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Home My WebLink About2961-323 <:Pv.\l\t4 m;WP~ Michelle McConnell From: Sent: To: Subject: Attachments: Juliana Zirul Uuliana@pcsga.org] Thursday, January 29, 2009 4:03 PM Michelle McC.onnell SMP Comments PCSGA SMP draft comments Jan 29.docx <<...>> Juliana Zirul Executive Assistant Pacific Coast Shellfish Growers Association 2023 E. Sims Way, #235 Port Townsend, WA 98368 (360) 379-9041, fax (360) 379-5694 iuliana@ocsaa.org 1 2Q(P{ Michelle McConnell Shoreline Master Program Update Project Manager 621 Sheridan Street Port Townsend, Washington 98368 Dear Ms. McConnell, These comments have been prepared on behalf of shellfish farmers in Jefferson County who stand to be directly impacted by the Aquaculture Section of the new Shoreline Master Program. By way of background, Jefferson County is the third largest shellfish producer in the state of Washington, after Pacific and Mason counties. It is also home to two of the largest molluscan shellfish hatcheries in the U.S. Combined, the annual harvest of farmed shellfish and the sale of seed to growers around the world generates approximately $22 million in farm-gate sales per year. Including service providers and suppliers, that figure expands to an approximate value to the local and state economy of $52 million. Shellfish farms provide family-wage jobs, the shellfish themselves are a critical keystone species as they filter water and provide three- dimensional habitat, and the growers themselves serve as important stewards of our marine waters. Taken altogether, promoting and protecting shellfish aquaculture in Jefferson County is good policy. While we appreciate that much staff time has gone into the current draft of the SMP, PCSGA still has significant concerns with the Aquaculture Use Regulations contained in Chapt-er Article 8. The goals and policies, as set forth in this document, and in keeping with the goals and policies of the Shoreline Management Act, clearly identifies the value of shellfish farming and the need to protect shellfish resources. Shellfish aquaculture is both a water dependent and a preferred use of the shoreline (Article 3.7.B.8, Article 4.2.Cii, Article 5.3.A), yet the aquaculture use regulations as currently drafted do not correspond to the goals and policies. If Jefferson County intends to retain shellfish aquaculture as part of their culture and economy, then these regulations must be rewritten accordingly. When drafting the use regulations. staff stated that they did not wish to duplicate existing regulations enforced by other agencies. The proposed use regulations for aQuaculture fail to acknowledge the heaw regulatory burden placed on new shellfish farms. Because all shellfish farming occurs in navigable waters. every new farm must be permitted by the Army Corps of Engineers including review for Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act. This review includes consultation with NOAA Fisheries and the US Fish and Wildlife Service for Endangered Species Act compliance and Essential Fish Habitat protection under the Magnuson/Stevens Act. New farms must also receive certification under Section 401 of the Clean Water Act from the Department of Ecology. Furthermore. each farm must come from certified waters as regulated by the Washington State Department of Health (DOH), and each farm's operations must be annually certified by DOH as complying with the Interstate Shellfish Sanitation Conference (ISSC) reQuirements. Water Quality and shellfish health is carefully regulated by DOH. These existing regulations will be applied to eveN new farm. No other action governed by the SMP is as consistently regulated as aauaculture. Yet the draft SMP language includes the reauirement for studies and regulations that duplicate these permits and excludes potential growing areas due to water auality concerns. This is very problematic for shellfish growers. When multiple agencies attempt to regulate for the same potential effects. invariably contradictory permit reQuirements are established which make. compliance difficult or impossible. Furthermore. it is doubtful that county staff has the knowledge or expertise reauired to regulate shellfish aauaculture. ConseQuentlv. most of the use regulations proposed for aauaculture should be dropped. It is appropriate for the countv to regulate potential conflicting land uses. But in doing so. the county should be mindful that shellfish aQuaculture is a water dependent and preferred use of the shoreline. It is inappropriate for the county to establish regulations that give preference to non-water dependent uses over water dependent uses. We agree that it may be appropriate to require some level of review for all new shellfish aquaculture projects to ensure they do not interfere with the normal use of the surface waters of the state, as stipulated by the Attorney General's Opinion (AGO 07-01). The requirement to obtain conditional use permits for any shellfish aquaculture activities is inconsistent with the stated goals and policies. The Department of Ecology's recently published Shellfish Aquaculture Regulatory Committee's recommendations call for local government to review proposed activities to determine if the project interferes with the surface waters of the state. If it does not, the SARC recommendations say that "a local jurisdiction can issue a written determination that a proposed activity is consistent with the local Shoreline Master Program but exempt from obtaining a Substantial Development Permit." If a project is determined to cause such interference, then a Substantial Development Permit should be required. We recommend the following changes to the current draft SMP language: Page 2-16. Article 2.F.10. FLOATING AQUACULTURE. Recommend defining more specifically as "FLOATING SUBTIDAL AQUACULTURE." As defined within the aquaculture community this would normally refer to a floating structure or system in the subtidal region. It is not truly synonymous with "hanging" culture which could include various hanging basket systems that are temporarily affixed to the substrate through some means, such as anchors or stakes, from which baskets or racks are suspended. They are in the intertidal zone~ and only "float" when they are submerged in sufficient water to allow them to "hang," but may extend beyond the 3 foot limit defined in this section. Anything affixed to the substrate that is generally accessed during low tides in the intertidal region would be considered "bottom culture." Page 8-3. Article 8.2.A.5. There is no means for measuring the requirement that "". individual aquaculture uses and developments should be separated by a sufficient (emphasis mine) distance to ensure that significant adverse cumulative effects (emphasis mine) do not occur." There are no reliable scientific methods by which one could determine what constitutes a "sufficient" distance to ensure no "significant adverse effects" occur. In any event, there are no examples of aquaculture operations that currently exist in the U.S. where carrying capacity has been exceeded. On the contrary, research shows that even intensively farmed three dimensional floating mussel structures utilize relatively little of the available nutrients. Should this requirement stand, there is no method whereby this could be determined by either growers or county staff. Carrying capacity modeling is necessarily extremely site specific, given the huge variation in dynamics from one area of a beach to another, and even a single beach from time to time. Modeling must include a huge array of factors, beginning with determining what "unit" is to be studied. Is it an entire bay or a discrete section of a bay? Once that is determined, nutrient loads from both the upland and within the marine system must be measured, including both natural and anthropogenic sources. Nitrogen, phosphorous and chlorophyll should be measured, along with salinity and rainfall within the context of currents, circulation patterns and velocity. This undertaking is completely out of context with any known effects of shellfish aquaculture on the environment. Since net pens have been banned outright it is assumed that this requirement would be applicable to shellfish farms. Page 8-4. Article 8.2.A.12: "Shellfish beds are critical habitats and aquaculture uses and developments should not degrade them or other critical habitats." The original intent of this language was to protect shellfish beds from other uses. As written, it would seem to restrict shellfish aquaculture in the very place where shellfish aquaculture is conducted. Furthermore, shellfish beds are designated as critical habitat in the Critical Area Ordinance with an exception for shellfish aquaculture activities: "Commercial and recreational shellfish areas, including designated Shellfish Habitat Conservation Areas (note: shellfish aquaculture activities within all public and private tidelands and bed lands suitable for shellfish harvest are allowed uses; such activities include but are not limited to bed marking, preparation, planting, cultivation, and harvest). " The use regulations 'should contain similar language to ensure protection of shellfish beds and protection of shellfish aquaculture activities within those beds. The SMP should be consistent with the newly adopted CAO. Recommend changing language as follows: A.I2. Shellfish beds are critical habitat. Shellfish aquaculture activities within all public and private tidelands and bed lands suitable for shellfish harvest are allowed uses; such activities include but are not limited to bed marking, preparation, planting, cultivation and harvest. Page 8-4. Article 8.2.C.I-6. All shellfish aquaculture, including geoduck aquaculture, are water dependent and preferred uses of the shoreline. Making all aquaculture subject to adjacent upland uses is not consistent with these policies. In terms of providing assurance that these activities do not have negative environmental impacts, all current shellfish farms are permitted through a Nation Wide Army Corps Permit (#48) and all new shellfish projects must obtain individual Army Corps permits, all of which must undergo Endangered Species Act and Essential Fish Habitat Consultations under NOAA/National Marine Fisheries Service and US Fish and Wildlife Service. Army Corps permits must also be certified by the Washington Department of Ecology pursuant to the Coastal Zone Management Act and Section 401 of the Clean Water Act. Requiring a conditional use permit for geoduck culture and floating hanging culture is redundant with these federal and state environmental reviews, and inconsistent with the preliminary recommendations being proposed by the Shellfish Aquaculture Regulatory Committee. A Conditional Use Permit requirement is also unsupported by any scientific evidence indicating a higher level of concern is warranted. In fact, studies conducted to date indicate no long term negative impacts. Requiring a conditional use permit in the Conservancy environment is particularly inappropriate in light of the guidance provided in WAC 173-26-211. According to this rule, the purpose of the conservancy designation is to provide, among other things, for sustained resource use. Aquaculture is one of the uses specifically called out in the rule as appropriate for this designation. If Jefferson County requires a CUP for these aquaculture uses, it should require a CUP for low-impact outdoor recreation uses, forest practice, agricultural uses, residential development and other natural resource-based low-intensity uses. This requirement is completely inconsistent with the goals and policies framed earlier in the document and should be dropped. This is an issue oflocal interest and permit decisions are appropriately made locally. It is baffling why the County would wish to abrogate its permit authority to a state agency that may or may not have the necessary information to make a decision appropriate to the local community. It is appropriate to require review for all newly proposed shellfish aquaculture projects to ensure that they do not interfere with the normal use of the surface waters of the state as stipulated by the Attorney General's Opinion (AGO 07-01). Ifprojects do not interfere with the surface waters of the state, then the county can issue a written determination that a proposed activity is consistent with the local Shoreline Master Program but exempt from obtaining a Substantial Development Permit. If such a project would cause interference, then a Substantial Development Permit should be required. The following wording is recommended for these sections: Article 8. C. 3. Natural: Bottom culture andfloating subtidal aquaculture may be allowed subject to the use and development regulations of this program. Article 8. C. 4. Conservancy: Bottom culture and floating subtidal aquaculture may be allowed subject to the use and development regulations of this program. Article 8. C. 5. Shoreline Residential: Bottom culture andfloating subtidal aquaculture may be allowed subject to the use and development regulations of this program. Page 8-5: Article 8.C. 6. Prohibition against aquaculture in High Intensity Environments. Given the County's apparent concern over aesthetic impacts, as evidenced by other requirements in this section, we don't understand why the County would prohibit aquaculture in the high intensity shoreline environment. If the County's concern is related to health issues, that concern is fully addressed by the National Shellfish Sanitation Program and the Department of Health's Shellfish program. We suggest this policy be revised to read "Aquaculture uses are permitted in the High Intensity Environment so long as those uses comply with the National Shellfish Sanitation Program and the Department of Health's Shellfish program. " Page 8-6: Article 8.2.D.5.ii. Individual aquaculture facilities/farms shall be separated from one another a sufficient distance to prevent cumulative effect on ecological functions..... Please refer to full comments regarding Article 8.2.A.5. As noted above, there are no reliable scientific methods by which one could determine what constitutes a "sufficient" distance to ensure no "significant adverse effects" occur. In any event, there are no examples of aquaculture operations that currently exist in the U.S. where carrying capacity has been exceeded. On the contrary, research shows that even intensively farmed three dimensional floating mussel structures utilize relatively little of the available nutrients. Page 8-7: D.6. Provision for the county to require permits from other entities. It is neither the county's role nor its legal authority to enforce compliance with laws that are not within its purview. The provision to produce permits from other regulators is poor public policy, and is unique to shellfish aquaculture under these proposed use regulations. This provision should be dropped. Page 8-8: D.8. Prohibition on bottom and floating hanging culture. This language subverts the intent of and is inconsistent with the entire Aquaculture Use regulations and goals and policies of the SMP. It should be deleted entirely. Please do not hesitate to contact me if you have any questions about our recommendations. We look forward to working with staff and the Planning Commission to ensure that these issues are resolved to assure an ongoing healthy shellfish community in Jefferson County. Sincerely, Robin Downey Executive Director