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.