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HomeMy WebLinkAbout010824 Letter re: Two Points re Discretionary vs Standard CUP g6 CC llg 12 u v ( T MARILYN SHOWALTER 1 ✓jlyhS��w`Ll�e�— 1596 Shine Road Port Ludlow, WA 98365 maxi lyn.Showalter@gmai l.com, 360-259-1700 January 8, 2024 Board of County Commissioners Jefferson County, Washington JeffBoCC(cco.jefferson.wa.us Dear Commissioners Dean,Brotherton, and Eisenhour, Re: Two Points re Discretionary vs Standard CUP I bring to your attention two points to consider in deliberating the county Planning Commission's recommendation to you. (The Planning Commission recommends that existing shellfish farmers proposing to expand or convert tidelands for cultivating geoducks be subject only to a discretionary CUP,whereas proposals for"new"tidelands would be subject to a standard CUP.) A. The Planning Commission and staff have provided no justification for their recommendation. If you read the staff report,you will find a descriptive chronology of the SMP process, concluding with WHAT the Planning Commission recommends. You will not find any account, let alone a reasoned account, of WHY its recommendation is appropriate. Orally,the staff has said the Planning Recommendation"meets in the middle"between discretionary CUP for some and a standard CUP for others. This claim is misleading: the recommendation grants a discretionary CUP to 100%of existing shellfishers,whose tidelands number in the hundreds, perhaps a thousand or more acres;whereas in the last decade,there has been only one proposal for geoduck cultivation on"new"tidelands—for five acres. But even if this were a"middle"ground, it is not rational. There is no rational distinction between "new"tidelands and"expanded"tidelands. Both are new. (There is not even a definition of"expansion." You may think you know what this means, but bear in mind that the proposed code allows non-contiguous tidelands to be lumped together in one permit.) Nor is there a rational distinction between introducing geoduck cultivation to "new"tidelands versus"converted"tidelands. Both are proposals to introduce a new species,planted very densely, in many tons of plastic tubes, inserted into the substrate, and harvested by a hydraulic hose that obliterates the substrate. This is a completely new activity in both cases, and both deserve a standard CUP process. vA 1 Showalter-BOCC SMP January 8,2024 As you deliberate the Planning Commission's recommendation, I hope you will try to articulate to yourself the answers to these questions: 1. What is the rationale for allowing a discretionary CUP for, e.g., 10"expansion"acres but requiring a standard CUP for two"new"acres? 2. What is it rationale for allowing a discretionary CUP for 10"converted"acres but requiring a standard CUP for two"new"acres? 3. Does the discretionary CUP unfairly favor existing shellfish operators over neighbors who want a neutral decision-maker,who want to ensure the decision is not influenced by private conversations, and who want to ensure their own voices are heard by the decision- maker? If you struggle with these questions,they are easily resolved by requiring a standard CUP for all geoduck proposals. A standard CUP is fair and nondiscriminatory for everyone. B. If shellfishers oppose a standard CUP, it must be because they are contemplating cultivating geoducks—because that is the only contested situation. In all other situations, e.g.,they expand their non-geoduck cultivation or use certain new equipment, shellfishers need either no permit at all or a discretionary permit(depending on the percentage of tidelands involved). In other words, if they continue their non-geoduck shellfish operations, without adding geoducks,they are not affected by a requirement for a standard CUP. Their opposition to a standard CUP should therefore be cause for concern, because there is a vast but unknown amount of tideland acreage that potentially could be converted or expanded for the purpose of geoduck cultivation. These operations currently operate without any county permit at all, so the county does not know how much acreage is at risk. (We do know that a single company says it owns or operates more than 600 acres of tidelands in Jefferson County.) Each of these sites is unique,with geographical, environmental, and recreational characteristics that deserve a thorough and impartial evaluation, if geoducks cultivation is proposed. In summary,the Planning Commission's recommendation was hastily drawn up without any defensible justification. Geoducks and their cultivation methods are"new"whether in new, expanded, or converted tidelands. All should require the same process: a standard CUP in which the decision is made by a neutral decision-maker, based only on the record, and only after a public hearing. That is fair to all concerned. Thank you for your thoughtful consideration. Sincerely, fr evaiya .54octeter Marilyn Showalter 2 Showalter-BOCC SMP January 8,2024 „ --; .—W fi. Cab. ,� ' k'IS i�n� w - ...-k, . •t ;-t I , Ct. \ w ` 4 yr. t. P\ Dislodged PVC tubes in Squamish Harbor,Hood Canal. Above:April 18,2014. Below:March 24,2015 Photos by Sue Corbett -i '.._.W -- ,., brie ,4 � 4111 r _— S. "...a........-...- - --.'7'-',...amate...-- t MIA ,. p w r'" "..: --..;.- -t :. --- ........... .— `1, 3 Ito 1,‘ 'j QSfi m644'11 Steve Dittmar eve From: Steve Dittmar <swdittmar@gmail.com> Sent: Wednesday, November 29, 2023 5:00 PM To: JeffBoCC@cojefferson.wa.us Subject: Requesting JeffCo Commissioners Decide to require standard Conditional Use Permit (CUP) for ALL geoduck applications Dear Jefferson County Commissioners, My wife and I live here in Shine and own the tideland parcel East(adjacent) of the current BDN geoduck farm in Shine. We own upland property directly above our tidelands so we look out over the BDN geoduck farm. We see and are affected by each step of the geoduck farm operations from clearing and planting to maintenance to the final harvest... repeated on a 4 to 6 year cycle. We submit to you commissioners that from the standpoint of both the environment and the actual land/sand area the geoducks are planted in, that"expansions"and "conversions"are no different than a "new"planting and that all 3 should require a standard CUP during the permitting process. Here are some specific points to consider: 1. When "expanding" an area,the new area did not have geoducks prior to the expansion so the planted geoducks are really"new"to that expanded area. The area being "expanded"into may very well have different environmental issues to consider.This means an "expansion"without a standard CUP would sidestep an important and reasonable initial process for considerating adverse effects of geoduck farming. An "expansion" could be acres and acres with significant environmental impact with no initial chance for the comprehensive process of a standard CUP. 2. "Conversions"from the viewpoint of the environment and the land being planted are really identical to both "expanding" and "new" uses. 3. if we only require a standard CUP for "new,"then it would be quite simple for a farmer to bypass a geoduck standard CUP by first growing oysters and later"converting"to geoducks. Could be intentional or inadvertent but either way it would be tidelands "new"to aquaculture,eventually planted with geoducks and easily accomplished without a CUP. 4. To me,these distinctions between "new", "expansions" and "conversions"only make sense from the viewpoint of the farmer wanting to avoid a reasonable process to evaluate planting geoducks on a patch of tidelands that didn't previously have geoducks. An oyster farmer with no experience with geoducks could "convert" to geoducks and easily sidestep the appropriate CUP oversight. 5. As stewards of the land and environment for current and future generations,we request that you require a standard CUP for all 3 of these distinctions, as the land use and environmental impact are really the same. In the whole geoduck life-cycle there are 3 aspects that stand out to me that should be subject to further study and certainly more oversight: • 43,000 4" PVC tubes per acre planted in abrasive sand for 2 years. Some of this PVC is abraded into microplastics which enters and travels up the food chain, eventually traveling to us who live around here as we consume the crab&seafood here in our bay. Microplastics are not healthy for any animal in the food chain! These PVC tubes are lost in large numbers into the environment. When washed onto the beach they are eventually picked up by neighbors or the farm caretaker. When washed out into deep water they are out of sight and out of mind. I personally snorkeled out in deeper water beyond the BDN farm and counted at 100 to 200 loose tubes out beyond the farm. My count was cut short because I could only see to a depth of 15' or so. If tubes were pulled out that far it's reasonable to conclude there may be 100's or 1000's more out deeper... further polluting as the plastic degrades and disintegrates further into more microplastics in our environment and our food chain only to be concentrated again as it works its way up the food chain to tic local humans that eat nur local seafood. • Unnatural density of one species (planted geoducks) are consuming nutrients& plankton that would otherwise be available to support the other surrounding life in our bay, and some of that plankton consumed by the geoducks would otherwise have grown up to be crab, oysters,clams, etc., naturally balancing out the animal life here.This unnatural density diminishes the other native life by both diminishing the food supply for the other life and by consuming the early-stage critters (like crab)that are early in their lifecycle (plankton). I believe this unnatural consumption of"nutrients" by planted geoducks needs to be studied to determine the effects of geoduck farming on the surrounding ecosystem. • Liquification of the top 3 feet of sand in the harvesting operation likely destroys the ecosystem in the sand and certainly flushes any pollutants trapped in the sand out into the surrounding environment. A standard CUP for any additional tideland used for geoduck would hopefully force the consideration of these and other environmental issues specific to the immediate area prior to the issuing of any geoduck farming permits, Please eliminate these 3 distinctions and require a standard CUP for ALL future geoduck permit applications. Steve& Kathy Dittmar 30 Watney Lane Port Ludlow, WA 98365 206.619.6822 2 gntC VS I24 n`c.o nV -fesiimori Marcia Schwendiman /IVArtiGl 23 Longmire Lane Port Ludlow, WA 98365 marciaschwendiman@gmail.com 425-218-5458 Board of County Commissioners Jefferson County, Washington JeffBoCC@co.iefferson.wa.us Dear Commissioners Dean, Brotherton, and Eisenhour, Re: Urging Standard Conditional Use Permits for Future Geoduck Applications I'm a member of the Shine Community who has regularly walked and observed the health of the beach environment of Squamish Harbor since 2003. I have also closely followed the developments regulating Geoduck farming permits over the past 7 years. I ask that you please give careful attention to the letter of November 29, 2023 from SHINE-DISCOVERY BAY NEIGHBORS AND SUPPORTERS. Their exhaustive efforts to bring effective regulatory requirements to Geoduck farming reflect my own view that the Standard Conditional Use Permit for future Geoduck applications is the only option that protects the public interest by protecting the environment of the intertidal zone. The public is not served unless there is public input and a fair process. The Standard Conditional Use Permit meets those objectives. I find the Planning Commission's November recommended option arbitrary and discriminatory. The CUP is the best solution. Thank you for listening to me and for serving our community. As a former city council member for 6 years in Kenmore, Washington, I know what a difference you can make to protect the public interest. Marcia Schwendiman goCC '/g lz i $ocfrd ©4 Ceue?-1 y eernrnrs S h-Catrir,j-Pshnrit My name is Celine Santiago. I have had the privilege of living in Jefferson County for the past 9 years. We have heard a great deal of testimony regarding the shellfish operations, the environment, and the economic impacts. I am asking you today to consider the role of Jefferson County and its responsibility to the citizens and the environment regarding the Shoreline Management Act. I have spent countless hours over the past six years trying to navigate and learn the roles and responsibilities of the WA State Departments of Ecology, Natural Resources, Health, as well as the Army Corps of Engineers, and Jefferson County with regards to the Shoreline Management Act and Shellfishing. Every email and every phone conversation lead back to Jefferson County's role and responsibility in managing our shorelines through the Shoreline Master Program. There are well over 30 permitted shellfish operations in our Jefferson County backyard today. From my conversations with the State Departments, it is maintained that the County is ultimately responsible for oversight of those shellfish operations since the County has boots on the ground. In the time that has passed since an unauthorized shellfish operation showed up in my Discovery Bay backyard, it became apparent within verbal and written communications that Jefferson County Department of Community Development did not want to take responsibility and allowed the Shellfish operators to dictate the rules of operation. With community intervention, that unauthorized operation became permitted 6 years later. The citizens who walk the shores of Jefferson County have their boots on the ground for our County. We, the citizens, bear witness to the shellfish activities in the county. We need County transparency and accountability to understand the activities we witness. A Standard Conditional Use Permit is a necessary tool providing a layer of protection to the environment as well as providing for the flow of information to the tax paying citizens. If the shellfish industry is following the regulations of the WA State SMA and has the proper permits, providing that same information as evidence of compliance to the County for any expansion or new operation is one more step for the privilege of doing business in Jefferson County. If the County has no Standard CUP, there will be no transparency and you leave us citizens powerless. A Standard CUP is also necessary to alert the community of what will be happening on its shorelines, otherwise how can we witness that the shellfish operations are following the guidelines within their permits? If the County has no public hearing, you silence us. Help us help you by giving us a voice regarding shellfish operations in our own backyard. I want to thank you, commissioner Dean, and Eisenhauer for your vote to go to Hearing this past December. Because of you, we have a voice today. Please do not leave us mute and powerless to the will of the Shellfish Industry. I ask you all to vote for a Standard Conditional Use Permit for all new and expanding geoduck operations. 130 SE LYNCH ROAD, SHELTON, WA 90584 P: 360.426.6110 • F: 360.421.0321 WWW.TAYLORSHELLFISH.COM TAY OR SHELLFISH WWW.TAYLOROYSTERBARS.COM E vievoq January 8, 2024 Jefferson County Board of County Commissioners c/o Chair, =„±he*t 621 Sheridan Street Port Townsend, WA 98368 RE: Shoreline Master Plan Can-O-�r 1.�1 t�o.Vl.c:N( Dear Chairnitrrairoftrertrm7 My name is Erin Ewald and I am the Director of Regulatory Affairs at Taylor Shellfish. Taylor owns or manages 6 shellfish farms in Jefferson County, including approximately 800 acres of intertidal lands. Taylor also operates a successful hatchery here which produces shellfish seed for growers,nonprofit organizations and agencies for the purposes of farming,restoration,recreation and environmental monitoring. The company has farmed shellfish sustainably in Jefferson County for 50 years and hopes to continue contributing to this community and Washington State through jobs, food production and the economy. At its core,the Shoreline Master Program is a guidebook for the use of Washington's Shorelines. Local governments are tasked by the state to incorporate policies which best reflect the natural resource goals for their county. This includes where critical environmental functions are located and what is not allowed to protect those functions. The SMP also designates what is allowed and, when necessary, specific items for county staff to consider when reviewing projects so that community values such as public access and water dependent uses, including aquaculture, are protected. The SMP is a guidance document. It is a tool, but not the only tool available,nor was it meant to be a precision instrument. The more layered and complicated the task becomes to follow,the more difficult it is for staff and applicants to navigate. By providing clear intent, staff can look at a project based on individual components and merits and apply those conditions best suited for that application's location, adjacent uses,and environment. The Planning Commission spent significant time evaluating and refining the draft SMP now before you. While the information requested for farm applications remains redundant, it is a plan which provides a process that can be followed without being so overly restrictive as to be a barrier to any but the growers with the most resources to invest and comply with. I encourage you to move this document forward to Ecology for their review. Thank you, Dili Ewald'' '. Director of Regulatory Affairs Taylor Shellfish TAYI HR SHFI!FISH r. TAVI OP TRIM IfaVGctlAF JT rn TAVI no DICTAIIDAIJTC AC I/8 fig Neavi`V)1:6hmo+u My name is Gordon King and I have lived in Jefferson County for 32 years. My children were born and raised in Port Townsend. I have been making my living from growing shellfish for more than forty years and am proud of the role marine farming plays in sustaining the economy of rural communities, producing sustainable seafood and the efforts the industry has made and continues to make, to protect water quality. Shellfish aquaculture provides many rural jobs in this county and has done so for over a century t (qnd shellfish have been a cornerstone of local tribes' culture and economy for millennia. The marine environment is special and valuable to our local community and to the wellbeing of our fragile earth. We need concise and sensible regulations to protect and govern its use. The current draft is an attempt to do so, but the aquaculture section is now verbose, complicated and repeats requirements already administered by other agencies, both State and Federal. Jefferson's update draft aquaculture section is 16 pages in contrast to Thurston County's 5 pages and Mason County's 6 pages. I was on the SMP Update Task Force in 2020 and have been involved since then. The county told the Update Task Force that WDOE had requested the County review its high use (compared to other counties) of CUP's. • ,,..- In mid-July 2021, a month after public comment closed, the draft update showed CUP's for new geoduck farms but not for conversion from other shellfish aquaculture or for expansions of less than 25%, so I was alarmed to find the Oct 2021 draft asked for full CUP permits for any kind of 1 geoduck farming Despite an initial effort to have all voices at the table, , I believe the County changed course when a vocal group of waterfront homeowners who were upset with a single poorly run geoduck li farm, demanded regulations to effectively ban geoduck farming throughout Jefferson County. While I think this draft SMP does not meet the direction Ecology tasked Jefferson County with, to decrease the excessive use of CUP's, it is a version that still allows some opportunities to farm and I encourage you to pass it through to Ecology. If you are intending to reopen the language, I encourage you to slim down the excessively long aquaculture section by deleting regulations already administered by other agencies and also reverting to the DCD's 2021 geoduck permitting standard of administrative CUP's for new farms and no CUP's for limited expansions or conversions. 'Excessive use of expensive CUP's keeps out young and startup entrants to the industry. For a defined legal and regulatory perspective I encourage you to carefully read Jesse de Nike's letter written on behalf of Taylor Shellfish. program,these uses are not considered appropriate and are not allowed, including by Conditional Use or Variance. Table Key: P = Permitted(with a Shoreline Substantial Development Permit or Shoreline Exemption and subject to siting and design requirements). C = Conditional Use Permit(and a Shoreline Substantial Development or Shoreline Exemption). C/P =Requires a Conditional Use Permit in some circumstances(see regulations). X = Prohibited. n/a =Not applicable. * = See upland designation. Table 17.50.090-A: Project Classification Table SHORELINE ENVIRONMENT DESIGNATIONS SHORELINE USES AND MODIFICATIONS Commercial Residential Rural Con- Natural Aquatic servancy Agriculture Agriculture P P P P C X Commercial feedlots X X C X X X Upland finfish rearing facilities X X C C X n/a Aquaculture Non-floating P P P P C P Floating P P P P C P Finfish net pens n/a n/a n/a n/a n/a C/X1 Gravel enhancement>1,000 cy n/a n/a n/a n/a n/a C Commercial geogiall C C C C C C I Prohibited in Hood Canal, exceptions apply. 2 Except that a Conditional Use Permit is not required for conversions. Commercial Water-dependent uses P C C C X * Water related&water enjoyment P C C C X See regs. Non-water oriented Without waterfront P X X X X n/a With waterfront C2/X X X X X X Part of a mixed use project3 C C C X X X If the site is physically separated from the shoreline by another property or public right-of-way. 2 If navigability is severely limited at the proposed site and the commercial use provides a significant public benefit such as providing public access or ecological restoration. 3 If part of a mixed use project that provides a significant public benefit such as public access or ecological restoration. See regulations. 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JCauenaas agCnbv IeanleN -UO3 Ian% (eiluapfsag ITfoaawwoD SNOIZdD13IQOJAI QNV SKOIIVNTOMSHa1.AIaNNONIAN11NI'UlUGHS S SIl NIId2IOHS algeJ.uolleawsselD hafoad :v-060.05•LT algal •uolleu8lsap pueldn aas = * •algeolldde lON= e/u •paligiyoad = X •(suollelnSaa aas)saouelswmaio awos ul l!waad as() leuolllpuoj e saalnba�l= d/D •(uolldwax3 awlaaoys ao luawdolanaa lelluelsgns auilaaoys e pue)llwaad asn leuoillpuo0 = D (sluawaJ!nbaa u8lsap pue 2ullls of Dafgns pue uolldwax3 a ullaaoys ao llwaad luawdolanaQ lelluelsgns auyaaoys a Lill^^)pall!uraad = d :AaN algal •aDueueA JO asn leuolllpuop Aq 2uipnIou! 'pamolle lou aae pue aleudoadde paiaplsuoo;nu an sasn asayl'wel;Ioad 1 program,these uses are not considered appropriate and are not allowed, including by Conditional Use or Variance. Table Key: P = Permitted(with a Shoreline Substantial Development Permit or Shoreline Exemption and subject to siting and design requirements). C = Conditional Use Permit(and a Shoreline Substantial Development or Shoreline Exemption). C/P =Requires a Conditional Use Permit in some circumstances(see regulations). X = Prohibited. n/a =Not applicable. * = See upland designation. Table 17.50.090-A: Project Classification Table SHORELINE ENVIRONMENT DESIGNATIONS SHORELINE USES AND MODIFICATIONS Commercial Residential Rural Con- Natural Aquatic servancy Agriculture Agriculture P P P P C X • Commercial feedlots X X C X X X Upland finfish rearing facilities X X C C X n/a Aquaculture Non-floating P P P P C P Floating P P P P C P Finfish net pens n/a n/a n/a n/a n/a C/X1 Gravel enhancement>1,000 cy n/a n/a n/a n/a n/a C Commercial C C C C C C ' Prohibited in Hood Canal,exceptions apply. 2 Except that a Conditional Use Permit is not required for conversions. Commercial Water-dependent uses P C C C X Water related&water enjoyment P C C C X See regs. Non-water oriented Without waterfrontI P X X X X n/a With waterfront C2/X X X X X X Part of a mixed use project3 C C C X X X ' If the site is physically separated from the shoreline by another property or public right-of-way. 2 If navigability is severely limited at the proposed site and the commercial use provides a significant public benefit such as providing public access or ecological restoration. 3 If part of a mixed use project that provides a significant public benefit such as public access or ecological restoration.See regulations. SHORELINE MASTER PROGRAM . December 20, 2021 Page 35 �Sv� � n Pacific Northwest Office Gulf Coast Office immunii41218 3rd Ave, Suite 2000 1110 River Rd S, Suite 200 P L AU C H E Seattle,WA 98101 Baton Rouge, LA 70802 206.588.4188 225.256.4026 &CARRLLP 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 Plauche&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 Plauche&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"[guidelines 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 Plauche&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 Plauche&Can LLP 5 and best management practices for responsibly using and maintaining gear.' 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 Comments Changes 18.25.220, Table The County is The County's proposal to require a standard 18.25.220 proposing to require CUP for new, expanded, and converted 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.m il/Portals/27/docs/regulatorv/NewsUpdates/20181 128%20 V erification%20Enclosure%201.pd f?ver=wEEviExfV5z-aA3uEPh l Uw%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). Plauche&Can LLP 6 a standard CUP for geoduck culture is not required to align the new geoduck SMP with state law, nor is it based on aquaculture, along scientific or technical information. Rather, as with expansions and acknowledged by Shannon & Wilson, it was conversions. added because public commenters asked the Previously, a County to require this more onerous process discretionary CUP and from a misguided effort "to incorporate was proposed for Kitsap County aquaculture regulations" into new geoduck Jefferson County's SMP. For reasons set forth culture, which above, these are inappropriate grounds for would typically only imposing new restrictions on aquaculture. In require approval by fact, as documented in Sea Grant's geoduck the Administrator aquaculture research report to the legislature, but may be referred geoduck aquaculture has been found to result to the Hearing in minor and temporary impacts that are Examiner on a within the range of natural events.3 The case-specific basis County's original proposal to require a when warranted. 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. The County is proposing to further For the reasons set forth directly above, the amend the designation-specific proposal to require a standard, rather than a 18.25.440(3) regulations to discretionary, CUP for new geoduck specify that new aquaculture is unsupported by scientific and technical information, and the County should geoduck aquaculture instead require a discretionary CUP. requires a standard CUP. 18.25.440(4)(b) The County first The County's proposed revisions are not proposed to clarify a 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 Plauche&Carr LLP 7 calculation for are unsupported by scientific and technical triggering a new information. Rather, as reflected by Shannon permit but is now & Wilson, the new permitting requirements proposing extensive were added "per public comments" and the additional restrictions and permitting requirements for restrictions and cultivating new species were added "to permitting incorporate language included in Kitsap requirements for County's SMP per Planning Commission expansions. The Direction." As discussed above, neither of County is also these grounds are appropriate justifications for proposing new imposing new restrictions on shellfish restrictions and aquaculture. Accordingly, these proposed permitting revisions should be removed, and JCC requirements for the l 8.25.440(4)(b) should either remain cultivation of new unchanged or, at most, the limited species. clarification proposed in the May 2021 draft should be advanced. Due to lack of clarification in the proposed The County appears amendment language, it is unclear what to be proposing amendments are actually proposed or what changes to the they are intended to accomplish. Shannon & height of floating or Wilson note that potential amendments are hanging aquaculture being considered by staff and the consultant structures and team based on WAC requirements, regulatory 18.25.440(4)(e)(v) associated reform objectives, public comment, and equipment, although Planning Commission input. Taylor Shellfish given supports amendments that are required to inconsistencies with align this code section with the WAC, the proposed although no such amendments appear language, the necessary. As discussed above, reflexively precise changes are amending this section due to public comments unclear. unsubstantiated by scientific and technical information is inappropriate. Any amendments to this section must comply with the Guidelines. In pertinent part, the Guidelines state as follows: "Aquaculture The County is should not be permitted in areas where it proposing to add a would . . . significantly conflict with 18.25.440(4)(e)(vii) reference to "other navigation and other water-dependent uses. water dependent Taylor Shellfish supports revising this code uses" in this section. section to include the "significantly conflict" standard in compliance with the Guidelines in lieu of the undefined and potentially confusing "materially interfere with" standard. Plauche& Can LLP 8 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 The County is section. And, while most gear should use proposing numerous colors to blend with the natural environment, 18.25.440(4)(e)(vii) new requirements as set forth in (C), there may be some and restrictions instances in which it is desirable to have gear related to gear use. 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. Taylor Shellfish supports the appropriate use of gear and management of sites so that they The County is do not accumulate garbage or waste. proposing new Therefore, while Taylor Shellfish disagrees regulations with the County's rationale for adding these addressing the use provisions—relocating from the finfish 18.25.440(4)(e)(xvi)- of equipment (xvi), section and incorporating Kitsap County SMP (xviii) accumulation of requirement—Taylor does not object to garbage (xvii), and including them in the SMP. Taylor Shellfish complying with does not believe that the County needs to Coast Guard separately include a requirement for requirements. aquaculture operators to comply with Coast Guard requirements and would recommend removing subparagraph (xviii). The County is This new regulation appears to be based on 18.25.440(4)(e)(xix) proposing to add a WAC 173-26-241(3)(b)(i)(C). However, the new regulation SMA Guideline uses "should" rather than prohibiting "shall" The SMP should similarly use the term Plauche&Carr LLP 9 aquaculture from, "should," which is a specifically defined term among other things, that means "the particular action is required significantly unless there is a demonstrated, compelling impacting the reason, based on policy of the Shoreline aesthetic qualities of Management Act and this chapter, against the shoreline. 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. 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 The County is aquaculture has minor and temporary impacts proposing numerous within the range of natural events. Thus, the 18.25.440(6) new restrictions requirement to obtain a CUP for conversions specific to geoduck is insufficiently supported and should be aquaculture. 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 Plauche&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. 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 The County is in the current SMP. But no such deficiencies proposing extensive have been identified. Rather, opponents have 18.25.440(7) application requested that Jefferson County adopt the requirements for Kitsap County requirements, presumably aquaculture. 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 Plauche&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 .0LL 'Ik Izu • Good morning USO Cav etEn-t,�' • My name is Lisa Carleton-Long I work for the Steele family that owns and runs Rock Point Oyster Company. We have been in business since 1921 • Myself and the Steeles have been tracking and engaged in this process for months, and doing the best we can to keep up with the process even as we manage our operations. • We are asking that Jefferson County's SMP should stay in line with the Conditional Use Permit requirements established by the state for geoduck - this would mean a conditional use permit would only be required for new geoduck farms/permit. Expansions or conversions would not and should not require a conditional use permit. Rock Point had to go through this sometime back to show we had not gone over 25% of an already existing geoduck area on the farm. It was a lengthy prosses and took a lot of time away from other priority projects. Large or small geoduck areas are not harvested all at once creating a huge impact on the ecosystem. It's just like a farmer we rotate out crops whether it is oysters, clams, mussels, kelp or geoducks. There is scientific information available from WA Sea Grant and other NOAA studies to show geoduck offer so much to our environment. • Remove the visual analysis requirement as part of the application process unless farm is in a residential area. In addition, clarity about what should be included in a visual analysis when it is required would be helpful. It is like when the health department comes in for an inspection and everything looks great and the next time someone new comes in and they want to change things because that's their interpretation. Being in construction for over 10 years each inspector has different interpretations of the rules that leads to inconsistencies that becomes very frustrating. • Remove redundancies such as tribal approval, the requirement for a water quality study and specific gear requirements that are already covered in the larger permitting process. Overall there is a lot of redundancy in Jefferson County's SMP which adds layers of complexity to an already highly regulated industry where it takes 3 years and multiple federal, state and local agencies/entities to get a permit to farm shellfish. I have personally been out on the bay with the core of engineers looking at native eelgrass arm. I eN ��r, o ll be doing that job .,knows the difference between native and Japanese ee grass. o Iso a e DOH out on our boat for the bi monthly wat9.r tetin in Dabob. So all of things are already being done and monitored UN MI+ • Recognize and support Washington's commitment to shellfish farming as a preferred use of tidelands. This includes prioritizing permits for shellfish farms and supporting farmers in their efforts to create new or expanded opportunities for shellfish farming - a process that results in cleaner water, living wage jobs, healthier marine environment and a local, low carbon food source.