4, 2023 11:55:56 AM
Attachments:Outlook-rajhxoea.png2023 SMP Recommendation Letter_10.3.2023-signed.pdf
ALERT: BE CAUTIOUS This email originated outside the organization. Do not open
attachments or click on links if you are not expecting them.
Dear Josh,
Please find attached the Jefferson County Marine Resources Committee's comments regarding the
county's SMP periodic review. Please don't hesitate to reach out if you have any questions.
Sincerely,
Monica Montgomery (she/her)
Water Programs Coordinator
Jefferson County Extension
Washington State University
Office: 360-379-5610 x230
Email: monica.montgomery1@wsu.edu
Websites: https://extension.wsu.edu/jefferson/ | https://www.jeffersonmrc.org/
14
From:Lee Steele
To:Josh Peters
Subject:SMP Draft Comments
Date:Wednesday, October 4, 2023 12:52:17 PM
ALERT: BE CAUTIOUS This email originated outside the organization. Do not open
attachments or click on links if you are not expecting them.
Jefferson County Planning Commission
c/o Department of Community Development
621 Sheridan Street
Port Townsend, WA 98368
To the Jefferson County Planning Commissioners –
I am writing in regard to the draft Shoreline Master Program (SMP) that was released
on September 20th, 2023.
First, thank you for your efforts to review and update Jefferson County’s SMP. This is
an important program for our county that has a long and rich history rooted in our
working waterfront from Hood Canal to Port Townsend. However, as a fourth
generation shellfish farmer, I am concerned by the added language that has been
included in the SMP since the previous draft was sent to the department of Ecology in2021.
Specifically, the data application requirements that are included in section 7 of the
aquaculture language are overly burdensome and unnecessary for non-geoduckshellfish aquaculture (and some are unnecessary for geoduck as well). Shellfish
aquaculture is a highly regulated space with requirements at the federal, state and
local level. Farming practices and impacts to species and the environment have been
thoroughly evaluated under the Army Corps 2015 Programmatic BiologicalAssessment and the Services 2016 Biological Opinion. Both reports concluded that,
when used with a set of appropriate conditions, aquaculture was not likely to
adversely impact the environment or species. The existing regulatory structure is
thorough and has become even more so in the last 3 years at the federal level. Mostfarmers will tell you it can take on average 3 years to get a shellfish permit. The steps
outlined in the SMP will certainly add time to the permitting process and include
redundant to the existing federal and state permitting processes.
While the newly added language at the beginning of section provides an applicant the
opportunity to have certain requirements waived based on the project, the burden still
lies with the applicant. To this end, the inclusion of language or a chart outlining the
core application requirements for each type of aquaculture is recommended to beincluded in the SMP, providing guidance to both the administrator and the applicant
regarding necessary data for a specific application/permit.
Further, the language regarding predator controls seems contradictory in that it mustboth blend in with the environment and be retrieved should it become loose; blending
with its surroundings will make it harder to retrieve.
15
Rock Point Oyster Co. has been owned and operated by our family since 1921. With
requirements such as these, it may not have been possible for my family to expand
our farms into Jefferson County in 1945. We have been operating in Dabob Bay for
nearly 80 years and employ many family and community members. As shellfish
farmers, we rely on the health of the ecosystem that we operate in. We take tediousmeasures to ensure that our practices are environmentally ethical and we take pride
in our land stewardship. We have a positive relationship with our community and
neighbors and have never had issues regarding permitting. Aquaculture is a
tremendously beneficial industry and we love to see the growth of it for manyreasons. We would be saddened by the thought of new upcoming farms struggling to
get off the ground due to an overcomplicated permitting process.
I urge you to reconsider the requirements outlined in section 7, providing more clarity
to the applicant while developing a process that will support – not detract from -
shellfish aquaculture development in Jefferson County.
Sincerely,Lee Steele
Rock Point Oyster Co.
CC: Jefferson County Board of Commissioners
Lee C. Steele
Rock Point Oyster Co., Inc.
1733 Dabob Post Office Road
Quilcene, WA 98376-9758
(206) 229-8625
From:Lisa Long
To:Josh Peters
Subject:Lisa Carlton-Long RPOCO 10-4-2023 Letter for Jefferson County SMP
Date:Wednesday, October 4, 2023 12:56:36 PM
Attachments:image001.jpg
LISA CARLETON-LONG RPOCO 10-4-2023 Jefferson County SMP.docx
ALERT: BE CAUTIOUS This email originated outside the organization. Do not openattachments or click on links if you are not expecting them.
Here is my letter for the meeting on 10/4/2023 I look forward to seeing everyone this evening.
Thank you,
Lisa
Lisa Carleton-Long
Operations Manager
Rock Point Oyster Company, Inc.
1733 Dabob Post Office Road
Quilcene, WA 98376-9758
lisa@rockpointoyster.com
425-343-5944 cell
360-765-4664 office
16
Jefferson County Planning Commission
c/o Department of Community Development
621 Sheridan Street
Port Townsend, WA 98368
To the Jefferson County Planning Commissioners –
I am writing regarding the draft Shoreline Master Program (SMP) that was released on
September 20th, 2023.
First, thank you for your efforts to review and update Jefferson County’s SMP. This is an
important program for our county that has a long and rich history rooted in our working
waterfront from Hood Canal to Port Townsend. However, my name is Lisa Carleton-Long and as
an employee of Rock Point Oyster Co. for the last 9 plus years as operations manager, I am
concerned by the added language that has been included in the SMP since the previous draft
was sent to the department of Ecology in 2021.
Specifically, the data application requirements that are included in section 7 of the aquaculture
language are overly burdensome and unnecessary for non-geoduck shellfish aquaculture (and
some are unnecessary for geoduck as well). Shellfish aquaculture is a highly regulated space
with requirements at the federal, state and local level. Farming practices and impacts to species
and the environment have been thoroughly evaluated under the Army Corps 2015
Programmatic Biological Assessment and the Services 2016 Biological Opinion. Both reports
concluded that, when used with a set of appropriate conditions, aquaculture was not likely to
adversely impact the environment or species. The existing regulatory structure is thorough and
has become even more so in the last 3 years at the federal level. Most farmers will tell you it
can take on average 3 years to get a shellfish permit. The steps outlined in the SMP will
certainly add time to the permitting process and include redundant to the existing federal and
state permitting processes.
While the newly added language at the beginning of section provides an applicant the
opportunity to have certain requirements waived based on the project, the burden still lies with
the applicant. To this end, the inclusion of language or a chart outlining the core application
requirements for each type of aquaculture is recommended to be included in the SMP,
providing guidance to both the administrator and the applicant regarding necessary data for a
specific application/permit.
Further, the language regarding predator controls seems contradictory in that it must both
blend in with the environment and be retrieved should it become loose; blending with its
surroundings will make it harder to retrieve.
Rock Point Oyster Company based is in Quilcene, Washington. Our company began operations
over 100 years ago in 1921 and is one of the oldest shellfish farms in the state. With the fourth
generation currently working at company. We also hold the first health department license ever
issued #1
Our Jefferson County farms operate on private; state and privately-leased land and we are
proud to be part of Washington’s longstanding history as a leader in oyster and shellfish
production. Contributing to Washington’s heritage as a shellfish producing state is something
our company and the industry at large takes great pride in.
Presently Rock Point provides 26 to 30 jobs to Jefferson County’s work force.
I urge you to reconsider the requirements outlined in section 7, providing more clarity to the
applicant while developing a process that will support – not detract from - shellfish aquaculture
development in Jefferson County.
At this time, I agree and support the two letter you have received from-
“Jefferson Co SMP_PCSGA Comments_Oct 2023”
And
“Taylor letter to Planning Commission.SMP periodic review.092923” Plauche & Carr LLP
Sincerely,
Lisa Carleton-Long
Operations Manager
Rock Point Oyster Co.
CC: Jefferson County Board of Commissioners
From:Alex Scagliotti
To:Josh Peters
Cc:Neil Harrington; Hansi Hals; Elizabeth Tobin
Subject:Draft SMP comment - Jamestown S"Klallam Tribe
Date:Wednesday, October 4, 2023 3:29:12 PM
Attachments:Jefferson County SMP comment letter - Jamestown - 10.4.23.pdf
ALERT: BE CAUTIOUS This email originated outside the organization. Do not open
attachments or click on links if you are not expecting them.
Josh,
Please accept the attached letter submittal as the Jamestown S’Klallam Tribe’s comments related to
the most recent Jefferson County Shoreline Master Plan draft (September 20, 2023). I will also
provide a physical copy at the public hearing tonight on 10/4.
Thank you to the planning commission for including many of the suggestions in the most recent SMP
draft that were provided by the Tribe in a previous letter. Our revised letter acknowledges those
changes and includes pared down suggestions.
Regards,
Alex Scagliotti
Environmental Planner
Jamestown S’Klallam Tribe
360-477-9712
ascagliotti@jamestowntribe.org
17
October 4, 2023
Via email: jpeters@co.jefferson.wa. us
Josh Peters, Director
Jefferson County DCD
Development Services Department
621 Sheridan St.
Port Townsend, WA 98368
RE: Jefferson County Shoreline Master Program (SMP) Periodic Review Comments
Dear County and Planning Commissioners,
The Jamestown S’Klallam Tribe (JST) and the Jefferson County communities’ health and well-being are
intricately tied to the health of our waters and marine resources. The Tribe’s Usual and Accustomed
Hunting, Fishing, and Gathering Grounds encompasses part of Jefferson County, and it is vitally important to
the Tribe to protect these resources for all our futures. We value the County’s efforts to manage and
regulate these important lands and waters for all of us and appreciate all the work needed to update this
Shoreline Master Program (SMP).
The Jamestown S’Klallam Tribe has reviewed the updates to the SMP dated September 20, 2023 and we are
submitting the following comments for your consideration. The Tribe supports both commercial
aquaculture for local food production and restoration projects involving aquaculture activities to protect the
local resources, improve water quality and protect the Tribe’s Treaty Rights. We thank you for this
opportunity to participate in Jefferson County’s Periodic Review of the Shoreline Master Program.
Sincerely,
Hansi Hals
Natural Resources Director
Cc: Michelle McConnell, Shoreline Planner, ECY (via email michelle.mcconnell@ecy.wa.gov)
Attachments: Comments by page number, Chart illustrating draft SMP requirements by aquaculture type
Jamestown S’Klallam Tribe October 4, 2023
Comments on Jefferson County SMP titled “Hearing Draft September 20, 2023”
1.Pg. 141, line 4591 – 4593 reflects updated language consistent with the Tribe’s input on July 31, 2023 and reads
“E) Predator exclusion devices that become dislodged, such as rubber bands, small nets, and area netting, shall
be promptly recovered and/or disposed of to minimize the risk of harm to wildlife and, if not, may be subject to
public nuisance regulations.” However, subsection xii includes two repetitive clauses, both labeled as “E”. The
second “E” on lines 4596 – 4600 includes the original language that unnecessarily highlights harmful effects of
predator exclusion devices that could be said of any other infrastructure associated with commercial uses.
Remove the subsection typo of the second XII-E on lines 4596 – 4600 in favor of the first.
2.Pg. 148, section 7, beginning on line 4853, lists items A-D (plus subsections) to be included in the application
“unless waived by the administrator when an applicant has demonstrated that the requested information is not
applicable to a specific proposal or type of aquaculture.” This language does not delineate between aquaculture
types and a table showing which items are required for each type of aquaculture practice (shellfish, geoduck,
finfish, etc.) would be helpful, as was done in the Clallam County SMP. Additionally, current language puts the
onus on the applicant to demonstrate why certain requirements are not applicable and creates additional,
unnecessary work for all involved. Section 7 should read “In addition to the minimum application requirements
in 4854 JCC 18.25.630, aquaculture applications shall provide the information listed in subsections (a) – (d)
[based on in the table below depending on the type of aquaculture application being submitted.]”
3.Pg. 151. 18.24.400.7.f. This statement should be clarified that it applies only to finfish. It should read: “Where
the county does not have expertise to analyze the merits of a report provided by an applicant [for a finfish
permit], the applicant may be required to pay for third-party peer review of said report.”
The chart below takes the draft SMP requirements for new permit applications and outlines which type of aquaculture
they would apply to. For example, many requirements are only pertinent to finfish aquaculture, not shellfish.
Jamestown S’Klallam Tribe October 4, 2023
Finfish Geoduck Shellfish
Previously
cultivated species
Not previously
cultivated species
(a)Site Plan requirements
Perimeter of proposed aqua operation area x x x x
Existing bathymetry depths based on MLLW x x x x
Adjacent upland use, vegetation, presence of
structures, docks, bulkheads and other
modifications
x
Areas where substrate modification will take
place(1)
x x x x
Numbers, types and dimensions of structures,
apparatus or other improvements
x x x x
Access provisions for marine or vehicle traffic,
processing structures or facilities(2)
x
Location of storage or processing structures or
facilities
x
(b)A baseline ecological survey including direct,
indirect and cumulative impacts on the items
below
Existing and seasonal conditions x x x x
Water quality x x x x
Tidal variations x x x x
Prevailing storm wind conditions x x x x
Current flows at each tidal cycle x
Flushing rates x
Littoral drift x
Jamestown S’Klallam Tribe October 4, 2023
Finfish Geoduck Shellfish
Sediment dispersal x
Areas of aquatic, intertidal and upland vegetation
complexes
x x x x
Aquatic and benthic organisms present/use site or
adjacent site
x x x x
(c)Operational Plan
Species and quantity to be cultured or reared on
an annual basis
x x x x
Size of species at harvest(3) x x x x
Source of eggs, juveniles, or other aquatic product x x x x
Narrative of implementation methods x x x x
Schedule of development and maintenance x x x x
Predator control methods include exclusion
devices
x x x x
Anticipated us of any feed, herbicide, chemicals x x x x
Anticipated levels of management practices to
minimize the impacts from mooring, parking,
noise, light, littler and odor
x x x x
Methods and location of waste disposal and
sanitation facilities
x x x x
Number of employees/workers necessary include
average and peak
x x x x
Methods to address pollutant loading x
Schedule for water quality monitoring x
Description of wastewater management x
Jamestown S’Klallam Tribe October 4, 2023
*shellfish visual analysis may be required
Finfish Geoduck Shellfish
Measures to address impact to achieve no net loss
of ecological functions
x x x x
(d)Visual Analysis Required for floating/hanging, upland aquaculture use, bottom
culture involving structures or material installation
Photo analysis and/or simulation describing effects
on aesthetic qualities of the shoreline within a
quarter mile
x x x* x*
(e)Other applications and reports (4)
Proof of application for lands lease from DNR or
private owner
x x x x
DOH licenses x x x x
WDFW farm registration x x x x
WDFW permits(5) x x x x
Dept of Ecology NPDES permit x
Water quality studies x
Reports on solids accumulation x
Reports on growth, productivity and chemical
contamination of shoreline plants
x
Noise level assessment
Monitoring and adaptive management plan for
new WA species
x
Proof of application for other permits x x x x
Jamestown S’Klallam Tribe October 4, 2023
Superscript notes
1.Shellfish growers that only plan to seed the substrate without frosting/graveling, harrowing etc. should be
allowed to indicate “N/A”.
2.If this applies to barges or skiffs to aid in gear placement/retrieval or harvesting/planting, then it could be
applicable to shellfish as well.
3.Include size range bins or categories.
4.Missing CWA 401, USACE Section 404 / 10 permits. Aligning with JARPA and SEPA requirements would help with
consistency.
5.List HPA and Shellfish Transfer Permit to clarify “WDFW permits”.
From:pbest@wavecable.com
To:Josh Peters
Cc:Barbara Moore-Lewis; Bernadette Olson ; Bruce Morse; Don Seavy; Donna Simmons; Janet Wold; Karen Best;
Michael Beaulieu; Paul McCollum; Phil Best ; Terry Reeve
Subject:Jefferson County Planning Commission - Geoduck Regulations and Shoreline Buffers
Date:Wednesday, October 4, 2023 5:15:06 PM
Attachments:HCEC Ltr to JeffCoPlanningComm 10-4-2023.pdf
ALERT: BE CAUTIOUS This email originated outside the organization. Do not open
attachments or click on links if you are not expecting them.
Dear Mr. Peters,
Attached is a letter for tonight’s meeting from the Hood Canal Environmental Council.
Thank you,
Phil Best, President
Hood Canal Environmental Council
18
Jefferson County Planning Commission
c/o Josh Peters, Director
Jefferson County DCD
jpeters@co.Jefferson.wa.us
Dear Jefferson County Planning Commission,
In this letter Hood Canal Environmental Council (HCEC) addresses two issues: (1) geoduck
regulation, and (2) shoreline buffers near roads. HCEC was created in July 1969, over 54 years
ago, to maintain Hood Canal’s environmental health and the aesthetic qualities that make Hood
Canal so special to residents and visitors alike. The HCEC mission is to promote the highest
standards for the environment for Hood Canal and its adjacent land areas for living, recreation,
and wildlife, and for preservation of open space and wildlife habitat for the indefinite future.
(1)Geoduck Regulation
The Hood Canal Environmental Council urges the Jefferson County Planning Commission to
continue to include the wording in its September 20, 2023, draft Shoreline Master Plan (SMP),
requiring a standard Conditional Use Permit (CUP) for any new geoduck operations in Jefferson
County, including expansions and conversions from other shellfish to geoducks. This wording
has been preliminarily approved by the Department of Ecology. The Department of Ecology also
approved the inclusion of this wording in both the final Kitsap County and Clallam County
SMPs.
The requirement for a CUP allows for a neutral decision-maker to evaluate the potential impacts
of geoduck farms on the area where the farms are being proposed. The CUP process will allow
for all interested parties to provide evidence and take part in a public hearing before a Hearing
Examiner.
It is important to review the impact of geoduck farms on the waters of Jefferson County and
Hood Canal. Hood Canal, like the rest of Puget Sound, the Strait of Juan de Fuca, and adjacent
saltwater areas lying waterward of the extreme low tide are Shorelines of Statewide Significance.
Hood Canal has an additional designation as a Shoreline of Statewide Significance for those
areas between the ordinary high-water mark and the extreme low tide line and the associated
shorelands.
HOOD CANAL ENVIRONMENTAL COUNCIL
America’s Unique Heritage
PO Box 87 Seabeck, Washington 98380
Geoduck farms are planted with approximately 43,560 PVC tubes per acre. Each of these PVC
tubes are about four inches wide by ten inches long and are ground into the tideland, one every
square foot. This is about fifteen tons of plastic per acre. At harvest time the sand and all life
growing in it are liquified up to three feet deep with a high-pressure hydraulic hose that is used to
extract each geoduck. These rounds of planting and harvesting then continue in six- to seven-
year cycles through the years.
(2)Shoreline Buffers Near Roads
The Hood Canal Environmental Council also urges the Jefferson County Planning Commission
to better protect the entirety of the county shoreline buffers. Shoreline buffers are very important
habitat for numerous species of plants and animals in Washington state. A large percentage of
our shoreline buffers have been lost over the years, making the remaining shoreline buffers even
more critical. The existing Jefferson County Shoreline Master Program states at 18.25.270 (4)
(c)(about page 70):
Critical area buffers shall apply to all critical areas located in shoreline jurisdiction. All
buffers shall be maintained in a predominantly natural, undisturbed, undeveloped, and
vegetated condition. Buffers shall not extend across lawfully established paved roads or
hardened surfaces to include areas which are functionally isolated from the shoreline or
critical area.
The underscored last sentence should be deleted from the Jefferson SMP. This deletion results in
the entire shoreline buffer, with or without a roadway, to be treated in the same way.
In cases where roadways are unfortunately located in the critical shoreline buffer areas, those
remaining buffers above the roadway become even more important. These narrower buffers are
often all that is left of very important wildlife corridors. These buffers are important for bird
perches, especially while hunting for food along the shoreline, they provide cover, nesting and
roosting sites and an additional source for food and nesting materials. It is a safe resting spot
while attempting to cross the roadway to the shoreline.
Many of the vegetated buffer areas along our Jefferson County shorelines have already been lost.
We have an opportunity to afford some protection for these smaller vegetated areas that remain
within the 150-foot shoreline buffers even if some have been impacted by roadways. Under the
present shoreline wording it appears that a property owner could completely remove all the
remaining vegetated 150-foot buffer above a roadway, ultimately eliminating most or all of the
remaining natural vegetation buffer along a shoreline.
We will be losing additional portions of this important habitat as we see the impacts of global
warming and rise of sea level eating away at the remaining limited shoreline habitat. These
vegetated shoreline areas are also important to help hold together the banks and cliffs above the
water’s edge and for maintaining water quality.
A second (but less appealing) alternative approach that could be taken to preserve some of what
is left of the vegetated shoreline buffers above paved roads in Jefferson County is to not remove
the above underscored text but add the following two additional sentences included in the
approved Mason County SMP. The Mason County SMP’s two additional sentences state (page
45):
Buffer reductions under this provision are allowed only when the functional
disconnection has been documented through a report by a qualified professional
that demonstrates the area is functionally isolated. The County shall consider the
hydrologic, geologic, and/or biological habitat connection potential and the extent
and permanence of the physical separation.
The addition of these two sentences should not affect any existing public or private use. Another
benefit of maintaining these smaller buffer sections above roads is to help maintain or improve
water quality in our marine waters, including Hood Canal.
Sincerely,
Phil Best,
President, Hood Canal Environmental Council
From:Steve Dittmar
To:Josh Peters
Subject:Comments from Steve Dittmar on SMP meeting regarding including Conditional Use Permit within the SMP
Date:Wednesday, October 4, 2023 6:15:55 PM
ALERT: BE CAUTIOUS This email originated outside the organization. Do not open
attachments or click on links if you are not expecting them.
I have couple of points/questions/comments I would like to submit for your consideration:
1. Other than adding a step for the commercial growers to go through, what is the downside to
keeping the CUP in the process?
It seems to me Conditional Use Permits provides a good safety step to make sure all people
and areas impacted get a voice and the issues have a chance to surface and be considered. A
geoduck farm is no small impact to a tideland and related habitat and is seems very
reasonable to consider all aspects before approvals are granted. Local people will often be
aware of issues and items for consideration that our good people in the county offices may
never see or be aware of.
2. My wife and I own the tidelands immediately next to the current geoduck farm here in the
Shine tidelands.
We are happy to make our tidelands available to anyone involved with the county to visit so
they can see first hand up close and personal what a geoduck farming operation looks like.
Our local farm recently had a new planting so they will get a good view of the density of
40,000 PVC tubes per acre and get a chance to visualize wave action continuously abrading
that PVC plastic 24/7/365 releasing those microplastics into our environment and food chain
☹
Out of sight are the 100s of tubes that get dislodged in our storms and carried out into the
deeper waters of our bay and Hood Canal.
Steve Dittmar
206.619.6822
30 Watney Ln
Port Ludlow, WA 98365
19
From:Marilyn Showalter
To:Josh Peters
Subject:Additional SMP Comment
Date:Wednesday, October 4, 2023 9:03:08 PM
Attachments:Showalter ltr re Taylor 10-04-2023.pdf
ALERT: BE CAUTIOUS This email originated outside the organization. Do not openattachments or click on links if you are not expecting them.
Hi, Josh,
Please add this one-page comment to the Public Hearing file.
Thanks--Marilyn
Marilyn Showalter1596 Shine Rd
Port Ludlow, WA 98365(360) 259-1700 (cell)
marilyn.showalter@gmail.com
20
M A R I L Y N S H O W A L T E R
1596 Shine Road Port Ludlow, WA 98365 marilyn.showalter@gmail.com, 360-259-1700
October 4, 2023
Jefferson County Planning Commission c/o Josh Peters,
jpeters@co.jefferson.wa.us Dear Planning Commission Members:
Re: Cursory Response to Taylor SMP Comments
I have only glanced at the Plauche-Taylor Shellfish 9-29-2023 letter to the Planning Commission, but a couple things jump out, which I would like to bring to your attention before the midnight deadline tonight.
•The letter claims that many provisions of the Public Hearing draft violate the ShorelineManagement Act (SMA) and the Washington Administrative Code (WAC)—and thatthese provisions need to be changed in order to avoid having the state Department ofEcology reject those provisions.
Response: The Department of Ecology has already preliminarily approved the Public
Hearing draft, including all the provisions the letter complains about. Moreover, theDepartment of Ecology has already given final approval to the requirement, in the Kitsapand Clallam county codes, for a CUP for new geoduck operations.
•The letter expounds at length on various aspects of “shellfish” and “aquaculture.
Response: The provisions at issue relate only to geoduck operations.
•The letter states that opponents (by which it means Shine residents) advocated for theKitsap application items because they are onerous.
Response: Shine residents neither proposed nor advocated for those particular Kitsap
items. They were suggested by a Planning Commissioner. The Shine community has
been focused on the need for standard CUP, including a neutral decision maker, for allnew geoduck operations, including expansions and conversions.
•The letter suggests that one bad-apple geoduck farmer shouldn’t lead to a CUP
requirement for other proposals for geoduck operations.
Response: The CUP process can weed out bad apples; there is more than one bad apple;and even good apples can bring on enormous consequences, especially cumulatively, thatneed to be evaluated through a standard CUP.
Time does not permit a more detailed analysis. Thank you, Marilyn Showalter
From:David W. Johnson
To:Josh Peters; George Terry
Cc:David W. Johnson
Subject:FW: JeffCo SMP Public Comment Letter
Date:Thursday, October 5, 2023 6:00:22 AM
Attachments:Taylor"s SMP letter Sept 29th 2023.pdfSMP Public Comment Letter.pdf
FYI
From: Call Nichols <callrnichols@gmail.com>
Sent: Wednesday, October 4, 2023 10:56 PM
To: David W. Johnson <DJohnson@co.jefferson.wa.us>
Subject: JeffCo SMP Public Comment Letter
ALERT: BE CAUTIOUS This email originated outside the organization. Do not openattachments or click on links if you are not expecting them.
Mr. Johnson and Jefferson County Planning Commission,
Attached are two letters: one from me, Call Nichols, Jefferson county resident and career shellfish
worker and devotee. The other is a letter from Jesse DeNike on behalf of Taylor Shellfish, which I
wholeheartedly support.
I welcome any further opportunity to share my perspective as it relates to SMP review and other
shellfish-related matters in Jefferson County.
Thank you for your consideration,
Call Nichols
--
Call Nichols I 415.302.0224 I @hustleshuck
21
October 4,2023
Jefferson County Planning Commission
621 Sheridan St
Port Townsend,WA 98368
Dear Planning Commission,
I’m a career shellfisher who has worked in all aspects of the shellfish industry.I moved to
Jefferson County to work in this industry and stay because I love how integral shellfish is to the
culture and ecology of the place.
As a contractor with The Nature Conservancy and their Shellfish Growers Climate Coalition,I’ve
spent time in coastal communities across the country that depend on shellfish and the
associated ecological,economic,and social values.Jefferson County is and has been such a
place since time immemorial.
Shellfish farming brought me to Jefferson county,which I’ve proudly called home since 2021.I
describe it to people as “the heart of oyster country”.There is hardly a better place to make a
living working with shellfish.
As I understand them,the changes (carelessly adopted from elsewhere)proposed as a part of
the periodic SMP review put all of this in jeopardy and I urge you,the commission,to consider
their implications relative to what stands to be gained.
I’ll let others speak to legal implications of the new regulations (see associated letter from Jesse
DeNike),but what I can put forth is a reminder of the importance of shellfish in our waters and
people who work with shellfish in our communities.
Shellfish aquaculture is an essential part of what makes Jefferson County special.In a world of
increasing homogeneity,shellfish offer a unique win-win for people and planet.We should be
looking for ways to support more shellfish in our waters,whether cultured,restored,or
harvested.
Thank you,
Cal R .Nichol
Call Nichols
245 Old Oak Bay Rd.
Port Hadlock,WA
98339
From:J Creek
To:Josh Peters
Subject:Fwd: Jan Wold’s Comments on Jefferson County Shoreline Master Program (SMP) for 10/4/23 Planning
Commission Meeting and Hearing
Date:Thursday, October 5, 2023 4:12:43 PM
Attachments:SMP JEF62623 reinit.comment ltr.pdf
SMP JeffersonComment 61621.docx
ALERT: BE CAUTIOUS This email originated outside the organization. Do not openattachments or click on links if you are not expecting them.
This is the email I sent you on 10/3/23 for the SMP.
Jan Wold
Begin forwarded message:
From: J Creek <j.creek@hotmail.com>Date: October 3, 2023 at 4:37:05 AM PDTTo: Jefferson county Peters Josh <j.peters@co.jefferson.wa.us>, J Creek
<j.creek@hotmail.com>Subject: Fwd: Jan Wold’s Comments on Jefferson County Shoreline MasterProgram (SMP) for 10/4/23 Planning Commission Meeting and Hearing
I have attached two letters (one dated 6/16/21 and one dated 6/26/23) that I haveprovided to you for the Planning Commission SMP process in the past. I ask thatyou also share these letters with the Planning Commission for the 10/4/23 Hearingand their deliberations and put my comments into the record for the JeffersonCounty SMP.
My input addresses two main issues: 1) geoduck regulation with a requirementfor a Conditional Use Permit and a hearing and 2) shoreline buffers above roads.
I urge the Planning Commission to include the wording in its September 20, 2023,draft Shoreline Master Plan (SMP), requiring a standard Conditional Use Permitfor any new geoduck operations in Jefferson County, including expansions andconversions of other shellfish to geoducks. The Department of Ecology alsoapproved the inclusion of this wording in both the final Kitsap County andClallam County SMPs.
I also urge the Planning Commission to better protect the portions of vegetatedshoreline buffers above roads as I outline in the attached letters.
Can you please let me know you received these letters, have shared them with thePlanning Commission and have added them to the record?
Thank you,
22
Jan Wold
Jan Wold POB 1340 Poulsbo, WA j.creek@hotmail.com
June 16, 2021
ATTN: Jefferson County Planning Commission
Washington State Department of Ecology
djohnson@co.Jefferson.wa.us Port Townsend, WA
Re: Jefferson County Shoreline Master Program Review
Dear Members of the Planning Commission and Washington Department of Ecology:
I am commenting on some portions of the draft Jefferson County Shoreline Master Program (SMP) that is under review. Please include my comments in your project file and add me to mailing lists regarding this review. My email is
j.creek@hotmail.com.
I have lived beside Squamish Harbor, Hood Canal at Shine Road, Port Ludlow in
Jefferson County for a number of years. I have decades of experience working
in land management, forestry, biology and fisheries.
Aquaculture.
The first and most important area of the draft SMP I wish to comment on regards aquaculture. I support revisions to the May 14, 2021 draft SMP sections in JCC 18.25.440(4) and (6). The SMP should require a conditional use permit for geoduck farming on tidelands that have not previously been used to cultivate geoducks. It is also important that there be an opportunity for citizens to review these geoduck proposals. The current Draft SMP allows large tideland acreages to be converted or accreted for geoduck cultivation without a permit process at all. The cumulative impact of changes to shellfish farms to add highly impacting commercial geoduck farming can not be evaluated by the county under the present draft SMP verbiage even though our laws require it.
I support the revisions to the language of the Draft SMP as proposed by Marilyn Showalter in her June 11, 2021 letter to the Jefferson County Planning Commission. I am sending this June 11, 2021 letter with her analysis, her proposal for improved language for the SMP and her Appendix A listing of
Jefferson County shellfish farms by separate email as my Attachment #1.
Marilyn Showalter’s proposed changes are more in line with the Washington
Administrative Code (WAC). The Jefferson SMP would then be consistent with
the verbiage in neighboring counties whose SMPs are already approved by the
Washington Department of Ecology. Marilyn’s analysis on page four of her June
11, 2021 letter clarifies the need for her proposed changes to the SMP.
There is also need for close review and public comment on geoduck farms in particular due to the magnitude of the plastic pollution, release of carbon, disturbance of numerous threatened and endangered species, loss of eelgrass, increased turbidity, ingestion of micro-plastics by food chain organisms, increase in ocean acidification, visual, water quality, navigation, safety and wildlife impacts it can cause.
The calculations on page five of Marilyn’s document are especially stunning. It is very concerning that 6.56 million nine inch plastic tubes reaching 932 miles if laid end to end could be pounded into the substrate of 164 acres of tideland in Jefferson County without any county permit or review and without an opportunity for the public to comment.
Threatened and Endangered Species, Habitat and Water Quality.
Numerous threatened and endangered species occur in Hood Canal, Puget
Sound and the Salish Sea. Washington State’s aquatic species are suffering to
the point that Governor Inslee’s Executive Order 1 was signed in 2018 to protect
salmon and orca. The significant adverse impacts from industrial shellfish
aquaculture that is continuing to convert natural habitat to industrial shellfish
farms was noted in the recent Federal Court decision regarding the existing
adverse impacts of roughly 50,000 acres of industrial shellfish aquaculture. The Court found that the Nationwide Shellfish Permit and all of the 900-1200 commercial shellfish farm permits approved under the nationwide permit in Washington state were in violation of the Clean Water Act and the National Environmental Policy Act (NEPA).
As an example, Hood Canal contains, or has contained, populations of threatened Puget Sound steelhead (Oncorhynchus mykiss), threatened Puget Sound Chinook salmon (O. tshawytscha), threatened Hood Canal Summer Chum salmon (O. keta), threatened Canary Rockfish, threatened Yelloweye
Rockfish, endangered Pinto Abalone and the critically endangered Sunflower Sea Star. Shellfish aquaculture adversely affects marine life, including Chinook salmon
which are essential to Southern Resident Killer Whale (Orca) survival. The 2017
Army Corps Draft Cumulative Effects Analysis (CEA) is a frank assessment of
what science shows will likely happen if industrial scale aquaculture is allowed to
continue, much less expand. The Corps concluded:
“The proposed action (shellfish aquaculture permitting) is likely to
adversely affect designated critical habitat for several species listed under
the ESA including Puget Sound Chinook salmon, Hood Canal summer run chum salmon, and Puget Sound steelhead.” Page 101 “Given the magnitude of the impacts in acreage, the importance of eelgrass to the marine ecosystem, and the scale of the aquaculture impacts relative to other stressors, the impacts are considered significant.” Page 103 Research published in Science magazine as reported in The Wall Street Journal by Jennifer Calfas, September 19, 2019 found that “North America’s overall bird population has dropped 29% since 1970, with about 3 billion fewer birds now than nearly 50 years ago.” The article continues, “Described as unprecedented
by researchers and scientists, the findings display a new and unexpected
assessment of the bird population across the continent. The areas that could be
developed for or converted to geoduck farms are areas with large numbers of
both migratory and resident bird populations.
Marbled murrelets (Brachyramphus marmoratus) are a small seabird that is listed
as a federally threatened species. The species has been recently up-listed to
endangered by the State of Washington. Marbled murrelets have been
documented in nearly all of the marine areas of Jefferson County by the U. S.
Forest Service, Washington State Department of Fish and Wildlife and by local
residents. Marbled murrelets are in these areas of Jefferson County because of the forage fish they eat and feed to their one annual nestling and because of the proximity to old-growth forest nesting habitat, especially in Olympic National Park. We should not further endanger their existence, habitat and food chain by allowing more impact to water quality without a thorough county analysis and public review. The western grebe is a state candidate for listing as endangered, threatened or sensitive. The common loon is a state sensitive species. Both species are commonly seen feeding in Hood Canal. The numbers of common loon are
dropping in part due to a lack of quiet undisturbed lakes necessary for their breeding, nesting and raising young. There are numerous lakes in Jefferson County. Common loons are observed feeding in Hood Canal year round. An adult pair has been observed with their newly fledged offspring feeding as a
group on Hood Canal at Squamish Harbor. It would appear that this state
sensitive species had managed to nest successfully in the area and were using
Squamish Harbor as one of the first locations to fly to for their new fledglings to
feed.
A large heron rookery is located on the west edge of Squamish Harbor.
Disturbed tidelands with net-covered tubes and higher turbidity make these areas
normally used by the herons nesting in this rookery unavailable or unusable for
catching fish for their nestlings. These same areas are used for feeding by the heron offspring once they have fledged. Millions of public dollars are being spent to restore Puget Sound habitat that is so important for dwindling numbers of forage fish, salmon, orcas, marbled murrelets, common loons, western grebes and numerous other species. Herring, sand lance and surf smelt populations that rely on clean water, eelgrass and undisturbed spawning and feeding areas continue to decline, yet are critical in the food chain for these other imperiled species. Herring, sand lance, smelt and rock sole spawn in or near many of the shellfish farms. Degrading water quality with increases in turbidity, disruption of substrate and release of micro-plastic
and carbon into the water column will further stress these species and their food
chain on which they depend.
The impact of reduced water quality, disturbance, harvesting, release of micro-
plastics, release of carbon and acidification of the water all can impact the food
chain for so many critical species if geoduck farms are allowed to continue to
expand without a county permit process and public review.
Another important point is that it does not seem appropriate to make a SEPA Declaration of Non-significance with the present draft SMP verbiage regarding shellfish. There can be significant damage occurring with approval of the SMP without ANY evaluation of the impacts of 164 acres of geoduck farms. Aquaculture Statistics in Hood Canal and Puget Sound. The Army Corps of Engineers began a draft Cumulative Effects Analysis (CEA) a few years ago (circa 2015), but did not finalize the analysis. This draft analysis found that commercial shellfish farming was likely to have negative impacts on
the waters of Puget Sound and its resources. A federal court has determined that commercial shellfish aquaculture in our state has potentially significant direct and cumulative negative impacts. This was based partly on the Army Corps draft Cumulative Effects Analysis.
Twenty-six percent of Gray's Harbor, Willapa Bay, Hood Canal, and South and
North Puget Sound tidelands combined were covered with commercial shellfish
farming permits (CEA page 55) at the time of the Corps’ analysis. Further, there
were at the time commercial shellfish permits approved for 19% of the tidelands
of Hood Canal (CEA page 55). This Corps draft CEA also shows on page 80 that
41% of the continuing active acreage of shellfish farms in Hood Canal is
potentially co-located with eelgrass. Page 58 of the CEA lists 538 acres of Hood Canal tidelands potentially blanketed by shellfish cover nets on presently active commercial shellfish farms. The CEA, page 60, shows 510 acres of Hood Canal active commercial shellfish farms co-located with forage fish spawning areas (herring, surf smelt and sand lance). The number of shellfish permits has increased since the date of these initial calculations. The water quality and other environmental effects of abnormally large concentrations of both native and non-native shellfish filtering and removing nutrients and food web organisms from the waters of Puget Sound is occurring. The numbers of most of the threatened and endangered species dependent on these food sources are dropping precipitously. Dan Penttila, a forage fish expert,
testified before the WA Shoreline Hearings Board that “…it should be assumed
that geoducks reported to be among the largest clams in the region, may be
capable of ingesting significant amounts and relatively large sizes of organisms
from the nearshore zooplankton communities.”
When the Army Corps was originally issuing commercial shellfish permits it
suggested that the NWP 48 permit would be used about 250 times during a five
year time frame. However, approximately 900-1200 commercial shellfish permits
were issued. Even as the draft CEA started by the Army Corps reviewed some
impacts of commercial shellfish farming, the number of actual approved permits is far higher than what was envisioned in the CEA. It is imperative that the Army Corps, the State of Washington and the county have a cumulative effects analysis on the total impact of ALL commercial shellfish farms, not just each farm one by one. Shoreline Buffers. The second area in my comments on the verbiage in the draft SMP is in reference to shoreline buffers. Shoreline buffers are some of the most important habitat for numerous species of plants and animals in Washington state. A large
percentage of our shoreline buffers have been lost over the years, making the remaining shoreline buffers even more critical. We will be losing additional portions of this important habitat as we see the impacts of global warming and rise of sea level eating away at the remaining limited shoreline habitat. These
vegetated shoreline areas are also important to help hold together the banks and
cliffs above the waters edge.
The proposed Jefferson County Shoreline Master Program presently states at 18.25.270
(4) (c) (about page 70):
“Critical area buffers shall apply to all critical areas located in shoreline
jurisdiction. All buffers shall be maintained in a predominantly natural, undisturbed, undeveloped, and vegetated condition. Buffers shall not extend across lawfully established paved roads or hardened surfaces to include areas which are functionally isolated from the shoreline or critical area.” The last sentence in the paragraph above (about page 70), as highlighted here should be deleted from the SMP: ”Buffers shall not extend across lawfully established paved roads or hardened surfaces to include areas which are functionally isolated from the shoreline or critical area.” It is true that a 150-foot-wide buffer that includes a roadway such as Shine Road, where I live, may not be as useful as a 150-foot-wide buffer that is not dissected by a road. In
cases where roadways are unfortunately located in the shoreline buffer area adjacent to
the waters edge, those smaller-width remaining buffers above the roadway become even
more important. A narrower vegetated buffer is still an important functioning wildlife
corridor. This narrower buffer is still very important for bird perches, especially while
hunting for food along the shoreline, provides cover, nesting sites, a source for food and
nesting materials. It is a safe resting spot while attempting to cross the roadway to the
shoreline.
Much of the vegetated areas along our Jefferson County shorelines have already been
lost. By deleting this wording we have an opportunity to afford better protection for those smaller vegetated areas that remain within the 150-foot shoreline buffers even though they may contain a roadway. The present verbiage is confusing as there is no definition of what is “functionally isolated.” Further, even if a buffer were “functionally isolated” it would still be providing such things as important riparian habitat, perches, food, cover and a wildlife travel-way. In addition, if there is a cliff directly above the water line with a roadway directly above that, such as Shine Road in places, the buffer vegetation above the roadway may be the only remaining vegetation along the shoreline.
Under the present shoreline verbiage it is not clear who makes a determination of whether or not the buffer is “functionally isolated” much less how the determination is made. Even if someone were able to determine that a buffer were “functionally isolated”, the same preservation techniques should be employed as in any other buffer that does not
have a roadway. The result of the present wording in the draft SMP could result in the
entire shoreline, up to 150-feet above the high water mark, becoming completely devoid
of any vegetation at all, having only pavement and lawns, dirt or gravel.
Thank you for this opportunity to comment.
Sincerely,
Jan Wold Attachment 1, Marilyn Showalter 6/11/21 document, emailed separately.
Jan Wold
P. O. Box 1340
Poulsbo, WA 98370
Email: j.creek@hotmail.com
June 26, 2023
ATTN: Jefferson County Planning Commission
and Jefferson County Department of Community Development
c/o Josh Peters, jpeters@co.Jefferson.wa.us
Port Townsend, WA 98368
Re: Jefferson County Shoreline Master Program Reinitiation and 6/29/2023
Planning Commission Meeting
Dear Members of the Planning Commission and Department of Community
Development:
I am commenting on two portions of the draft Jefferson County Shoreline Master
Program (SMP) that is being reinitiated: (1) the need for a Conditional Use Permit
for new commercial geoduck farming, including conversions and expansions, and
(2) the need to either add two sentences from the Mason County approved SMP or
subtract one sentence from the Jefferson County SMP draft for a result that better
maintains shoreline buffers above paved roadways. Please consider my comments
in your continuing review of the SMP.
I have lived in Jefferson County on Squamish Harbor, Hood Canal, at Shine Road,
Port Ludlow, for 10 years. I have decades of experience working in land
management, forestry, biology and fisheries. I spent the last seven years before I
retired in charge of a one-million-acre National Forest.
About 30% of all Puget Sound tidelands are covered by commercial shellfish farm
permits. This 30% generally takes up our best, most sensitive marine
environments; estuaries and spawning and rearing grounds for forage fish and
salmon. Of all shellfish farming, geoduck farming is the most destructive to the
environment. It is especially stunning that geoduck farmers pound more than
43,000 white, four inch by ten inch, PVC tubes into the tideland substrate per acre
1
in Jefferson County. Tidelands are eventually converted into a three foot deep
slurry during geoduck harvesting. These farming actions go on year after year.
In my many years of experience, I have not seen so many fish and wildlife species
that are threatened and endangered as those occurring in the marine waters and on
the shorelines of Puget Sound.
Jefferson County citizens need the most in-depth county and public review of
geoduck farming due to the magnitude of the plastic pollution, release of carbon,
disturbance of numerous threatened and endangered species, loss of native
eelgrass, increased water turbidity, ingestion of micro-plastics by food chain
organisms, siphoning of food chain organisms which reduces the food for other
species, increase in ocean acidification and visual, water quality, navigation, public
safety and wildlife impacts. I can think of no other county project that would be
more negatively impactful than a commercial geoduck farm.
For these reasons, I strongly support the verbiage in the aquaculture section of the
current draft SMP, including as revised with the Department of Ecology’s
recommended changes requiring a Conditional Use Permit and a public hearing for
commercial geoduck farms on any tidelands that have not previously been used to
cultivate geoducks. I also support the more in depth analysis of this topic in
comments you received from Marilyn Showalter.
The wording in the draft SMP requiring a Conditional Use Permit was supported in
a petition signed by numerous Jefferson County citizens. Due to the extreme
sensitivities of these tidelands, this is NOT the place to have a reduced
administrative process with less than full public input.
Our present Jefferson County SMP draft is consistent with those of neighboring
counties, such as Kitsap County, whose SMP is already approved by the
Department of Ecology. This need for consistency is especially pressing in
counties surrounding Hood Canal with its status as a Shoreline of Statewide
Significance.
My second topic concerns the section of the draft Jefferson County SMP on
buffers. Both Jefferson (about page 70, item 4c) and Mason counties have this
same wording:
Buffers shall not extend across lawfully established paved roads or
hardened surfaces to include areas which are functionally isolated from
the shoreline or critical area.
2
This sentence should either be eliminated from the SMP and these smaller buffer
sections treated the same as any other 150-foot Jefferson County shoreline buffer,
or an additional two sentences should be added identical to the Mason County
SMP requiring that the buffer function be reviewed before the buffer can be
modified or destroyed.
Much of the vegetated area along our Jefferson County shorelines has been lost
with destruction ongoing. During the last decade in the area where I live next to
Shine Road, around 50% of these vegetated buffer areas above Shine Road have
been cut down and/or mowed by residents. If left intact, these buffers can provide
improved water quality and important wildlife habitat and travelways.
By adding two additional sentences to our SMP, included in the approved Mason
County SMP, we would have an opportunity to better protect these vegetated
shoreline buffer areas. The addition of these two sentences should not affect any
existing public or private use. Mason County SMP’s two additional sentences state
(page 45):
Buffer reductions under this provision are allowed only when the
functional disconnection has been documented through a report by a
qualified professional that demonstrates the area is functionally
isolated. The County shall consider the hydrologic, geologic, and/or
biological habitat connection potential and the extent and permanence
of the physical separation.
In cases where roadways are unfortunately located in the 150-foot shoreline buffer
near the marine waters edge, the smaller-width remaining buffers above the
roadway become even more important. Another benefit of these remaining smaller
buffer sections above roads is to help maintain or improve water quality in our
county’s sections of Puget Sound and Hood Canal.
The present Jefferson County draft verbiage is confusing as there is no definition
of what is “functionally isolated.” Even if buffers were “isolated,” they would
likely still be providing important riparian habitat and function to protect water
quality.
Estuaries and shoreline buffers are some of the most important habitat for
numerous species of plants and animals in Washington state. A large percentage of
our shoreline buffers and tidelands have been lost over the years, making the
3
remaining shoreline buffers and tidelands even more critical, even if they are above
a paved road. We will be losing additional portions of this important habitat as we
see the impacts of global warming and rise of sea level eating away at the
remaining limited shoreline habitat. Either of these proposed wording changes
also address the county mission of considering global warming and sea level rise in
this SMP update.
4
5
Geoduck farm newly planted during May and June, 2023, near Shine Road,
Hood Canal
From:J Creek
To:Josh Peters; J Creek
Subject:Fwd: Jan Wold’s Additional Comments for Jefferson County’s SMP Hearing, 10/4/23
Date:Thursday, October 5, 2023 4:14:13 PM
Attachments:SMP JeffCo Biol Op 10423.pdf
ALERT: BE CAUTIOUS This email originated outside the organization. Do not openattachments or click on links if you are not expecting them.
These are the SMP comments I sent at 10:30pm on 10/4/23 for the SMP.
Jan Wold
Begin forwarded message:
From: J Creek <j.creek@hotmail.com>Date: October 4, 2023 at 10:30:47 PM PDTTo: Jefferson county Peters Josh <j.peters@co.jefferson.wa.us>, J Creek
<j.creek@hotmail.com>Subject: Jan Wold’s Additional Comments for Jefferson County’s SMPHearing, 10/4/23
Please add my additional comments in the attached document to the Record for
the Jefferson County SMP Hearing on 10/4/2023. Can you please also add theletter from the Hood Canal Environmental Council that was sent to you late this
afternoon to the record as well?
Could you please let me know you received these comments as well as thecomments I sent you by email on 10/3/23?
Thank you,
Jan Wold
POB 1340Poulsbo, WA 98370
Jan Wold
23
The Unfounded Dependence of the Shellfish Industry on the Use of Two Army
Corps of Engineers Required Biological Opinions for Commercial Shellfish
Farming in Washington State
October 4, 2023
Prepared by Jan Wold
Introduction:
The shellfish industry often tries to rely, as they did at the Jefferson County
Shoreline Program (SMP) Hearing tonight, on two outdated Biological Opinions
that were prepared for the Army Corps of Engineer’s 2017 Nationwide 48 Permit
for Commercial Shellfish Aquaculture Activities in the State of Washington.
These two Biological Opinions were not completed for this SMP process. The two
Biological Opinions being referenced in tonight’s hearing used data from 2014 or
earlier, nearly a decade ago. The two Biological Opinions also made all
determinations based on far fewer acres of aquaculture than are currently approved
and operating. In addition, many of the threatened and endangered species have
suffered very significant negative impacts during the last decade that could not
have been considered in the Biological Opinion analysis. Jefferson County should
not rely on these Biological Opinions, as was suggested by the shellfish industry
representative, to find that threatened and endangered species, their designated
critical habitat and the environment in general are not impacted by shellfish
farming.
The Army Corps of Engineers (Corps) was required in their commercial shellfish
permitting to have two Biological Opinions prepared due to the Endangered
Species Act (ESA). The ESA requires federal agencies to consult with the National
Marine Fisheries Service (NMFS) and/or U.S. Fish and Wildlife Service (USFWS),
pursuant to Section 7 of the ESA, regarding all actions that may affect a species
listed (or proposed for listing) under the ESA as threatened or endangered, or any
designated critical habitat.
The two Biological Opinions for Shellfish Activities in Washington State were
prepared for the Corps, one in 2016 by the U. S. Fish and Wildlife Service,
of 1 10
Reference Number 01EWFW00-2016-F-0121, and the other in 2014 by the
National Marine Fisheries Service, Reference Number WCR-2014-1502. Both of
these Biological Opinions rely on data from the Corps in the 2015 Programmatic
Biological Assessment (PBA) that was used as the basis to initiate consultations
with both the USFWS and the NMFS. It also provided data used by the USFWS
and NMFS for developing their Biological Opinions.
The Biological Opinion Analysis Process Was Based On Far Fewer Permits
and Acres of Shellfish Farms Than Now Exist
The first question regarding reliance on these 2014 and 2016 Biological Opinions
is whether the opinions were based on correct data for the number of acres and
permits that have been approved for commercial shellfish farms in Washington
State.
The data used to prepare the Biological Opinions is outdated. The Biological
Opinions were completed in 2014 and 2016, based on much lower commercial
shellfish farmed acres and numbers of permits than what the Corps has now
approved by 2023. The Second Amended Complaint, Coalition to Protect Puget
Sound Habitat and Center For Food Safety v. U. S. Army Corps of Engineers, Case
No. 2:21-cv-0168-JCC-DWC, U. S. District Court, Western District of Washington
at Seattle, dated June 10, 2022, page 18, lines 9-13, states:
In 2015, commercial shellfish aquaculture occupied one-quarter of the
state’s total shoreline, roughly 50,000 shoreline acres. Today, this number
has increased due to the Corps’ issuance of the 2017 and 2021 NWP 48.
According to the Corps’ estimates, commercial shellfish operations
authorized under the 2017 NWP cover 72,000 coastal acres, covering
roughly one-third of Washington’s total shoreline.
The Corps has continued to approve more and more commercial shellfish farm
permits, many as Letters of Permission (LOPs). LOP are a streamlined process
that allows no public notification or input. Most of the re-permitted operations
following the Federal Court’s vacatur of the 2017 NWP 48 were started as
individual permits (or “standard permits”) and then withdrawn to become LOP’s.
The Seattle District of the Corps issued 424 LOP’s to shellfish operations in
Washington’s tidelands from February 2021 to March 2022. The Corps has
continued to approve more and more individual permits and LOP’s since March
2022. It is inadequate and highly inappropriate to rely on these outdated
Biological Opinions that were prepared years ago to make a determination that
of 2 10
T&E species and their critical habitat, as well as the environment are not impacted
by commercial shellfish farming. This lack of updated analysis further illustrates
the need for a thorough cumulative impact analysis of all the existing and approved
commercial shellfish farms in Puget Sound.
Declining Numbers of T&E Species and Proposed Listing of new T&E Species
The Biological Opinions from 2014 and 2016 would not have had access to a great
deal of research and monitoring information that has become available since their
preparation dates. This information includes the decline in the populations of T&E
species and their critical habitat, carbon release, plastic pollution, impact to
eelgrass, forage fish and so forth.
There are an unusually large number of T&E species in and adjacent to the
shorelines of Jefferson County. Many of these T&E species have seen declining
populations during the decade. As examples, the number of marbled murrelets,
Pacific herring, and Chinook salmon, have been in significant decline. This
further invalidates the use of the USFWS and NMFS outdated Biological Opinions
as a basis to determine that there is no impact on T&E species or the environment.
The declining numbers of the sunflower sea star have led to the recent proposal to
list it as a threatened species under the ESA. This situation requires a new analysis
and new Biological Opinion. These changed situations further invalidate the
reliance on these Biological Opinions.
Details of Changes in Some Threatened and Endangered Species Populations
The FEIS inadequately considered the impact on the listed, or proposed for listing,
Threatened and Endangered fish, mammals, starfish and birds. Some specific
examples follow:
Southern resident orcas are listed as endangered both federally and in Washington
State. These orcas have dropped in number from 98 whales in 1995 to 73 whales
in December of 2021. They are highly dependent on Chinook salmon, some of
which come from Jefferson County marine waters and tributary streams.
Puget Sound Chinook salmon are federally listed as threatened. According to the
2022 State of Salmon in Watersheds, Executive Summary, Governor’s Salmon
Recovery Office, Washington State Recreation and Conservation Office, both
of 3 10
Puget Sound Chinook and Puget Sound steelhead are in crisis, the worst ranking
among all salmon abundance in 2022.
Research shows the annual percentage decline in numbers of the state endangered
and federally threatened marbled murrelet from 2012-2020 in Central Puget Sound
at -14.9% and in Hood Canal at -17.2%, a situation that is dire in Puget Sound
(Lance, M.M., and S.F. Pearson. 2021 and see attached document). Diagrams
showing the decline of marbled murrelets are shown toward the end of this
document.
The marbled murrelet is a pursuit diving bird that preys primarily upon small
schooling fishes including sand lance, anchovy, herring, and juvenile rockfish.
Foraging habitat and the availability of certain forage fish species are critical, not
simply because murrelets require these prey species to survive, but also because
prey availability can affect murrelet nesting success. Nesting success has been
dismal. The research suggests that lack of adequate forage fish for their one
nestling per year may be the cause of the poor nesting success.
The western grebe is a state candidate for listing as endangered, threatened or
sensitive, and the common loon is a state sensitive species. The WDFW notes that
the population of western grebes is low and declining. The western grebe feeds
mostly on fish obtained by diving. According to the WDFW the numbers of
common loon in Washington state are declining. The species is highly vulnerable
to any impacts. They feed primarily on fish, including herring and sand lance.
The decrease in forage fish species numbers since 2014 and 2016 and the impact of
this decrease on the many species that rely on them for food have not been
adequately addressed. Some of these forage fish are threatened, endangered, or
candidates themselves. Jefferson County has many Pacific herring (was a state
candidate species for listing) and sand lance spawning areas and also provides
rearing areas for these important forage fish. Continuing disturbance year after
year by commercial shellfish farming on critical habitat for forage fish and the
species dependent on them, some threatened and endangered, is not adequately
addressed in the outdated information in the Biological Opinions. It is apparent
from this data that there is already a net loss of these species and their habitat.
Puget Sound Chinook salmon feed on forage fish.
The NMFS Biological Opinion did not adequately analyze Pacific herring, that was
a state candidate species for listing in Washington as endangered, threatened or
sensitive and a federal species of concern. The chart at the end of this document
of 4 10
shows many of the Puget Sound, Hood Canal and Straight of Juan de Fuca Pacific
herring stocks depressed or in decline in 2012 and critical by 2016. The additional
impact of more and more commercial shellfish farms on the food chain has also
not been adequately addressed. There has not been an adequate cumulative impact
analysis of all impacts of commercial shellfish farming in Puget Sound.
The sunflower sea star has been rapidly disappearing from the West Coast of
California, Oregon and Washington since 2016. From 2013 until 2017, Sea Star
Wasting Syndrome resulted in a major die-off of the sunflower sea stars with a 90
percent decline across its range. Scattered populations can still be found in
Washington in parts of Puget Sound, including Hood Canal, at least in 2020. The
sunflower sea star has now been proposed for listing as threatened. This decline
and proposed T&E listing was never considered in the NMFS Biological Opinion.
The reliance on this Biological Opinion in the FEIS is not valid regarding the
sunflower sea star.
Reinitiation of Consultation:
50 CFR 402.16 states that reinitiation of formal consultation is required where
discretionary Federal agency involvement or control over the action has been
retained or is authorized by law and if: (1) the amount or extent of incidental taking
specified in the incidental take statement is exceeded, (2) new information reveals
effects of the agency action that may affect listed species or critical habitat in a
manner or to an extent not considered in this opinion, (3) the agency action is
subsequently modified in a manner that causes an effect on the listed species or
critical habitat that was not considered in this opinion, or (4) a new species is listed
or critical habitat designated that may be affected by the action. If any of the direct
take amounts specified in the opinion's effects analysis are exceeded, reinitiation of
formal consultation will be required because the regulatory reinitiation triggers set
out in (2) and/or (3) will have been met.
As shown above, the NMFS “Not Likely to Adversely Affect” determinations
anticipate the proposed action will have only insignificant or discountable effects
on the species named in Table 11 of the Biological Opinion (Puget Sound
steelhead, Chinook salmon, Boccaccio rockfish, canary rockfish, yellow eye
rockfish and southern resident killer whale) and that the proposed action will not
take any of the species listed in Table 11 (see page 63 of the NMFS Biological
Opinion).
of 5 10
The Biological Opinions only considered subtidal harvesting by divers of naturally
occurring geoducks under state leasing or a few subtidal acres under private
ownership. Neither the Corps’ PBA, nor the NMFS or USFWS Biological
Opinions considered any subtidal commercial geoduck farming using plastic tubes
and growing commercial geoducks at a much greater population density than
natural geoducks, yet subtidal zones are now being proposed for areas as large as
25 acres. There was no analysis of a commercial geoduck farm in subtidal waters
in the BPA or the two Biological Opinions. There was also no analysis of of a
large nine-acre floating cultivation site over a 50-acre sub-tidal lease as is now
being proposed in Southern Puget Sound. Again, it is not appropriate to depend on
these Biological Opinions.
Corps 2015 Programmatic Biological Assessment (PBA):
The Programmatic Biological Assessment is the analysis prepared by the Corps
that serves as the initiation and part of the analysis for the two Biological Opinions.
Page 81-82 of the PBA states:
When aquaculture is initiated or resumed on these fallow lands, there are
likely to be new impacts on the habitat or to ESA listed species relative to
the environmental baseline for this 2015 PBA which has a benchmark date
of 2012 for the environmental baseline.
The 2015 PBA is stating that the environmental baseline for these two Biological
Opinions was in 2012, eleven years ago. That makes the Biological Opinions even
more outdated and not appropriate for use in 2023.
PBA section 7.1.2 (page 83-4) on substrate and sediment does not even mention
the great concern now of release of large amounts of stored carbon occurring when
tideland substrate is disturbed. The large amounts of stored carbon being released
and the impact on water temperature, acidity and oxygen are not even considered
for impacts to T&E species, the environment, cumulative impacts and a
determination of no net loss.
Corps 2017 Cumulative Effects Analysis
While working on the original 2017 NWP 48, the Corps began to prepare a Draft
Cumulative Impacts Analysis for all of the commercial shellfish farms that the
of 6 10
Corps expected to permit in Washington state. This draft Corps analysis listed the
following statistics:
-Twenty-six percent of Gray's Harbor, Willapa Bay, Hood Canal, and South
and North Puget Sound tidelands combined were covered with commercial
shellfish farming permits at the time of the Corps’ analysis (page 55).
-An estimated 2,011 active and 724 fallow acres of South Puget Sound
tidelands are estimated to be potentially blanketed by shellfish cover nets
(pages 58 and 63).
-688 acres of South Puget Sound active commercial shellfish farms were co-
located with forage fish spawning areas (herring, surf smelt and sand lance).
29 percent of the total active acres of shellfish farms were co-located with
forage fish spawning areas (page 60 & 61).
-The proposed action of approving shellfish permits was determined likely
to adversely affect designated critical habitat for several species listed under
the ESA, including Puget Sound Chinook salmon and Puget Sound
steelhead. Adverse effects are due in part to impacts on eelgrass (page 111).
This Corps Draft Cumulative Effects Analysis, with the above listed data, was not
finalized and was not released to the public until it was obtained during a litigation
discovery process. This data used to develop the Cumulative Effects Analysis and
the draft document may not have been shared with the USFWS and the NMFS for
their 2014 and 2016 Biological Opinions. This Draft Cumulative Effects Analysis
provides some insight into the number of acres of commercial shellfish farming
and the impact to a number of species. The lower amount of commercial shellfish
farming permitted at that time was determined by the Corps Biologists as likely to
adversely affect designated critical habitat for several species listed under the ESA,
including Puget Sound Chinook salmon and Puget Sound steelhead, so it is
reasonable to assume that the greatly increased amount of commercial shellfish
farming now permitted will have an even greater adverse affect.
of 7 10
of 8 10
of 9 10
of 10 10