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HomeMy WebLinkAboutDECISION Jones Aquaculture, SSDP for oyster farm, SDP23-00023, June 2024 FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR JONES AQUACULTURE PROJECT IN MCDONALD COVE – FILE NO. SDP2023-00023 Page 1 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 Before Hearing Examiner Gary N. McLean BEFORE THE HEARING EXAMINER FOR JEFFERSON COUNTY Application for a Type III Shoreline Substantial Development Permit for Aquaculture, submitted by CHRISTIAN JONES, Applicant (Location: The Project area is located in McDonald Cove, an intertidal area along Hood Canal surrounded by Highway 101 to the north, west, and south, with the open water of Hood Canal to the east, accessible from the applicant’s residential parcel addressed as 312401 Highway 101, south of the Brinnon community, in unincorporated Jefferson County. _________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) File No. SDP2023-00023 FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION APPROVING REQUESTED SHORELINE PERMIT I. SUMMARY OF DECISION. The requested application satisfies all applicable approval criteria and merits approval, subject to conditions. The proposed project is subject to compliance with all applicable development, design, engineering, environmental, health, maintenance, shoreline, and other regulations, including without limitation those requiring verification of performance, inspections, monitoring, and maintenance associated with conditions or mitigation measures that might be imposed consistent with this Decision or any subsequent approval, or authorization issued by any federal, state, or county agency or department with jurisdiction over a particular aspect of the Project. FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR JONES AQUACULTURE PROJECT IN MCDONALD COVE – FILE NO. SDP2023-00023 Page 2 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 II. BACKGROUND AND APPLICABLE LAW. There is no dispute that this project requires a Type III Shoreline Substantial Development Permit, assigned application file no. SDP2023-00023, which is subject to public notice, public hearing, and a decision by the Jefferson County Hearing Examiner. The project also required a concurrent Critical Areas review, and a separate State Environmental Protection Act (“SEPA”) review, which resulted in a Determination of Non-Significance that was not appealed. (Staff Report, pages 1-3; Ex. 9, SEPA DNS). Jurisdiction of Hearing Examiner. The County Code vests the Hearing Examiner with authority to hear and issue decisions on applications for Type III land use decisions. (See JCC 18.40.040, explaining Project permit application framework, Table 8-1, types of permits, decisions required, and Table 8-2, showing final decision made by the Hearing Examiner on Type III land use matters). Further, the County’s Shoreline Master Program, found in Ch. 19.25 JCC, explains that: “The hearing examiner is vested with the authority and responsibility to: (a) Approve, condition, or deny shoreline substantial development permits, variance permits and conditional use permits after considering the findings and recommendations of the administrator;” and “(e) Approve, approve with conditions, or deny substantial development permits, variance permits and conditional use permits.” (JCC 19.25.610(2)(a) and (e)). Critical Areas Review. Because the pending project is located within the County’s shoreline jurisdiction, reviews for consideration of Critical Areas protections included in Ch. 18.22 of the County’s Code occur as part of the Shoreline permit review addressed in this Decision. (See JCC 18.22.220(2), which reads: “The department shall perform a critical area review for any application submitted for a regulated activity. Reviews for multiple critical areas shall occur concurrently. For critical areas within shoreline jurisdiction, critical area review shall occur as part of the shoreline review process.”; and JCC 18.22.200(6) – “When any provision of this chapter is in conflict with any other section of the Jefferson County Code, the provision that provides most protection to the critical area shall apply, except that any critical area occurring within the jurisdiction of the Shoreline Management Act also shall follow the policies and regulations in Chapter 18.25 JCC”). III. RECORD. All exhibits entered into evidence as part of the record, and an audio recording of the public hearing, are maintained by the County, and may be examined or reviewed by FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR JONES AQUACULTURE PROJECT IN MCDONALD COVE – FILE NO. SDP2023-00023 Page 3 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 contacting the County’s public records officer. Exhibits: Staff Report, recommending approval subject to conditions, prepared by Project Planner Donna Frostholm, with 12 pages, and the following list of exhibits, prepared by Staff. Post-Hearing Exhibits authorized by the Examiner during the public hearing: 14. Additional Proposed Conditions of Approval for this project, based on similar conditions included in a previous Aquaculture Shoreline Permit, under File No. SDP20-00018, generated by the County’s Project Planner, Donna Frostholm, and transmitted to the Examiner on May 29, 2024. 15. Email message from Ms. Frostholm, to the Examiner’s Clerk, C. Gallaway, dated May 29, 2024, confirming that proposed conditions in Ex. 14 were shared with and reviewed by the applicant, who provided information reflected in the proposed conditions. 16. Black Shield Oyster Co. Habitat Survey Report, prepared by Marine Surveys & Assessments, stamped ‘Received’ by the County on December 1, 2023, already included in the record as part of “Log Item 1” on the County’s list of materials publicly available for the pending application, on .pdf pages 39-51. [*The Examiner lists this Report as a free-standing exhibit for purposes of clarity, and to make access to information in the Report easier for readers to locate]. FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR JONES AQUACULTURE PROJECT IN MCDONALD COVE – FILE NO. SDP2023-00023 Page 4 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 Testimony: The public hearing for this matter was conducted using an online audio/video platform coordinated by County staff, accessible to parties and members of the public using sign-in details provided in public notices. The following persons provided testimony under oath as part of the record during the open-record hearing held on May 8, 2024. 1. Donna Frostholm, Project Planner, prepared Staff Report and served as the primary Staff representative through the public hearing, for Jefferson County Department of Community Development. Ms. Frostholm explained that this application is an “after-the-fact” shoreline permit, though the County has never received any complaints about the applicant’s oyster farm operations that appear to have been ongoing since 2018; that the applicant satisfied approval criteria for the requested Shoreline permit; that no one appealed the SEPA DNS issued for the project; and that Staff recommends approval subject to conditions. 2. Christian Jones, the applicant, owner of Black Shield Oyster Company, the existing oyster farm operation on the applicant’s shoreline, served as the applicant’s primary hearing representative, spoke to the merits of his proposal, noted that he hopes his oyster farm facility benefits the environment, and that he accepts the Staff Report analysis and recommended conditions as proposed by staff. 3. Sara Harvey, the applicant’s business partner and domestic partner, listed as co-applicant in application materials, explained that the existing oyster farm business has not been making sales since this Shoreline permit application began. IV. FINDINGS OF FACT. Based on the record, and following consideration of all the evidence, testimony, codes, policies, regulations, and other information included therein, the undersigned issues the following findings of fact: 1. All statements of fact included in previous or following sections of this Decision that are deemed to be findings of fact are incorporated by reference into this section as findings of fact issued by the Hearing Examiner. 2. Christian Jones, as an owner and operator of a business known as the Black Shield Oyster Company, is the applicant in this matter, seeking approval of a Shoreline Substantial Development Permit for an already-existing aquaculture project – specifically a shellfish farm in McDonald Cove – along a portion of Hood Canal, in unincorporated Jefferson County. There is no dispute that this project is within the County’s Shoreline jurisdiction, and that it requires a Shoreline Substantial Development Permit. The applicant’s oyster/shellfish farm is an Aquaculture activity and/or facility, a use/development located with the County’s shoreline jurisdiction that requires a Type III Shoreline Substantial Development Permit. (See definitions for the terms Aquaculture, Aquaculture activity, and Aquaculture facility, at JCC 18.25.100(1)(bb), (cc), and (dd), respectively; Table at JCC FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR JONES AQUACULTURE PROJECT IN MCDONALD COVE – FILE NO. SDP2023-00023 Page 5 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 18.25.220; and JCC 18.25.440(4); Staff Report, pages 1-7). Project Description. 3. The Staff Report and credible hearing testimony explained that the applicant’s shellfish farm business has been operating since the Fall of 2018 and that shellfish are harvested from the site for commercial sales. (Staff Report, page 1; Testimony of Ms. Frostholm). The County has never received any complaints about the applicant’s shellfish farm, in contrast with other aquaculture operations that generate many complaints. (Testimony of Ms. Frostholm). 4. The SEPA Checklist for this matter explains that the applicant’s existing shellfish farm operations began after receiving “site certification by WADFW & WADOH in fall of 20181.” (See Ex. 3, SEPA Checklist, included as part of Log Item 1, on page 8 of 67, response to item 6 on such page). There is no evidence that the applicants’ opened their business in bad faith, or deliberately failed to obtain a shoreline permit from Jefferson County. 5. In fact, upon discovering that his shellfish operations required a shoreline permit from Jefferson County, Mr. Jones promptly began the application process to obtain the Shoreline Substantial Development Permit addressed in this Decision. Since the application process started, the applicant’s commercial sales of oysters and shellfish products harvested from the project site have been suspended. The applicant team explained that oysters are already in bags on the project site and are ready to be harvested at any time, after the requested permits are approved and take effect. (Testimony of Mr. Jones and Ms. Harvey). 6. The application materials, Ex. 1, include a Project Description found in Part 6 of the JARPA submittal, which is republished below: (Screenshot from portion of JARPA submittal, found in Log Item 1, on page 26 of 67). 1 Presumably a reference to certifications issued by the Washington Department of Fish and Wildlife and the Washington Department of Health. FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR JONES AQUACULTURE PROJECT IN MCDONALD COVE – FILE NO. SDP2023-00023 Page 6 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 7. The applicant’s JARPA materials provide more details on precisely how the applicant’s shellfish farming operations will be installed and operated, which are republished below: (Screenshot from portion of JARPA submittal, found in Log Item 1, on page 28 of 67). Location. 8. The applicant’s shellfish farm operations are located out in an intertidal beach area on the west side of Hood Canal, to the east of their residence on the south shore of McDonald Cove, a home addressed as 312401 Highway 101, south of the Brinnon community in unincorporated Jefferson County. (Staff Report; Ex. 1, Application materials). 9. The applicant’s proposed aquaculture operation is in the area generally depicted on FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR JONES AQUACULTURE PROJECT IN MCDONALD COVE – FILE NO. SDP2023-00023 Page 7 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 the following aerial view marked to show the applicant’s residence, Highway 101, and the project location, labeled as “Development Site”, in the waters of McDonald Cove: (Log Item 1, on page 6 of 67). 10. A photograph included in the Habitat Survey Report (Ex. 16) prepared for the applicant shows the applicant’s oyster farm at a lower tide, when lines and tumble bags are exposed and accessible on dry tidelands: FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR JONES AQUACULTURE PROJECT IN MCDONALD COVE – FILE NO. SDP2023-00023 Page 8 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 (Screenshot from Ex. 16, Habitat Survey Report, found in Log Item 1, on .pdf page 39 of 67). 11. The Staff Report explains that portions of the project area lying below the Ordinary High Water Mark (OHWM) are in the County’s Priority Aquatic Shoreline designation, with parts of the applicant’s project area above the OHWM (i.e. shoreland) lying within the County’s Natural Shoreline designation. (Staff Report, page 1). Application, Notices, SEPA review, Comments and Testimony. 12. The Staff Report summarizes the application review and public noticing provided in connection with this matter, verifying that applicable notice requirements were satisfied for this public hearing process. The application itself was submitted on or about December 1, 2023, and deemed complete by County staff on February 6, 2024. Notices of the Application were published, posted, and mailed to various agencies and owners of properties within 300- feet of the project parcel, on February 13-14, 2024. (Staff Report, page 2; Exhibits 4, 5, Notice of Application materials). FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR JONES AQUACULTURE PROJECT IN MCDONALD COVE – FILE NO. SDP2023-00023 Page 9 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 13. County Staff only received one written comment after the application notices were transmitted, a letter from the Washington Department of Fish and Wildlife, which explained that the applicant’s project would not be required to obtain a Hydraulic Project Approval, and that the applicant previously obtained state approvals pertaining to health of aquaculture products. (Staff Report, page 2; Ex. 6, WDFW comment letter). The WDFW letter (Ex. 6) reads in relevant part as follows: Project Area of Potential Effect: Project area is located in McDonald Cove, along the western shore of Hood Canal south of the Duckabush River Estuary. There is a public recreational tideland just to the north of the project site. Fish and Wildlife Resources and Recommendations: This proposed project as currently described does not contain elements that fall under the authority of WDFW’s Hydraulic Code WAC 220-660. However, this project is regulated by WAC 220-370 which helps to establish rules that promote the health, productivity and well-being of aquaculture products and the wild stock fisheries. This aquaculture site was previously certified by WDFW and Washington Department of Health in the fall of 2018. Shellfish and Seaweed Health The project applicant will be required to apply for and obtain Shellfish Transfer and/or Shellfish Import Permits from WDFW for movement of shellfish into or out of the proposed facility. Shellfish Fisheries WDFW anticipates no impacts to commercial or recreational fisheries from this proposed project. We advise the applicant to coordinate with local Tribes regarding their Usual and Accustomed Area rights. 14. Upon consideration of all application materials and environmental information regarding the applicant’s proposal, including without limitation the Habitat Survey Report prepared by qualified professionals (Ex. 16), and the SEPA Checklist prepared for this proposal, Staff issued a SEPA Determination of Non-Significance (DNS) for the project on or about April 1, 2024. (Staff Report, page 2; Ex. 9, DNS). Although the SEPA DNS expressly informed readers that such threshold determination was subject to appeal as provided in applicable County codes and due no later than April 15, 2024, no one did so. By operation of WAC 197-11-545 (re: Effect of no comment), if a consulted agency does not respond with written comments within the time periods for commenting on environmental documents, the lead agency may assume that the consulted agency has no information relating to the potential impact of the proposal as it relates to the consulted agency's jurisdiction or special expertise; further, lack of comment by other agencies or members of the public on environmental documents within the applicable time period shall be construed as lack of objection to the county’s environmental analysis. FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR JONES AQUACULTURE PROJECT IN MCDONALD COVE – FILE NO. SDP2023-00023 Page 10 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 15. Again, the record establishes that the DNS was not appealed – JCC 18.40.330 provides that a SEPA threshold determination like the DNS issued for this project may be appealed within 14 days of issuance. It was not. Thus, the County’s SEPA determination for this proposal stands unchallenged for purposes of considering this application. 16. During the public hearing, only County Staff and the applicants appeared and offered sworn testimony, supporting approval of the requested shoreline permit subject to conditions. No one appeared during the hearing, or submitted written comments, to oppose or question issuance of the requested permit. 17. During the public hearing, the Examiner asked Staff why the proposed conditions for this aquaculture project did not include conditions similar to those included as part of another aquaculture project in another part of the County in April of 2023, generally requiring labeling and keeping an inventory of gear placed in the water, and best practices to prevent or respond to problems that could arise following storms that may result in escaped equipment and the like. The Examiner held the record open to provide Staff and the applicant additional time to review conditions included for the other aquaculture project in File No. SDP20- 00018, and see if some of those conditions should also be applied for this project, or modified to meet the situation presented in this application. A list of proposed “Additional Conditions” was transmitted to the Examiner on or about May 29, 2024, along with written confirmation from Staff that they shared the proposed conditions with the applicant and included the applicant’s feedback in the document sent to the Examiner, copies of such items are now included in the record for this matter as new Exhibits 14 and 15. 18. The Examiner takes official notice of the unchallenged Decision issued to approve the Shoreline Substantial Development Permit for another aquaculture project in File No. SDP20-00018, including without limitation Conditions of Approval 26-34 in such Decision and all findings of fact explaining the basis for such conditions. The Examiner expressly referenced Conditions 26-34 during the public hearing for this matter, and asked Staff and the applicant to consider if it would be prudent to include similar conditions for this permit. 19. Based on evidence in the record, including County, State, and Federal regulations addressing aquaculture projects, and mindful of the applicant’s commitment to properly operate and maintain their proposed aquaculture project in McDonald Cove, the Examiner finds and concludes that it is in the public interest to include additional, clearer, or modified, conditions of approval as part of this Shoreline Permit, including without limitation: ! Labelling of gear and equipment placed in the project area with identification so that it can be more easily identified if discovered to have moved from its initial location. ! Preparing and regularly updating an inventory of all non-biodegradable materials placed into use as FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR JONES AQUACULTURE PROJECT IN MCDONALD COVE – FILE NO. SDP2023-00023 Page 11 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 part of this aquaculture project (including without limitation plastic items), categorizing the type, volume, location, and intended use of such materials. A copy of such written inventory shall be submitted to the County’s designated Shoreline Administrator, and placed in the Permit file, with updates provided as needed to keep the inventory current, at least on a semi-annual basis. (See JCC 18.25.440(1)(b), expressing that County supports aquaculture uses and developments that protect water quality, minimize damage to nearshore habitats, and minimize adverse impacts such as those resulting from in-water apparatus/equipment; Effectuates intent to prevent pollution, debris, and to properly maintain Project equipment and materials; Makes identification of Project materials easier to identify or locate, and improves ability to determine if Permittee equipment is actually involved in a particular code enforcement complaint). ! Removal of oyster bags at intervals under 1 year due to the need to remove biofouling on the bags. ! Mandating that oysters are to be harvested by hand. (See application materials, confirming this is the applicant’s intent), ! Requiring compliance with fish and habitat related work windows. ! Requiring beach patrols by Permittee within 24 hours of storm events or king tide events or as soon as safe conditions exist, with retrieval by Permittee of any of its escaped equipment. ! Requiring Permittee to retrieve any of its escaped equipment within 72-hours of the Permittee receiving notification of the presence of the Permittee’s escaped equipment, or as soon as safe conditions exist. ! Requiring the Permittee to provide contact numbers/email address for addressing and responding to reports of any permit violations (including without limitation reports of escaped equipment), to be regularly updated and posted on the applicant’s business website, shared with the County, and shared with individuals who request such contact information. 20. With modifications to the conditions of approval as summarized above, and several others addressed in the parties’ post-hearing list of additional proposed Conditions (Ex. 14), the Examiner finds and concludes that the applicant’s aquaculture project will not result in any significant adverse impacts. No one offered comments, testimony, or evidence at any point through the public comment and hearing process that would serve as a basis to deny the requested shoreline permit. Comprehensive Plan. 21. The Staff Report notes that the Jefferson County Comprehensive Plan expressly provides that the goals, policies, and regulations of its Shoreline Master Program (SMP) [codified in Ch. 18.25 JCC] are considered part of the Comprehensive Plan. (Staff Report, pages 2-3). So, compliance with Ch. 18.25 is sufficient to demonstrate this project’s compliance with the County’s Comprehensive Plan. 22. The Staff Report also credibly explains how the applicant’s proposal is consistent FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR JONES AQUACULTURE PROJECT IN MCDONALD COVE – FILE NO. SDP2023-00023 Page 12 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 with and implements goals and policies found in the County’s Comprehensive Plan, including EN-G-4, EN-P-4.1, and EN-P-4.2. (Staff Report, pages 2-3). Shoreline Master Program policies and regulations. 23. The Examiner finds and concludes that the Staff Report analysis and findings explaining how the pending proposal has been designed to, or can be conditioned to, comply with applicable provisions of the County’s Shoreline Master Program, was not rebutted by a preponderance of evidence in this record. (See Staff Report, pages 3-9). Again, no one submitted written comments or appeared during the public hearing to question or oppose this project. Shoreline Substantial Development Permit application merits approval. 24. The Staff Report, the application materials, the Habitat Survey Report, the JARPA form, the WDFW comment letter, and the unchallenged DNS, demonstrate that, subject to conditions imposed as part of this Decision, no negative cumulative impacts or net loss of shoreline ecological functions will occur as a result of this project, satisfying applicable Shoreline regulations, including without limitation JCC 18.25.270(2). (See Staff Report, discussion on pages 3-6; Ex. 16, Habitat Survey Report; JARPA submittal, included as part of application materials, found in Log Item 1; Ex. 9, SEPA DNS; Ex. 6, WDFW comment letter). 25. Based on this record, and as conditioned below, there is insufficient evidence and an absence of legal authority to support denial of the requested shoreline substantial development permit. No one offered testimony or written comments that would refute the analysis and findings regarding the project’s compliance and consistency with relevant Shoreline Codes, plans and policies, Comprehensive Plan Polices, or County development regulations, as set forth in the Staff Report issued for this project. An unrebutted preponderance of evidence in the record fully supports the analysis, findings, and recommended conditions contained in the Staff Report, as modified by this Decision. Additional conditions have been added by the Examiner, all of which are supported by evidence in the record. 26. A preponderance of credible evidence in the record, including without limitation the analysis provided in the Staff Report, and the DNS issued for the project without any appeal, establishes that the applicant has met its burden to prove that the pending application satisfies all criteria for approval of a Substantial Development Permit, including without limitation those found in applicable county codes, the Shoreline Management Act (“SMA”, see RCW 90.58.140), and state Shoreline regulations (WAC 173-27-150). Based on the record, including all findings included in this Decision, the Examiner finds and concludes that the applicant’s proposal and Shoreline Substantial Development Permit application is consistent FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR JONES AQUACULTURE PROJECT IN MCDONALD COVE – FILE NO. SDP2023-00023 Page 13 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 with: all applicable policies and procedures of the SMA; applicable provisions of state and County Shoreline regulations; and applicable provisions of the County’s Shoreline Master Program. Accordingly, the requested Shoreline Substantial Development Permit merits approval, subject to conditions included as part of this Decision that are necessary to assure consistency of the applicant’s project with the SMA and the County’s Shoreline Master Program. 27. Consistent with authority granted in County and State regulations, the Examiner has conditioned approval of the applicant’s project to make the proposal consistent with the County’s shoreline master program and to mitigate or avoid potential adverse impacts. V. CONCLUSIONS OF LAW. 1. The record includes a preponderance of evidence establishing that the pending application satisfies applicable approval criteria and merits approval, subject to conditions. 2. As conditioned, the requested shoreline permit will not result in any net loss of shoreline ecological functions. The requested permit is fully supported by evidence in the record and meets all applicable approval criteria. Following notice of the application and DNS issued for the project, there were no appeals of the SEPA threshold determination issued for this proposal. Therefore, the requested permit should be approved. 3. Any finding or other statement contained in a previous section of this Decision that is deemed to be a Conclusion of Law is hereby adopted as such and incorporated by reference. VI. DECISION. Based upon the preceding Findings of Fact and Conclusions of Law, evidence presented through the course of the open record hearing, and all materials contained in the contents of the record, the undersigned Examiner APPROVES the Type III Shoreline Substantial Development Permit, assigned application File No. SDP2023-00023, for the Jones Aquaculture Project in McDonald Cove, subject to the following Conditions of Approval: CONDITIONS OF APPROVAL 1. This approval is for a Type III Shoreline Substantial Development Permit authorizing development and operation of a shellfish aquaculture Project by the Permittee, Christian Jones, located in McDonald Cove, in Jefferson County, Washington, as located, identified, and described in this Decision, the Staff Report, and application materials, subject to modifications required to satisfy these conditions of approval (if any). FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR JONES AQUACULTURE PROJECT IN MCDONALD COVE – FILE NO. SDP2023-00023 Page 14 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 2. Work within jurisdiction of the Shoreline Master Program other than as described above shall receive separate review by the Shoreline Administrator. Any future changes or modifications in uses, operations, facilities, or activities, or reviews for future permits on this site, are subject to review for consistency with then-applicable codes and ordinances and does not preclude subsequent reviews or determinations that new or additional permits are needed, all of which may be subject to specific, additional conditions placed on such permits or approvals needed to authorize future modifications or changes at the site. 3. The Permittee is authorized to construct and operate an oyster farm aquaculture facility within the designated project area up to a size not to exceed 11,000 square feet. 4. Substantial progress towards development of the Project shall be performed within two years of the effective date of this permit, following filing with the Department of Ecology and conclusion of appeals, if any. 5. Flood hazard reduction measures are to be used as required by the Jefferson County Flood Damage Prevention Ordinance, as codified in Chapter 15.15 of the Jefferson County Code. 6. To comply with the Federal Emergency Management Agency’s Biological Opinion, the Permittee shall comply with all conditions in federal permits, including those that pertain to protection of federally-listed species. 7. If public boat launches are used, the Permittee shall negotiate all applicable fees, including maintenance, prior to beginning any gravel placement. 8. Chemicals and fertilizers are prohibited. 9. Active predator control was not proposed and is not approved for this aquaculture farm. Non- lethal pest control techniques shall be used, only when such measures are appropriate. 10. Toxic compounds shall not be used or come in contact with the marine environment. 11. Aquaculture activities will be timed so that forage fish and spawning habitats are not disturbed. 12. All aquaculture gear shall be stored at an upland site and transported to the project area when ready for use. Equipment and unnecessary gear shall not be stored on the tidelands. 13. The Permittee shall ensure that proper disposal of gear and trash occurs. Gear that is not immediately needed shall be removed from the project area. All excess or unsecured materials and trash shall be removed from the project area prior to the next incoming tide. 14. The Permittee shall ensure that workers are adequately trained so that the aquaculture use complies with all biological reports submitted to the County and with all permit conditions intended to protect the natural shoreline environment. FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR JONES AQUACULTURE PROJECT IN MCDONALD COVE – FILE NO. SDP2023-00023 Page 15 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 15. As required by other Conditions of Approval, the Permittee shall develop and operate in its Project as described in its application materials and supporting reports, and in compliance with other state or federal permits issued for any aspect of this project, including without limitation the following requirements and others added to provide clarity and transparency for the Permittee, County Staff, Project neighbors, and the general public, in any subsequent compliance or enforcement matter: A. The Permittee shall label gear and equipment placed in the project-area with identification so that it can be more easily identified if discovered to have moved from its initial location. This condition is intended to make identification of Project materials easier to identify or locate, and improve ability to determine if Permittee’s equipment is actually involved in a particular complaint, so any labels or tags used by the Permittee should be durable and appropriate for the marine environment where they will be placed). B. The Permittee confirms that the following shall be used in McDonald Cove to raise oysters: T-Posts in one- to two-foot lengths; UV-stabilized poly-ethylene mesh grow bags with UV-resistant Ziptie Fasteners and buoys; and ½-inch diameter Blue Steel Marine Rope The Permittee shall regularly update the inventory of all non-biodegradable gear and materials used as part of this aquaculture project (including without limitation plastic items), categorizing the type, volume, location, and intended use of such materials. A copy of such written inventory shall be submitted to the Shoreline Administrator, and placed in the Permit file, with updates provided as needed to keep the inventory current, at least on a semi-annual basis. The first filing of a complete inventory required to satisfy this condition shall be accomplished within 60 days of permit issuance. C. The Permittee shall remove all oyster bags at intervals under 1 year due to the need to remove biofouling on the bags. D. Oysters are to be harvested by hand. E. All activities undertaken in connection with this Project shall be conducted in compliance with any applicable fish or habitat related work windows. F. The Permittee shall perform beach patrols in the Project area within 24 hours of storm events or king tide events or as soon as safe conditions exist, with the retrieval by Permittee of any of its escaped equipment. G. The Permittee shall retrieve any of its escaped equipment within 72 hours of the Permittee receiving notification of the presence of the Permittee’s escaped equipment, or as soon as safe conditions exist. H. The Permittee is to provide contact numbers/email addresses for addressing and responding to reports of any permit violations (including without limitation reports of escaped equipment), and this information is to be regularly updated and posted on the Black Shield website (www.BlackShieldOysters.com), shared with the County, and shared with individuals who request the contact information from the Permittee. 16. All activities and development authorized by this permit shall be consistent with the approved FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR JONES AQUACULTURE PROJECT IN MCDONALD COVE – FILE NO. SDP2023-00023 Page 16 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 Project site plan and details included in the application materials, and compliant with current County codes, state regulations, health and safety codes, and federal law applicable to any aspect of the project or aquaculture operations, including without limitation all applicable standards and regulations for aquaculture projects found in JCC 18.25.440. 17. The Permittee shall obtain any associated permit, lease, license, or approval required by any state, federal, tribal, or other regulatory body with jurisdiction over any aspect of the project or proposed aquaculture operations. Any conditions of regulatory agency permits, leases, licenses, or approvals issued for any aspect of this project shall be considered conditions of approval for this permit and are incorporated herein by this reference, including, without limitation terms of any lease issued and approved by the Washington Department of Natural Resources or the permit issued by the Army Corps of Engineers. 18. The Permittee shall comply with all professional report conclusions and recommendations submitted in connection with the pending application for this project, as approved, referenced, relied- upon, and/or modified by the County. 19. Filing with the Department of Ecology; no construction allowed until appeal periods (and any appeals) have concluded. Consistent with WAC 173-27-190, it is expressly understood that construction or development activities pursuant to this permit shall not begin and are not authorized until twenty-one days from the date of filing with the Department of Ecology as defined in RCW 90.58.140(6) and WAC 173-27-130, or until all review proceedings initiated within twenty-one days from the date of such filing have been terminated; except as provided in RCW 90.58.140(5)(a) and (b). 20. Term of Permit. Consistent with JCC 18.25.440(4), because this shoreline substantial development permit is issued to authorize a new aquaculture use or development, this permit shall apply to the initial siting, construction, and/or planting or stocking of the facility or farm, and such approval shall be valid for a period of five years after the effective date of this permit; provided, that the County’s Shoreline Administrator may authorize a single extension for a period not to exceed one year based on reasonable factors, if a request for extension has been filed before the expiration date and notice of the proposed extension has been given to parties of record and the Department of Ecology. Any change to the time limits of this permit other than those authorized by this Condition shall require a new permit application. 21. As explained in JCC 18.25.440(4)(b), ongoing maintenance, harvest, replanting, restocking of or changing the species cultivated in any existing or permitted aquaculture operation is not considered new use/development, and shall not require a new permit, unless or until: (i) The physical extent of the facility or farm is expanded by more than 25 percent or more than 25 percent of the facility/farm changes operational/cultivation methods compared to the conditions that existed as of the effective date of this program or any amendment thereto. If the amount of expansion or change in cultivation method exceeds 25 percent in any 10-year period, the entire operation shall be considered new aquaculture and shall be subject to applicable permit requirements of this section; or FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR JONES AQUACULTURE PROJECT IN MCDONALD COVE – FILE NO. SDP2023-00023 Page 17 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 (ii) The facility proposes to cultivate species not previously cultivated in the state of Washington. 22. JCC 18.25.780 provides that any shoreline permit issued by the County may be rescinded or modified upon a finding by the hearing examiner that the permittee or their successors in interest have not complied with conditions attached thereto, and that the administrator shall initiate recession or modification proceedings by serving written notice of noncompliance to the permittee or their successors and notifying parties of record at the original address provided in application review files. 23. Violations of a Shoreline Permit, including any conditions of approval, are subject to enforcement action by County or State officials, which can include substantial fines or penalties, abatement, corrective action, or other remedies set forth in County Codes and state shoreline regulations. ISSUED this 24th Day of June, 2024 _____________________________ Gary N. McLean Hearing Examiner FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR JONES AQUACULTURE PROJECT IN MCDONALD COVE – FILE NO. SDP2023-00023 Page 18 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 Final Decision, Request for Reconsideration or Clarification, Appeal Rights The Hearing Examiner is authorized to issue Final Decisions for matters listed in JCC 2.30.080(2). Decisions of the Hearing Examiner may be subject to a request for reconsideration or clarification, by parties with standing and in the time and manner specified in the Jefferson County Hearing Examiner Rules of Procedure, including without limitation HEx Rules 6.5 and 6.6. JCC 18.25.750(4) provides that the applicant/proponent or any party of record may request reconsideration of any final action on a Shoreline Permit by the decision maker within 10 days of notice of the decision. Such requests shall be filed on forms supplied by the county. Grounds for reconsideration must be based upon the content of the written decision. The decision maker is not required to provide a written response or modify his/her original decision. He/she may initiate such action as he/she deems appropriate. The procedure of reconsideration shall not preempt or extend the appeal period for a permit or affect the date of filing with the Department of Ecology, unless the applicant/proponent requests the abeyance of said permit appeal period. JCC 18.25.750(5) explains that “Appeals to the Shoreline Hearings Board of a decision on a shoreline substantial development permit, shoreline variance or shoreline conditional use permit may be filed by the applicant/proponent or any aggrieved party pursuant to RCW 90.58.180 within 21 days of filing the final decision by Jefferson County with the Department of Ecology.” State law provides short deadlines and strict procedures for appeals and failure to timely comply with filing and service requirements may result in dismissal of any appeal. Persons seeking to file an appeal are encouraged to promptly review appeal deadlines and procedural requirements and confer with advisors of their choosing, possibly including a private attorney.