Seattle Shellfish Files Complaint Against Army Corps: "We want it all, even if we didn't have it all planted."

Can a Biological Opinion based on inaccurate information provided by an industry now be used to justify expansion of an activity by that industry?

 

Arcadia Point, Totten Inlet

Reported "Project Area" from Seattle Shellfish

to Army Corps in June, 2007 = 20.5 Acres (in red)

Acreage Reported to be Leased/Cultivated to WDFW
after 2007 by Seattle Shellfish (in yellow) = 2 Acres

 

Too Much Money and Still Not Enough Tidelands
Funded by the immense profits from geoduck farming Seattle Shellfish, with verbal support from Taylor Shellfish, has filed a "complaint" against the Army Corps in District Court. In the "complaint", Seattle Shellfish claims the Army Corps should not require Individual Permits for expansion of shellfish operations. Seattle Shellfish's position is that any tideland area that it defines as its "Project Area", owned or leased where it claimed to have planted shellfish prior to March of 2007 should be, in its entirety, considered an existing operation and allowed to expand under the Nationwide Permit 48, with little to no additional consideration to impacts from those expanded activities. [click here for court papers filed December 11]

Information Considered was Not Accurate
The company's complaint further states that the 2009 Biological Opinions from the US Fish and Wildlife Service (USFWS) and National Marine Fisheries Services (NMFS) considered all acreage reported, under lease or owned as being cultivated, not just that planted (i.e., "existing" included areas never cultivated before).

However, as discovered by the Corps and the Department of Ecology, from the information provided by the shellfish industry in 2007, it was impossible to accurately determine what that acreage was, what was being cultivated, and how. For example, the shellfish industry implied that over 6,000 acres of tidelands were being cultivated with geoduck. As it turned out, somewhere between 400 and 500 acres were actually being used.

As seen in the examples above and below, Seattle Shellfish was one of the companies that significantly overstated acreage they had under cultivation by claiming existing "Project Areas" far greater than what was actually under lease and planted therein. Examples provided here show 60 acres claimed to have been leased and cultivated by them when, in fact they reported to WDFW (a separate state agency) that only 7 acres had been leased and cultivated. Based on maps from WDFW, even that number does not accurately reflect what was actually being cultivated with what in 2007.

Carlyon Beach,

Reported Project Area from Seattle Shellfish

to Army Corps June, 2007 = 24.9 Acres (in red)

Acreage Reported to be Leased/Cultivated to WDFW

after 2007 by Seattle Shellfish (in yellow) = 4.5 Acres





Nationwide Permits (NWP) Recognize that a Balance is Needed
The Corps is aware there is a need for permitting that recognizes a balance between development and protection of waters of the US, as defined by the Clean Water Act. Thus is why the Nationwide Permit (NWP) system is in place. Through NWPs, small impacts to critical habitat are allowed by the Corps, but only after a careful analysis by the USFWS and NMFS. In that analysis, the agencies determine whether activities are similar enough "in nature and in environmental impact to warrant regulation under a single General permit." The agencies must also be able to quantify total discharges to determine cumulative impacts. If that can be done, a NWP is developed and may be used. Every five years NWPs are reconsidered.

NWP 48 - Allowed Existing Shellfish Operations to Continue if in Place before March of 2007
In the case of shellfish cultivation, the critical issue considered by these federal agencies between 2007 and 2009 was, first, whether cultivation was underway ("in the ground" or "fallow" following a previous planting) prior to March of 2007; what that cultivation method was; and which species were being cultivated. In order to determine whether those areas reported to be under cultivation were having a significant impact, alone or together, the Corps required growers to submit applications showing what tideland areas were currently being cultivated, with what, and how. That information, obtained from forms submitted by shellfish growers, was then provided to the USFWS and NMFS.

Windy Point



Reported Project Area from Seattle Shellfish

To Army Corps June, 2007 = 15.2 Acres (in red)  

Acreage Reported to be Leased/Cultivated to WDFW

by Seattle Shellfish (in yellow)  = .5 Acre

Quality of Data Submitted and Seattle District Discretion
Information provided was inaccurate, at best, and certainly not of the quality a sound decision should be based off of [read about Information Quality Act here]. Adding to the difficulty was that geoduck farming in Puget Sound was new and unique to the area which had not been studied (i.e., it was not a "Nationwide" practice). This was recognized by the Corps' Northwestern Division in Portland who in turn gave the Seattle District the discretion to address the method and develop additional conditions, based on the then inaccurate information submitted.

This inaccurate information, coupled with the uniqueness of the impacts from geoduck farming is why both the Department of Ecology and the Army Corps of Engineers, driven from the Seattle District level, required resubmission of new forms to accurately reflect what was being cultivated, how, and where. As noted above, those resubmissions were finalized in 2010, after the 2009 Biological Opinions from USFWS and NMFS were submitted. [click here for a summary table showing how innacurate the information submitted by growers was, compiled by Protect Our Shoreline citizens in 2007]

USFWS and NMFS Could Not Have Determined Impact
Because the information submitted in 2007 was not accurate, and not updated until 2010, the Biological Opinions issued by the USFW and NMFS in 2009 (those that the Seattle Shellfish "complaint" claims support its position) could not have determined whether operations were "similar" and whether they alone, or together, had a significant impact. Numerous communications between the Corps, NMFS and USFWS between 2007 and 2009 clearly indicate the inability to accurately determine how many acres were being cultivated, and with what. (e.g., from NMFS - "it is difficult to identify precisely the locations of existing shellfish aquaculture operations in Washington State"; "Corps needs to provide better information about the acreage of the operations being covered under NWP 48")

Given that, it was impossible for USFWS and NMFS to determine whether expansion of existing farms should be allowed. As such, claims in the complaint - those stating that the 2009 Biological Opinions support expansion - have no foundation to build on. Attempts to define "Project Areas" as "expansive" are countered in numerous communications which clearly define it narrowly - as an "existing operation." In short, you cannot claim a tideland not planted prior to March of 2007 is "existing" any more than you a float establishes an "existing" dock.

Permits Take Time - Especially When Information Provided Isn't Accurate and What's Being Protected is More Important than Money to be Made
Seattle Shellfish and Taylor Shellfish complain about no permits having been issued in many years. It would have helped if, at the outset, the shellfish industry not viewed the Nationwide Permit as a hindrance to expansion but instead as a means to protect the very thing they - and everyone else - benefits the most from: a robust and healthy Puget Sound habitat, capable of supporting a diverse number of species for a diverse number of people.