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Terri Tyni [ttyni@GordonDerr.com]
Thursday, January 29, 2009 2:56 PM
Michelle McConnell
Billy Plauche; Amanda M. Carr
Jefferson County SMP Update - Comment Letter
Comment Letter - Jefferson Co. SMP Update.012909.pdf
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Ms. McConnell:
Attached is a comment letter regarding the Jefferson County SMP Update which we are submitting on
behalf of our clients, Coast Seafoods Company and Penn Cove Shellfish, LLC. If you have any problems
opening this transmission, please contact me at the number below. Please let me know if we need to do
anything further with regards to submission of this comment letter.
Thank you.
Terri A. Tyni
Legal Assistant to Amanda Carr
Terri A. Tyni, Legal Assistant I GordonDerr LLP 12025 First Avenue, Suite 500, Seattle, WA 98121-3140
ttvni~GordonDerr.com I Phone: 206-382-9540 I Fax: 206-626-0675 I www.GordonDerr.com
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ATTORNEYS Al LAW
January 29, 2009
Jefferson County Department of Community Development
Long Range Planning
621 Sheridan Street
Port Townsend, W A 98368
RE: Jefferson County SMP Update
To Whom It May Concern:
Thank you for the opportunity to comment on the proposed update to Jefferson County's
Shoreline Master Program ("SMP update''). GordonDerr LLP submits this letter on behalf of our
clients, Coast Seafoods Company ("Coast") and Penn Cove Shellfish LLC ("Penn Cove").
Coast and Penn Cove are both grower members of the Pacific Coast Shellfish Growers
Association ("PCSGA"), and support and incorporate into these comments the comments
PCSGA has submitted during the course of this comment period and at public hearing. This
letter is being submitted separately from PCSGA's comments to specifically address those issues
most relevant to Coast's and Penn Cove's operations in Jefferson County. These comments
address the aquaculture section of the draft SMP, located in Article 8, as well as other SMP
provisions potentially applicable to aquaculture uses and activities, and to hatcheries and mussel
rafts in particular.
Coast has a shellfish hatchery in Quilcene Bay that has been in successful operation for
29 years, and is the largest employer in South Jefferson County. The hatchery has 28 employees.
Its continued operation is absolutely vital to the economic health and stability of our area. Penn
Cove has existing mussel rafts in Quilcene Bay and has been successfully fanning mussels there
for over four years. The mussel farm there has 6 full time employees as required for fanning and
harvest operations. The Quilcene community relies on the family wage jobs the hatchery and
mussel farm provide. In addition, the associated requirements for support materials such as
utilities, gas, and oil, and equipment and supplies, contribute to the local economy and the Port
of Port Townsend.
First, Coast and Penn Cove wish to express their support of the County's recognition in
the SMP Aquaculture Policies that aquaculture is a preferred, water-dependent use ofregionaI
and statewide interest, and that aquaculture is important to the long-term economic viability,
cultural heritage and environmental health of Jefferson County. SMP 8.2.A.I. Coast and Penn
Cove also support the policy language acknowledging the long-term ecological and economic
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January 29, 2009
benefits of shellfish fanning, and the language directing the County to identify areas suitable for
aquaculture and protect them from conflicting uses that would threaten aquaculture's long-tenn
sustainability. SMP 8.2.A.2, .3.
This policy language is particularly meaningful for Coast because its hatchery has been
operating in the area for a long time and is an integral part of the local economy. And, just as
Quilcene relies on Coast's hatchery for its economic health, shellfish fanners throughout the
west coast rely on the hatchery to provide shellfish seed for their operations. This is an essential
facility for the shellfish industry on the west coast and is essential to the industry's long-tenn
sustainability. For these reasons, the County should ensure that its use regulations are designed
to protect the hatchery from conflicting uses and help ensure its continued successful operation.
Although the proposed SMP update does not apply to existing uses such as Coast's
hatchery, Coast has several concerns about the details of how hatcheries fit into the proposed
aquaculture policies and regulations, as well as the definitions and environmental designations
sections. There are inconsistencies and ambiguous language within the SMP, and within the
aquaculture section specifically, as to how and when aquaculture hatchery operations are
regulated. These inconsistencies and ambiguities must be resolved and clarified. In addition,
there are sections of the SMP that do not appropriately reflect the preferential status of
aquaculture as a use of the shoreline or the other policy language supportive of and favorable to
aquaculture.
The definitions related to aquaculture should be amended so that they are consistent with
the framework set forth in the shoreline environmental designations and aquaculture
sections of the SMP.
The Shoreline Environmental designations divide Aquaculture into five categories: (i)
Bottom culture (geoduck); (ii) Bottom culture (non-geoduck); (Hi) Hanging/floating culture; (iv)
Net Pens; and (v) Floating upwells, hatcheries, sorting and staging facilities. SMP Article 4,
Table 1.
However, it is unclear whether the definition of "aquaculture" in the SMP includes the
category "Floating upwells, hatcheries, sorting and staging facilities" set forth in the Shoreline
Environmental designations. See SMP 2.A.28. The definition of "aquaculture activity"
expressly excludes many upland aquaculture uses, including those that are water-dependent or
water-related, such as hatcheries. See SMP 2.A.29. In order to ensure that the preferential and
protective language in the County's policies is effectively carried out. and to ensure that the
Shoreline Environmental designations are consistent with the definitions, the definitions should
be revised as follows:
Aquaeulture means the fanning or culture of food fish, shellfish, or other aquatic
plants or animals in freslwJater ar saIwJater afeas, and may include development
such as structures or rafts, as well as use of natural spawning and rearing areas.
Aquaculture includes floating upwells. hatcheries. and sorting and stagin!l
facilities. Aquaculture does not include the harvest of wildstock geoducks on
state-owned lands. Wildstock geoduck harvest is a fishery.
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Aquaculture activity means actions directly pertaining to growing, handling, or
harvesting of aquaculture produce including but not limited to propagation, stocking,
feeding, disease treatment, waste disposal, water use, development of habitat and
structures. and water-dependent and water-related. ExelYdeEt ffem this EteBaitisn are
FelateEt upland aquacultureeemme1'eial Sf industrial uses saeh 85 .::tiel,.I, aaEI retail
sales, sorting, staging, hateheries, 1Emk faFfRS, aREI BRal preeessiRg anEt freezing.
Finally, the definition of stnlcture lists "mussel racks" as an example of a structure. SMP
2.R.41. In contrast to other examples listed - Retaining walls, bulkheads, fences, landscaping
walls/decorative rookeries - '~mussel racks" is an undefined and uncommon tenn, and as such should
not be included as an example of a structure. This term should be stricken from the definition of
"structure":
Structure means a permanent or temporary edifice or building or any piece of work
artificially built up or composed of parts joined together in some definite manner,
whether installed on, above, or below the surface of the ground or water, except for
vessels (WAC 173-27-030). Retaining walls, bulkheads, fences, landscaping
walls/decorative rockeries, IflllSsel FIlela, and similar improvements to real property
are examples of structures. Geoduck harvest tubes are not considered structures for
purposes of this Program.
The County's shoreline regulations for aquaculture in the High Intensity environment
should be revised to allow Aquaculture, a preferred use of the shorelines, while still
accounting for health concerns.
Coast's hatchery is located in the High Intensity shoreline environment. While Coast's
current hatchery operations primarily consist of upland facilities, there are existing and potential
future activities associated with the hatchery that may fall under the definition of bottom and
hanging aquaculture. These activities are ancillary to hatchery operations.
As currently written, the Countyts Shoreline Regulations for Aquaculture in the High
Intensity environment prohibit bottom and hanging aquaculture uses and developments, with the
exception that floating upwell systems and shellfish restoration projects where shellfish are not
intended for direct human consumption may be allowed subject to policies and regulations of the
SMP. SMP 8.2.C.6. This language may inadvertently and adversely affect hatchery operations
in a manner that does not further health concerns, the apparent intent of this provision.
Given the County's concern over aesthetic impacts, as evidenced by other requirements
in this section, it is unclear exactly why the County would prohibit aquaculture in the High
Intensity shoreline environment. where aesthetic impacts are logically less of a concern. In fact,
according to another section of the SMP, aquaculture uses excepting floating upwells, hatcheries,
and sorting and staging facilities are the only shoreline uses prohibited in the High Intensity
environment. See Article 4, Table 1. It is inconsistent to prohibit a preferred shoreline use
outright while allowing, either outright or conditionally, all other listed shoreline uses.
If the County's concern is related to health issues, such concern is fully addressed by
existing applicable laws and regulations such as the National Shellfish Sanitation Program and
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January 29,2009
the Department of Health's Shellfish program. Therefore, we suggest SMP 8.2.C.6 be revised to
read:
Aquaculture is permitted in the High Intensity Environment so long as it complies
with the National Shellfish Sanitation Program and the Department of Health's
Shellfish program.
Article 4, Table 1, should then be revised for consistency with this regulation by
indicating that AquacultW'e in the High Intensity environment is permitted subject to policies and
regulations of the SMP.
The aquaculture policies appropriately acknowledge the need to protect aquaculture due to
the important role it plays in Jeffenon County's economy; to ensure these policies are
carried out one poliey should be revised to ensure that the County's most significant
aquaculture facilities are preferred and protected.
As noted above, Coast and Penn Cove support the policies favoring aquaculture at SMP
8.2.A.l-.3. In addition to these favorable policies, the SMP aquaculture policies establish
preferences for certain types of aquaculture operations. See SMP 8.2.A.6. These preferences
include a statement that "[p]rojects that require few land-based facilities should be preferred over
those that require extensive land facilities." SMP 8.2.A.6.iii. This policy, we believe
inadvertently, creates a structure where hatcheries-water-dependent upland facilities integral to
the shellfish farming process-are not preferred.
Given the preferred status ofaquacultW'e as a shoreline use, the strong role that Coast's
hatchery facility plays in the regional economy, and the recognition that aquaculture activities in
general are an important contributor to the economy of Jefferson County, this policy should be
st,ricken. Alternatively, it should be edited to read:
With the exception of hatcheries. oProjects that require few land-based facilities
should be preferred over those that require extensive land facilities...
The aquaculture use regulations need clarification as to (i) when they apply and (ii) when
aquaculture may interfere with normal pubic use of surface waten.
There are two provisions in the general aquaculture regulations (8.2.D) that are
ambiguous and could use clarification.
First~ while the regulations specify when an existing operation must obtain a new permit,
the regulations should more explicitly state that as a general rule any new regulations imposed in
a new SMP will apply only to new aquaculture operations. To achieve this, SMP 8.2.0.2 should
be revised to read as follows:
Aquaculture operations in existence as of the date of enactment of the SMP
update shall not be required to comolv with the policy and regulation amendments
resulting: from that uDdate. and oGngoing maintenance, harvest, replanting,
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January 29, 2009
restocking or changing the species cultivated in any existing or permitted
aquaculture operation shall not require a new permit, unless or \mtil...
Second, the regulations provide guidance as to when activities may be considered to
interfere with normal public use of surface waters, see 8.2.D.4, but use the undefined term
"public waters" in this guidance. Because this term is ambiguous and undefined it could create
confusion later on for staff, applicants, and decisionmakers. The concern expressed through this
regulation appears to relate to interference with normal public use of public tidelands. If this is
the case, SMP 8.2.D.4.i could be much clearer and still achieve its intended objective by
removing the term "public waters":
They occur in, adjacent to or in the immediate vicinity of p\!hUe \VIHel'S iaeladiBg
public tidelands...
Conditional Use Permit Criteria
Despite the County's recognition that aquaculture is a preferred use of the shoreline, the
County SMP update requires Conditional Use Permits for some types of aquaculture in the
Natural, Conservancy, and Shoreline Residential environments. We understand that the County
desires to include a Conditional Use Permit requirement on some forms of aquaculture, including
geoduck.
However, the Conditional Use Permit criteria set forth in the SMP contains ambiguous
wording that could potentially preclude all or nearly all shoreline uses and developments that
require a Conditional Use Permit pursuant to the SMP:
Uses specifically classified or set forth in this Program as conditional uses and
unlisted uses may be authorized provided the applicant/proponent can demonstrate all
of the following:
2. That the proposed use will not interfere with normal public use of public
shorelines.
. Surely the CO\mty cannot intend that any interference with normal public use of
public shorelines prevents the issuance of a Conditional Use permit. If this were the case,
it would prevent many shoreline activities from being permitted, including many
activities unrelated to aquaculture. However. we are particularly concerned that this
language subverts a preferred use (aquaculture) to other uses of the shoreline (any public
use), and potentially prevents that preferred use from being permitted. This provision
should be stricken, or in the alternative revised to read:
2. That the proposed use will not substantially interfere with normal public use of
public shorelines.
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Thank you for your consideration of these comments.
Amanda M. Carr
AMC-SWP:tt
cc: Coast Seafoods Company
Penn Cove Shellfish
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