Taylor Shellfish has appealed the denial of their Shoreline Substantial Development Permit (SSDP) application for a 58 raft mussel farm, near the entry of Totten Inlet, to the Shoreline Hearings Board. APHETI (Association for the Protection of Hammersley, Eld and Totten Inlets) has intervened in support of the denial, siding with the Thurston County Commissioners who denied Taylor's first appeal. [
click here for APHETI web site]
In part, Taylor claims, the time and money spent on the Environmental Impact Statement (EIS) surely justifies approval. The logic is similar to the used car salesman basing the price of his used car on how much money has been "put into it."
[
click here for Petition to the Shoreline Hearings Board]
[
click here for SHB Prehearing Order]
"I'm selling it for $15,000
because that's what was put into it,
and that doesn't even include
my time spent detailing it!"
Time and money spent on something does not mean that's what it's worth, nor that it's right.
In the pleadings presented, Taylor Shellfish repeats that the amount of money spent, and the amount of time it has taken, to craft the final Environmental Impact Statement (FEIS) must mean it's right. Both the Hearing Examiner and the County Commissioners found that argument was only one of the many holes in their case. In fact, what both felt is the current analysis of cumulative impacts resulting from intensive commercial shellfish farming in Totten Inlet were not adequately considered. Despite the cost and the volumes of paper provided.
Pouring more money
into a leaking bucket
won't plug the holes.
Taylor's action (or inaction) and resulting permit denial.
Instead of choosing to plug the holes in their case by providing the additional information requested, Taylor instead chose to simply pour more water, in the form of legal fees, into the leaking bucket.
The Hearing Examiner, in his decision dated July 19, 2012, stated:
"...the Applicant is given two options for proceeding. First, it may inform the Hearing Examiner that it wishes to challenge the determination that the present analysis of cumulative impacts is deficient and the requirement to perform an additional cumulative analysis. In that case, I will issue a supplemental decision denying the application on that basis, and the Applicant may appeal. Alternatively, the Applicant may inform the Examiner that it wishes to carry out the analysis of cumulative effects required by this decision. In that case, the Examiner and the parties will confer about the timing and nature of that analysis." [click here for initial decision]
Taylor chose the former, responding on August 16, 2012, to
"...request a final decision at the Hearing Examiner's earliest convenience...even if that decision must be a project denial."
September 14, 2012, the Hearing Examiner obligingly denied the permit which Taylor then appealed to the County Commissioners (who agreed with the Examiner) and is now appealing to the Shoreline Hearings Board. [
click here for Hearing Examiner's supplemental decision]
What's one flat tire? There are 3 others aren't there?
Is a dissolved oxygen problem from one mussel farm really that important? Yes.
In the evidence presented at the initial hearing it was clearly shown the existing mussel operations in Totten Inlet resulted in lowering dissolved oxygen levels, approaching hypoxic levels, dropping well below the 7 mg/L level found throughout Totten Inlet (an "extraordinary" body of water). What was not discussed at the hearing was whether the intense densities of other shellfish farms in Totten Inlet also creates lower dissolved oxygen levels. All shellfish respire (consume oxygen) and concentrate feces/pseudo feces on which bacteria feed, also consuming oxygen. Washington's law is clear:
When a water body's D[issoveld].O[ygen]. is lower than the criteria in Table 210 (1)(d) (or within 0.2 mg/L of the criteria) and that condition is due to natural conditions, then human actions considered cumulatively may not cause the D.O. of that water body to decrease more than 0.2 mg/L.
Water Quality Problem in Totten Inlet
Low Dissolved Oxygen Problem
Category 5 (worst)
(north of current mussel farm, south of proposed farm)
Added further to the significance intensive shellfish farming lowering dissolved oxygen levels was the recently EPA approved water quality report submitted by the Department Ecology. In that report, just north of the current mussel farm and south of the proposed farm, a significant area of low dissolved oxygen was found, with levels so low it is listed as "Category 5" (Polluted waters that require a TMDL
). It was not attributable to natural conditions, leaving an unknown man made source as the probable cause. Little Skookum Inlet is one of the most intensively farmed areas in Totten Inlet, putting in question just what benefits shellfish filtering provide.
Also pointed out by one of the experts used:
The vertical stratification of Puget Sound, the seasonal input of low oxygen waters from the Pacific Ocean during the upwelling season, and the turbulence over sills that brings deep low oxygen waters to the surface make Totten Inlet and Puget Sound a unique area in which to assess if these activities will result in oxygen depression. What does current industrial/intensive shellfish farming add to an already known risk of low oxygen levels from upwelling?
"I can see you're a good negotiator.
For you, I'll throw in some fuzzy dice."
Nitrogen is removed. Isn't that a plus? Or, "Fuzzy math gives fuzzy conclusions."
Towards the end of the hearing, Dr. Rensel was asked to perform a calculation of how much nitrogen was removed from Totten Inlet when mussels were harvested, then to opine on whether that was "significant." An optimistic assumption that all 58 rafts would be in production, and a negative assumption that current efforts to lessen nitrogen inputs would fail, were made in his formula. Actual numbers from Dissolved Oxygen studies of nitrogen inputs into Totten Inlet from Ecology were used which cannot be found in those reports and the nitrogen inputs from air into Totten Inlet were incorrect. Perhaps of most significance is that Dr. Rensel's formula to determine whether nitrogen removal was "significant" did not consider the marine upwellings into Totten Inlet, mentioned above, at all. As he noted in his testimony, without consideration of the marine water input the numbers would "..not be as useful." Logic would dictate that much of his formula's assumptions would make it useless, especially in trying to back up the statement that mussel farming in Totten Inlet is now suddenly "significantly beneficial to South Puget Sound" as Taylor claims in their Petition for Review (page 6).
"Not to worry. You won't see it if you don't look."
Shell deposition below the rafts? What's the worry?
Discussed at the hearing was shell deposition from mussel die-off and feces/pseudo feces accumulating below the rafts. Analysis of impacts on the benthic life below and near the mussel rafts was considered inadequate, let alone when considered in whole with the rest of Totten Inlet's shellfish farms, the most intensive found in Puget Sound.
"How about we just
cover it up and call it good?"
This car is a lemon and should be left on the lot.
Taylor's claim of money spent and time invested will not make up for deficiencies found which caused the Thurston County's Hearing Examiner to deny their permit and the County Commissioner to deny Taylor's first appeal. Taylor wanting to spend money on legal fees instead of analyzing the cumulative impacts from industrial shellfish farming is understandable, if you don't want something to be found. But lurking under those mussel rafts; under those predator nets; and, inside of those grow-out bags being spread through south Puget Sound's inlets and beyond is a very real problem they do not want found: shellfish farming's cumulative impacts are significant and adverse, threatening the health of Puget Sound.
Look a little deeper.
Just because you can't see it
doesn't mean it's not there.
Lack of science...
As stated by the Federal Judge in the Drakes Bay Oyster Farm decision:
"...lack of evidence of major adverse effects is not the same as proof of no adverse effects nor is it a guarantee that such effects will not manifest in the future."
Modified, and applicable here:
"...lack of studies on multiple farms operating simultaneously within an enclosed estuary is not proof of no adverse effects nor is it a guarantee that such effects will not manifest in the future." The latter was clearly acknowledged in the most recent geoduck farm permits approved which require a new hearing after the first planting is harvested. Coalition to Protect Puget Sound Habitat does not agree and is appealing those permit decisions, saying it is time
now for a cumulative impacts analysis, not after the damage has been done.
Contact information on how to help ensure the Shoreline Management Act is implemented as it was intended to be when passed by voters in 1972:
apheti@gmail.com
or
Laura Hendricks
(253) 509-4987
Curt Puddicombe (206) 730-0288
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