The Shoreline Managment Act: A Gift From the Past to Preserve

Over this holiday season, consider the gift which was given to us by the legislature and voters in 1971 and 1972 respectively:  the Shoreline Management Act, RCW 90.58.020.  The shellfish industry being unhappy with the current permitting process - a public process they have been involved in crafting for years - should not drive any attempt to minimize what has evolved.

The Shoreline Management Act was a direct outcome from an attempt to transform the Nisqually Delta into a deep water port.  This legislative act and the voters of Washington State said profits for a few should not drive development decisions within the shorline areas of Puget Sound.  The continuity of habitat functions for the future of everyone is far more important than simply "jobs and the economy."

From the Shoreline Management Act:
The legislature declares that the interest of all of the people shall be paramount in the management of shorelines of statewide significance. The department, in adopting guidelines for shorelines of statewide significance, and local government, in developing master programs for shorelines of statewide significance, shall give preference to uses in the following order of preference which:
     (1) Recognize and protect the statewide interest over local interest;
     (2) Preserve the natural character of the shoreline;
     (3) Result in long term over short term benefit;
     (4) Protect the resources and ecology of the shoreline;
     (5) Increase public access to publicly owned areas of the shorelines;
     (6) Increase recreational opportunities for the public in the shoreline;
     (7) Provide for any other element as defined in RCW 90.58.100 deemed appropriate or necessary.
Consider the gift we are being asked to leave the coming generations by "streamlining the permitting process" which is the major part of Governor Gregoire's and NOAA's "Shellfish Initiative."  Was it the intent of this legislative act and the voters who passed it to "streamline" a permitting process for an activity which fragments the intertidal habitat of Puget Sound as the current methods of shellfish aquaculture do?   http://www.youtube.com/watch?v=lC1IjM45UbU&feature=player_embedded

The current industrial methods used by the shellfish industry are not those used by shellfish growers when the Shoreline Management Act was passed.  The focus on these current activties and the time being taken to determine whether they are in the best interest of all the people and Puget Sound's habitat, through the sound permitting process in place, is exactly why the Shoreline Management Act was passed. 

NOAA's attempt to "streamline" this regulatory oversight which has evolved over the past 4 years is being driven by the commercial shellfish industry for their benefit.   

Write to the Governor and your local, state and federal representatives and tell them this is contrary to what the Shoreline Management Act's purpose was and you do not support any attempts to "streamline" the permitting process. 
Preserve the gift which was given to everyone 40 years ago which has protected Puget Sound and prevented it from becoming Chesapeake Bay.

Gregoire Priorities: A future job or protecting Puget Sound?

Governor Gregoire announced with great regalia the need for "permit streamlining" so Taylor could, among other things, expand its non-native mussel farm to meet demand.  While a few important incentives were included, the priority of the "shellfish initiative" is to speed the expansion of shellfish farming in Puget Sound.

Not mentioned is how Taylor and the Governor intend on dealing with the non-native invasive tunicate problem Taylor's farms have, putting Puget Sound habitat at risk.  Why? Perhaps the groundwork for future employment is being put in place. We all need a job.

Non- native Invasive Tunicates from Taylor's Mussel Farm

In a 2007 the Seattle Times reported: Fearful of the potential impacts on the Sound's ecosystem and the local shellfish industry, the state for the first time last year dedicated $250,000 to tracking and removing the tunicates. Gov. Christine Gregoire is asking in her current budget proposal for $500,000 to continue the work.

In 2011 the Governor cut $30 million from the WDFW budget which included support for erradicating these non-native invasive tunicates.

In this Youtube video of Non-native mussels and tunicates in Totten Inlet (click for youtube video of Taylor's mussel farm) you can see how pervasive they are. At 1:35 Gordon King with Taylor displays a handful of mussels and non-native invasive tunicates. His response in March of 2008 to the problem? “I don’t see it as a problem at this stage,” he said. “That doesn’t mean it won’t be one.”

The way tunicates spread (“If you let chunks go, they go off and form new colonies,”) Taylor's harvesting of mussels creates a perfect means for this species to spread.

Gretchen Lambert (an expert on tunicates) is quoted in various articles as saying:
Didemnum [seen in the picture above and in the video clip], she said, “is potentially the worst one.”

“People tend to ignore tunicates until they are so abundant they can’t be ignored any longer,” said Gretchen Lambert, a Seattle marine biologist who has studied invasive tunicates all over the world.

Is the Governor looking for a future job or protecting Puget Sound for the citizens she still represents?   One step the Governor could take is to restore funding to help erradicate this non-native invasive species - if it's not too late.

Citizens File Petition to Ammend Shoreline Regulations, not Streamline Them

Case Inlet Shoreline Association and the Coalition to Protect Puget Sound Habitat have petitioned the Department of Ecology to amend WAC 173-26-241(3)(b) Aquaculture Standards.
http://www.caseinlet.org/uploads/Petition_for_Rulemaking.pdf 

This petition has been filed to correct a legally flawed opinion by the Attorney General carried forward into Ecology's recent guidance regulations, specifically focused on geoduck aquaculture.  As noted earlier, a recent court decision determined geoduck aquaculture does in fact use structures and thereby meets the definition of a development, requiring a shoreline permit, just as all developments along the shoreline do, whether a dock; a bulkhead; or a home.
http://www.caseinlet.org/uploads/taylor_10-21-11.pdf (Judge's transcript)

When asked how this fits with the shellfish initiative to "streamline" the permitting process, the simple answer is "it doesn't."  "Streamlining" the permit process for aquaculture is not what the Shoreline Management Act and the Clean Water Act are in place for.  They are in place to protect the very unique and valuable habitat which Puget Sound provides, for everyone and everything, not just the shellfish industry.  As seen in this brief youtube slide show, the shellfish industry is transforming the tideland habitat of Puget Sound in a way which will forever degrade the biodiversity provided from this habitat area:  http://youtu.be/lC1IjM45UbU 

Totten Inlet Non-native Mussel Farm

Slated for Expansion

With Non-native invasive Tunicate Problems

The recently announced initiative does contain important components in the form of restoration of native species; financial assistance for upland owners' failing septic systems; financial assistance for
cattle and dairy farmers; and, increased access to publicly owned shoreline.  But make no mistake:  this effort is primarily an attempt to bypass regulations which have evolved over the past four years which the shellfish industry does not like.

Many citizens have watched the transformation of aquaculture from small mom and pop operations to large corporate entities.  Anyone who cares about Puget Sound should be very concerned about attempts to "streamline" permitting.  If this is allowed to move forward, future generations will only look back on this time and say "What were they thinking?"

You can help by supporting Case Inlet Shoreline Association (http://www.caseinlet.org/) and the Sierra Club (http://washington.sierraclub.org/tatoosh/Aquaculture/index.asp).

Fudge Point Acquired by The Trust for Public Land

Fudge Point has been acquired by The Trust for Public Land. 

Outlined in red below are the uplands and tidelands (to mean low tide) which were purchased.  Tidelands between mean low tide and extreme low tide were excluded.  The pedestrian easement between extreme low tide and high tide which was established by Ralph Scott in 1991 to benefit the upland owners was extinguished by Taylor Shellfish and Russell and Richard Scott before the sale. 

Fudge Point Acquisition

(lines are approximate)

"There isn't any place I'm aware of that the tunicates are causing harm on the shellfish farms,"

Why would Taylor Shellfish state "There isn't any place I'm aware of that the tunicates are causing harm on the shellfish farms,"
http://www.cbsnews.com/8301-501363_162-57331539/environmental-programs-fall-victim-to-budget-cuts
"When Washington's Legislature trimmed $30 million, or 27 percent, from the state Department of Fish and Wildlife's budget, three employees who had been diving in the Puget Sound to hunt down invasive sea squirts lost their jobs.
The gelatinous invaders, known as tunicates, form a goopy mat on the sea floor, raising fears that they will hurt the shellfish industry, as they have in eastern Canada.
"We are basically addressing tunicates on an emergency basis only," said Allen Pleus, Washington state's aquatic invasive species coordinator..."There isn't any place I'm aware of that the tunicates are causing harm on the shellfish farms," said Bill Dewey, of Taylor Shellfish Farms in Shelton, Wash."
Images from Woodshole seem to clearly show non-native invasive Tunicates causing harm at Taylor Shellfish's mussel rafts in Totten Inlet:
http://woodshole.er.usgs.gov/project-pages/stellwagen/didemnum/images/pdf/wash4b.pdf
The British Columbia Shellfish Growers Association says this on their Aquatic Invasive Species page:
"On Canada’s East coast, invasive tunicates have resulted in significant grow-out, harvesting and processing challenges for the mussel farming industry."
"Tunicates can out compete and suffocate filter feeding bivalves such as mussels and oysters."

Taylor Shellfish has a great deal to loose if their mussel farm is found to be a vector for non-native invasive tunicates.  Taylor Shellfish has a great deal to loose if these tunicates smother their cultured mussels (which the Woodshole images seem to show clearly happening).  Taylor Shellfish has a great deal to loose if what they believe isn't currently causing harm begins to smother oysters which other growers in Totten Inlet and south Puget Sound are culturing.

Sometimes it is better to react to a problem before it becomes an ecological disaster.  Washington State should reconsider its budget cut which eliminated the Washington Department of Fish and Wildlife's program to control invasive tunicates.  Taylor Shellfish should reconsider their statement, for the good of everyone, and work towards helping reinstate funding for WDFW to control this very real threat to Puget Sound's ecosystem.

"the ideal Christmas present for your favorite regulator"

Created in part through a $160,000 grant from NOAA, "Shellfish Aquaculture and the Environment" is being promoted by the shellfish industry as "the ideal Christmas present for your favorite regulator."  In response, the Pacific Coast Shellfish Growers Association has ordered 26, presumably to pass out as gifts to their favorite regulator.  If you aren't a "favorite regulator" they are available for $219.95.
http://www.wiley.com/WileyCDA/WileyTitle/productCd-0813814138,descCd-authorInfo.html

The caveat to those regulators fortunate enough to receive one, or with a budget line large enough to order one, is it was created by and for the shellfish industry to promote their business.

Section 5, Science, of Executive Order 13563, relating to "Scientific Integrity" reads: "...each agency shall ensure the objectivity of any scientific and technological information and processes used to support the agency's regulatory actions."   Good words to include in your thank-you card.

Trespass Settlement Terms Disputed

The Squaxin Tribe has challenged 2010 trespass settlement terms.

Should the bigger question be:  Were the 17 treaty Indian tribes aware in 2007 tidelands managed by the State may have Tribal Treaty rights impacted?
 http://nwifc.org/about-us/shellfish/commercial-shellfish-growers-settlement/

In 2010, settlement terms for trespassing may have done so. 

In 2009 Taylor Shellfish, Seattle Shellfish, and Arcadia Point Seafood were all found to be trespassing on State tidelands.  These tidelands were adjacent to private tidelands which had been leased and cultivated, in one case since 1998.  Over this period one, perhaps two harvests occurred with the recent plantings being perhaps a third "crop."  In the 1998 case, settlement terms allowed harvest of the 1/2 acre of planted State lands for a payment of $75,000.

[Our comment:  1/2 acre of geoduck, after expenses, nets up to $500,000 for the grower.  Was a settlement of $75,000 for geoduck worth $500,000 in the best interest of the State and the Tribes?  Were Tribal members notified cultivation and harvesting would occur on State tidelands when letters from the growers were mailed or did those letters only identify the privately held tideland parcels?  Should the growers be allowed to retain ownership of the geoduck planted on State tidelands?]

The Squaxin Tribe does not agree with the settlement terms for reasons outlined in a Magistrate's decision here: 
http://turtletalk.files.wordpress.com/2011/10/dct-order.pdf 

If the Magistrate's decision stands, should the 2007 settlement also be challenged?

Being Frank: Corps' permit program threatens salmon habitat

http://www.auburn-reporter.com/opinion/133019253.html

Billy Frank writes about the Nationwide Permit program:  

"...There's also little consideration of how multiple projects in a certain area might result in greater habitat damage."

"The Clean Water Act says that the Corps can't authorize the permits if they cause more than minor harm to the marine ecosystem alone, or combined."

"The Corps' nationwide streamlined permit process might make sense in other parts of the country, but not here. This isn't the Mississippi River or Florida. They don't have salmon. We do, and they're in trouble."

"We're not asking the Corps to stop issuing permits for shoreline work nationwide, but rather for the Seattle District Office to switch to an individual permit system that acknowledges the need to protect and restore salmon habitat in Western Washington."

Our comment:  We agree.  We would also add it is time for agencies and the public to turn around and look at what is happening to the intertidal tideland ecosystem through this program and others.  Aquaculture is transforming the most critical habitat area used by salmon into a sea of plastic growout bags, PVC tube structures on the tidelands, and fields of mussel rafts on the water. 

Plastic grow-out bags

PVC Tubing

Claims of creating "structure" and "biodiversity" are countered with the fact this artificial ecosystem and anything dependent on it is destroyed every time harvesting occurs, as was the original ecosystem in place.  Recovery?  It will never recover as long as "farming" cycles occur.  Biodiversity?  Introduction of non-native species and creating "structure" where invasive species take hold (see tunicates on non-native mussels above) is not healthy for Puget Sound.

("harvesting" geoduck through injection and liquefication of sediments)

(note sediment plume behind "farmers")

To allow cumulative adverse impacts to occur through the Nationwide Permit program, whether through tideland development or through upland development, together or alone, puts habitat the salmon of Puget Sound rely on at great risk.  We believe the Clean Water Act is clear.

Superior Court Transcript Denying Taylor/Arcadia Petition

A transcript detailing why the Thurston County Superior Court denied the petition from Taylor Shellfish and Arcadia Point Seafood is found here:  http://www.caseinlet.org/uploads/taylor_10-21-11.pdf

In clear logic it affirms Thurston County's decision to require a Shoreline Substantial Development Permit for the proposed Thiesen/McClure/Lockhart geoduck farms based on the fact that the PVC tubes and netting are a structure, therefor a development. 

The task of ensuring Puget Sound's most critical habitat - the intertidal tideland area - will be regulated as the Shoreline Management Act intended has taken a great step forward. 

Superior Court Agrees: Geoduck Farms Require Shoreline Permits in Thurston County

The Superior Court agrees that Thurston County is able to require Shoreline Substantial Development Permits (SSDP) for geoduck farms.   It has accepted the fact that geoduck farms' use of structures within the tidelands of Puget Sound allow - in fact require - county regulatory oversight to ensure the goals of the Shoreline Management Act are achieved.  In so doing it has rejected the shellfish industry's attempt to create law through an opinion issued by the Attorney General in 2007 which felt a geoduck farm's placement of PVC, netting, bands and rebar within the tidelands was not a structure. 

RCW 90.58.020 clearly defines what the Shoreline Management Act was intended to accomplish.  http://apps.leg.wa.gov/rcw/default.aspx?cite=90.58.020

It states "the shorelines of the state are among the most valuable and fragile of its natural resources and . . . there is great concern throughout the state relating to their utilization, protection, restoration, and preservation." .  It states further that "[i]n the implementation of this policy the public's opportunity to enjoy the physical and aesthetic qualities of natural shorelines of the state shall be preserved to the greatest extent feasible consistent with the overall best interest of the state and the people generally."

It was never intended to give the shellfish industry unregulated rights to develop the tidelands any more than it was intended to give upland shoreline property owners the right to unregulated development.

New Burley Lagoon Area Geoduck Operations

A new geoduck farm near the mouth of Burley Lagoon is being proposed.
http://www.nws.usace.army.mil/PublicMenu/documents/REG/NWS-2009-1530-PN.pdf
Comments are due November 16.

Unique to this proposal and what should be of concern to everyone is the expansion from intertidal farming into the nearshore subtidal area, to a depth of 38'.   Nothing like this has been proposed nor been considered by any agency other than DNR who does not allow "harvesting" of subtidal depths between the lowest tide and a depth of 18 feet. 

As proposed the farm will be planted in five annual rotations, the effect of which will be continual impacts to the area from PVC tube insertion/removal; net placement, cleaning and removal; and, sediment plumes from dive harvesting (subtidally) and "dry" harvesting (areas exposed at low tide).

Eel grass beds contained within these tidelands provide critical habitat for Pacific Herring; Steelhead; Cutthroat; and, Chinook.  As seen in Ecology's condition for the Jamestown S'Klallam geoduck farm, impacts to eel grass beds from farm activities are unknown.  Common sense dictates dive harvesting and other activities will spread a plume of sediment far wider than the proposed 10' buffer.  As clearly stated in the July 17, 2009 letter from Pierce County to Mr. DeTienne:

"The range of buffers referenced in literature varies from 10 feet (the standard buffer required in Hydraulic Project Approvals and the distance referenced in the recent U.S. Fish and Wildlife Service and National Marine Fisheries Service biological opinions) to 180 feet (referenced in the 2001 State Final Environmental Impact Statement which pertains to subtidal harvest)."
(It should be noted that an Environmental Impact Statement is far more rigorous than a "biological opinion," which is just that - an opinion.  It is the EIS which requires the 180' buffer.)
The critical habitat provided by Burley Lagoon and the nearshore area at its mouth is already at risk.  Whether from past and current upland activities or proposed future activities related to the expansion of geoduck farming, the specific and cumulative adverse impacts to this critical area - and to Puget Sound in general - need to be fully considered before any expansion of geoduck farming is permitted.

Ecology Issues New 401 Certification

Kilisut Harbor Geoduck Farm

Approved by Ecology

Kilisut Harbor

(From Google Maps)

The Department of Ecology has issued its first Section 401 Water Quality Certification for a new geoduck  farm in Puget Sound, operated by the Jamestown S'Klallam tribe. 

(see: http://www.ecy.wa.gov/programs/sea/fed-permit/pdf/200900900_WQC.pdf)

Proposed is a 1.5 acre farm on what is known as Beach 2 on the northeast shore of Naval Magazine Indian Island.  The farm will be planted annually in 12,000 square foot sections, resulting in farming impacts occurring each year over the typical 5 year cycle. 

Since 1939 this island has been used as a Naval weapons station.  In part, runoff from these storage areas has resulted in Beach 2 being closed to shellfish harvesting, with it only recently having been opened (storage bunkers adjacent to this location are seen in the photo above).  Whether these historical contaminants still exist in sediments from which the geoduck are harvested is unknown, but past studies indicate constricted estuaries with historical pollution have contaminants still contained in the deeper sediments.

Kilisut Harbor is also one of the critical habitat areas for the Cherry Point Herring population, currently in decline.  Significant areas of Eel Grass are used for spawning by this population.  As noted in the certification, beds of Eel Grass are adjacent to the proposed farm.  Impacts to these beds from farm activities are currently unknown.

Will sediments disturbed impact this habitat?  Are contaminants still held within the sediments which will be released upon harvesting?  Constricted outlets at both the south and north ends of Kilisut Harbor make flushing of the harbor less than ideal and whatever is disturbed will remain for an unknown period of time.

WAC  173-201A-400(4) states:  No mixing zone shall be granted unless the supporting information clearly indicates the mixing zone would not have a reasonable potential to cause a loss of sensitive or important habitat, substantially interfere with the existing or characteristic uses of the water body, result in damage to the ecosystem, or adversely affect public health as determined by the department.

Has Ecology's allowing a "mixing zone" of 150' met the above?  The proposed Eel Grass study which is part of the 401 Certification clearly indicates impacts from geoduck farming on beds of Eel Grass are unknown.  Are deeper sediments still contaminated, increasing the risk again of exposure to arsenic and BEHP which had kept this beach closed in the past?  Samples of the upper 10cm are not adequate to answer this question. 

WDFW has clearly established Kilisut Harbor as a priority habitat area.  Species of forage fish and critical habitat are well documented.

The Jamestown S'Klallam Tribe notes the following on its web site:
We, the Port Gamble S’Klallam and the Jamestown S’Klallam Tribes, of the Point No Point Treaty Area, recognize the responsibility and need to protect and advance the treaty reserved hunting, fishing and gathering rights of our Tribes.

Contained within the responsibility of protecting reserved hunting, fishing and gathering rights is consideration of whether an intertidal geoduck farm in this critical habitat area meets this stated goal for everyone and everything.

Geoducks in Burley Lagoon, Purdy

90 Acre Geoduck Operation

Proposed for Burley Lagoon

Burley Lagoon

(near Purdy, Pierce County)

(from Google Earth)

"Friends of Burley Lagoon" have reported Western Oyster Company's agent, David Steele with Tarboo Enterprises, LLC in Olympia, has applied to Pierce County for a Shoreline Substantial Development Permit and a Shoreline Conditional Use permit to harvest wild and seeded geoduck in Burley Lagoon.  The permit application describes harvesting by divers of the areas below Mean Low Water within Burley Lagoon.  Not described in the permit is what neighbors have described as Taylor Shellfish employees populating Burley Lagoon with PVC pipes for future "crops" and a "request" to stay off of the tidelands.

Dive harvesting in Burley Lagoon will destroy documented Pacific Herring spawning habitat and, through sediment disruption, greatly impair one of the few habitat areas used by Chinook Salmon, Steelhead Trout, and Coast Resident Sea Run Cutthroat (see Priority Habitat Map from WDFW below).  With the recent visit of Orcas (an endangered species) into this south Puget Sound area, and their dependence on these species as a food source, their importance and the habitat they depend on cannot be overstated.

The adverse impact from dive harvesting on the subtidal area is why DNR does not allow it in water depths less than 18 feet and is, in part, why the Department of Ecology did not allow dive harvesting in the Section 401 permit issued to Trident Marine (see earlier posts below).

As of August 26, Pierce County Senior Planner Mojgan K. Carlson has stopped taking public comments.  Citizens are still able to contact Mojgan at mcarlso@co.pierce.wa.us or 253-798-7234 and ask to be notified about the Public Hearing schedule. 

Priority Habitats of Burley Lagoon

(from WDFW)  





Ecology Rescinds Trident Marine 401 Certification

On August 30th the Department of Ecology rescinded its Section 401 Water Quality Certification issued to Trident Marine.

Clean Water Act Permitting of Geoduck Farms

ECOLOGY ISSUES ITS FIRST

WATER QUALITY CERTIFICATION

- WITH CONDITIONS -

http://www.ecy.wa.gov/programs/sea/fed-permit/pdf/200701721%20WQC%208688.pdf

(click on link to download the 6Mb decision document)

 

August 1, the Department of Ecology issued the first Section 401 Water Quality Certification for a geoduck farm in Puget Sound, with conditions.  The Army Corps has yet to issue its Section 404 permit.  Both are required under the Clean Water Act for new farms, or, in this case, a previously unpermitted farm.

Trident Marine's Unpermitted Farm in July of 2007

 

(click to enlarge)

Trident Marine's farm (above) was installed without prior authorization in July of 2007. The resolution to the violation resulted in the removal of the 10,000 PVC tubes and netting. Of the 30,000 geoducks planted, the Corps allowed those surviving to remain (~15,000, worth ~$500,000). As it was a new farm, harvesting requires approval from the Department of Ecology and the Army Corps of Engineers (Note: Unlike Thurston County who requires permits, Mason County does not regulate geoduck farming.)

Pocket Estuary and Wetland Drainage in April 2007, Before Unpermitted Installation

(click to enlarge)

This intertidal tideland area exists in a wetland drainage area where the combination of salt and fresh water creates an ecosystem of unique value supporting many important species.  It is located at the south end of Pickering Passage where spawning habitat for the Squaxin Island population of Herring; Sand Lance; Surf Smelt; and, Rock Sole exist.  All utilize this area as an important food source, in turn helping to support the salmon population in south Puget Sound. 

The Department of Ecology has recognized the importance of this area and the potential for significant degradation of the water quality and habitat from the operation of this farm.    To address their concerns, some of the conditions include:

1.  The Certification will be rescinded if the Corps does not issue a Section 404 permit (required under the Clean Water Act). 

2.  WAC 173-201A-201(1)(e)(i) allows a radius of 150' to be temporarily impacted from the sediments disturbed during harvesting.  If measurements or observations note any disturbed sediments carried beyond this distance, harvesting must cease immediately.

3.  Compliance with regulations must be documented through observations and measurements at specific distances and at specific times with results submitted for review. 

4.  No work or storage is allowed at tidal elevations of +5 or higher, a point which must be marked on the property's lateral lines and must be visible at high tide.* 

5.  Dive harvesting is not allowed nor are "nursery bins."

6.  No channeling or redirecting of surface water entering the project area is authorized.

7.  All tubes, netting and bands must be made of  "marine-application" material and be permanently marked or tagged to identify Trident as the owner.

(Note:  See Ecology's authorization for further details.)

Ecology's role through the Clean Water Act permit has addressed some of the concerns expressed over many years about what impact geoduck farming has on Puget Sound's tidelands.  It is through the evolving regulatory framework these impacts will be minimized and a healthy Puget Sound ecosystem will be maintained.  Still not addressed is what impact contiguous multiple farms, operating at the same time, are having.  (See earlier post on Cumulative Impacts.)

*The presumption of tideland boundaries following the upland parcel lines is not correct.  Shown below is their more likely location.

(click to enlarge) 

 

Ecology and Economics of Geoducks

The Kitsap Sun's July 23, 2011 article "Economic benefits, ecological questions stall geoduck industry growth" by John Stang discusses the ecological concerns and economic benefits of geoduck farming. 

Some comments include:

1.  Taylor Shellfish spokesman Mr. Dewey believes the ecological concerns are driven by shoreline owners seeing tubes and workers on the tidelands. Shoreline owners did question what impact placing 38,000 tubes per acre was having on Puget Sound's intertidal ecosystem.  For that reason House Bill 2220 was passed.  In part it resulted in the University of Washington's Sea Grant finding no peer reviewed scientific studies existed (see Geoduck Literature Review).  As a direct result of concerns expressed by those first made aware of this new form of aquaculture the industry found itself being brought under regulatory scrutiny, resulting in a "Not Against My Business or Industry" backlash and unproductive statements such as Mr. Dewey's.

2.  In the article it noted the opinion of the University of Washington's Dr. VanBlaricom that the greatest densities of wild geoduck are occasionally the same as those found in commercial geoduck farms.  Comparing subtidal densities to intertidal densities is questionable at best.  Commercial densities forced into the ecosystem of the intertidal zone exposed each day by outgoing tides and covered again by incoming tides simply do not exist naturally, nor do the 38,000 plastic tubes per acre. 

3.  The article notes one factor limiting growth is hatchery seed survival rates falling and "the industry has not yet figured the cause of the drop."  Unnatural population densities of a genetic strain unable to survive puts the wild population of that species at risk.  The July 27, 2011 NY Times article entitled  "Norwegians Concede a Role in Chilean Salmon Virus" notes how Chile's wild salmon population has been decimated through the introduction of a virus through eggs shipped from Norway.  There is a risk found in aquaculture and regulations which minimize this risk are well founded, even if they stall growth.

4.  Commodities carry an economic risk with over production and geoduck are little different than tulips.  The article notes there are 360 acres currently in production.  If two geoduck per tube survive to 1.5 pounds, each acre produces 114,000 pounds  (38,000tubes*2*1.5#).  This means 41 million pounds are in various stages of growth.  If 2008, 2009 and 2010 produced 4.2 million pounds, this would leave 36.8 million pounds coming to market over the next four years.   What will happen to state and tribal geoduck revenues if overproduction causes the market to collapse?

5.  The Shoreline Management Act was created to prevent the fragmentation of the ecosystem found in Puget Sound's shoreline and to balance the various demands placed on the shoreline. Regulations controlling what goes on in the intertidal zone are needed to balance the ecological concerns with the economic benefits of geoduck aquaculture.

Whose Tidelands Are They?

Why does the question of "whose tidelands are they" matter?

Whether the public using them for recreational use; waterfront homeowners wishing to keep people off of their property; or, others interested in commercializing them, the answer to "whose tidelands are they" is important and not always clear.  How they were sold by Washington State and others through time has created challenges, some minor, some more significant. 

This picture of Harstine Island helps to show what some of the challenges are.

Harstine Island

(click to enlarge)

Tidelands in the lower portion of the picture, roughly below the line drawn in, include the area from the high tide line down to the extreme low tide line, close to what is exposed in the picture.  Tidelands in the upper area of the picture, above the line, are within a specific surveyed area (an "oyster tract") which, in this case, extends into the subtidal area but in many, if not all areas, not to the high tide line.

One of the challenges in how these tidelands were sold is there is a strip of tidelands which is still owned by the public between the high tide line and out perhaps 20' wide.  In essence, a "sidewalk" is available to anyone for walking on in the area above the line.  

A second challenge is the lagoon's tidelands (on the left side of the picture) are also owned by the public, whether for walking or digging for clams.  However, due to an assumption they are privately owned, shellfish have been grown commercially for years and, it has been used for loading and unloading barges.

The increasing value of tidelands, whether from recreational use by the public; for privacy; or, for their ability to commercially grow shellfish makes the question of "whose tidelands are they" important.  The answer is not as clear as it appears.

What are Fudge Point's Tidelands Worth?

$47,500/acre or $250/acre?

(click to enlarge)

County assessors are currently updating property values on Harstine Island.  Using 2010 transactions for similar parcels they determine what the assessed value will be for the next four years, beginning in 2012. From that value tax revenues are generated to support the various services provided in Mason County.  Some of those services help ensure the waters within Mason County remain clean, benefiting everyone who enjoys their use, from shellfish farmers to swimmers. 

Tidelands may be used for many purposes.  Some choose to use them for pedestrian easements.  Some choose to grow shellfish on them.  Some choose to leave them in their natural state. 

In the case of Fudge Point, a choice has been made to grow geoduck on these tidelands.

December 30, 2010 Tideland Sale

$475,000 for ~10 Acres 

(click to enlarge)

Seen above are tidelands just South of Wilson Point which were sold by Manke Timber to Taylor in December of 2010.  Manke sold only the tidelands, retaining a right for the adjacent upland owners to access the tidelands for recreational use.  Taylor is allowed to continue growing geoduck they planted.  As Taylor appears to own the geoduck, Manke only sold the tidelands, retaining the right for the upland users to use them recreationally.

What are Fudge Point's tidelands worth?  What are the other tidelands growing geoduck throughout Mason County worth?  Property tax revenues are what supports Mason County.  The choice to convert tidelands to a geoduck farm is that of the tideland owner.  So doing dramatically increases the value of those tidelands.  Tax revenues resulting from that increase in value will help support Mason County for the benefit of everyone.

Thurston County appraises tidelands used for shellfish farming at a far higher value than Mason County does, helping to pay for their valuable services.  What will Mason County do?

What is the Value of Fudge Point's Tidelands?

Ralph Scott, born in 1926, was raised on Harstine Island. As an adult he had a vision of Fudge Point's future. Seen in that vision were upland parcels of property coupled to the 3,295 linear feet of tidelands on Fudge Point, with the entire area between mean high and extreme low tides reserved as a pedestrian easement, accessed by a 50' wide road.  This vision became memorialized when he recorded a document with Mason County in 1991 (AF#524414 - see end for tideland reservations).

 Is this the pedestrian easement 

Ralph Scott saw on Fudge Point's tidelands?

(click to enlarge)

Note:  This picture has been altered

to show what the proposed

geoduck farm would look like.

The value of tidelands is seen in many ways.  Some find the highest value in the tidelands' natural state and record it as such with the assumption it will remain so in the future.  Ralph Scott knew this.  Those who helped create the Shoreline Management Act also knew this.  What neither knew was how aquaculture would transform into what it is now. 

Ralph Scott is gone. Will his vision of Fudge Point as he recorded it remain for future generations?

Ralph Scott's Vision for Fudge Point's Tidlands

(click to enlarge)



Should Fudge Point be transformed

into a

12 acre geoduck farm?

Ecology and the Corps Want to Hear What you Think

Fudge Point/Buffington Lagoon

Harstine Island, Mason County

April 2011

(click to enlarge)

The Department of Ecology is accepting comments on this proposal through May 4.  Comments should be sent to:   ecyrefedpermits@ecy.wa.gov and should reference "Fudge Point, Taylor Shellfish; NWS-2011-44."

Information on Taylor's portion (which only covers the area above) is found here:

http://www.ecy.wa.gov/programs/sea/fed-permit/pdf/201100044_JPN.pdf 

SPECIAL NOTE:  DUE TO A COMPUTER PROBLEM THE CORPS CANNOT VERIFY COMMENTS ALREADY SENT IN ON TAYLOR SHELLFISH APPLICATIONS WERE RECEIVED. 

The Army Corps has extended their comment period for this project, and others, until May 26. 

http://www.nws.usace.army.mil/PublicMenu/documents/REG/Taylor_Shellfish_PN_Revision.pdf 

Comments should be sent to: Pamela.Sanguinetti@usace.army.mil and reference "Fudge Point-Taylor; NWS-2011-44."

In addition to extending the comment period for Taylor's Fudge Point, the Corps has also extended the comment period on Taylor Shellfish's "Sullivan" farm in Totten Inlet (NWS-2010-1237).  Information for that proposal, Fudge Point, and adjacent farms on Fudge Point (NWS-2010-1238 and NSW-2011-131) may be found here:

http://www.nws.usace.army.mil/PublicMenu/Menu.cfm?sitename=REG&pagename=Public_Notices

Almost 300,000 PVC pipes will be placed into the wetland drainage area seen in the picture above.  Harvesting will loosen 3' of sediments which will be caught up by the drainage from the wetland area above, entering into Case Inlet, carried throughout the area by tidal currents.  The intertidal habitat will be disrupted through phases of production, starting with PVC insertion; its removal; and, harvesting.  Is there enough information to determine if this farm, and those which already exist near McMicken Island State Park and Wilson Point to the south will not have an adverse impact on Puget Sound's ecosystem?



Are cumulative impacts real? 

To the south on Wilson Point you'll find this:

Wilson Point

Harstine Island, Mason County

(April 2011)

 (click to enlarge)

Cumulative impacts from geoduck aquaculture are real and they do matter. 

Your comments will make a difference.





Cumulative Impacts of Geoduck Farming

"What are the cumulative impacts from geoduck farming and do they really matter?" 

This is a question the Army Corps and the Department of Ecology are now asking themselves as they review new permit applications for geoduck farms. Everyone should.  An isolated geoduck farm may be relatively inconsequential.  As a whole they may be transforming vast areas of Puget Sound's intertidal tideland ecosystem. 

With ~350 acres of geoduck farms already existing, permit applications for new farms have begun.  Three of the 9 new applications are for 12 acres on Fudge Point, just south of McMicken Island State Park, on Harstine Island, seen in this photograph taken early April of this year.  These contiguous proposed farms span the area from Buffington's Lagoon around Fudge Point, covering an area roughly equivalent to 4 football fields.  This is in addition to existing geoduck farms to the north.

Fudge Point (April 2011)

Seen below is an area of similar size which already exists at the mouth of Eld Inlet.  Multi-year geoduck plantings create a near contiguous strip within the intertidal zone of -4 to +2 elevations, spanning thousands of feet.  At the mouth of Totten Inlet are similar areas on both sides.  Harvesting occurs over periods of years with peaks during high Chinese market demand.

Eld Inlet (April 2011)

Supporting the existing farms now is a growing infrastructure.  Included are areas where the PVC pipe used in farming (44,000/acre) is piled; bagged; and, then shipped to various locations throughout Puget Sound.  Seen in the photograph below is one of those areas where apparently state owned tidelands on Harstine Island have been converted to a shipping facility.

Spencer Cove Lagoon (April 2011)

Also included in geoduck farming are "nurseries" used to grow geoduck seed to a larger size which increases their survivability overall, but more importantly, in the higher tidal elevations (+1 to +3) thereby increasing the acreage which may be planted. Rafts, trays and wading pools are used.  Seen below are close to 900 such pools, now removed due to tideland impacts.  However, the Army Corps and the Department of Ecology now allow individual farms to use these pools, in essence, creating an impact wherever there is a farm needing a "nursery." 

Nursery Pools (2008?)



Cumulative impacts do matter. 

NEPA regulations define cumulative impact as: "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." [See 40 CFR 1508.7.]

The Clean Water Act requires the Army Corps and the Department of Ecology to consider impacts to Puget Sound ecosystems on a scale larger than a single farm.  The public process allows citizens to remind those agencies involved about that fact.

Thurston County Board agrees: geoduck farms require SDP

Loose tubes from an unauthorized planting of geoduck tubes on state tideland on Henderson Inlet in Thurston County. Photo taken on 6/1/07. DNR required removal of tubes. This is in the near vicinity of the private tidelands in the case outlined below.

Taylor Shellfish Farms and Arcadia Point Seafood challenged the hearings examiner's January 21, 2011 decision that applications for geoduck farms now require a Substantial Development Permit to go forward. The Memorandum of the Decision of the Board of Thurston County Commmisioners finds agreement with the hearings examiner:

"The Board finds that the hearings examiner's detailed statutory interpretation of the term "development", as it applies to Appellants proposed geoduck operations, is consistent with the plain language of the Shoreline Management Act and Washington Administrative Code. The hearing examiner's interpretation also implements the fundamental policies of the SMA to fully protect our fragile shorelines."

Army Corps Seeks Public Comment

Taylor Shellfish geoduck farm on Totten Inlet, around 2007, found to be illegally planted on state owned tidelands.

The US Army Corps of Engineers seeks public comment on the possible installation of a new 2-acre Taylor Shellfish Farm in Totten Inlet. The ACOE has seen an increase in applications for geoduck farms and an increase in the size of the farms. Read the announcement in the Mason County Journal article. Comments on this farm are due April 14, 2011. Go to this ACOE site for information about how to submit comments and the email address of the project manager.

Ecology will proceed with Shoreline Management Act rule-making

Totten Inlet geoduck operation, approximately 2007. Oyster bags cover the tidelands on the upland side.

The following email was received today from the Department of Ecology:

On Dec. 8, 2010 Ecology placed the Shoreline Management Act (SMA) rule-making on the agency’s “to be determined” list. Doing so signified that the Director needed more information before deciding whether or not to proceed with the rule-making during 2011. Due to deadlines set by the Administrative Procedure Act (RCW 34.05) Ecology knew it would need to make a decision by early February.

Today, the Director announced that Ecology will proceed with the Shoreline Management Act rule-making, citing OFM exemption criteria 3 (e):

(3)  Rule making proceedings are non-critical unless the rule is:

(e) -Beneficial to or requested or supported by the regulated entities, local governments or small businesses that it affects.

To make this decision, the agency reviewed Governor’s Executive Order 10-06, the criteria for exemptions, the input we’ve received from those interested in this rule-making, and determined that it is critical to complete rule-making now. 

Completing the rule update related to intertidal commercial geoduck aquaculture will provide needed regulatory consistency.  The updated rule provides guidance on addressing this activity as part of Shoreline Master Program (SMP) updates.  The rule also provides a permitting framework for implementing updated policies. 

Several Puget Sound counties will adopt shoreline policies and regulations in the near future that address conflicts associated with commercial geoduck aquaculture. If rule completion were delayed, the next opportunity to integrate commercial geoduck aquaculture policies and regulations may be a decade into the future.  

Another important item in the updated rule clarifies the criteria for approval of less than comprehensive SMP updates.  The current rule language is significantly outdated and does not meet the needs of local government.  Local governments support replacing this outdated rule section.  Other elements of the rule update ensure consistency between the rule and statute.

Ecology has updated our website to reflect the SMA rule-making status change. You can find this change noted in the Feb. 2, 2011 update on our rule-making suspension website: http://www.ecy.wa.gov/laws-rules/rulemaking_suspension.html.

More information on the Shoreline Management Act rule-making:

http://www.ecy.wa.gov/laws-rules/SMA2010/1007.html

Thurston County geoduck farms require SDP

Henderson Inlet Geoduck Farm, 2007. PVC tubes are covered by huge canopy nets.

The large geoduck farm shown in this photo taken in 2007 was developed before the question of the appropriateness of intensive industrial geoduck farming on fragile Puget Sound tidelands became the concern of so many people as well as the County. This Army Corp of Engineers NWP48 submission documents some of the properties in this area on Libby Road leased for geoduck farming.

This Order on Summary Judgement affirms the Thurston County Hearings Examer decision that applications for geoduck farms now require a Substantial Development Permit to go forward.  It was based on two properties in the same vicinity at the photo above. Taylor Shellfish will likely appeal this conclusion by the Hearings Examiner asking for reconsideration by the County Commissioners, next (or instead) as an appeal to the State Shorelines Hearing Board, and next as an appeal to a higher court.

Summary of Order taken directly from the document:

1. The Department's summary judgment motion that the proposed geoduck operations are a "development" under the SMA because they involve "construction of a structure" is granted. The Appellants' summary judgment motion on the same issue is denied. The first ground of the administrative determinations on appeal, that the placement of tubes and netting on the beach constitutes construction of a structure and consequently a development, is upheld.

2. The summary judgment motions by the parties on whether the proposed operations are a "development" under the SMA because they involve "removal of any sand, gravel, or minerals" are denied due to the presence of genuine issues of material fact.

3. On the third ground of the administrative determinations, whether the tubes and netting serve as an obstruction on the beach, summary judgment is granted in favor of the Appellants on the issue of sediment movement: the proposed operations are not developments due to their effect on the movement of sediment. Summary judgment is not entered at this time on the other issues relating to this third ground, due to the need for further examination of the public trust doctrine and review of whether any Shoreline Hearings Board decisions address whether the "placing of obstructions" includes obstructions to marine life.

4. The effect of the above decisions is that the proposed operations are deemed "developments" under the SMA under the first ground of the administrative determinations, requiring a substantial development permit for the proposals. Thus, unless this determination is reversed, a hearing on a substantial development permit is required for the proposed operations, and the appeals of the other grounds of the administrative determinations are mooted, as well as the motion in limine.

Dated this 21st day of January, 2011.