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HomeMy WebLinkAboutDECISION Rock Point Oyster Company FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 1 of 26 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 an “after-the-fact” Type III Shoreline Substantial Development Permit for Aquaculture, submitted by ROCK POINT OYSTER COMPANY, Applicant (Location: The Project area is located in the waters of Tarboo Bay, immediately above and forming the northern extent of Dabob Bay, just west of the existing upland facilities for Rock Point Oyster Company, addressed as 133 Dabob Post Office Road, east of the Quilcene community in unincorporated Jefferson County. _________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) File No. SDP2024-00001 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 ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 2 of 26 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. Finally, the Staff Report credibly explains that the project requires a flood development permit, which is incorporated into the County’s pending shoreline permit, and a separate permit from the U.S. Army Corps of Engineers, the conditions applied to which shall also apply to this shoreline permit. (Staff Report, pages 1-5; Ex. 27, SEPA DNS; Condition of Approval No. 22). 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”). FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 3 of 26 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 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 contacting the County’s public records officer. Exhibits: Staff Report, recommending approval subject to conditions, prepared by Project Planner Donna Frostholm, with 16 pages, and the following list of exhibits, prepared by Staff. Item No: Item/description Date Type 1 Pre-application meeting notes 11/7/2023 A 2 Shoreline application 12/5/2023 A 3 Emails with representative: status of review 1/23 - 3/6/2024 G 4 Email: Marilyn Showalter, request to be a party of record, comments & DCD reply 3/18/2024 G 5 Email: Sue Corbett, request to be a party of record & DCD reply 3/18/2024 G 6 Email: Jan Wold, request to be a party of record & DCD reply 3/18/2024 G 7 Emails with representative: schedule notice of application 3/21 - 4/2/2024 N 8 Certificate: notice of application 4/2/2024 N,S 9 Affidavit of posting 4/4/2024 N,S 10 Email: DNR comment and follow up 4/3/2024 C 11 Emails with rep: requested a meeting at end of comment period 4/10/2024 G 12 Email: Ecology comment 5/2/2024 C 13 Email: Showalter comments 5/3/2024 C 14 Email: Corbett comments 5/3/2024 C 15 Email: Wold comments 5/3/2024 C 16 Email: representative requesting comments 5/7/2024 G 17 Email: DCD reply email to representative 5/14/2024 G 18 Email: Showalter comment erratum 5/23/2024 G 19 Email: Request for Additional Information 5/29/2024 G 20 Email: Communications with rep in June 6/4 - 6/12/2024 G FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 4 of 26 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 21 Email: Property owner communications with Assessor's Office 5/30/2024 G 22 Email: Response to comments and additional information requires 6/15/2024 A 23 Affidavit of publication N,S 24 Email: Communications with representative in July 7/17 - 7/23/2024 G 25 Email: Meeting Notes and Applicant Responses 7/29 - 7/30/2024 G 26 Email: Communications with representative in August 8/12 - 16/2024 G 27 SEPA Threshold Determination 8/20/2024 S 28 Email: Communication with representative in September 9/5 - 18/2024 S 29 Emails: Schedule public hearing 9/19 - 23/2024 G 30 Emails: Coordinate public hearing 10/16/2024 G 31 Emails: Send case file to Office of the Hearing Examiner 10/25/2024 G 32 Emails: Public hearing communications with Representative 10/28 - 30/2024 G 33 Emails: Communications with Office of the Hearing Examiner 10/28 - 30/2024 G 34 Notice of Public Hearing 10/28 - 30/2024 N 35 Emails: Communications with Office of the Hearing Examiner 10/29 - 30/2024 G 36 Affidavit of Posting Public Notice 11/4/2024 N 37 Emails: Communications with Representative 11/12/2024 G 38 Email: Comment from Jan Wold 11/13/2024 C 39 Email: Comment from Marilyn Showalter 11/13/2024 C 40 Email: Comment from Friends of Burley Lagoon 11/13/2024 C 41 Emails: Comments from Marilyn Showalter 11/14/2024 C Key to Types of Document: A = Application L = Maps C = Comments N = Notices G = General R = Reports S = SEPA 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 November 14, 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 FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 5 of 26 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 Development. Ms. Frostholm explained that this application is an “after-the-fact” shoreline permit for the applicant’s oyster farm operations that have been ongoing in Tarboo Bay since 2016; that Staff received written comments after public notices regarding the application were issued, and the applicant submitted responses to comments, summarized in the Staff Report; added additional written comments submitted after the Staff Report issued into the record; explained that the applicant satisfied approval criteria for the requested Shoreline permit; and that Staff recommends approval subject to conditions. In response to public comments, Mr. Frostholm explained that final notices satisfied County notice requirements; that individuals who wanted to comment were able to do so 2. Robert Smith – an attorney with the K&L Gates law firm, appeared on behalf of the applicant and coordinated the applicant’s hearing presentation and responses to comments and questions. Mr. Smith provided a short history about the applicant’s business, noting that it has been in operation in the state since 1935, and is one of the longest running shellfish businesses in the region. Summarized how this after-the-fact permit application came about, explaining that the applicant was in the middle of their shellfish permitting process with federal agencies, where the existing facility was noted as a shellfish raft, but during reauthorization came to be designated as a FLUPSY. The applicant voluntarily approached County officials about the necessary permits, and began the shoreline permit process at some point in 2021. Noted that applicant responses to comments are included in Ex. 22; that Ex. 28 details minor changes requested in proposed conditions, and otherwise accepted the Staff Report analysis and recommended conditions without objection or requests for changes. Mr. Smith addressed a written comment expressing concerns about the public notice issued for the project, he noted that perfection is not the legal standard for public notices, but is instead prejudicial error, which did not occur in this process; cited a WA Supreme Court case to support his argument, Nisqually Delta Association v. DuPont, 103 Wn. 2d 720, 103 Wash. 2d 720, 696 P.2d 1222 (Wash. 1985); explained that the record includes that the corrected confirmation of proper posting, Ex. 36; noted that there was no appeal of the SEPA threshold determination, where allegations about possible cumulative impacts, navigation hazards, and the like could have been raised but were not; that here have been no navigation related problems or issues associated with this project for about ten years, and state agencies like DNR have visited the site, expressing no concerns; noted that the power cable is attached to the substrate [so it is not floating loosely, possibly creating a hazard to watercraft operating in the area]. 3. Marilyn Showalter, local resident, submitted written comments that are included as exhibits in the record, noted concerns about adequacy and content of public notices, to ensure public is aware of proper avenues for appeals, and that the existing FLUPSY has been in place for about ten years and public should be informed of situation. Requested some sort of accountability for concerns she has with content of public notices. 4. Jan Wold, local resident, expressed concerns about the FLUPSY, believes there is no mitigation for visual impacts; concerns about navigation safety for those that use waters where project is located; concerns about electricity, safety of long cable and electrical equipment located out in and across the water from the applicant’s upland property, believes there should be inspections to ensure safety of electrical equipment, grounding, or other problems that could harm the surrounding environment. Expressed her belief that even though the project is permitted by the Corps, she is concerned that there has been inadequate review of possible cumulative impacts; FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 6 of 26 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 5. Lee Steele, for the applicant, part of the Steele family that owns and operates the Rock Point Oyster Company, provided personal testimony to address and respond to several comments raised during the public hearing. Mr. Steele credibly explained that he inspects the site and FLUPSY at issue in this application every couple of months, maintains logs of such inspections, all to see if the system is damaged in any way; he noted that the electrical system has had no problems, how private inspections have been satisfactory; noted that alleged cumulative impacts are fully addressed in the application materials and Ex. 22, prepared to respond to comments; observed that 135+ acres are already used for aquaculture uses near the site; explained that the Army Corps permit was previously under a “nationwide” permit, but will soon be covered by an “individual” permit for the site, meaning the issues specific to this project site will be addressed in any Corps permit. 6. Chris Cziesla, Senior Principal, Marine Fisheries Biologist, CEO, of Confluence Environmental Company, the applicant’s environmental consultant in this application process, offered credible testimony as a qualified professional marine biologist generally highlighting how over the years, data shows that shellfish help remove harmful substances from surrounding waters, so it is “far-fetched” to hear people suggest that the project causes adverse environmental impacts. 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. Captions are provided for the convenience of the reader and should not be read or construed to modify the meaning of any finding wherever located in this decision. 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. Rock Point Oyster Company is the applicant in this matter, seeking approval of a Shoreline Substantial Development Permit for an already-existing aquaculture project – specifically a “floating upwelling system” known as a “FLUPSY” – used to raise oysters in the waters of Tarboo Bay 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 18.25.220; and JCC 18.25.440(3)(a), (c), and (d), and (4); Staff Report, page 1). FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 7 of 26 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 Description – what is a FLUPSY? 3. A “FLUPSY” is a rectangular raft-like structure designed to upwell nutrient-rich water through shellfish seed bins in order to provide a consistent source of nutrients to growing shellfish while protecting seed from predation. Aluminum scaffolding is arranged to support a central housing containing fiberglass wells, or silos. The bottom of each well is composed of a mesh screen. Submerged troughs house a small electric pump. An electric pump with an enclosed stainless steel screen intake (per NMFS fish screening standards) pulls water out of the adjacent waterbody, creating a slow, upward flow of fresh seawater. Water exits each bin via a central channel and is directed back into the waterbody through the pump. These components are secured to floats for buoyancy, ultimately suspending the top of the silos above the water surface while partially submerging the seed in mesh screen silos to allow water to flow through the bins. (Ex. 2, collection of Application materials, including Biological Assessment, on .pdf pages 14-15, and JARPA form, at .pdf page 99). 4. Flotation for the Rock Point Oyster FLUPSY is provided by rotomolded polyethylene. The FLUPSY frame measures 9.5 feet by 17.67 feet and the FLUPSY overall measures 18 feet by 33 feet (594 square feet). The draft of the FLUPSY is 4 feet. Water flow in the center channel of the FLUPSY is maintained by a 3⁄4-horsepower variable speed electric pump. Electric power is supplied from shore via cable along the substrate. The cable is attached to a water pipe that runs from Rock Point Oyster’s shore-side saltwater pump. It runs along the substrate underwater, with the last 30 feet connected with a flexible pipe. The FLUPSY has 12 silos each measuring 31 inches by 31 inches by 40 inches with stainless steel screen along the bottom. The deck is all plastic grating supported by an aluminum framework. The FLUPSY is anchored in a subtidal area (approximately 5 acres in size) that is at least 8 feet to 10 feet deep at low tide. Helical screw anchors or standard claw anchors are used at each of the four corners to hold the FLUPSY in place. (Ex. 2, collection of Application materials, Biological Assessment on .pdf pages 14-15, and JARPA form, at .pdf page 99). 5. Seed for the FLUPSY comes from the Rock Point Oyster remote setting upland facility adjacent to the FLUPSY site. Pacific oyster and Kumamoto oyster larvae are typically purchased from Hawaiian Shellfish or Whiskey Creek hatcheries. Shellfish are filter feeding organisms that consume naturally occurring microalgae, bacteria, and organic debris directly from the water that is circulated through the FLUPSY. No supplemental feeding with cultured algae or other additives is needed. (Ex. 2, collection of Application materials, Biological Assessment on .pdf pages 14-15, and JARPA form, at .pdf page 99). 6. Maintenance on the FLUPSY occurs approximately weekly during the growing season, and every other week during colder water seasons. The silos are lifted with a chain lift mounted on an A-frame and washed with a hose supplied with saltwater pumped from FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 8 of 26 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 alongside the FLUPSY. During the growing season, the seed is emptied into small tubs and brought to shore where it is sorted with a vibratory sifter, and then returned to the FLUPSY for continued grow-out. (Ex. 2, collection of Application materials, Biological Assessment on .pdf pages 14-15, and JARPA form, at .pdf page 99). 7. There is no dispute that the FLUPSY was installed as-is where-is, in the waters of Tarboo Bay at some point in 2016. (Staff Report, page 1; Ex. 2, Application materials, Biological Assessment at .pdf pages 7 and 14; Hearing Presentation by Mr. Smith). 8. The FLUPSY was first constructed in 2014 and originally located in Blaine Harbor in Whatcom County, located over 130 miles from Tarboo Bay, for the first 2 years. Blaine Harbor proved to be operationally and logistically difficult given its significant distance from Rock Point Oyster’s facilities. The FLUPSY was moved to Tarboo Bay and rebuilt in 2016 to be proximate to Rock Point Oyster’s operations. Rock Point Oyster’s upland facilities adjacent to Tarboo Bay include a remote setting facility and upwellers to set single oyster seed and grow it to a size ready for subsequent growth in the FLUPSY. (Ex. 2, Biological Assessment, on .pdf page 7). 9. The Rock Point shellfish farm has been in operation since about 1935 and is one of the longest running shellfish businesses in the State of Washington. The applicant team explained that the existing FLUPSY was noted as a “shellfish raft” or something of that sort in Rock Point’s previous permit issued by the U.S. Army Corps of Engineers, with the applicant believing the object was exempt from County shoreline permit requirements. While the Corps permit was up for re-authorization in 2021, reviewing agencies determined that the project is a FLUPSY, which is not exempt from County permitting requirements, so the applicant began the process to obtain an after-the-fact shoreline permit from Jefferson County. Rock Point commenced the shoreline permit application process voluntarily and has not been subject to any code violation action by the County. (Hearing Presentation by Mr. Smith). 10. There is no evidence that the applicant’s FLUPSY was placed in Tarboo Bay in bad faith or that the applicant deliberately failed to obtain a shoreline permit from Jefferson County. Location. 11. The Project area is located in the waters of Tarboo Bay, immediately above and forming the northern extent of Dabob Bay, just west of the existing upland facilities for Rock Point Oyster Company, addressed as 133 Dabob Post Office Road, east of the Quilcene community in unincorporated Jefferson County. An online map showing the site location, and aerial photos from the application materials showing the FLUPSY and equipment layout FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 9 of 26 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 are republished below: FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 10 of 26 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 (Ex. 2, Application materials, Vicinity Map provided on .pdf page 9) FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 11 of 26 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 (Ex. 2, Application materials, aerial photo showing placement of FLUPSY and location of power cable in Tarboo Bay, on .pdf page 11). 12. 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; parts of the applicant’s adjacent and existing shellfish business facilities located above the OHWM (i.e. shoreland) along Dabob Post Office Road are within the County’s Conservancy Shoreline designation; and the spit of land just to the west of the FLUPSY is in the Natural FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 12 of 26 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 Shoreline environment. (Staff Report, pages 1-2). Application, Notices, SEPA review, Comments and Testimony. 13. 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. One set of comments expressed concerns that public notices mistakenly stated that a hearing examiner decision is only appealable to superior court, or something to this effect, which would be a mistake in this instance, as decisions on Shoreline Substantial Development Permits are subject to review by the Shoreline Hearings Board. This Decision, like others issued by the Examiner, is written to inform interested parties as to their avenues of appeal, if they choose to do so. No one presented any preponderance of evidence to establish that any members of the public were unable to or somehow discouraged to participate in the hearing process for this matter. Public notices issued for this proposal were modified as needed and included information to inform interested parties of their opportunities to submit comments, participate in a public hearing, where the project is located, and what the project generally entails. Those who wanted to offer comments did so, and such comments have been duly considered. Anyone who wishes to appeal this decision is free to do so, in accord with applicable law, generally summarized and explained on the final page of this document. No one’s ability to appeal this Decision is impaired in any way by what may have been included in public notices issued at some point in the review process for this matter. 14. Upon consideration of all application materials and environmental information regarding the applicant’s proposal, including without limitation the Biological Assessment prepared by qualified professionals from the Confluence Environmental Company (Ex. 2, Application materials, beginning on .pdf page 3), and the SEPA Checklist prepared for this proposal, Staff issued a SEPA Mitigated Determination of Non-Significance (MDNS) for the project on or about August 20, 2024. (Staff Report, page 2; Ex. 27, MDNS). Although the SEPA MDNS expressly informed readers that such threshold determination was subject to appeal before the Hearing Examiner as provided in applicable County codes, 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. 15. Again, the record establishes that the MDNS was not appealed – JCC 18.40.330 provides that a SEPA threshold determination like the MDNS issued for this project may be FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 13 of 26 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 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. The unchallenged MDNS included 13 mitigation measures, compliance with which shall be a condition of approval for this shoreline permit. In any event, the mitigation measures provided in the MDNS are substantially similar to or will be fully implemented through compliance with more-specific conditions of approval for this permit, including without limitation Conditions 10-17, 19, 20, and 22. Best Management Practices. 17. The project incorporates the following best management practices to avoid the release of oil, chemicals, or other hazardous materials, which appear to already be a requirement of approvals required from the U.S. Army Corps of Engineers and the National Marine Fisheries Service1: • For boats and other gas-powered vehicles or power equipment that cannot be fueled in a staging area 150 feet away from a waterbody or at a fuel dock, fuels shall be transferred in Environmental Protection Agency-compliant portable fuel containers 5 gallons or smaller at a time during refilling. A polypropylene pad or other appropriate spill protection and a funnel or spill-proof spout shall be used. A spill kit shall be available and used in the event of a spill. All spills shall be reported to the Washington Emergency Management Office at (800) 258-5990. All waste oil or other clean-up materials contaminated with petroleum products shall be properly disposed of off- site. • Direct or indirect contact of toxic compounds, including creosote, wood preservatives, paint, etc., with the marine environment shall be prevented. This does not apply to boats. • Unsuitable material (e.g., trash, debris, asphalt, or tires) will not be discharged or used as any part of the FLUPSY. • Any foam material (whether used for floatation or for any other purpose) must be encapsulated within a shell that prevents breakup or loss of foam material into the water and is not readily subject to damage by ultraviolet radiation or abrasion. Unencapsulated foam material used for current, on-going activities shall be removed 1 These measures are included in the Programmatic Consultation on Shellfish Activities in Washington State Inland Marine Waters (Corps 2015; USFWS 2016; NMFS 2016), as explained in the Biological Assessment, included as part of Ex. 2, on .pdf page 15. FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 14 of 26 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 or replaced. • At least once every three months, beaches in the project vicinity shall be patrolled by crews who shall retrieve debris (e.g., anti- predator nets, bags, stakes, disks, tubes) that escapes from the project area. Within the project vicinity, locations shall be identified where debris tends to accumulate due to wave, current, or wind action. After weather events these locations shall be patrolled by crews who shall remove and dispose of shellfish-related debris appropriately. A record shall be maintained with the following information and the record shall be made available upon request to the Corps, NMFS, and USFWS: date of patrol, location of areas patrolled, description of the type and amount of retrieved debris, other pertinent information. (Ex. 2, application materials, in Biological Assessment prepared by Confluence Environmental, Sec. 3.2 re: Avoidance, Minimization, and Conservation Measures on .pdf pages 15-17; repeated in Ex. 2 at .pdf page 93). 18. Compliance with BMPs recommended by the applicant’s qualified experts in the Biological Assessment is required in the Conditions of Approval for this shoreline permit. Consideration of possible Cumulative Impacts. 19. Several County shoreline policies and regulations mandate consideration of potential cumulative impacts associated with projects of this sort. (See, without limitation, discussion of cumulative impacts in Staff Report on pages 5, 7, and 8; and JCC 18.25.400(1)(b)(iv), JCC 18.25.440(4)(e)(ii); Ex. 22, applicant’s detailed response to written comments received, particularly responses addressing concerns about possible cumulative impacts, on pages 3- 7). 20. Despite some comments expressing concerns about possible cumulative impacts, a preponderance of evidence in the record establishes that this project has been operating for years without generating adverse impacts on the shoreline environment, cumulative or otherwise. (Id.; Ex. 2, Biological Assessment, summary of potential effects on .pdf page 26; Ex. 2, applicant’s narrative and proposed findings addressing site conditions and facts demonstrating that FLUPSY has had no, and will not cause, adverse cumulative impacts, on .pdf pages 84, 85, and 88). 21. The FLUPSY addressed in this permit is not new to the scene. Its existence and operation over the years provides an unusual track record that is void of adverse impacts. This permit will not expand current aquaculture activities in the area, so the potential for it to contribute to other cumulative impacts from other sources or operations is speculative at best, and is not supported by any preponderance of evidence in this record, full of credible history and reports from qualified professionals, which support a finding and conclusion that the FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 15 of 26 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 FLUPSY has not, and/or can be conditioned and operated in a manner that will not result in a cumulative impact that would cause a net loss in ecological functions. 22. The project site is located in an area already used by Rock Point Oyster for its shellfish aquaculture farm and would not result in any geographic expansion of aquaculture activities. The FLUPSY supports Rock Point Oyster’s existing operations by providing seed for grow- out on its farm. The FLUPSY serves Rock Point Oyster’s existing shellfish farm and has caused only negligible impacts in relation to the existing farm activities. As described in the Biological Assessment, included as part of Ex. 2, its limited environmental impacts are restricted to the geographic area immediately adjacent to the FLUPSY and there is no potential for it to contribute to other cumulative impacts from other sources or operations. Further, the project would not set any new precedent for Jefferson County, as the County already has approved other floating aquaculture projects in other areas of the County. (Staff Report, pages 5-9; Ex. 2, page 84). 23. The project location is within an area already approved by the Washington State Department of Ecology and U.S. Army Corps of Engineers for shellfish cultivation. (Ex. 2, application materials, .pdf page 88). 24. General written comments expressing concerns about possible cumulative impacts provided no description of potential impacts that might be generated by the FLUPSY, or how such impacts might result in a cumulative impact that could result in a net loss of ecological functions in the immediate area. 25. In any event, a preponderance of evidence in this record establishes that the FLUPSY has been operated without causing adverse impacts, cumulative or otherwise; and that it can be conditioned and operated in the future to avoid such impacts through this shoreline permit, thus providing additional oversight and public awareness of the applicant’s shellfish operations in Tarboo Bay. Navigation. 26. Some comments expressed general concerns about possible impacts on navigation for watercraft in Tarboo Bay. No one offered any preponderance of evidence to rebut the applicant’s explanation and analysis of potential navigation issues provided in the application materials (Ex. 2, at .pdf page 89), mostly adopted in the Staff Report, which reads in relevant part as follows, and is adopted herein as a finding of fact supporting this permit decision: The project will not result in any interference with navigation, access to waterfront properties, public recreation areas, or tribal harvest areas. The project site is located in an area owned by Rock Point Oyster and utilized for its shellfish farm. Other than Rock Point FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 16 of 26 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 Oyster’s farm operations, there is not significant vessel traffic through the area occupied by the FLUPSY. The FLUPSY has been located in its current location since 2016 without any adverse encounters with vessel traffic or recreational uses and Rock Point Oyster has received no complaints that its current location interferes with public uses. The power cord used to power the FLUPSY is attached to the substrate and does not interfere with passing vessel traffic. The FLUPSY only takes up a small portion of the navigational channel and the current location allows passage around the FLUPSY by recreational users and infrequent commercial vessels. The project does not increase boat traffic as compared to existing conditions. The project does not involve any development near nearshore areas or waterfront properties that would impede access. There are no public recreation areas or tribal harvest areas near the FLUPSY location. Power cable, concerns about electricity and water. 27. A part of the public hearing, and parts of written comments, raised general concerns about the power cable that runs from the applicant’s upland facilities to the FLUPSY, out in the bay. As noted in other findings, the power cable does not float, and is instead attached to an existing pipe running along the sea floor. (See Finding No. 6, above, Electric power is supplied from shore via cable along the substrate. The cable is attached to a water pipe that runs from Rock Point Oyster’s shore-side saltwater pump. It runs along the substrate underwater, with the last 30 feet connected with a flexible pipe). 28. The power cable has been on site and operated without incident for many years. (Testimony of Mr. Steele). The applicant credibly explained that the power cable is a type of cable that is very durable and rated for use in aquatic environments, requiring little maintenance during use. It is secured to the substrate with staples (i.e. it is not buried). The power cable was and remains connected to the preexisting power box that was already used as part of Rock Point Oyster’s existing upland operations. (Ex. 22, page 16). 29. The FLUPSY – with its power cable – was originally permitted by the U.S. Army Corps of Engineers in 2017, under Nationwide Permits 7 and 48. (Ex. 22, page 23). Rock Point Oyster submitted an application to the Corps at some point in 2020 requesting reauthorization from the Corps for the FLUPSY, which has involved ongoing consultation with the U.S. Fish & Wildlife Serve and National Marine Fisheries Service. (id.) This shoreline permit is specifically conditioned to mandate compliance with any new Corps permit or authorization issued for any aspect of this project. Copies of such approvals or permits must be submitted to the County to retain as part of the public permit file for this project. 30. While concerns about mixing electricity and water are easy to understand, in this situation, that applicant’s business depends on the health and well-being of its work crews who regularly have contact with marine waters surrounding the FLUPSY, as well as the FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 17 of 26 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 shellfish inventory that lives in Tarboo Bay, so it seems highly unlikely that the applicant would neglect to properly maintain the power cable and cause electrocution or serious harm to its workers or shellfish inventory – or other wildlife – in the area. Given the applicant’s demonstrated commitment to operate in accord with environmental protection standards, as a condition of approval for this shoreline permit, the Examiner has added a requirement that, within 30-days of the effective date of this permit, and then at least once a year for the life of the project, the Permittee shall inspect the power cable that serves the FLUPSY to confirm that it is in good condition and meets any applicable state or federal electrical safety standards. Within two weeks of any inspection, a written copy of such power cable inspection shall be submitted to the Director to maintain as part of the permit file for this project. Finally, the permittee is required to promptly complete repairs or maintenance work on the power cable as needed. (See new Condition of Approval 20.B.ii). 31. The application materials, unrebutted environmental reports prepared by qualified experts, and credible, sworn testimony from applicant witnesses, all provide far more than a preponderance of evidence in this record to establish that the requested shoreline permit, as conditioned, satisfies all applicable approval criteria and will not result in a net loss of environmental, marine habitat, or shoreline functions or values in the project vicinity. 32. There is a lack of credible evidence in this record to support claims that the requested permit will result in adverse cumulative impacts. “Monitoring” is specifically listed as a type of mitigation for projects under SEPA regulations2. In this matter, involving a permit for an object (FLUPSY) that was installed and operated for years in the same place, the record could have included reports of violations, enforcement actions from state or federal agencies, logs of complaints from neighbors or members of the public, if the FLUPSY was generating problems or causing pollution, navigation problems, or other adverse impacts during its operation. Essentially, the track record of performance over the last few years serves as a form of real-time monitoring – by Federal and State agencies with oversight authority, recreational boaters or visitors to the affected waters or adjacent shoreline areas, fish and wildlife advocates, and the like – that has already occurred for this project. Simply put, there is no evidence that any state, federal, tribal, or local agency has ever been called upon to take action against the applicant for their FLUPSY operations due to problems or alleged adverse environmental impacts. The applicant has shown that its FLUPSY has been and can be 2 WAC 197-11-768 – "Mitigation" means: (1) Avoiding the impact altogether by not taking a certain action or parts of an action; (2) Minimizing impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts; (3) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment; (4) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action; (5) Compensating for the impact by replacing, enhancing, or providing substitute resources or environments; and/or (6) Monitoring the impact and taking appropriate corrective measures. (emphasis added). FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 18 of 26 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 operated at this site without causing adverse environmental impacts, all in accord with applicable law and regulations for such facilities. 33. Just as noteworthy, the applicant already inspects the FLUPSY on a regular basis (Testimony of Mr. Steele, “every couple of months”); the FLUPSY is already maintained every week during good weather, and every other week during the colder season (Ex. 2, Biological Assessment, at .pdf pages 14-15); and, at least once every three months, beaches in the project vicinity are patrolled by crews who retrieve debris that might escape from the project area, with records maintained with the following information: date of patrol, location of areas patrolled, description of the type and amount of retrieved debris, other pertinent information. (Ex. 2, application materials, in Biological Assessment prepared by Confluence Environmental, Sec. 3.2 re: Avoidance, Minimization, and Conservation Measures on .pdf pages 15-17; repeated in Ex. 2 at .pdf page 93). 34. Given this already mandated level of maintenance and monitoring, the Examiner finds and concludes that it is highly improbable that the FLUPSY has been operated in a manner that violates applicable state and federal standards. There are no citations in this record, or notices informing the applicant of violations needing corrective action. 35. In this matter, Staff proposes conditions of approval similar to those included as part of other aquaculture projects in other parts of the County in recent years, 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. (See proposed Condition No. 20). The Examiner finds and concludes that it is in the public interest to include these conditions, and the applicant did not object. 36. With limited modifications to the conditions of approval proposed by Staff, the Examiner finds and concludes that the applicant’s aquaculture project will not result in any significant adverse impacts. No one offered a preponderance of credible testimony or reports from qualified professionals that would serve as a basis to deny the requested shoreline permit. Comprehensive Plan. 37. 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, page 4). So, compliance with Ch. 18.25 is sufficient to demonstrate this project’s compliance with the County’s Comprehensive Plan. 38. 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 ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 19 of 26 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, page 4). Shoreline Master Program policies and regulations. 39. 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 4-12). Shoreline Substantial Development Permit application merits approval. 40. The Staff Report, the application materials, the applicant’s credible and detailed responses to public comments (Ex. 22), the Biological Assessment (included as part of Ex. 2), the JARPA form, and the unchallenged MDNS, 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). 41. 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. 42. A preponderance of credible evidence in the record, including without limitation the analysis provided in the Staff Report, the unrebutted Biological Assessment, the applicant’s responses to comments (Ex. 22), 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 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 FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 20 of 26 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 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. 43. 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. SDP2024-00001, for the Rock Point Oyster Company Aquaculture Project in Tarboo Bay, subject to the following Conditions of Approval: CONDITIONS OF APPROVAL 1. The permittee shall obtain final approval from Washington State Department of Ecology prior to beginning any work on this aquaculture proposal. This Shoreline Substantial Development Permit authorizes the Permittee, Rock Point Oyster Company, to develop and operate a floating upwelling system (FLUPSY) to raise oysters in Tarboo Bay, Jefferson County, Washington, as described in this Decision, the Staff Report, and application materials, subject to modifications required to satisfy these conditions of approval (if any). This is an after-the-fact permit, because installation of the FLUPSY is already complete, and occurred at some point in 2016, in accord with U.S. Army Corps of Engineer approvals issued at such time. The effective date of this permit begins twenty-one days from the date FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 21 of 26 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 of filing with the Department of Ecology as defined in RCW 90.58.140(6) and WAC 173-27-130, or when 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). 2. Work within the jurisdiction of the Shoreline Master Program other than as described above shall receive separate review by the County’s 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, maintain and operate a FLUPSY as part of its existing aquaculture operations. 4. Flood hazard reduction measures shall be used in compliance with the Jefferson County Flood Damage Prevention Ordinance, as codified in Chapter 15.15 of the Jefferson County Code. 5. To comply with the Federal Emergency Management Agency’s Biological Opinion, the permittee shall obtain a permit from the U.S. Army Corps of Engineers and shall comply with all conditions in the federal permit, including those that pertain to protection of federally-listed species. 6. If public boat launches are needed to support existing operations, the applicants shall negotiate all applicable fees with the public entity, including maintenance. 7. Chemicals and fertilizers are prohibited. 8. Active predator control was not proposed and is not approved for this aquaculture farm. Non- lethal pest control techniques shall be used. 9. Toxic compounds shall not be used or come in contact with the marine environment. 10. All aquaculture gear shall be stored at an upland site and transported to the project area when ready to be used. Equipment and unnecessary gear shall not be stored on the tidelands. 11. 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. 12. Skiffs shall be used in a manner that minimizes disturbance to marine flora and fauna. 13. Work at night was not proposed and use of lighting is not permitted. 14. Navigational lighting for night work was not proposed and is not permitted. FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 22 of 26 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. Vessels used within any waterbody, including wetlands, shall be inspected daily for leaks. The permittee shall ensure all leaks are detected and repaired prior to the vessel leaving the staging area. 16. The permittee shall ensure skiffs do not drag anchors, chains, ropes, or other vessel equipment through intertidal and subtidal substrates. 17. All gas-powered vehicles, including vessels, shall contain a spill kit. 18. Clearing, grading, or other ground-disturbing activities above ordinary high-water mark (OHWM) are prohibited. 19. The permittee shall ensure 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 20. As required by other Conditions of Approval, the Permittee shall operate the 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 the FLUPSY with identification so that it can be more easily identified if discovered to have moved from its initial location. B. The Permittee confirms that the FLUPSY and electrical cable shall be used in Tarboo Bay to raise oysters, so the following inventory and inspection requirements shall apply: i. Inventory required. 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. ii. Power Cable Inspection. [*New condition added by the Examiner, based on evidence in the record, and to mitigate or avoid potential adverse impact]. Within 30-days of the effective date of this permit, and then at least once a year for the life of the project, the Permittee shall inspect the power cable that serves the FLUPSY to confirm that it is in good condition and meets any applicable state or federal electrical safety standards. Within two weeks of any inspection, a written copy of such power cable inspection shall be submitted to the Shoreline Administrator to maintain as part of the permit file for this project. The Permittee is required to promptly complete repairs or maintenance work on the power cable as needed. FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 23 of 26 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 C. The Permittee shall clean the FLUPSY at intervals of about once a week. D. Oysters are to be harvested by hand. E. Any installation 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 determine if the FLUPSY has come loose 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 if the FLUPSY has escaped. G. The Permittee shall retrieve any 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 Rock Point Oyster website, shared with the County, and shared with individuals who request the contact information from the Permittee. 21. All activities and development authorized by this permit shall be consistent with the approved 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. 22. 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. A. 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 the permit issued by the U.S. Army Corps of Engineers. B. Within 10 business days of receiving a permit or written form of approval from any other entity with jurisdiction over any aspect of this project, the Permittee shall submit such item to the Director to include in the permit file for this matter, and to post on the County’s website to provide access for interested parties and members of the general public. C. Similarly, any enforcement actions, notices requiring corrective action, changes in conditions of approval, or other written directives issued to the Permittee by other regulatory agencies shall be submitted to the Director within 10 business days of receipt, to maintain as part of the permit file for this matter, and to post on the County’s website to provide public FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 24 of 26 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 access. 23. 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. This expressly includes compliance with all Best Management Practices (BMPs) referenced in the Biological Assessment and application materials, including without limitation those provided in Ex. 2 at .pdf pages 15-17 and 93. 24. [Note: This is an after-the-fact permit, as construction is already complete, but language in this condition is mandated by state shoreline regulations] 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). 25. 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. 26. 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 (ii) The facility proposes to cultivate species not previously cultivated in the state of Washington. 27. 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 FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 25 of 26 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 successors and notifying parties of record at the original address provided in application review files. 28. 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. *End of Conditions. ISSUED this 19th Day of February, 2025 _____________________________ Gary N. McLean Hearing Examiner FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT FOR ROCK POINT OYSTER COMPANY AQUACULTURE PROJECT IN TARBOO BAY – FILE NO. SDP2024- 00001 Page 26 of 26 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.