USFWS/Dept of Interior Lawsuit

 DUNGENESS NATIONAL WILDLIFE REFUGE UPDATE (DNWR): 

Groups Sue USFWS For Failure to Protect the Dungeness National Wildlife Refuge 

Thank you for your support and concern about the proposed industrial-shellfish operation in the DNWR in Sequim WA.

 On August 17, Protect the Peninsula’s Future (PPF) was joined by The Coalition to Protect Puget Sound Habitat and the WA D.C. national organization Beyond Pesticides in a legal action to hold the U.S. Fish and Wildlife Service (USFWS) accountable to follow its regulations and protect the Dungeness National Wildlife Refuge. We are represented by the Seattle WA law firm Bricklin and Newman https://www.beyondpesticides.org/assets/media/documents/PR_8.18.23_%20Groups%20Sue%20U.S.%20Interior%20Department%20to%20Protect%20the%20Dungeness%20National%20Wildlife%20Refuge%20from%20Industrial%20Aquaculture.pdf

The August 17 federal complaint, submitted to the United States District Court For The Western District of Washington, states that the USFWS must “take action that is required by the Refuge Improvement Act and conduct a compatibility determination and require a special use permit for a proposed industrial aquaculture use” that will abut and impact the Refuge.  Plainly, the compatibility determination would decide whether this industrial- shellfish operation is compatible with the mission of the Refuge.

The Dungeness National Wildlife Refuge was created in 1915 by President Woodrow Wilson. The Refuge provides habitat, a preserve, and breeding grounds for more than 250 species of birds and 41 species of land animals. The shellfish operation lease is for 50 acres of Washington State bottomlands. 34 acres would be covered with up to 80.000 plastic grow-out bags of non-native shellfish spat, staked into the bottomlands and potentially killing all marine life underneath and snaring wildlife in the netting. These plastic bags will cover the primary feeding grounds for the birds, essentially starving them as they peck through the plastic trying to reach nutrients. This operation would shift the natural year-round-sediment drift, moving the sediment into and covering the eelgrass beds - beds protected for rearing salmon for whales and nourishment for particular migratory ducks. To protect the birds, the area is closed to the public during the migratory bird season.  However the USFWS will allow the shellfish operation in to the area all year long to the detriment of the birds. Please see this publication for further detail. https://www.ehn.org/dungeness-national-wildlife-refuge-oyster-2660613389.html

Now we need your help in two ways.  First, please circulate this to your friends and family so they are aware of what is at risk to this public land maintained at taxpayers’ expense.

Second, please make a financial donation to support this legal action at any amount comfortable for you. Your donation is tax deductible. Protect the Peninsula’s Future is a federally recognized 501c3 non-profit.   

Checks can be sent to PPF,  PO Box 421,  Sequim WA  98382.

Donations through PayPal can be made here:  https://www.protectpeninsulasfuture.org/donate/   

 Permit Hearing: 1 p.m. August 9 at 411 N. 5th Street in Shelton

Floating Oyster Farm Hearing in Mason County's Oakland Bay, WA

50 acres of navigable water and tidelands is needed for a 9 acre floating oyster farm.

[Article on citizen concerns here: https://www.masoncounty.com/.../oakland-bay.../2967.html

August 9 a permit hearing on a proposal by Taylor Shellfish to create a 9 acre floating oyster farm requiring a 50 acre lease in south Puget Sound's Oakland Bay will occur. While presented as "only" 9 acres, Taylor Shellfish has said due to drifting of the structure, lines and anchors, a 50 acre area of public subtidal tidelands and navigable waters is required.

To date, 49 comments have been received with 43 of those being opposed. Impacts to native marine life, the public's use of navigable waters, and plastic pollution are only a few of the concerns expressed.

On Mason County's web site, Taylor's response to those comments has been a litany of past studies used to support a variety of industrial shellfish farms, dismissal of others as not being important (e.g., Friends of Burley Lagoon don't know anything about Oakland Bay, so their concerns are not relevant), and the belief that giving access to 16 acres tidelands in other parts of Oakland Bay, only exposed during a small portion of the day, is sufficient mitigation to offset the loss of the 50 acres of navigable waters Taylor needs.

[See Mason County's web site and permit documents here: https://masoncountywa.gov/hear.../Taylor-Shellfish/index.php ]

In addition to attending in person, the hearing will also be available on Mason WebTV.

[Find Mason WebTV here: https://masonwebtv.com/ ]

Through a series of delays, Taylor Shellfish has had ample opportunity to review concerns submitted and develop what they feel are sufficient responses to them. Coupled with time spent developing shoreline regulations which are favorable to industrial shellfish farm development, citizens who are concerned have an uphill climb.

Taylor Shellfish Hearing Update: Delayed Again

Taylor Shellfish Oyster Barge

New Public Hearing Date: August 9, 1PM

Mason County Building 1, Shelton, WA

Attend or mail comments to: 

lviscusi@masoncountywa.gov

Taylor Shellfish has again requested, and been granted by Mason County, a delay of the public hearing on its proposed 50 acre project area in Oakland Bay. Within that area it is proposing to initially place a 9 acre floating structure to grow oysters. Local citizens are concerned over the growing cumulative impacts an approval would have. To the north, Burley Lagoon is also facing a similar industrial level project, this one being a 25 acre geoduck farm within the low flushing lagoon. There, an Environmental Impact Statement was required which is currently being appealed.

Pod of Orcas in Hammersley Inlet, 

later seen in Oakland Bay near Shelton.

In both areas, citizens are concerned about the impacts on native species, including Orcas. A letter posted in the July 15 edition of the Shelton-Mason County Journal rightfully pointed out the risks which anchor and suspension lines in this small  enclosed bay would present to one of Washington's icon species.

Cumulative impacts are real. Get involved. 

Taylor Shellfish Hearing

A hearing for a proposal to place a 9 acre floating oyster structure in Oakland Bay, within a 50 acre project area, has been moved to June 14 at 1pm. Concerns already expressed include risks to Orca which regularly visit Oakland Bay; visual  impacts; navigational hazards created; and, cumulative impacts. Notice of the rescheduled Hearing as well as Army Corps'  comment request is below.

50 acre project area

(From Army Corps' pdf below)

MASON COUNTY NOTICE: Shellfish hearing moved to June 14

The Taylor Shellfish proposed floating oyster bag proposal in Oakland Bay has been moved to 1 p.m. June 14 at Mason County Building 1 in Shelton.

According to the agenda on the hearing examiner’s website, Taylor Shellfish is applying for a shoreline substantial development and shoreline conditional use permit to grow Pacific oysters and install a floating oyster bag system in Oakland Bay. The system will use an estimated 9.1 acres of surface water within a 50-acre area for the floating oyster gear.

Also seeking public comment is the U.S. Army Corps of Engineers in Seattle. The organization posted a public notice May 19 for the Department of Army Permit for Taylor Shellfish’s floating oyster bag farm.

According to a flyer mailed out by the Corps of Engineers, Taylor Shellfish is proposing to install and maintain 30 pairs of synthetic rope lines, each pair 1,800 feet long, across 9.1 subtidal acres of Oakland Bay. Rope line pairs would connect the tops and bottoms of a row of plastic mesh bags with each bag between a pair of floats above and below the bag. Rope line pairs will be arranged 20 to 30 feet apart across the 50-acre site.The bag will be used for oyster seed and oyster growing cultivation and the purpose of the project is to provide shellfish to eat, according to the flyer.

The U.S. Army Corps of Engineers Seattle District has posted the public notice for review and comment at:  https://www.nws.usace.army.mil/Portals/27/docs/regulatory2/Public%20Notices/2023/NWS-2023-0305-AQ-PN.pdf 

If you wish to comment and do not have internet access and would like to request a paper copy of the notice, contact Rory Lee at 206-427-0732. Comments must be received by June 18.

Geoduck for China

Tacoma's The News Tribune writes on resistance to a 25 acre geoduck farm in Burley Lagoon proposed by Taylor Shellfish. Tidelands currently used to produce clams and oysters sold in the US would be converted to grow geoduck exported to China, requiring 42,000 PVC tubes per acre in the process. 

https://www.thenewstribune.com/news/local/community/gateway/g-news/article275833816.html

Burley Lagoon Geoduck Farm: Gig Harbor Advisory Commission (PAC) votes to DENY Taylor Shellfish permit for a geoduck farm in Burley Lagoon.

(Summary of meeting follows)

Burley Lagoon in Pierce County

Example of what a geoduck farm looks like.

.

Taylor Shellfish has proposed up to 25 acres be converted.

May 24: At a meeting held May 24, after hearing testimony from Pierce County and Taylor Shellfish representatives, Gig Harbor votes against Taylor Shellfish's proposal for conversion of tidelands to a  geoduck farm. While only advisory, the decision reflects strong local opposition to the proposal. 

(A recording of the meeting may be found here - scroll to "Agendas and Documents", then click on "5 24 23 PAC Recording - Audio": https://www.piercecountywa.gov/5934/Gig-Harbor-Peninsula-Advisory-Commission)

Highlights:

Question - Was all 300 acres farmed? Taylor Shellfish claims all 300 acres have historically been farmed. Some question whether that is the case, or if the acreage actually farmed is less. Taylor claims the geoduck farm would represent "only" 8% of the Lagoon. If fewer than 300 acres was actually used, the percentage of tidelands impacted would grow dramatically.

Question - How long will harvesting take place? Taylor Shellfish noted harvesting would occur during low tides in the summer and dive harvesting would occur during winter.

Sediment disturbed during dive harvesting.

Question: How will this farm uphold the values reflected in the community plan? (focus on how the farm would uphold these values) The County responded there are subjective opinions but felt the EIS addressed these concerns, pointing out the EIS is being appealed.

Question: If, after 5 years, it was found that goals were not being met, what recourse is there? The County stated the Hearing Examiner might require the county to monitor complaints. While revocation of a permit is possible, it is a "heavy lift" and staff does not have a boat to run out on. Not liking how it looked sounded unrealistic to address.

Question: If the 25 acres is approved, what is the process should Taylor wish to expand to 50 acres? The County said Taylor has told them 25 acres is all they want. But, a permit revision for expansion is available, or possibly a new permit would be required. (It was noted past regulations are not what future regulations may be. There was no clear answer.)

Question: Isn't this just farmland? If so, aren't they also under the same sort of restrictions as upland farms (e.g., wetland setbacks)? The County said tidelands are different as the public use of waters is also involved, bringing up why it's so difficult to install a dock, touching on issues of the "Public Trust".

Question: Aren't tidelands taxed far less than upland parcels are? The County "did not know" (For readers unaware, tidelands are taxed at a fraction of upland parcels.)

Opinion: Farming is good, all farming creates monocultures, in short, a farm is a farm is a farm. Except this is taking place in a marine environment. The County responded that if an existing upland farm wanted to expand they too may be subject to new regulations.

Question: Has the County acted on citizen complaints about debris and operational hours? The County said Taylor has been responsive to complaints about noise and debris. No attempt at setting up mediation has occurred, but it may be worth considering. The County expects complaints to continue.

Statement: The County said limit hours of operation has been attempted in the past but shellfish companies do not like those restrictions. It's possible the Examiner may put something in place.

Question: Logging and forestry are restricted, isn't aquaculture? The County said not really because this area is an existing farm and much of it was established when there was no noise requirement. While there is a noise pollution ordinance, it is enforced by the Health Department and they do not have the staff. Theoretically, it's possible, but, there is a question of whether only the new 25 acres would be impacted.

Question to Taylor: How long has Taylor actively farmed the area? Taylor responded they begun leasing tidelands in 2012 and actively farmed since 2014.

Question to Taylor: Why change to geoduck now? The owner asked Taylor to change. Taylor's attorney's "recollection" is markets change and product demand changes, creating a need for "diversification" of the "portfolio", including the risk of disease. (Taylor's attorney again pointed out 25 acres is "only" 8% of the area.)

Question to Taylor: Aren't there other areas Taylor can use? Taylor's attorney responded yes, although the attempt to do so was simply a scattering of seed in the water, both within and outside of the Lagoon.

Question to Taylor: If scattering is successful, why the need for PVC tubes and netting? Predation is too high and survival too low without PVC tubes and netting.

Question: Have all of Taylor's permit applications been approved? The County responded yes, pointing out his is the possibly the largest of all applications. (One in a subtidal area, the "Detienne" farm, was ultimately denied.

Comment: The County noted other agencies are involved in permitting.

Question: Is this site typical in proximity to residential surroundings? The County responded that most are on exposed tidelands, but not similar to a lagoon such as Burley Lagoon. "This one is different." In part it was why an Environmental Impact Statement was required.

Question: Are aware if any areas where upland owners are compensated?  The County noted again that Burley Lagoon is different in that there is a high density of development and use, again pointing out his was why an EIS was required.

Question: Did past applications have existing farms? The County responded that most did not.

Question: What is the County's take on the reduction in property values as farming increases? The County has said no reduction in property values has occurred, that they know of. The County could not say clearly what they would need in order to be convinced property values do become lower, although independent appraisers might be helpful. Taylor's attorney had recollections of the Haley farm testimony being experts having differing opinions and the examiner not acting on it.

Question: How would the County address a "taking" if property values decreased? It was no known, but the EIS did attempt to address probable significant adverse issues, and property values was not one of the issues. The questioner responded that many of the community members, who she spoke for, does have concerns.

Question: What was the County's involvement in the creation of an EIS? The County provided issues, responses were made, more issues were brought up, more information was provided, in short, that the County was involved from the beginning.

Question: Because of the involvement, does the County agree there is no net loss from whatever base line is established? The County agreed, pointing out, no net loss is not the same as no impact, and why mitigation may be required.

Question: Did the County have any input into who the consultant creating the EIS was? The County discussed the amount of time Dave and Ty have spent on previous permitting questions. Many of those past actions have presented consultants who were involved in the EIS's creation, but the County did not chose them. The County pointed out the applicants do chose the consultants and every EIS has had complaints about bias.

Question: With the change in tideland use, is there any mitigation in place to offset the changes which will occur? The County said there were things required, but visual issues were important, but they were unclear about what requirements there may be to minimize the visual impact, pointing out the subjectivity of it. 

Opinion: Many people don't find PVC pipes in the tidelands very appealing.

Question: What is the grandfathered use of tidelands in the past? The County was not clear, but that there were many letters describing exactly what was taking place, disagreeing with the statements of past use. The question of expansion/intensification was addressed years ago, but there was no clear answer beyond having to go re read the letters again.

Question: If shellfish were being grown in the past, where is the line between one shellfish species and another? The County responded the means and methods used to grow geoduck are very different than how clams/oysters are grown and harvested.

Opinion: Silt and sediment and water create a large disturbance within Burley Lagoon. The County determined only a "moderate" impact would occur, and why in part, an appeal of the EIS has occurred.

Dive harvesting disturbs large volumes of sediment.

Final comments: It's a farm; it does not fit within the community plan; nets are a navigational hazard; it's unique but geoduck are grown differently and property rights of upland property owners are as important as tideland owners; there won't be less geoduck for sale at Safeway if this does not go in; hours of operation should be put in place; it's an estuary with two important creeks; selling farm products to China make money; residential and aquaculture have competing interests; we're not taking aquaculture away from Taylor as they may continue to grow oysters and clams as they have; products sold overseas may benefit a few economically, but not the general population; environmental protection and sustainable practices are important to the advisory commission; changing the nature of the Lagoon and what the Lagoon has become is an important aspect; is selling natural resources overseas what the US really wants

Motion to DENY approval the permit as requested: Motion carried (i.e., DENIAL of approval).  

 

 

Pierce County has released the Final Environmental Impact Statement (FEIS) on a proposed 25 acre geoduck farm in Burley Lagoon. There will be no public comments accepted. A 14 day period for an official appeal is currently in place.
The FEIS, supporting documents and timelines are available on-line, here:
https://www.piercecountywa.gov/burleylagoon

Al Bergstein writes on the recent presentation by the Center for Food Safety's attorney Kristina Sinclair. Ms Sinclair discusses the ongoing lawsuit against the Army Corps' permitting of shellfish farms in Puget Sound. 

Mr Bergstein's piece:  https://olyopen.com/2022/11/18/what-you-should-know-about-industrial-raised-shellfish-aquaculture-an-overview/

Ms Sinclair's slide presentation: https://olyopen.com/wp-content/uploads/2022/11/2022-11-17-Industrial-Shellfish-Slides.pdf

Contact Center for Food Safety here:

Pacific Northwest Office
2009 NE Alberta St, Suite 207
Portland, OR 97211
phone (971) 271-7372

(From Protect the Peninsula)

What You Should Know About

Insudstrial Raised Shellfish

Join Protect the Peninsula’s Future for its 49th Year Celebration (Virtual)

Thursday, November 17, 7:00 PM      

 RSVP to PPF@olympus.net to receive the Zoom connection*

Our featured speaker this year is Kristina Sinclair,

Associate Attorney at the Center for Food Safety

 

*Space is limited to 100.

Kristian Sinclair, Associate Attorney

Center for Food Safety

Kristina Sinclair is an Associate Attorney at the Center for Food Safety (CFS), where she focuses on environmental cases challenging industrial agriculture, including commercial shellfish.

Kristina earned her J.D. from the University of California, Berkeley, School of Law. While in law school, Kristina was an Articles Editor for the California Law Review. She also participated in the Environmental Law Clinic, served on the steering committee for Students for Economic and Environmental Justice, and worked as a teaching assistant for Appellate Advocacy. Upon graduation, she received recognition for her pro bono work and a Certificate of Specialization in Environmental Law.

Since joining CFS, Kristina has been working on a lawsuit challenging highly disruptive industrial shellfish operations in Washington. In this case, CFS and Coalition to Protect Puget Sound allege that the U.S. Army Corps (USACE) failed to properly consider the potential risks before reissuing the nationwide permit for commercial shellfish activities in January 2021, in violation of the Clean Water Act, National Environmental Policy Act, and Endangered Species Act. In addition, USACE has authorized over 400 commercial shellfish operations without any public notice or environment review. Consequently, these operations have significant adverse, effects on Washington's local environment and wildlife. 

 

 In this webinar, Kristina will provide an overview of USACE's shellfish permitting requirements, as well as the ongoing litigation challenging USACE's unlawful shellfish permitting actions. She will also share some insights from this legal work and potential opportunities for future advocacy. 

Background on USACE's Permitting Requirements
History of USACE's Unlawful Permitting Actions in Washington
Previous Case
Current Case

Future Opportunities

Tell DNR and USFWS It's a Wildlife Refuge

(See some of the many species here)

Get involved and make a difference for today and tomorrow, to help preserve one of the few National Wildlife Refuges supporting the great migrations of sea birds. An industrial shellfish farm does not belong in the Dungeness National Wildlife Refuge. 

Plastic Grow Out Bags Do Not Belong in a Wildlife Refuge

Beyond Pesticides has written a piece on why plastic grow out bags do not belong in a Wildlife Refuge, which includes a link for comments. 

As they note so well: 

The Dungeness Bay Wildlife Refuge was created by Executive Order in 1915 by Woodrow Wilson, directing the area to be set aside as a “refuge, preserve and breeding ground for native birds and prohibits any disturbance of the birds within the reserve.” The Refuge provides habitat, a preserve and breeding grounds for more than 250 species of birds and 41 species of land animals. 

The front page of the Refuge website states: “Pets, bicycles, kite flying, Frisbees, ball-playing, camping, and fires are not permitted on the Refuge as they are a disturbance for the many migrating birds and other wildlife taking solitude on the Refuge.” With this level of concern, it is counterintuitive to allow destructive industrial aquaculture. 

Beyond Pesticides Article

Submit Comments Here

It only takes a little bit: 10 billion, only 10 to get you sick

CBC News on the Norovirus outbreak from oysters harvested in British Columbia.
(Read article here:
https://www.cbc.ca/news/canada/british-columbia/oysters-norovirus-bc-1.6452571)

The aquatic environment is impacted by many things, from climate change to recreational owners of boats discharging untreated waste to failing septic systems to ecosystem transformation from industrial aquaculture. In this article from CBC, the impact of what is suspected to be human waste has impacted the reputation of industrial shellfish operations in BC through illnesses contracted from the consumption of raw oysters. 

 WA Supreme Court Affirms Non-native Atlantic Salmon Should not be Grown in Puget Sound

Leaves Unanswered Whether Extra Genetic Material in Triploids are Native or Not

Washington Supreme Court affirmed unanimously, 9-0, that non-native Atlantic salmon do not belong in Washington's Puget Sound. All agreed that the Department of Fish and Wildlife did not have to require an Environmental Impact Statement (EIS) when Cooke Aquaculture proposed moving to triploid Rainbow trout. It left unanswered whether the Department of Natural Resources (DNR) should renew leases and what should be considered in that decision. Whether British Columbia will follow and remove non-native Atlantic salmon remains unknown as is whether Rainbow trout with extra genetic material is "native" or not. 

Normal (left) and  Extra Genetic Material (right)

= a sterile female 

(is a triploid native?)

 
Army Corps is sued again by the Center for Food Safety (CFS) and the Coalition to Protect Puget Sound Habitat (Coalition). The suit once again asks the court to stop the Corps from "...continuing the excessive expansion of industrial shellfish operations without considering the cumulative impacts to Washington's rich and diverse coastal waters [and tidelands]."

(See article here: https://olyopen.com/2021/12/20/groups-again-sue-army-corps-to-protect-washingtons-coastal-areas-and-endangered-species-from-industrial-shellfish-operations/)

(See papers filed here: https://www.centerforfoodsafety.org/files/2021-12-20--ecf-01--complaint_33955.pdf)

Amy Van Saun, senior attorney at CFS notes, “Despite clear statutory mandates and a previous court decision requiring the government to fully consider the potential impacts of proposed shellfish operations, the Corps continues to ignore its duties by allowing industrial shellfish operations to degrade important aquatic habitats, including through the use of plastics and pesticides, endangering Washington’s shorelines, biodiversity, and surrounding communities,” said Amy van Saun, senior attorney at CFS.

Laura Hendricks, director of the Coalition notes, “The Coalition is outraged that the Corps would try to avoid doing what is necessary as a bare minimum under the law to protect orcas, salmon, and marine life in Washington from the toxic and physical impacts of the massive number of industrial-scale aquaculture operations that have been proposed. This is precisely the sort of agency action that gives ‘government’ a bad name.”

Puget Sound's marine ecosystem is under pressure from a number of sources. While some argue "ecosystem services" from shellfish outweigh the transformation occurring to this critical habitat, it cannot simply be accepted without looking at the entire system and the cumulative impacts various actions have. This was argued once in court and was won. That it has to be argued again simply speaks to an agency's inability to do what it's role is.

 October 20, 1PM PCT/4PM ECT the Center for Food Safety will present a webinar on protecting the public's marine ecosystem from industrial scale aquaculture. While focused on Washington State, the significant and adverse impacts are a current and growing worldwide problem. Make a difference in life today which continues  into the future.

To register, click on this link: 

https://www.centerforfoodsafety.org/join/6168/webinar-the-fight-to-save-our-oceans-the-faces-behind-the-cases

Cumulative Impacts Not Considered: District Court Issues Ruling on Vacating Shellfish Farms

Coalition to Protect Puget Sound Habitat and the Center for Food Safety

succeed in proving the Army Corps did not consider 

cumulative impacts when issuing permits.

The Court found that it [the Army Corps] violated 

the CWA [Clean Water Act] and NEPA 

(National Environmental Policy Act)

by failing to take a hard look 

at the anticipated environmental 

impacts of NWP 48*

(US District Court, June 11, 2020)

Geoduck market collapses in China.

Court finds permits void.

Who will clean up the mess when growers

just walk away from their plastics?

*NWP 48 is a permit issued every 5 years to authorize common shellfish activities in the waters of the US. In Washington, it allowed permits to be issued on tidelands not used for aquaculture up to 100 years ago. Acreage numbers as high as 72,300 acres were presented. The Court stated: "its data regarding past uses of the permit was incorrect and its estimates of future uses are suspect"

Cumulative Impacts Matter

In the Court's October 2017 Order, the District Court ruled the Corps of Engineers had not considered cumulative impacts in approving their Nationwide Permit 48 in 2017 thereby voiding all permits issued. In its June 11, 2020 decision on whether to void all current permits, the Court found the logic presented by the Corps and shellfish growers lacking in evidence.

"...there is insufficient evidence in the administrative record to support the U.S. Army Corps of Engineers’ conclusion that the 2017 reissuance of Nationwide Permit (“NWP”) 48 would have minimal individual and cumulative impacts on the aquatic environment for purposes of the Clean Water Act (“CWA”) and (b) that the Corps’ environmental assessment related to NWP 48 did not satisfy the requirements of the National Environmental Policy Act (“NEPA”)."

Operators to go on vacation?
Following the decision, the Court was then faced with whether to force growers to vacate areas now found to be operating under an invalid permit, considering "(1) the seriousness of an agency’s errors and (2) the “disruptive consequences of an interim change that may itself be changed.” It was up to the Corps and growers (Taylor Shellfish and Nisbet Oyster) to provide the logic and evidence showing why they should be allowed to continue operating.

"...courts may decline to vacate agency decisions when vacatur would cause serious and irremediable harms that significantly outweigh the magnitude of the agency’s error. . . . Courts have considered remand without vacatur to be appropriate where serious irreparable environmental injury would result from vacatur. . . . In addition to environmental harm, it is appropriate to consider other practical concerns when weighing the consequences of vacatur"

Court to growers and the Corps: You made a serious error.
The Corps and growers argued the mistake was neither serious nor consequential because both the District and State were involved in oversight, minimizing the environmental impact. The Court did not agree, stating:

"The Corps/Intervenors have not shown that the District level verification process or state, local, and/or Tribal oversight of commercial shellfish aquaculture activities in Washington overcome the seriousness of the agency’s errors in this case."

Disruptive Consequences - Economics don't trump the environment. 
"environmental impacts of these activities are more than minimal, both individually and cumulatively"
In considering the disruptive consequences of finding all shellfish farms "unauthorized and in violation of federal law" the Court considered a number of things. Included was the Corps being "overwhelmed" by new permit applications; tribes may be unable to provide food for tribal members; growers would face devastating impacts on the continuing viability of their farms, their employees, their communities, the state and local economies of which they are a part, and the ability of Washington shellfish farmers to compete on a national or international basis; shellfish are "filter feeders" and their removal would harm the marine ecosystem; and, shellfish growers "retard" upland development activities. Growers argued they should just be allowed to continue on, harvesting and seeding. Even on tidelands which had no activities for 100 years.

"The problem is not that the Intervenors have failed to establish that the loss of their authorization to install shellfishing equipment and to discharge materials into the waters of the United States would have devastating impacts on their businesses, but rather that they have not shown that those impacts outweigh the environmental consequences of continuing their activities as currently permitted."

The Court's solution 
Because neither the growers nor the Corps could not support not vacating the permits, the Court stated:

"In the absence of meaningful assistance from the Corps and the Intervenors in helping to shape a compromise remedy, the Court will adopt a remedy based on the suggestions of plaintiffs, amici, and Swinomish."

That remedy crafted by the Court vacates all current permits but allows a pause of 60 days for an appeal; would allow currently planted shellfish to be harvested; seeding and planting within 6 months in areas without eel grass could occur; and, tribal rights would be respected. If growers intend ongoing activities (e.g., harvesting) they must, within 6 months, apply for a new permit. Planting new areas would not be allowed without a new permit. The Corps must process new individual permits but not without following CWA and NEPA steps outlined in the October 10, 2019 Order which concluded:

"The Corps’ issuance of a nationwide permit, at least with respect to activities in the waters of the State of Washington, was arbitrary and capricious and not in accordance with NEPA or the CWA. Pursuant to 5 U.S.C. § 706(2), the Court holds unlawful and sets aside NWP 48 insofar as it authorizes activities in Washington."

Get involved.
Make a difference in life and help protect Puget Sound's critical marine habitat. Whether from open net pens discharging plumes of untreated waste or plastics used in shellfish aquaculture, this habitat is under extreme pressure.

An Industrial Shellfish Farm in the Dungeness National Wildlife Reserve is Not in the Public Interest

Make a difference in life. 

Help keep the Reserve intact.

Comments due by May 30.

Abandoned in 2005 - It should remain so.

Commercializing a Wildlife Refuge is NOT in the public interest, only in the interest of a few who stand to profit greatly from this rare public resource. Those few who profit will do so at the expense of fragmenting an intact ecosystem which is one of the few remaining on the West Cost used by migrating and resident water fowl. Shellfish farms can go elsewhere. Wildlife cannot. 

See Friends of Dungeness National Wildlife Reserve here: http://www.fodnwr.org/dungeness_oyster_farm.html

They have nowhere else to go. Shellfish farms do.

80,000 plastic bags do not belong in a Wildlife Refuge.

Putting a commercial shellfish operation, starting with 20,000 plastic bags and potentially growing to 80,000 bags, should not be permitted. It is not in the public interest. It is an unheralded expansion of intensity of an operation which was abandoned in 2005. There are alternative tidelands outside of the Wildlife Reserve available. 

See application here: http://www.protectpeninsulasfuture.org/wp-content/uploads/2020/04/NWS-2007-1213-PN.pdf

See Protect the Peninsula's Future "alert":  http://www.protectpeninsulasfuture.org/dungeness-refuge-alert/

See Protect the Peninsula's Future "how to comment section"  here: http://www.protectpeninsulasfuture.org/how-to-comment/

Get Involved.

Make a difference in life. Be able to say, "I helped to ensure the diversity of wild life will be here for future generations."

Comments to the Army Corps of Engineers due by May 30th: 

email pamela.sanguinetti@usace.army.mil    Reference Case #: 2007-1213.

Comments to the Department of Ecology:

email ecyrepermits@ecy.wa.gov Reference Case #: 2007-1213

(click to enlarge)

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Hearing Examiner Recommends Industrial Shellfish Farm Permit within Dungeness National Wildlife Refuge be Approved

Despite Clallam County staff recommending the permit for an industrial level shellfish farm not be approved, the Hearing Examiner has said it should be, allowing for an initial 20,000 plastic growout bags to be placed on tidelands within the Refuge. Should millions of dollars spent on upland habitat  restoration justify the transformation of tidelands in a Wildlife Refuge?
Read more on Protect Peninsula's Future site here:
 http://www.protectpeninsulasfuture.org/?p=1129

Upland restoration of watersheds

should not justify this. 

Dungeness National Wildlife Refuge: Permit Decision Delayed Until January 10

Voluminous Amount of Information, A Simple Reality
Clallam County has announced a delay until January 10 on the decision on whether a permit should be approved which would allow up to 80,000 plastic grow out on the tidelands within the boundaries of the Dungeness National Wildlife Refuge. The Hearing Examiner was flooded with information on why non-native Pacific oysters grown in grow out bags should not be allowed within the Wildlife Refuge, and more supporting why the industry thinks it's a good idea.

Native Olympia Oyster vs

nonnative Pacific oyster

Native Avian Species Using the Wildlife Refuge

Native Species have No Where Else to Go
At the core, the question before the Hearing Examiner is whether a small shellfish operation which was abandoned in the mid-2000's due to water quality issues should now be allowed to return in an intensity never seen in any Wildlife Refuge, nor for that matter anywhere in Washington State. 80,000 plastic bags layering over the tidelands is disruptive and belong somewhere else. Also weighing on the decision is the precedent it would set, being used by other commercial shellfish operators as an example of why other Wildlife Refuges should have commercial shellfish operations allowed.

Not conjecture, but reality.
Attorneys for the industry would argue the issue of precedence is merely conjecture. But one only need look at the precedent argument used by those same attorneys to justify expansion of new geoduck farms, pointing to other permits having been issued, establishing a clear reliance on the use of past permit decisions as a precedent for future permit decisions. It is the industry's legal reality they live in and for that reason alone the permit should be denied.

Enjoy the Holidays

Cooke Aquaculture and Football Shaped Rainbow Trout: Are they really "native steelhead"?

Comments due by November 22

Our Sound Our Salmon provides a how and why to submit comments here

Fool me once, shame on you.

Fool me twice, shame on me.

Above - 2017

Below - 2019

Genetically altered sterile rainbow trout are not native.

Our Sound Our Salmon is encouraging citizens to take advantage of the extended comment period on whether Cooke Aquaculture should be allowed to grow genetically altered rainbow trout in Puget Sound. Cooke intends to brand these rainbow trout raised in Puget Sound as "steelhead".*

*Steelhead are rainbow trout which have out-migrated from fresh water into salt water, then returned to their native streams to spawn. In the case of Cooke's fish, they are genetically modified to become sterile, will be fed pellets enriched with Omega 3, obtained from harvested forage fish, and fed supplements such as astaxanthin to turn the flesh pink. Whether raising a rainbow trout this way qualifies it as a "steelhead" is questionable, at best.

What altered genetics gets you:

Fish "shaped like footballs, with smaller heads"

(Seattle Times article)

"They're steelhead"

Maybe, but that's not native.

By altering the genetics of rainbow, most of the female fish will be sterile (Cooke cannot guarantee all will be), unable to develop gonads. Because of this, energy continues to be focused on growth as the fish age and continue to be fed. Documents submitted by Cooke, as reported in the Seattle Times,  describe the fish as "..often shaped like footballs, with smaller heads and stout bodies" (see image above, provided by WDFW). Economically, these genetically altered fish create more "meat on the bone." But they are not native.

These cows on the Serengeti 

can spread into native habitat.

Old science, new science, the reality is

farmed fish spread when they escape.

(WDFW estimated in a worse case scenario 

up to 1,000,000 genetically altered rainbow

may escape from Cooke Aquaculture's pens)

But "science" said they wouldn't travel far if they escaped.

One of the most significant lessons learned from Cooke Aquaculture's alleged negligence in 2017 which allowed over 250,000 farmed salmon to escape was they do not simply sit by the pen. As seen in the map above, created by WDFW from reported catches of Cooke's escaped salmon, they spread not only throughout the Salsish Sea, they also migrated up rivers use by native and endangered salmon for spawning. Despite documents submitted which try to show escapes would not travel far, not know where to go or what to do, the facts provided by WDFW clearly showed they do spread and do know how to find rivers with spawning habitat. There is no reason to believe these "steelhead" would not follow the same behavior as their closely related Atlantic salmon did. A fact based on reality, not a model created from behavior of fish somewhere else in the world. 

Cooke Aquaculture needs to move

into the future and stop polluting

public and tribal waters.

You can grow smolt here, 

you can grow steelhead here. 

And you have an additional 300 acres

less than 5 miles away to the west.

There is a better way to do things, creating jobs and infusing capital. You have the money and the land.

Of most significance to anyone concerned about the risks these genetically altered rainbow trout pose to Puget Sound, whether it be nutrients discharged from the pens or habitat and spawning grounds, is that Washington's Department of Fish and Wildlife did not consider the alternative of upland/contained operations. These facilities are being built throughout the world. Atlantic Sapphire has a facility in Florida which when complete will grow an estimated 50% of the USA demand for farmed salmon. Nordic Aquafarms has 2 projects, one in Maine and another in California. Whole Oceans has a project in Maine. And around the world facilities are being built, close to population centers. Water is filtered and treated. Risks from disease and sea lice are eliminated. Cooke could be a shining example of the future if they wanted to be. Or were forced to be. Or they could return to Canada.

Get involved. Cooke is. 

Canadian owned Cooke Aquaculture and operators before them have dominated the political process in Washington State. Cooke's alleged negligence in 2017 which led to the collapse of the Cypress Island net pen and subsequent release of over 250,000 nonnative Atlantic salmon motivated the public and legislators to ban these operations in Puget Sound. Cook's current attempt to claim these genetically altered rainbow are "native steelhead" is not what the public intended when legislation was passed in 2018. Cooke and their lobbyists are now heavily involved in convincing regulators and legislators that in fact, this is what the public intended.

Educate yourself on Our Sound Our Salmon's website, then submit meaningful comments. If you don't you'll end up with what somebody else wants.