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Home My WebLink About2023 10 27 Showalter ltr to JCPM 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 27, 2023 Jefferson County Planning Commission c/o Josh Peters, jpeters@co.jefferson.wa.us Dear Planning Commission Members: Re: SMP Staff Draft (Discussed at October 18, 2023 Meeting) I urge you NOT to adopt the 10-18-2023 Staff Draft amendments regarding Conditional Use categories for geoduck applications, for the following reasons: Neither the Planning Commissioners nor the public had sufficient time (four business days) to absorb or discuss (three minutes per citizen) the significant changes proposed in the 10-18-2023 Staff Draft. •The changes in the 10-18-2023 Staff Draft were a SIGNIFICANT DEPARTURE from the draft of the last two years. •It was clear that the Planning Commissioners were not familiar with import of the newlanguage. •The heavily striked-through, underlined, and shaded language was difficult to read. •The Commissioners and the public should have been afforded a longer period to review and comment on the 10-18-2023 Staff Draft. The 10-18-2023 Staff Draft makes an arbitrary and discriminatory distinction between “new” and “expanded” geoduck operations. •There is no meaningful distinction between the two terms: both are on new tidelands. •The 10-18-2023 Staff Draft requires a Standard CUP for applications for “new” geoduckoperations, but allows a Discretionary CUP for applications to “expand” an existing geoduck operation. •A Standard CUP includes a public hearing and decision by neutral decision-maker basedon a written or recorded record (i.e., not on any non-public jawboning). •A discretionary CUP allows staff to grant the CUP outright (with no public hearing ordecision by a neutral decision-maker based only on the record) or, in the “exclusive,discretionary judgment”1 of the staff, to order a public hearing/hearing examiner mode. 1 The criteria in JCC 18.40.520(2) actually limit when a full CUP process can be ordered by staff. Showalter ltr JCP October 27, 2023 2 The different processes attached to these two terms provide unjustified competitive advantage to existing shellfish growers, even though virtually none of them has an underlying County shellfish permit. •Please see illustrative diagrams on the attached pages, “New,” Expansion” or “Conversion” Should It Make A Difference in Process?” to see how arbitrary anddiscriminatory these changes are. •An existing shellfish operator is extremely unlikely to have an existing county permit orcurrent county oversight, as virtually all operators were “grandfathered” without a permitin 2014. •An existing operator may be unscrupulous, while the new operator is upstanding—or viceversa—and yet the first is subject only to a discretionary CUP and the other to a StandardCUP. •In any given bay, a new operator could be more experienced than an existing operator— or vice versa—and yet the first is subject to a Standard CUP and the other to aDiscretionary CUP. •The public is also unfairly disadvantaged with existing shellfish growers, because the process does not require a public hearing or an initial decision by a neutral hearingexaminer, based on the record. •None of these distinctions should make a difference in the process: all are on new tidelands. All should be subject to the same process—a Standard CUP. Staff appeared to misunderstand the Washington Administrative Code in asserting that the WAC distinguishes “new” from “expansions.” It does not. 2 •In fact, the WAC discretion only distinguishes “new” from “conversions.” The WACcited in the Staff presentation, 173-26-241 (3) (b)(iv) (A), provides: 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 . . . •The WAC has no provision for “expansions.” Expansions are on new tidelands. As thereis no distinction in the WAC or in the environment, expansions should be considered“new,” and the permit process that applies should be the same. 2 The discussion regarding this WAC was hard to follow, as it was quick, and the WAC was on the screen only briefly. (And the commissioner in her car couldn’t see it at all.) Showalter ltr JCP October 27, 2023 3 Staff anchored its changes in a 2009 Report, which is beyond the time period justifying changes in a periodic review of the SMP. • The WAC 173-26-090(2)(d)(B)(ii) provides that in their periodic reviews: Local governments should also incorporate amendments to reflect changed circumstances, new information, or improved data. • WAC 173-26-090(2)(d)(B)(iii) provides: 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. • The 2009 Report obviously isn’t “new” information since 2014. More to the point, there is a lot of new information since the 2009 Report that supports a Standard CUP requirement for all geoduck applications. (Indeed, the 2009 Report acknowledged at page 3 that, at that time, “geoduck aquaculture is a relatively new activity.”) • Justifying policy based on 2009 conditions and opinions fails to address important new information (since 2014 and therefore also since 2009) such as: o New species listed as threatened or endangered under state or federal law o Evidence that microplastics invade our food chain o Evidence that macroplastics choke marine animals and create huge floating islands o New data on scarcity or presence of eelgrass and forage fish, by location. o Judicially recognized failure to account for cumulative effects of aquaculture on the marine environment. o For more information, see October 4 Hearing Comment Packet, pp 159-167/234 “Scientific Evidence that Industrial Shellfish Aquaculture Is Poisoning Our Shorelines” (All citations there are post-2014.) The simplest and most justified solution: Require a Standard CUP for all geoduck applications—as has been in the draft SMP for more than two years.3 Thank you for considering these comments, Marilyn Showalter 3 At a minimum, the new SMP should: (1) require a Standard CUP for both “new” and “expansion” geoduck applications; (2) limit Discretionary CUPs to geoduck applicants who already have an underlying Standard CUP; (3) require a Standard CUP upon request of any citizen; and (4) maintain an up-to-date (within two days) online list of all aquaculture applications. Showalter ltr JCP October 27, 2023 4 “NEW,” “EXPANSION,” OR “CONVERSION”? SHOULD IT MAKE ANY DIFFERENCE IN PROCESS? A Allen farms plot X with geoducks. Benson applies to farm plot Y with geoducks. Plot Y is “new,” so Benson will need a Standard CUP, including a public hearing and a decision by a neutral hearing examiner. B Allen farms plot X with geoducks. Allen applies to farm plot Y with geoducks. Plot Y is an “expansion,” so Allen (unlike Benson) will need only a Discretionary CUP. Staff has discretion to grant CUP outright, or, only in limited circumstances, to order a public hearing and a decision by a neutral hearing examiner. (JCC 18.40.520 (2)) [Note: Even if called an “expansion,” Y is in fact “new” tidelands.] C Allen farms plot X with geoducks. Benson owns plot Y but contracts with Allen to farm plot Y. Plot Y is an “expansion” for Allen, so Allen/Benson will need only a Discretionary CUP. Staff has discretion to grant CUP outright, or, only in limited circumstances, to order a public hearing and a decision by a neutral hearing examiner. (JCC 18.40.520 (2)) [Note: Even if called an “expansion,” Y is in fact “new” tidelands.] X Y X Y X Y Showalter ltr JCP October 27, 2023 5 D Allen farms plot X with geoducks. Benson applies to farm plot Z with geoducks. Plot Z is “new,” so Benson will need a Standard CUP, including a public hearing and a decision by a neutral hearing examiner. E Allen farms plot X with geoducks. Allen applies to farm plot Z. Allen will assert that Plot Y is an “expansion,” because elsewhere in the 6-30-2023 draft SMP (at line 4819), “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.” If so, Allen will need only a Discretionary CUP. Staff has discretion to grant CUP outright, or, only in limited circumstances, to order a public hearing and a decision by a neutral hearing examiner. (JCC 18.40.520 (2)) [Note: Z is in fact “new” tidelands.] F Allen farms plot X with geoducks. Benson farms oysters on plot Z, but now applies to farm geoducks, and insert, for the first time more than 43,000 PVC tubes per acre. Plot Z is a “conversion,” so Benson will need only a Discretionary CUP. Staff has discretion to grant the CUP outright, or, only in limited circumstances, order a public hearing and a decision by a neutral hearing examiner. (JCC 18.40.520 (2)) X Z X Z X Z