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HomeMy WebLinkAbout020524 Public Comment Marilyn Showalter ,5UCC- /5f(- Y Plitb4C MARILYN SHOWALTER 1596 Shine Road Port Ludlow,WA 98365 marilyn.showalter(agmail.com,360-259-1700 February 4, 2024 Board of County Commissioners Jefferson County, Washington JeffBoCC@cojefferson.wa.us Dear Commissioners Dean,Brotherton, and Eisenhour: Re: Proposing Language and Addressing Staffs 2-01-2024 Report to BOCC Before addressing the Staff Report of 2-01-2024, I'd like to propose language for the SMP that would be useful for any of the geoduck and non-geoduck options the BOCC is considering. It would require shellfish operators to file their federal permits with the County: By ninety days following the effective date of this subsection, any shellfish operator operating under a federal permit or authorization from the U.S. Army Corps of Engineers shall file with the Department of Community Development a copy of each permit or authorization it held or received since January 1, 2014, and shall file any federal authorization or permit received after the effective date of this subsection within 30 days of receiving it. [Could be added as new JCC 18.25.440(4)(a), or at the end of(4)] For most shellfish operators, this would entail emailing three permits (the permit in hand as of January 1, 2014; a permit received around 2017; and a permit received around 2021-23). This would take,perhaps, three to five minutes to accomplish. Most permits granted in the 2021-23 period are for 10-15 years, so unless the permittee needed a new permit for some reason(e.g., proposed new activity, legal cancellation), the need to file would not occur frequently. Here are points in favor of this low-cost high-value proposal: • The permits are public information,but take up to a year for a non-permittee to receive it from the Army Corps pursuant to a FOIA request. • Meanwhile,the permittees themselves have this public information readily at hand on their computers. It is a small effort to forward a copy to the County. The permittee has no proprietary right to this public information. • In order to determine whether an action(e.g., conversion, expansion, change in cultivation methods)triggers any requirement for a County permit,the County needs this information. It would also be useful in evaluating a complaint. The permit in effect as of February 21, 2014 is the only official way to know the legal acreage on that date. • In order to evaluate cumulative effects (a requirement under the county code and state law), the County need this information from all shellfishers in a wide area. Having this information will speed any review or permit process. 1 Showalter-BOCC SMP February 4,2024 Moving onto the 2-01-2024 Staff Report, I have attached a draft of the report, with my annotations. The annotations demonstrate that: Discussion of JCC 18.40.520(Discretionary CUP provisions) (page 1).The staff's selected quotes omit the code section's overriding feature of this section of code, which is that,regardless of what inquiry or findings staff does or doesn't make(and there is no requirement to inquire or make findings), the decision to make a case into a Type III case lies in the "sole discretion"of the Administrator and is unappealable. Options for Geoduck CUPs (page 4). What existing shellfish operators can do with their existing acreage is basically the ballgame. This entails hundreds and hundreds of tideland acres (the County doesn't know how much) that currently have no permit. No doubt there will be some efforts to expand and some proposals for unattached tidelands, but many of the most attractive tidelands are already occupied. • Options 1 and 2 allow 100%of existing shellfish tidelands to be converted to geoduck without a standard CUP, i.e.,with no requirement for a decision by a neutral decision-maker,based only on the record, and only after a public hearing. • Option 3A is an improvement over options 1 and 2. • Option 3B is an improvement over options 1 and 2 but leaves existing acreage in the vast majority of shoreline (Conservancy) subject only to a discretionary CUP. • Option 4 is so complicated that it almost necessarily will lead to what look like arbitrary or manipulated applications and decisions. In particular, resting decisions on percentages of acreage requires looking back to dated information that the county does not have. It also invites the strategy of"expand with non- geoduck first , then apply later for geoduck."Both percentage or absolute acreage criteria take no account of the actual tidelands/estuaries into which the proposed geoduck activity will taking place. • Option 5 (Standard CUP for all geoduck) is uniform, fair, and allows the appropriate level of inquiry and decision-making, i.e., a decision by a neutral decision-maker,based only on the record, and only after a public hearing. Expansion/Timeframe of Grandfathering Language(pp 5-7) The current code allows "grandfathering"of shellfish farms that existed as of February 21, 2014. It says they don't need any county permit, and moreover they can expand, convert, or change cultivation methods of up to 25% of their acreage without needing a permit. The question is how to treat this provision when the SMP is updated. • Grandfathering should be a one-time only legislative action. It should not be applied to new generations of shellfish farms established or granted a permit after the February 21, 2014. 2 Showalter-BOCC SMP February 4,2024 • Nor should grandfathering allow a pre-2014 farm to keep converting or expanding by successive 25% amounts every time an SMP is updated. • Physical thresholds (expansions, conversions)AND "cultivation method" thresholds are BOTH are important. An expansion into an estuary is a significant event. A conversion from oysters on the beach to plastic baskets hanging on rebar is a significant change. • The staff"Slide 9" (page 5) shows language that has never been adopted into any version of the SMP update. It was shown for 35 seconds at a virtual meeting of the Planning Commission,was not in the agenda packet(so was unavailable to the commissioners or the public), and was not moved or adopted by the Planning Commission. In the 35 seconds where it was presented by the staff,there was no mention, let alone explanation or discussion, of the changes relating to cultivation methods. • The Option presented by Staff has two major problems: o It allows a 25%future expansion of a new farm that gets a county permit. Permits don't work that way: they authorize activity for a set area. If a 25% expansion is also allowed,the applicant and the decision-maker in the permit process will have to take than into account, and produce and evaluate information for any potential expandable area. Conditions of the permit would also need to anticipate the expansion. This feature of the Option should be eliminated. Only farms established prior to February 21,2014 should have the expansion privilege, and only for a 25%expansion of the acreage under cultivation on that date. o It omits entirely the current code's threshold for requiring a permit upon significant changes in cultivation methods. Staff says this is because JCC 18.25.440(4)(c)addresses the question,but it doesn't. JCC 18.25.440(c) provides the threshold for a substantial development permit, not a conditional use permit. As written, the Option would allow 100% of all shellfish to change cultivation methods on 100%of their acreage without need of a county permit. This could include converting to hanging baskets on rebar, mechanical harvesting, and things you can't now think of. The point of the current code is to gain county review over significant changes such as those just mentioned if they occur on more than 25%of the cultivated acreage. o In addition, the language in Slide 9, if we are to go back to it, has a similar serious flaw: it would allow 25% of the acreage to be converted to a new cultivation method every ten years, or every time the SMP is updated, whichever is the shorter period. 3 Showalter-BOCC SMP February 4,2024 • Here is draft language that addresses the grandfathering/timing issues i: PROPOSAL BY MGS 2-04-2024 (changes to current code shown in redline; mine are highlighted in yellow) (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) In the case of a shellfish farm federally authorized to operate as of February 21, 2014, and actively operating since that date,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 February 21, 2014. 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 separately and cumulatively to both in- water and above OHWM development (e.g., the in-water expansion cannot exceed 25% of the original in-water area, the above OHWM development cannot 25%of the original above OHWM development area, nor can the combined in-water and above OHWM expansion excee 25% of the original combined area). Any expansions of existing geoduck aquaculture operations requires a permit for the expanded area if the existing operation is already permitted or for the entire operation if not already permitted; or (ii)The shellfish farm receives a permit after February 21,2014, in which case the terms and conditions of the permit shall control. Incorporating"Best Practices" into Code. (p 7) This is a bad idea. 1) Instead of enforcing the county code, the county will have to interpret and enforce privately developed practices of the shellfish industry; 2) The BMPs may change over time with no county review; 3) The BMPs might NOT change over time, even though they should; 4) The REGULATOR(the county), not the REGULATED (the shellfish industry) should set the conditions, whether in law or in a permit; and 5) Requiring adherence to BMPs adds nothing: the permit and the permittee must comply with the law and permit conditions, whether by BMPs or some other practice. I want to make clear that I do not agree with the policy of this provision. In my view,there should have been no expansion or change-in-methods privilege granted to grandfathered shellfish farms,but now,at a minimum,the privilege should not exceed the original provision. 4 Showalter-BOCC SMP February 4,2024 Thank you for your attention. Sincerely, ande SSiaW4& Marilyn Showalter Attachments: JCC 18.40.520 Highlighted Staff Report of 2-01-2014 annotated by Marilyn Showalter Cc: Josh Peters Phil Hunsucker .... r .. i GURE 6,A modified tractor-powered`street sweeper'to remove macroalgae biofouling from predator nets • • w:. t FIGURE 7.A tulip-bulb harvester modified to harvest Manila clams after predator netting has been removed. FIGURE 8(TOP)AND 9(BOTTOM).Close-up of the mechanical harvester and dams.A combination of a vibrating rake and rotating brush dig Reusable polypropylene mesh(6 or 10 mm square openings) clams buried 2-4 inches deep onto a conveyor The vibratory action also shakes predator nets(90-460 m long x 1.2 m wide)are installed in strips, most of the sand off the clams,so by the time they reach the bins.they are along the edges and fixed to the sediment with large steel fairly dean.Each bin holds about 50 pounds of clams. staples(Fig 4)('lam seed(3 2 3.5 min shell length)is planted Source: World Aquaculture,December 2017,p 51. 5 Conditional use permit types-Review processes. (1) Applications for uses listed as an administrative conditional use permit(i.e., "C(a)") in Table 3- 1 in JCC 18.15.040 shall be processed according to the procedures for Type II land use decisions established in Article IV of this chapter. (2) Applications for uses listed as discretionary conditional use permits(i.e., "C(d)")in Table 3-1 in JCC 18.15.040 shall, at a minimum,be processed according to the procedures for Type II land use decisions established in.Article IV of this chapter. However, in accordance with this subsection, to be processed according to the procedures for Type III land use decisions established in Article IV of this chapter. (a) Required Findings. 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 seeks approval of a use involving complex legal issues necessitating special expertise in the decision-maker. (b) Timing. The administrator may determine whether or not to refer an application to the hearing examiner for a public hearing, concurrent with the determination of completeness required under JCC 18.40.110(1), or after the public comment period has expired. RDiscretion of the Administrator. The administrator's decision to refer an application to the hearing examiner under this subsection to be processed as a Type III application shall be for the purpose of affording maximum fairness in decision-making and procedural due process protection, and shall not affect the substantive a licabilit of local, state or federal olicies or law a licable to an ermit a lication. No Notice or Hearing Required. Because the administrator's decision to refer(or not to refer) an application for a use listed as"C(d)" in Table 3-1 in JCC 18.15.040 to the hearing examiner for a public hearing rests solely in the administrator's discretion,the county is not required to provide prior notice of the administrator's decision. The administrator shall not be re uired to hold a ublic hearin on such a decision. FRSoN `C'e Jefferson County Shoreline Master Program (SMP) Periodic Review . vi9SHfNG�C? Staff Report I February 1,2024 for February 5,2024 Meeting By:BERK Consulting,Inc.,Shannon& Wilson,and Jefferson County Department of Community Development Questions,Answers and Options This document summarizes questions—principally about geoduck aquaculture operations,policy,and regulation that were discussed at the January 16 and January 22,2024 Board of County Commissioners(BoCC or Board)meetings.Responses and options are provided. What are the required indingsj for a Discretionary Conditional Use Permit(C(d)in the use table) Commented[MST):By framing the question this way to become a Standard Conditional Use(C)before the Hearing Examiner. ("required findings'),staff omits the overriding features of this section: Staff is not required to determine these issues in the first place(even if they exist);if staff does make these See:JeffersonCounty 18f JeffersonCounty 1840.html#18-40.5201 findings,staff is still not required to turn the case into a Type Ill;and the decision to make a case a Type Ill is in the sole discretion of the Administrator and is unappealable. Also, importantly,any case for which these findings aren't made or (a) equirea Findings.Prior to referring an application for a use listed as"C(d)"in Table can't be mode CANNOT become a Type Ill case. So the language Staff shows Is a limitation on what con become a 3-1 in JCC 18.75.040 to the hearing examiner,the administrator shall make one or both Type Ill case.See attached complete language. of the following findings: iii ented[M52:Staff has (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 Commented[MS31:Staff HAS LEFT OUT critical language from the code. There is no obligation to make these findings considered and addressed through an open public record pre-decision hearing before the UNLESS the Administrator wants to(but does not have to) Jefferson County hearing examiner;or convert the case to a Type III. The Administrator can decide to keep ANY cone at the Type II level,and that decision is UNAPPEALABLE. Further,any cases that don't meet(i)or(ii) (ii) In the exclusive,discretionary judgment of the administrator,the application seeks CANNOT be converted to Type III. So these provisions approval of a use involving complex legal issues necessitating special expertise in the RESTRICT what cases can and will become Type III.Seep pink- highlighted language in)CC 18.40520,attached. kteciSion-maker. —-- Commented[MS4):Saff has LEFT OUT" Additional:Memo to Planning Commission on Aquaculture and Conditional Use Permits(10/30/23): [Note:Use"public"and"public"to access documents in Laserfiche.] Do State Shoreline Rules reFerence the no-net-loss of shoreline ecological function for aquaculture? Yes,see WAC 173-26-241(3)(b): (b)Aquaculture. (i)General provisions. (A) Aquaculture is the culture or farming of fish,shellfish,or other aquatic plants and animals.Aquaculture does not include the harvest of wild geoduck associated with the state managed wildstock geoduck fishery. This activity is of statewide interest.Properly managed,it can result in long-term over short-term benefit and can protect the resources and ecology of the shoreline. Aquaculture is dependent on the use of the water area and,when consistent with control of :ill I 1 pollution and prevention of damage to the environment,is a preferred use of the water area. Local government should consider local ecological conditions and provide limits and conditions to assure appropriate compatible types of aquaculture for the local conditions as necessary to assure no net loss of ecological functions.(emphasis added) If state and federal agencies address geoduck aquaculture,does the County need to regulate geoduck aquaculture? Yes,the Shoreline Management Act(SMA) and implementing rules have different purposes that are broader than geoduck aquaculture.Also,the State passed geoduck aquaculture rules that Shoreline Master Programs must adhere to in 2011. However,the County does recognize the benefits of streamlining requirements across different agencies (e.g.,Joint Aquatic Resources Permit Application,JARPA).Similarly,above the submittal matrix for aquaculture(Table 18.25.440)the draft code would indicate: To minimize redundancy, the county shall accept supporting permit applications and studies required by state and federal agencies that fulfill one or more of the requirements in subsections (a) through(e). Does the Priority Aquatic Shoreline Environment Designation(SED)refer to commercial shellfish or to habitat for shellfish? State rules address Aquatic designations and several jurisdictions have more than one type of Aquatic designation like Aquatic and Priority Aquatic to differentiate shoreline conditions. The designation descriptions in Jefferson County's SMP are: 0 Priority Aquatic:The priority aquatic designation protects to the highest degree possible and,where • feasible,restores waters and their underlying bedlands deemed vital for salmon and shellfish. ....These shorelines have one or more of the following qualities: (A)Documented Endangered Species Act-listed salmonid streams and marine habitats(summer chum,chinook,and steelhead); (B)Estuaries that support Endangered Species Act-listed salmonid rearing; (C)Other freshwater shorelines that provide habitat for salmonid species(coho,fall chum, pink,and cutthroat)and are relatively undeveloped; (D)Intact drift cell processes(i.e.,sediment source,transport,and deposition); (E)Documented forage fish spawning habitats(herring,surf smelt,sandlance);and/or (F)Important intertidal and subtidal shellfish areas(clam,oyster,crab,shrimp,and geoduck). Aquatic:The aquatic designation protects,manages,and,where feasible,restores lake,stream,and marine waters and their underlying bedlands that are not designated as priority aquatic. Regardless of aquatic type,the State rules consider the following management principles(:VAC 173-25- _(5)(c))for the Aquatic designation reflecting both protection of habitats and addressing shoreline preferred uses: (E)Uses that adversely impact the ecological functions of critical saltwater and freshwater habitats should not be allowed except where necessary to achieve the objectives of RCW 0. 8.020,and February 1,2024 Jefferson County 1 BoCC Meeting February 5,2024 C - then only when their impacts are mitigated according to the sequence described in WAC 173=26- 20' (2)(e)as necessary to assure no net loss of ecological functions. (F)Shoreline uses and modifications should be designed and managed to prevent degradation of water quality and alteration of natural hydrographic conditions. (G) Local governments should reserve shoreline space for shoreline preferred uses.Such planning should consider upland and in-water uses,water quality,navigation,presence of aquatic vegetation, existing shellfish protection districts and critical habitats,aesthetics,public access and views. What is the share of shoreline environments by designation? The graph below shares the extent of Shoreline Environment Designations upland of the ordinary high water mark(OHWM).The most extensive upland Shoreline Designation is Conservancy followed by Natural.Shoreline Residential and High Intensity are applied to fewer acres in the shoreline jurisdiction. Upland Shoreline Designa©ons 5% 14% -. Conservancy 1% ■High Intensity ■Natural Shoreline Residen®aI (SR 80% Source:Jefferson County GIS,BERK 2023 The graph below shows the extent of Shoreline Environment Designations waterward of the ordinary high water mark.The Aquatic designation is more prevalent than the Priority Aquatic designation. Aquatic Shoreline Designations .;F42% ■Aquatic ��;_ SS o ■priority Aquatic 't February 1,2024 Jefferson County I BoCC Meeting February 5,2024 —I 6. Could the County set criteria for Discretionary versus Standard Conditional Use Permits tailored to geoduck aquaculture? Yes,see Exhibit 1 below.Attachment A provides an alternative approach to Conditional Use Permit(CUP) types for geoduck aquaculture for each option below.Attachment B compares permit types,aesthetic standards,and approach to plastics and debris in adjacent County SMPs. Exhibit 1.Geoduck Aquaculture Conditional Use Permit Approach Options Options for Geoduck Aquaculture BoCC Direction 1.;Planning;Commission Recommendation:Standard CUP for Priority Aquatic or Aquatic(New) Commented[MSS]:Option 1 allows 100"!,of existing or Natural designations and otherwise Discretionary CUP.This is a mix of standard and shellfish farms to convert or expand to geodudcs without a discretionary CUPs for new,conversion,or expansions depending on shoreline environment standard CUP(and they don't hove county permits row) designation. s as#1 EXCEPT treat expansions like new geoduck operations.(This was a Planning Commented[MS61:Option 2 allows 100%of existing Commiss ion considered option.) shellfish farms to convert,to geoduck without a standard CUP. 3.Modify#1 to change Standard and Discretionary CUP in use matrix. A.;Modify;CUP on use table/text to make a Standard CUP where Aquatic or Priority Aquatic — Commented[MS7]:Option 3A is on improvement over designations abut Shoreline Residential,Conservancy,or Natural Shoreline Designations.That � i options 1 and 2. would only leave shoreline readies with Aquatic or Priority Aquatic abutting High Intensity as Commented(M58R7]:Option 3B is an improvement over having a Discretionary CUP. options 1 and 2 but leaves the majority of shoreline B.Modify CUP on use table/text to make a Standard CUP where Aquatic or Priority Aquatic (Conservancy)subject only to a discretionary CUP. designations abut Shoreline Residential or Natural Shoreline Environment Designations. 4.Set Standard Conditional Use Permit process threshold criteria for geoduck aquaculture: • Any new geoduck operation in any Shoreline Environment Designation. • Any conversion or expansion in Priority Aquatic and Natural,and any conversion or expansion abutting Natural or Shoreline Residential Shoreline Environment Designations. • pry the Aquatic Shoreline Environment Designation,when the expansion or conversion would Commented]MS9]:Setting any threshold based on exceed 25%(current aquaculture threshold)or X acres in any 10-year period. !percentage of an area[including the current code]makes no environmental sense,since it could be anything from Y.acre to 25 acres or more. 5.Treat all geoduck aquaculture with standard CUP.(This was a Planning Commission —11 considered option.) Commented(MVO Option 5 is fair,neutral,and the !only option that requires all geoduck decisions to be made by a neutral decision-maker,based on the record,and does not cut off citizens from the right to be heard by the neutral 7. Does the SMP require compliance with other permits? decision-maker. JCC 18.25.070(Relationship to other plans and regulations)includes the following provisions that require compliance with other local,state and federal laws.Compliance with laws and regulations encompasses compliance with any permits or approvals that are required by those laws and regulations. (1) Uses and developments regulated by this program may also be subject to other provisions of the ICC,the Jefferson County Comprehensive Plan,the Washington State Environmental Policy Act (Chapter 43.21C RCW and Chapter 197-11 WAC),and other local,state and federal laws. (2) Project proponents are responsible for complying with all applicable laws prior to commencing any use,development or activity. :iii February 1,2024 Jefferson County I BoCC Meeting February 5,2024 I 4 8. Do no net loss requirements apply to aquaculture in Jefferson County's SMP,and how is that implemented? It is clearly established in the SMP that"no net loss of ecological functions"requirements apply to all uses and developments in shoreline jurisdiction.For example,JCC 18.25.270(2)(a)states that: "All shoreline use and development,including preferred uses and uses that are exempt from permit requirements,shall be located,designed,constructed,conducted,and maintained in a manner that maintains shoreline ecological processes and functions." Within the aquaculture regulations,there is a specific reference to"no net loss"in two places: 1)in a provision stating that geoduck CUPs need to be conditioned to"achieve no net loss of ecological functions,"and 2)in the general application requirements list stating that all aquaculture submittals need to include"Measures to address impacts to achieve no net loss of ecological functions." There are also a number of provisions that require that adverse effects to ecological functions be avoided.For example: (i)Subtidal,intertidal,floating,and upland structures and apparatus associated with aquaculture use shall be located,designed and maintained to avoid adverse effects on ecological functions and processes. (ii) The county shall consider the location of proposed aquaculture facilities/farms to prevent adverse cumulative effects on ecological functions and processes and adjoining land uses.The county shall determine what constitutes acceptable placement and concentration of commercial aquaculture in consultation with state and federal agencies and tribes based on the specific characteristics of the waterbody,reach,drift cell,and uplands in the vicinity of the farm/facility. Geoduck CUPs are also required to include"monitoring and reporting requirements necessary to verify that geoduck aquaculture operations are in compliance with conditions set forth in the CUP." If required monitoring and reporting is not conducted,or if the monitoring indicates that certain performance standards or conditions are not being met(such as a requirement for achievement of no net loss of ecological functions,for example),that could be cause for a potential rescission or modification of the permit by a hearing examiner under JCC 18.25.780. 9. Potential Adjustments to the Expansion Timeframe Language In communications on January 23 and 24,2024,Ms.Marilyn Showalter alerted County staff and the Board of County Commissioners to an inadvertent omission of the original text underlined below during regulation amendments that occurred during Planning Commission review in summer 2021,preceding the delivery of the revised SMP to Ecology in October: JCC 18.25.440(4)(b)(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 anv 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 The initial step that ultimately resulted in the loss of the underlined text was provided in potential amendments presented to the Planning Commission at its July 7,2021,meeting(presentation slide image shown below).The slide shows that the operation/cultivation method change element was split from the expansion element so there were two discrete paragraphs,and then additional clarification of the Ni February 1,2024 Jefferson County I BoCC Meeting February 5,2024 I 5 expansion parameters was added in response to staff interpretations.The"compared to the conditions that existed as of the effective date of this program or any amendment thereto"was carried into that second operation/cultivation methods paragraph,but was unfortunately not also kept with the expansion text.Later,the cultivation/methods language was struck altogether as a reason for triggering a new permit since.ICC 18.25.440(4)(c)addresses circumstances when changes to uses/activities would trigger a new permi Commented[MS11]:This is a misreading of the code. �f,1CC 18.25.440(4)(c)addresses when a SUBSTANTIAL DEVELOPMENT permit is needed. The language that was stricken,on the other hand,addressed when changed �\ • cultivation methods require at least a conditional use permit. Aquaculture — Options a n d 2 The stricken language,in some form,needs to be restored. Options 1 !! Otherwise,a shellfish farm could convert,e.g.,100%of its Qom/ acreage from oysters on the ground to plastic baskets Text w suspended on rebar,without any county review. (And they 4(b){i)allows the doubling of shellfish farm have no county permit now,so there is no current county oversight.) size over 30 years with NO county review. _ (And these farms have no permits now.)mgs Commented[M512]:This slide was flashed on the screen I for 35 seconds at the July 21,2021,Planning Commission '. (4)Regulations—General. meeting(which won virtual). It was NOT in the agenda -',.pocket for the meeting,and the draft SMP that WAS in the (b)Ongoing maintenance,harvest,replanting,restocking of or changing the species cultivated in any existing packet did not contain this language. The slide was or permitted aquaculture operation is not considered new use/development,and shall not require a new ;presented by staff with NO explanation or discussion of permit,unless or until: (4)(b)(iii).There was no motion to adopt this language or any discussion of It by the Planning commissioners. (i)For non-geoduck aquaculture T-the 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. 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 i ertMore 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 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. OHWM development;or 4(b)(ii)allows 25%the area to change cultivation methods(e.g.,from on-ground oysters to hanging racks on rebar)every 10 years,which is 75%in 30 years, with NO county review. (And these farms have no permits now.)Please note: This language has not been in ANY draft SMP that I have found.mgs Two options are presented below for Board consideration. Exhibit 2.Options for Non-Geoduck Aquaculture Expansion Time(ieferencei _ Commented[MS131:Because of the phrase"or any amendment thereto"Option 1 4(b)(i)allows the doubling of shellfish farm size over 30 years with NO county review. Options BoCC Direction (And these farms hove no permits now.)There needs to be a firm anchor date,i.e.,February 21,2014,with NO ,adjustment. Otherwise there is continual grandfathering and 1.Restore the omitted language. continual permitted expansion with NO county review. (i)°ori non-geodudc aquaculture,the physical extent of the facility or farm is Commented[MS141:Option 1 does not address 4(b)(ii), expanded by more than 25 percent compared to the conditions that existed as of the which would allow 25%the area to change cultivation effective date of this program or any amendment thereto.If the amount of expansion methods(e.g.,from on-ground oysters to hanging racks on exceeds 25 percent in any 10-year period,the entire operation shall be considered rebar)every 10 years which is 75%in 30 years,with NO new aquaculture and shall be subject to applicable permit requirements of this {county review. (And These fames have no permits now.) section. :111 February 1,2024 Jefferson County I BoCC Meeting February 5,2024 I 6 Options BoCC Direction This change would effectively re-start the timeline for comparison of original and expanded acres to the date of this amendment.Any expansions that happened since 2014 would be part of the existing condition against which the expansion would be measured. 2.Fix the time of comparison to the 2014 update during which this language was originally added,or to dote of County permit issuance if the operation did not exist in 2014. (i)For non-geoduck aquaculture,the physical extent of the facility or form is expanded by more than 25 percent compared to the conditions that existed as of February 21,2014,or the date of County permit approval if the operation did not exist as of February 21.2014',If the amount of expansion exceeds 25 percent in any _ Commented(M5751:This language will not work and 10-year period,the entire operation shall be considered new aquaculture and shall should be replaced. If an operation gets a permit after be subject to applicable permit requirements of this section. February 21,2014,then the terms of the permit(usually a set size,with set conditions,over a set period of time)should This change would effectively fix the timeline for comparison of original and expanded acres apply. Otherwise,a permit process would have to anticipate to the date of the last major update of the aquaculture regulations which first introduced this a 25%expansion(in any direction)when deciding to issue language.Any expansions that happened since 2014(or the date of the County's first the permit,which would make it more difficult to issue the permit See attached language for a fix. approval)would be considered part of the calculated 25%limit against which any additional g - expansion would be measured. 10.Best Management Practices While the term"best management practices"(BMPs)is not currently found in the Aquaculture 1regulation4 _ Commented(M516J:It is a GOOD thing that tints are many of the regulations that apply to one or more types of aquaculture effectively require the use of not directly referenced in code,as that would be a county regulation deferring to the privately developed guidelines of BMPs to implement the activity in a manner that avoids and minimizes adverse effects on a number of the regulated industry,which is backwards of how regulation factors,such as water quality,aesthetics,and aquatic vegetation,or by a number of factors,such as works. equipment,waste,and lights.See JCC 18.25.440(4)(e)and(5)for examples. For geoduck aquaculture,the County is also required to further condition the project as needed to address potential operations impacts—any conditions would essentially be adding specific BMPs to the permit. JCC 18.25.440(6)(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. Finally,in the application requirements section,all aquaculture submittals must include"Anticipated levels of management practices to minimize the impacts from mooring,parking,noise,light,littler and odor." :ill February 1,2024 Jefferson County 18oCC Meeting February 5,2024 7 Exhibit 3.Options for BMPs Options BoCC Direction 1.Rely on provisions in the existing draft SMPI _--- 1 Commented[MS171:This is correct. The law should just set the standards to be met. BMPs will either achieve the 2. Add a specific regulation that requires all aquaculture operations to comply with their +standard or will not achieve the standard,but they should not industry's and regulating agencies'most current BMPs to the extent relevant and practicableL _ _ i be incorporated by reference. The Pacific Coast Shellfish Growers Association(PCSGA),for example,has an Environmental Commented[MS16]:Requring compliance with BMPs is a Code of Practices that is available to members.The Washington Deportment of Natural bad idea for several reasons: 1)Instead of enforcing the Resources(DNR)also has a list of BMPs for geoduck aquaculture that is conducted on state- county code,the county will have to interpret and enforce owned aquatic lands. I privately developed practices of the shellfish industry.2)The BMPs may change over time with no county review;3)The 1 l.Derelict Gear Management i BMPs might NOT change over time,even though they should; 9 4)The REGULATOR(the county),not the REGULATED(the shellfish industry)should set the conditions,whether in law or There are several regulations in the existing draft SMP that directly or indirectly address management of in a permit;and 5)Requiring adherence to BMPs adds derelict gear and other aquaculture-related equipment and debris.Two of the key regulations are in nothing: the permit and the permittee must comply with the law and permit conditions,whether by BMPs or some other JCC 18.25.440(4)(e): practice. (xvi)Equipment,structures and materials shall not be discarded in the water and shall not be abandoned in the upland.Aquaculture structures and equipment used on tidelands below ordinary high water shall be of sound construction,with the owners'identifying marks where feasible,and shall be so maintained.Abandoned or unsafe structures and/or equipment shall be promptly removed or repaired by the owner. (xvii)No garbage,wastes or debris shall be allowed to accumulate at the site of any aquaculture operation,except for in proper receptacles. There are also several provisions under(4)(e)(xii)that specifically target management of predator control/exclusion devices,requiring they be firmly attached or secured so they do not become dislodged, that any dislodged devices be promptly recovered,and that devices be permanently removed when no longer needed. Exhibit 4.Options for Derelict Gear/Debris Options BoCC Direction 1.Rely on provisions in the existing draft SMP. 2. Add a specific regulation to the application requirements that is similar to the following provision included in Clatlam County's SMP: "How prevention of marine debris accumulation will be addressed and what site operational management practices will be implemented including worker training and regular removal of equipment,tools,extra materials,and all wastes;" 1 2.What definitions in the SMP(JCC 18.25)may need adjustment to reconcile with definitions in the Uniform Development Code(JCC 18.10)? See matrix under separate cover.Only changes to JCC 18.25 are under consideration at this time.The disposition of other potential changes under JCC 18. 10 could occur in a future docket. :iii February 1,2024 Jefferson County I BoCC Meeting February 5,2024 1 8 Attachment A: Geoduck Aquaculture — Criteria for Standard CUP 1.Planning Commission Recommendation:Standard CUP for Priority Aquatic or Aquatic(New)or Natural designations and otherwise Discretionary CUP.This is a mix of standard and discretionary CUPs for new,conversion,or expansions depending on shoreline environment designation. Environment Designations Waterward of Landward of OHWM OHWM Priority Aquatic Natural Conservancy Shoreline High Shoreline Uses Aquatic Residential Intensity Aquaculture: Aquaculture activities other than P P P P P P geoduck,in-water finfish,and upland finfish. Geoduck-new C* C* C* C(d)* C(d)* C(d)* Geoduck-expansion or C* C(d)* C* C(d)* C(d)* C(d)* conversion from non-geoduck to geoduck *=Exceptions and limitations may apply as noted in this program.See specific section for details. 2.Same as#1 EXCEPT treat expansions like new geoduck operations.(was a Planning Commission considered option) Environment Designations Waterward of Landward of OHWM OHWM Priority Aquatic Natural Conservancy Shoreline High Shoreline Uses Aquatic Residential Intensity Aquaculture: Aquaculture activities other than P P P P P P geoduck,in-water finfish,and upland finfish. Geoduck-new or expansion C* C* C* C(d)* C(d)* C(d)* Geoduck-expansion or C* C(d)* C* C(d)* C(d)* C(d)* conversion from non-geoduck to geoduck *=Exceptions and limitations may apply as noted in this program.See specific section for details. I( February 1,2024 Jefferson County I BoCC Meeting February 5,2024 9 3.Modify#1 to change Standard and Discretionary CUP in use matrix. A.Modify CUP on use table/text to make a Standard CUP where Aquatic or Priority Aquatic designations abut Shoreline Residential,Conservancy,or Natural Shoreline Designations.That would only leave shoreline reaches with Aquatic or Priority Aquatic abutting High Intensity as having a Discretionary CUP. Environment Designations Waterward of Landward of OHWM OHWM Priority Aquatic Natural Conservancy Shoreline High Shoreline Uses Aquatic Residential Intensity Aquaculture: Aquaculture activities other than P P P P P P geoduck,in-water finfish,and upland finfish. Geoduck-new C* C* C* C(d)* C(d)* C(d)* Geoduck-expansion or conversion C* C(d)* C* C(d)* C(d)* C(d)* from non-geoduck to geoduck *=Exceptions and limitations may apply as noted in this program.See specific section for details. Table3A looks like Option 1 but text edits in 1CC 18.25.440 Aquaculture would indicate that where Aquatic or Priority Aquatic designations abut Shoreline Residential,Conservancy,or Natural Shoreline Designations a standard CUP applies. B.Modify CUP on use table/text to make a Standard CUP where Aquatic or Priority Aquatic designations abut Shoreline Residential or Natural Shoreline Environment Designations. Environment Designations Waterward of Landward of OHWM OHWM Priority Aquatic Natural Conservancy Shoreline High Shoreline Uses Aquatic Residential Intensity Aquaculture: Aquaculture activities other than P P P P P P geoduck,in-water finfish,and upland finfish. Geoduck-new C* C* C* C(d)* C(d)* C(d)* Geoduck-expansion or conversion C* C(d)* C* C(d)* C(d)* C(d)* from non-geoduck to geoduck *=Exceptions and limitations may apply as noted in this program.See specific section for details. :II February 1,2024 Jefferson County I BoCC Meeting February 5,2024 6 10 Table 3B looks like Option 1,but text edits in JCC 18.25.440 Aquaculture would indicate that where Aquatic or Priority Aquatic designations abut Shoreline Residential or Natural Shoreline Environment Designations a standard CUP applies. 4.Set Standard Conditional Use Permit process threshold criteria for geoduck aquaculture: Any new geoduck operation in any Shoreline Environment Designation. Any conversion or expansion in Priority Aquatic and Natural,and any conversion or expansion abutting Natural or Shoreline Residential Shoreline Environment Designations. In the Aquatic Shoreline Environment Designation,when the expansion or conversion would exceed 25%(current aquaculture threshold)or X acres in any 10-year period. Environment Designations Waterward of Landward of OHWM OHWM Priority Aquatic Natural Conservancy Shoreline High Shoreline Uses Aquatic Residential Intensity Aquaculture: Aquaculture activities other than P P P P P P geoduck,in-water finfish,and upland finfish. Geoduck-new C* C* C* C(d)* C(d)* C(d)* Geoduck-expansion or C* C(d)* C* C(d)* C(d)* C(d)* conversion from non-geoduck to geoduck *=Exceptions and limitations may apply as noted in this program.See specific section for details. Table 4 looks like Option 1,but text edits in JCC 18.25.440 Aquaculture would indicate that where Aquatic or Priority Aquatic designations abut Shoreline Residential or Natural Shoreline Environment Designations a standard CUP applies.Also,in the Aquatic Shoreline Environment Designation,when the expansion or conversion would exceed 25%(current aquaculture threshold)or X acres in any 10-year period. 11I February 1,2024 Jefferson County I BoCC Meeting February 5,2024 I 11 5.Treat all geoduck aquaculture with standard CUP.(was a Planning Commission considered option) Environment Designations Waterward of Landward of OHWM OHWM Priority Aquatic Natural Conservancy Shoreline High Shoreline Uses Aquatic Residential Intensity Aquaculture: Aquaculture activities other than P P P P P P geoduck,in-water finfish,and upland finfish. Geoduck-new C C C C C C Geoduck-expansion or C C C C C C conversion from non-geoduck to geoduck *=Exceptions and limitations may apply as noted in this program.See specific section for details. 1 February 1,2024 Jefferson County I BoCC Meeting February 5,2024 I 12 Attachment B: Example Shoreline Regulations for Geoduck Aquaculture Kitsap County SMP • All geoduck(new and conversion)is Conditional Use Permit.No discussion of expansion.CUP requires a hearing.County also has an administrative CUP,but it is only applied to shoreline stabilization. • Regarding aesthetics: KCC 22.600.115.B.2.k:Application requirements include"Visual assessment,including photo analysis/simulation of the proposed activity demonstrating visual impacts within one thousand five hundred feet of the proposed project site.Where predator exclusion devices are proposed,the assessment shall include an analysis of visual impacts of proposed predator exclusion devices at mean high and mean low tides." • Regarding NNL: KCC 22.600.1 15.B.3.1:Application requirements include operational plan that contains"Other measures to achieve no net loss of ecological functions consistent with the mitigation sequence described in WAC 173-26-201(2)(e)." • Regarding plastics/debris: KCC 22.600.115.C.n:For all aquaculture,a number of provisions intended to avoid/limit ecological and aesthetic impacts of predator exclusion devices ClaHam County SMP • All geoduck(new and conversion)is Conditional Use Permit.No discussion of expansion.CUP requires a hearing.There are no CUP sub-types. • Regarding NNL: CCC 35.15.080(7):The County shall require the applicant to provide baseline and periodic surveys,assessments,and operational monitoring by a qualified professional to determine the magnitude of any adverse impacts.Conditional use permits shall include specific performance measures and provisions for adjustment or termination of the project if monitoring indicates adverse environmental impacts that cannot be adequately mitigated.The County may rely on documentation submitted by an aquaculture operator to federal or State agencies to satisfy any monitoring or reporting requirements. CCC 35.15.100(5)(o):geoduck application to include"Proposed mitigation measures to achieve no net loss of ecological functions consistent with Chapter 35.40 CCC,Mitigation and No Net Loss." CCC 35.15.100(6)is a list of expanded application requirements for any aquaculture to support cumulative impacts analysis if project is complex(multispecies,on shorelines of statewide significance,have potential to harm habitat/recreation/views/aesthetics,located in low-energy shorelines,adjacent to existing aquaculture,etc.) • Regarding aesthetics: CCC 35.15.100(2):Prior to approving a permit for a new aquaculture use or development,the Administrator shall require a visual analysis prepared by the applicant/proponent describing February 1,2024 Jefferson County I BoCC Meeting February 5,2024 I 13 effects on nearby uses and aesthetic qualities and visual aesthetics of the shoreline.The analysis shall include any proposed mitigation related to visual and character of area effects. • Regarding plastics/debris: CCC 35.15.100(5)(m):geoduck application to include"How prevention of marine debris accumulation will be addressed and what site operational management practices will be implemented including worker training and regular removal of equipment,tools,extra materials, and all wastes;" Mason County SMP • New geoduck requires CUP.Conversions do not require CUP.No discussion of expansion.CUP requires a hearing.There are no CUP sub-types. • Regarding aesthetics: MCC SMP contains stand-alone policy section(MCC 17.50.145)for Views and Aesthetics, including this WAC language: "Where there is an irreconcilable conflict between water- dependent shoreline uses or physical public access and maintenance of views from adjacent properties,the water-dependent uses and physical public access shall have priority,unless there is a compelling reason to the contrary." • Regarding NNL: MCC 17.50.210.B.3.g.iii:Application requirements include"Measures to achieve no net loss of ecological functions consistent with the mitigation sequence described in 17.50.110." MCC 17.50.210.B.3.j:"Conditional Use Permits shall include monitoring and reporting requirements necessary to verify that geoduck aquaculture operations are in compliance with permit limits and conditions set forth in Conditional Use Permits and to support cumulative impacts analysis.The County shall consider the reporting and monitoring conditions of other permitting agencies,if available,before adding additional conditions to a permit." MCC 17.50.210.B.3.m:For geoduck,a number of provisions intended to be considered during permit condition development related to avoid/limit ecological impacts and achieve NNL • Regarding plastics/debris: Nothing unique—standard language about removing predator exclusion devices as soon as they are not needed,good housekeeping. :1111 February 1,2024 Jefferson County I BoCC Meeting February 5,2024 I 14