Loading...
HomeMy WebLinkAbout2023 10 30 Memo - Aquaculture and Conditional Use Permits 1 Aquaculture and Conditional Use Permits Prepared by Shannon & Wilson and BERK Consulting for Jefferson County| October 30, 2023 Introduction Public comment received during and after the public hearing on October 4, 2023 and deliberations on October 18, 2023 focused on the type of conditional use permit and the best way for the County to ensure proper permitting of geoduck aquaculture. Producers and other entities that focus on maritime activities preferred a process that did not automatically require a local hearing for conversions or expansions and residents of Shine and others preferred a hearing for all geoduck activities, new, expanded, conversion. A letter from Marilyn Showalter on October 27, 2023 continued to voice concerns about the Conditional Use Permit – Discretionary versus Conditional Use Permit Standard. Responses from the consultant team are provided below to assist County staff and decision makers. Responses to hearing comments can be found at the October 16, 2023 Staff Report. Conditional Use Permit Process Conditional Use Permits (CUPs), whether administrative, discretionary, or standard, all have in common the following three meaningful requirements: 1. The local decisionmaker, whether it is the County administrator or a hearing examiner, must base the decision on whether or not the applicant has demonstrated that the following Conditional Use Permit criteria are met. a. That the proposed use is consistent with the policies of RCW 90.58.020 and the master program; b. That the proposed use will not interfere with the normal public use of public shorelines; c. That the proposed use of the site and design of the project is compatible with other authorized uses within the area and with uses planned for the area under the comprehensive plan and shoreline master program; d. That the proposed use will cause no significant adverse effects to the shoreline environment in which it is to be located; and e. That the public interest suffers no substantial detrimental effect. The administrator also has to document the findings and conclusions supporting the decision or the recommended decision (if it goes to the hearing examiner). CUPs are only granted in all cases if they meet the CUP criteria and other requirements of the SMP. The decision, whether by the administrator or hearing examiner, can be appealed. 2. All CUPs have a public notice and 30-day public comment period, affording everyone an opportunity to submit written comments that will be reviewed and considered by the decisionmaker. 2 3. The final decision for all CUPs rests with Ecology, which can either agree in full with the administrator or hearing examiner’s decision, agree with added conditions, or deny. Ecology’s review is substantive, and includes confirming that the application meets the CUP criteria. Ecology’s decision can also be appealed. The County administrator uses findings in 18.40.520(2)(a) to identify if an application is going to be reviewed by the hearing examiner: Prior to referring an application for a use listed as “C(d)” in Table 3-1 in JCC 18.15.040 to the hearing examiner, the administrator shall make one or both of the following findings: (i) In the exclusive, discretionary judgment of the administrator, the application involves potentially significant issues relating to location, design, configuration, and potential impacts to surrounding properties and the community that can be more appropriately considered and addressed through an open public record pre-decision hearing before the Jefferson County hearing examiner; or (ii) In the exclusive, discretionary judgment of the administrator, the application We agree with Ms. Showalter’s letter that the Washington Administrative Code (WAC) does not distinguish new geoduck aquaculture from expansions – a CUP is required for both, and the County is consistent with the WAC in proposing a CUP for both. However, the WAC does not address whether the CUP processes need to be identical, leaving establishment of the process largely to local government, and the WAC does not require a hearing for any local decisions. The WAC does give local government some discretion over whether or not to require a CUP for conversions, and the County is continuing to require a CUP for conversions. With expansions or conversions there would be a record of performance in the current operation from federal, state, or county authorities, and performance standards that must be met to achieve the application. The review by the County and Ecology can provide due diligence to ensure operations are properly conducted. There is enforcement and fines as other tools to gain compliance for operations that fall out of compliance. Use of 2009 Shellfish Aquaculture Regulatory Committee Recommendations Ecology’s 2011 aquaculture rules update, to which this periodic update is belatedly addressing, relied on advice found in the 2009 Shellfish Aquaculture Regulatory Committee Recommendations on Guidelines for Geoduck Aquatic Operations document, which was prepared at the direction of the state legislature. Ecology recommended it to the County as a resource for this periodic update. There does not appear to be a nexus between Ms. Showalter’s request for a public hearing requirement for all expanded geoduck aquaculture or conversions to geoduck aquaculture and the listing of important new information that has emerged since 2009 or 2014. If an applicant’s application appears to inadequately address any of the detailed list of application requirements found in the proposed updated SMP, then commenters can make that case in written comments provided during the public comment period that is required whether or not there is a public hearing.