The Legal and Enviromental Implications of the Washington Shellfish Initiative: Is it Sustainable?

A piece written by Lindsey Ward and published in May of 2014, in the Seattle Journal of Environmental Law, looks at what was then, the first unilateral launch by the executive branch of Washington of the Shellfish Initiative. Almost two years later, in January of 2016, Governor Inslee launched his version, Phase 2 of the Washington Shellfish Initiative. Lost on the now re-elected Governor is:

"...its directives fall far from the Initiative’s claim of enhancing and protecting this valuable resource in a sustainable manner."

The law article notes further:

"Primarily, the environmental consequences of implementing the Initiative pose massive and irreparable consequences for the environment. Specifically, by streamlining the permitting process for commercial shellfish aquaculture, encouraging noncompliant updates of local shoreline regulations, allowing further introduction and cultivation of nonnative species, increasing shellfish density, and failing to adequately address pollution, the Initiative may ultimately cause a loss of many of its native plant and animal species as well as the unique functions they serve."

Developed in the article is the background of the industry, how the Shellfish Initiative came to be, risks inherent to promoting the expansion of an industrial activity within the critical marine ecosystem which the intertidal area makes up, and the interplay between the Shoreline Management Act and Shoreline Master Programs various government entities are required to create through its guidelines.

While written over two years ago, the risks it details are still there and, perhaps most important, on the verge of becoming a reality. "Streamlined permitting" at the local level and minimizing, if not eliminating, national oversight with the new administration are on the verge of opening the door to a massive expansion of industrial shellfish operations throughout Puget Sound, whether in the intertidal areas or massive floating raft structures to grow mussels beneath.

Some will argue with the nuances of legal interpretations presented. Some will argue the article is over two years old and things have changed. What cannot be argued is there is a significant cumulative impact overtaking Puget Sound's intertidal ecosystem which, if not held in check, will forever transform this rare treasure available to all citizens. Questionable "certifications of sustainability" do not make it so.

Comment on Corps of Engineers Permitting Update

RGP or NWP - Both regulatory frames around the shellfish industry which they will try to break
On April 25 the Coastal Watershed Institute released an opinion on the Corps of Engineers' April 20 meeting at which the COE discussed their regulatory oversight of aquaculture (see below). Those regulations developed occur within either the framework of the Regional General Permit (RGP) or the Nationwide Permit process. RGP is more focused on regional issues and able to change more quickly (becoming more or less restrictive as impacts are discovered) whereas the NWP is more nationally focused, with regional conditions, but also set in place for 5 year periods. The former fits into Governor Inslee's misguided Shellfish Initiative.

[Note: The Nationwide Permit update process will be starting soon, as the current 2012 NWP's will be replaced in 2017.]

Taking an RPG to the time it takes 
A great number of concerns expressed by growers focused on the industry's dislike of how much time permitting of shellfish farms takes. Similar frustrations were expressed at an April 18 meeting of state agencies, where Governor Inslee pressed his Washington Shellfish Initiative and wanting to "streamline" the permitting process so expansion of the industry could occur on their schedule (for a summary of what was proposed to benefit the shellfish industry, see here). Some spoke of the "burden" it placed on small growers. Others spoke of multiple agencies (WDFW, NFMS) which had to be consulted and the time it added to the process. One speaker, a past employee of Seattle Shellfish, expressed concerns about time and a program he was involved with which would enable disabled veterans to become shellfish farmers.

[Note: The Pacific Coast Shellfish Growers Association had previously announced this program, but asked for members to provide sites already "permitted for shellfish farming." Whether any permitted sites were provided by PCSGA members is not known. Whether disabled veterans would prefer access to a natural shoreline over one populated with PVC pipes and netting is also unknown.]

Slippery regulations on eel grass
Also at the COE meeting there was concern expressed by an industry representative over comments about the regulation of activities in or near eelgrass. As noted in an earlier post, the shellfish industry successfully lobbied representatives in D.C. to get the Corps to drop protections of eelgrass in "fallow" shellfish beds. Reaction by tribal members, individuals and NGO's was sharp in opposing this action (see Coalition to Protect Puget Sound Habitat letter here). Concerns expressed at the meeting by the industry may be related to the developing science on the importance of eel grass in sequestering CO2, in addition to the well established science of the critical habitat it provides. Concerns which all should have is the slippery slope which the industry has put everyone on, where the economic benefit of a few override the long term benefits of the many by dropping protection of the critical habitat created by eel grass.

"iron fisted, misdirected support of the aquaculture industry"
As seen below, the Coastal Watershed Institute is clear about how it feels on the shellfish industry's growing regulatory influence. Speaking directly to Governor Inslee's "Shellfish Initiative", CWI notes the risk to the "wild and intact nearshore ecosystems" which "streamlined permitting" for industrial aquaculture brings with it. Also noted in their email is the success which political lobbying in Washington DC brought - the removal of eel grass protections. This is an industry well financed by geoduck grown and sold to China (netting over $1 million/acre to growers, with tideland owners simply being taken advantage of through lease terms benefiting no one but the growers). It is highly motivated. And, it does not like being regulated. Get involved.

Subject: CWI position on CoE Shellfish Aquaculture Permitting following
Informational Meeting April 20 (UNCLASSIFIED)

We attended the  20 April 2016 CoE informational meeting on  future federal
permitting of shellfish aquaculture in Washington state. The agenda is
attached, and the link to meeting presentation materials is below. We'll
have more to say when the draft biological opinions are published. Until
then, a few thoughts to consider as we wait...

One of the main decision points before the CoE is to decide the type of
permit they will develop for the future. They may pursue another national
permit, or alternatively, develop a regional aquaculture permit for
Washington state. The later would dovetail with seamlessly  Governor's state
'Shellfish Initiative', which  in our firm and clear opinion has been iron
fisted, misdirected support of the aquaculture industry, and that we feel is
in direct opposition to, and  displacement of, our wild and intact nearshore
ecosystems.

The Washington state Department of Agriculture may well  be proposed as the
regional lead for the state in this regional construct. Remember that the
Department of Agriculture recently listed eelgrass, Zostera japonica, as a
nuisance species, opening the way to eelgrass irradiation by the shellfish
industry. WDFW should be a leader in this dialog-but WDFW (inexplicably)
has no permit authority over shellfish practices.

We just celebrated Earth Day. Many citizens spent the day participating in
beach clean ups around the state. They are the most recent witness to the
fact  that the majority of marine plastic debris of not only global, but
also our local shorelines, is from aquaculture. Bottom line:  exclusion
nets, tubes, spraying, and extensive monotypic cultures of non-native
species, and  mechanical disruption of shorelines for large scale and
industrial aquaculture are contra indicated with nearshore systems so
important for our northwest systems.

We were relieved to see military veterans were a profile at the meeting.
Our staff can speak from very personal experience-our wild, natural
nearshore ecosystems provide invaluable refuge/respite for healing veterans
and their families.  They must be protected.

Another point made at the meeting was that Washington state is one of the
largest shellfish industry producers in the nation-as reflected by the
number of permits along our shoreline.

The truth is that the  shellfish industry is extremely lucrative  in
Washington state (geoduck farms are reported to net over $1,000,000 an
acre), and politically extremely powerful. One recent and clear
illustration:  the startling letters from state and federal *elected*
politicians to the CoE Seattle branch chief that were specifically directed
to CoE protection of eelgrass. These letters , overnight, resulted in the
removal of  permit provisions that would have protected over 10,000 acres of
existing eelgrass in Puget Sound.

Based on what we observed at the 20 April  meeting- and in recent management
and political actions by state and federal agencies (and elected
officials)-,it's clear that our nearshore resources management actions are
being decided  as never before by industrial aquaculture, and the economic
heart that is at their core. The federal resource agencies and the CoE have
before them the opportunity and responsibility to preserve the intact
shorelines and ecosystems of our region. But to do so will require these
agencies to challenge the political forces that are becoming ever more
dominant in our ecosystem resource management. We strongly encourage them to
buck up,  chose  the right side of the ecosystem (as challenging as doing so
may be), and  be leaders for the resources (they are specifically charged
with protecting) and that we know they have the capacity to be.

Pierce County SMP Update: Shellfish Politics At Its Best - Taylor Shellfish is "Troubled"

It is Washington citizens who should be "troubled"

at how Taylor Shellfish views its "rights" to

the intertidal areas of Puget Sound.

Get involved - the shellfish industry is and has the money and motivation.

Tell Governor Inslee Puget Sound's tidelands are not the shellfish industry's playground. The Shoreline Management Act was created in order to protect Puget Sound's habitat from industries like what the shellfish industry has become. He may be contacted by phone at 360-902-4111 or mail at PO Box 40002, Olympia, WA 98504-0002. His shellfish coordinator is Julie Horowitz whose email address is Julie.horowitz@gov.wa.gov

Tell Pierce County they have a responsibility to protect Puget Sound's intertidal habitat for everyone, not just Taylor Shellfish. Pierce County's council member contact information is found here.

"Governor, imagine PVC tubes

as far as the eye can see."

Governor Inslee and Bill Dewey with Taylor Shellfish.

What money can buy: Plauche and Carr - a law firm created by and for the shellfish industry - writes to Pierce County

A 156 page letter dated September 15 (11mb file), sent to Pierce County from shellfish industry law firm Plauche and Carr notes that Taylor Shellfish is "troubled" over the county's Shoreline Master Program update. It "...suggests that the County revise or withdraw several of the proposed Community Development Committee amendments..." which have recently been accepted. Of those amendments, 8, 9, 10 and 23 are addressed as being "troubling" to Taylor Shellfish. What should be "troubling" is the ongoing press by the shellfish industry to claim rights to all tidelands of Puget Sound for their development through the Shoreline Management Act.

“When the SMA was written in 1971, aquaculture meant oysters and clams and one salmon raising operation. This activity was recognized and protected as water-dependent. I do not read the original intent or the original guidelines to promote the industry as we know it today." Joan Thomas, 1991 (one of the original drafters of the Shoreline Management Act)

The political process at its best
This "troubling" letter should leave little doubt about the political efforts being put forth by the shellfish industry to twist the Shoreline Management Act into something it was never meant to be when it was created in 1971. Protecting Puget Sound's intertidal area from becoming fragmented through modern aquaculture is why the SMA was created - "to prevent the inherent harm in an uncoordinated and piecemeal development of the state’s shorelines."

Taylor Shellfish lobbyist talking about

"structure" and "habitat" which PVC

tubes create on tideland habitat.

Below, structure and habitat on the move

throughout Puget Sound.

A loose PVC pipe, one of many,

taking the barnacles and limpets

on an unintended vacation.

"The public has no idea how rapidly technology is reshaping aquaculture in the U.S." April 2010 email from paid shellfish consultant Jack Rensel, shellfish industry paid scientist, to NOAA.



What troubles Taylor Shellfish?

Special time category of "non-use" for non-conforming aquaculture use and structures
One of the changes asked for is that aquaculture be granted "multiple years" for a non-conforming aquaculture operation to remain "dormant" and still retain its nonconforming use category (i.e., not be required to be brought up to current code). The industry is fine with all other nonconforming uses only having 2 years. Were the attorney's logic to be accepted by Pierce County, virtually any abandoned nonconforming use could have arbitrary "reasons" applied to extend forever the time period during which an abandoned non-conforming structure could be allowed to exist. (e.g., "I was on vacation and just couldn't get around to it.")

Looks "Natural" to Taylor Shellfish.

Is it "natural" to anyone else?

Prohibition of "aquaculture" from Natural Shoreline Environmental Designation is "overly restrictive"

"Shellfish beds should be protected

from upland development."

(proposed Taylor/Seattle Shellfish

"Haley" geoduck farm location)

So this can happen to them.

The industry claims that Natural SED's ("undisturbed portions of shoreline areas" or "ecologically intact shorelines") are perfectly suited for today's modern aquaculture. Whether it be PVC pipes, nets, or mesh bags, the industry sees no problem with these structures fragmenting the areas designated as "Natural". Why? Again, they claim it is a "preferred" use and can result in "long term benefits and protect the shoreline..."

Long term benefit for who?

Protected from what?

Chelsea Farms geoduck harvest aftermath.

Good for the "Natural" SED?

Freshwater stream outlets aren't really that important are they? Their delta areas do make for great geoduck farms - flat and sandy.
Another restriction Taylor finds "troubling" is Pierce County's proposal to prohibit aquaculture in estuaries within 300 feet of freshwater streams. The importance of these rare and unique habitat areas in Puget Sound seems lost on Taylor's quest for use of all tidelands. The importance of these areas being used by migrating salmon, steelhead, or cut throat, whether it be their smolt leaving or the adults returning, to transition from fresh to salt water or salt to fresh water cannot be understated. Yet Taylor believes these area are better suited for acres of PVC pipes, netting and grow-out bags.

Conservancy SED designations do not "permit applicants to streamline applications for multiple sites within a growing area"
Taylor touches on the ultimate goal it is seeking - a "streamlined" application process which requires little effort on their part or oversight of actions by the county. They complain that an Administrative Conditional Use Permit should not be required for farms abutting Conservancy SEDs.  Taylor believes their acres of PVC pipes, nets and other structures used to grow non-native species somehow "protect and restore ecological functions" of these most fragile shoreline areas.

Monitoring of modern shellfish practices not needed, nor is concern over cumulative impacts.
Also found "troubling" to Taylor Shellfish is the county's requiring aquaculture operations be monitored. Again lost on Taylor is the reality that thousands of PVC pipes per acre or tidelands covered with grow-out bags do change the habitat they are in. Claims that it would "burden applicants" and "County staff" only hide the concern of what monitoring will show about the impacts of "modern" aquaculture on the shoreline habitat areas the county is supposed to protect. The same may also be said for the "trouble" Taylor finds in cumulative impact considerations being included, that being many small discrete actions taken as a whole do, in fact, have a significant adverse impact on the intertidal habitat area the county - and the Department of Ecology - are supposed to protect.

And so on - to the shellfish initiatives.
Other "troubles" exist within the 156 page letter but what is also focused on as justification to allow for more "streamlined" permitting and allowing for more tideland area to be developed with structures are the shellfish initiatives, both national and state. Copied below is an earlier post, showing these being nothing more than the results of a marketing strategy which began in 2010. As noted, they should not be used for consideration in SMP updates any more than Taylor Shellfish's web site or advertisements should.

[Note - the following is February 13, 2013 post on the role the shellfish initiatives should play in SMP updates. As pointed out, they are little more than marketing efforts created by shellfish lobbyists.]

Shellfish Initiatives do not have a role in the Shoreline Master Program Updates.
Recent comments from attorneys representing the shellfish industry have claimed many times that NOAA's "National Shellfish Initiative" and the "Washington Shellfish Initiative" are clearly an indication of the importance of the shellfish industry. It adds that Washington's Shellfish Initiative clearly indicates shellfish aquaculture should be prioritized in any Shoreline Master Program update, no matter what the method, no matter where the location. In a letter to the Olympia City Council it states "revisions are also necessary to ensure the SMP Update is consistent with" the National and Washington Shellfish Intiatives. This is fundametally wrong and not what Shoreline Master Programs are supposed to consider.

Look a little deeper.

Oops, didn't I mention that?
What the shellfish industry's attorneys neglect to point out is that beginning in 2010 it was those very same attorneys and industry representatives who began lobbying NOAA to promote their industry through a "National Shellfish Initiative." It is nothing more than the successful result of a well planned lobbying effort.

It is most certainly not an affirmation that shellfish aquaculture should be prioritized in order to dilute the intent of the Shoreline Management Act which says, in part, "...the interests of all the people shall be paramount in the management of shorelines of statewide significance." (Shoreline Management Act)

2010: Shellfish politics create a "swimmable, fishable, and diggable" policy, for their benefit.
A May 28, 2010 letter to NOAA from attorneys at Plauche and Stock (now Plauche and Carr), representing the West, East and Gulf Coast shellfish industries states: "We the Pacific Coast Shellfish Growers Association, the East Coast Shellfish Growers Association and the Gulf Oyster Industry Council are writing to encourage NOAA to develop and launch a national shellfish aquaculture and restoration initiative as a component of, and in conjunction with, the new Aquaculture Policy." Further on, it notes: "A national initiative intended to advance shellfish aquaculture and restoration activities could be a model program that would implement this goal by promoting shellfish culture activities..." Towards the end it notes again: "The national shellfish aquaculture and restoration initiative we propose..."

Prior to this time NOAA had no intention of creating a "Shellfish Initiative," prioritizing shellfish in any manner.

How to create something out of nothing

and make it sound important.

2011: Refining a crafted lobbying effort.
In June, 2011, results of this lobbying effort began further refinement with the shellfish industry sending out "surveys" to growers to help guide NOAA in their creation of the "National Shellfish Initiative." Leading into that survey was:  "In the recently released NOAA Aquaculture Policy you may have noticed reference to a Shellfish Initiative. The Shellfish Initiative was the product of a year-long tri-coastal [East, Gulf and West] effort to get NOAA to recognize that shellfish composes the lion's share of marine aquaculture and we hold great potential for further expansion." In July those results were compiled and forwarded to NOAA who dutifully complied and created a separate "National Shellfish Initiative."

Bill Dewey with Taylor Shellfish
explaining to then Governor Gregoire

why a Washington Shellfish Initiative

would be so helpful to the industry.



2011: Wouldn't a Washington Shellfish Initiative be wonderful? An Executive Order is created.
With continued lobbying, Governor Gregoire was convinced that if NOAA could have a "National Shellfish Initiative" then Washington should have one as well. Fitting with the Governor's attempt to leave a legacy of a "swimmable, fishable, and [now] diggable Puget Sound" she obliged the shellfish lobbyists, and through an executiver order with no legislative oversight, created the Washington Shellfish Initiatve. Funding, direction, policies, and purpose would be left to somebody else to figure out. Lobbyists for the shellfish industry were more than willing to provide that role.

Should initiatives created by lobbying efforts from the shellfish industry be allowed to override the intent of the Shoreline Management Act?
When overwhelmingly passed by Washington's citizens in 1972, the Shoreline Management Act was the culmination of a monumental effort to prevent Puget Sound's shorelines from becoming fragmented through  piecemeal development. At the time, shellfish aquaculture was far different than what we see today. As Jack Rensel said in 2010, ""The public has no idea how rapidly technology is reshaping aquaculture in the U.S." He can add to that, "The public has no idea how rapidly lobbying efforts are reshaping the regulations controlling developments in the tidelands."

Joan Thomas

1931-2011

One of the original drafters of

the Shoreline Management Act.



In 1991, Joan Thomas, one of the original drafters of the Shoreline Management Act stated: “When the SMA was written in 1971, aquaculture meant oysters and clams and one salmon raising operation. This activity was recognized and protected as water-dependent. I do not read the original intent or the original guidelines to promote the industry as we know it today." Ms. Thomas passed away in 2011. What would she say today?

Shellfish Politics, Shellfish Initiatives, and the Shoreline Management Act

"The public has no idea how rapidly technology is reshaping aquaculture in the U.S." April 2010 email from shellfish consultant Jack Rensel to NOAA.

Shellfish Initiatives do not have a role in the Shoreline Master Program Updates.
Recent comments from attorneys representing the shellfish industry have claimed many times that NOAA's "National Shellfish Initiative" and the "Washington Shellfish Initiative" are clearly an indication of the importance of the shellfish industry. It adds that Washington's Shellfish Initiative clearly indicates shellfish aquaculture should be prioritized in any Shoreline Master Program update, no matter what the method, no matter where the location. In a letter to the Olympia City Council it states "revisions are also necessary to ensure the SMP Update is consistent with" the National and Washington Shellfish Intiatives. This is fundametally wrong and not what Shoreline Master Programs are supposed to consider.

Look a little deeper.

Oops, didn't I mention that?

Vibriosis Closes Samish Bay to Commercial Oyster Harvesting - Again

Illness caused by oysters harvested from Samish Bay has once again closed the area to the commercial harvesting of oysters. As the Department of Health noted last week, the warm weather forecast for the coming weeks will likely increase the risk of contracting vibriosis from undercooked or raw oysters. Global climate change will most likely push that risk into the coming years.

This year it was noted by a high ranking Department of Health official that the 2006 peak of vibriosis contracted from oysters harvested in Washington state is now looking like a turning point in how global climate change (warming temperatures) is impacting whether shellfish harvested from Puget Sound are healthy to eat. When Bill Dewey with Taylor Shellfish was asked how controlling Vibrio vulnificus (a separate species of Vibrio found in the warmer waters of the Gulf States) was going, he answered, "It's not going real well." [read Food Safety article here] It would appear the same answer would apply to how controlling the spread of Vp through Washington's oysters is going.

As Governor Gregoire and agencies are pressured to allow corporate shellfish farming to expand in Puget Sound's tidelands and waters, they might consider first prioritizing the control of a known and most likely growing risk to consumers of shellfish: the naturally occurring bacteria named Vibrio parahaemolyticus and, if temperatures cause Puget Sound waters to warm, its more deadly cousin, Vibrio vulnificus. As those who contract vibriosis would most likely agree, at this point, "It's not going real well."

Blue Ribbon Panel on Ocean Acidification: Driving in the Fog?

Blue Ribbon Panel on Ocean Acidification

Next meeting, August 8 (location tbd)

Thick fog creates dangerous driving conditions which demands slowing down, even if it means being late for grandmother's dinner. Governor Gregoire's "Blue Ribbon Panel" being faced with an October deadline for specific recommendations on actions to deal with lowering pH levels in Puget Sound is creating a similar scene.

Scientists are clearly being pressed to give answers when information and models do not yet exist to support what they are being asked to provide. Specifically, are land based nutrients having a significant enough impact on pH levels in Washington's marine waters to justify regulatory actions focused on land use issues?   (listen here to the first 10 minutes of the June 20 meeting)

For example, is the fertilizer used on lawns adjacent to Puget Sound of enough significance to restrict how large a yard may be? Does CO2 generated by driving remain in the Puget Sound basin long enough to warrant limiting how many miles residents may drive? Should you be charged each time you flush your toilet? Should inspection and compliance officers be hired to inspect farms?

Which Train is on the Right Track?

Does the science create a clear enough vision to justify making recommendations beyond improved monitoring and modeling? Is growing the shellfish industry important enough to rush to a decision on actions based on a feeling? If the public does not become involved this may be how regulatory actions affecting Puget Sound will be decided. Get involved. Shellfish lobbyists are in more ways than you know.

Science: Not Feelings

April 25th Blue Ribbon Panel Meeting: The Million Dollar Questions

(Or why driving a car fast at night with the lights off may not be a good idea.)

Washington State's Blue Ribbon Panel on ocean acidification met on April 25th and has had powerpoint slides and verbal presentations posted to YouTube. (click here)

As the meeting unfolded it became clear these questions were important to answer (not necessarily in this order):

1.  How did molluscs survive during the last rapid rate of change in pH levels 300 million years ago and how have they survived in estuaries all these years when they encounter freshwater systems with an average pH of 7?  As noted in the first Blue Ribbon Panel meeting, not all shellfish react adversely to ocean acidification.  Currently, the non-native Pacific oyster from Japan is the primary species bred in the hatcheries which are not adapting to lowering pH levels.  Added to this is genetic manipulation creating triploid/tetraploid Pacific oysters which are even more specialized to their environment, less able to adapt to changes.  Native Olympia oysters and even geoduck appear to be far less susceptible to the changes in pH levels, most likely through natural selection from past ocean upwellings in Puget Sound.

2.  What are the drivers (sources) of ocean acidification and of those what can effectively be addressed?  Unless this question is answered based on accurate information the returns from regulations created and/or enforced may have unintended environmental and economic consequences.  As noted in the presentation, current monitoring is not accurate enough to show what level of impact the upwelling of deep sea water is having on pH levels in Puget Sound and Willapa Bay.  Few dispute there is a problem, but what additional impact power generating plants in Washington using coal or what additional impact nitrogen from waste water treatment plants plays is simply unknown.  Acting on the unknown is like driving your car at night with the headlights off on a country road.

3.  What industry other than the shellfish industry is going to be impacted by lowering pH levels?  The Blue Ribbon Panel was created because the shellfish industry found itself with a species unable to survive the hatchery environment and which was not naturally setting in Willapa Bay.  Whether any other industries are impacted by ocean acidification is important to know, whether it be directly through ocean acidification or indirectly through regulations implemented for the benefit of the shellfish industry.

Ocean acidification is a real problem.  The Blue Ribbon Panel's recommendations on source reduction, remediation and adaptation needs to be made with accurate monitoring and a clear understanding of the problem, perhaps noting this quote from Sir Maurice Yonge (1899-1986), a distinguished marine zoologist of his day on the future of oyster culture: “...the more man interferes with nature the greater become the problems he creates." (Oysters, 1960 p. 189). 

Driving a car in the dark without the lights on creates problems in decision making.  Driving it faster to meet an artificial deadline created by Governor Gregoire's leaving office only increases the risk of a poor decision leading in turn to a bigger problem.  The Blue Ribbon Panel should not be rushed into making recommendations without accurate information, something which may take more than three months to gather. 

Ocean Acidification Blue Ribbon Presentation Video

An interesting and useful presentation from Shallin Busch is available on tvw.org (click here).  She described impacts on biology (species) from lowering pH levels.  Of interest were studies indicating different oysters in their larval stage respond differently.  The native Olympia oyster and Suminoe oyster survived far better than the triploid Pacific oysters, the primary "crop" of the shellfish industry.  Whether growth in the latter stages was impacted is unknown.
See Shallin Busch here:
 http://www.tvw.org/index.php?option=com_tvwplayer&eventID=2012030125B

Co-chair Bill Ruckleshaus asked one of the more important questions on addressing Ocean Acidification:  Will the upwelling of deep sea waters overwhelm any efforts put forth to address land based causes of increasing acidification in Puget Sound?  The deep sea upwelling is currently estimated to be 66% of the cause and will continue to increase over the coming decades as it worsens making the question of just where to focus efforts important.  CO2 emissions were estimated to be 8-17% and decomposition 17-26%.

Ecology's web site on acidification is here:  http://www.ecy.wa.gov/water/marine/oceanacidification.html

National Marine Fisheries Service: Cumulative Impacts Not Considered by Nationwide Permits

Cumulative impacts: 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. (40 CFR 1508.7).

(click here to read the Bilogical Opinion)

A Biological Opinion written by National Marine Fisheries Service (NMFS) has told the Army Corps their 2012 Nationwide Permits are not able to determine whether cumulative impacts  are adversely impacting the environment.  NMFS has told the Army Corps they will now need to take specific steps with NFMS's Regional or Branch Office to ensure cumulative impacts are in fact considered (beginning on page 225).

NMFS's Northwest Regional Office, including the Southwest Washington Habitat Branch covering Mason, Thurston, Pacific, Pierce and Grays Harbor Counties, are now responsible for overseeing the Army Corps' implementation of Nationwide Permit 48 which covers existing shellfish farms as well as proposed new farms or expansion of existing farms.  They will be responsible for determining whether, in fact, cumulative impacts from shellfish farming can be determined and whether they are occurring.

Will the "Shellfish Initiative" and "streamlined permitting" being promoted by NOAA, the department overseeing NMFS, allow for objective oversight?  As it relates to Puget Sound and aquaculture, it borders on the fox guarding the hen house.  Especially in light of the recent lobbying by the shellfish industry to minimize the Army Corps' oversight of their activities.

(Shellfish industry lobbying paper on

minimizing Army Corps' oversight)

(Click to enlarge)

Another Viewpoint on the Shellfish Initiative

The recent guest columns in The Olympian and the Shelton Mason County Journal, written by Bill Taylor of Taylor Shellfish, promotes the recently announced Shellfish Initiative as a means to address what Taylor Shellfish and the Governor have described as a "quagmire" of permitting regulations preventing expansion of the shellfish industry. What Mr. Taylor fails to point out is that for six years the shellfish industry was directly involved in the public process that created these permitting requirements. Industry lobbying along with public, tribal and agency input helped create a federal, state and local permitting system that regulates their developments within the tidelands and waters of Puget Sound. Now that this regulatory framework has begun to take hold, the shellfish industry has apparently decided it does not like what it helped to create and through closed meetings with a federal agency, National Oceanic and Atmospheric Administration (NOAA), and Governor Gregoire, it is attempting to minimize the process in order to expand operations without public input.

Ironic in this effort is the shellfish industry's willingness to use regulations and create Shellfish Districts in Oakland Bay, along Henderson Inlet's shoreline, perhaps Samish Bay and the Nisqually Reach--all for the industry’s direct benefit, helping open tidelands for production. In Oakland Bay alone, immense resources have been expended since the Shellfish District's 2007 creation to correct problems that can be traced back to "streamlined" permitting, no permitting or a lack of resources to enforce the regulations that are in place. As a result, high levels of Dioxins and elevated levels of fecal coliform exist in Oakland Bay. The entire Oakland Bay watershed and every business and citizen are impacted, as are state and federal taxpayers whose tax dollars are being diverted to support this effort. Yet when the shellfish industry is asked to apply for permits for their developments it is a problem.

Much of the lag time that Mr. Taylor cites is, in fact, due to the shellfish industry’s inability to follow the permitting process. In 2007, after the industry spent two years of lobbying the Army Corps to approve existing shellfish farms through the Nationwide Permit program, the Army Corps received hundreds of permit applications that greatly overstated acreage and species cultivated on existing farms. Months later, after realizing the significance of the problem, the Army Corps and the Department of Ecology (DOE) asked the industry to resubmit the applications, this time with accurate information, a process that had to be completed before any consideration could be given to new operations. This problem was created by the shellfish industry, stretching the process of determining what farms actually qualified well into 2010.

At the same time, in April 2007, Governor Gregoire signed into law House Bill 2220, which was focused on structures and impacts from geoduck farming in Puget Sound. This bill was also the direct outcome of industry lobbying and public input, helping to create a regulatory framework to guide the tideland development this activity involves. DOE was tasked with crafting guidelines to be used by counties in development of their Shoreline Management Programs. The University of Washington’s Sea Grant was  tasked with initiating long-term studies on what impacts geoduck farming may have, because no studies existed at that time. Through open and transparent meetings the public, tribes and industry were all involved in the creation of these guidelines. This has helped to ensure that the industry’s tideland developments taking place in the Puget Sound tidelands are for the benefit of everyone, as mandated by the Shoreline Management Act of 1971, and not just for the profit of a few.

Taylor Shellfish and others in the industry have caused additional permitting delays through appeals and lawsuits after being told permits would be required for their tideland developments. In 2009, Thurston County told Taylor Shellfish and Arcadia Point Seafood that shoreline permits would be required for new geoduck farms. Rather than submitting permit applications to the County, they chose instead to argue that permits should not be required. When the hearing examiner agreed with the county, the companies appealed the decision to the county commissioners, where they were subsequently told the same thing. The companies then sued in Superior Court and lost, being told the use of PVC pipes, netting, and rebar is in fact a tideland structure and that these developments require a shoreline development permit.

The judge’s November 2011 decision went further. It stated an Attorney General Opinion in 2007, which is often cited by industry as the reason no permits at all were needed, and which was incorrectly made part of DOE's guidelines, is legally flawed and should not be used. Had the companies simply applied for a permit, they may have found themselves today with approved permits. Instead they have no permit and DOE’s guidelines are now in question. This is a problem they created.

Mr. Taylor’s statement that the permitting of new farms has not occurred for over five years is misleading. In Mason County, Seattle Shellfish proposed a large geoduck nursery operation in Spencer Cove. While appealed by Case Inlet Shoreline Association an agreement was reached and permits were issued for placement of geoduck nursery rafts nearly the length of a football field. Taylor Shellfish applied for and was granted permits for a new, albeit smaller, geoduck nursery in Totten Inlet. These operations involved an open and transparent permitting system which included input from the public, tribes and agencies.

There is no question that there are important components of the Shellfish Initiative. These include restoration of native Olympia oysters, both over-harvested and killed off due to pollution; financial assistance to shoreline owners and dairy/cattle farmers to help bring fecal coliform levels down; and improving access to the few public beaches which remain for shellfish digging and enjoyment by the public. But these are minor when compared to the long-term objective the shellfish industry has of minimizing permit requirements and consideration of alternative uses for Puget Sound's tidelands and waters.

Puget Sound is a resource of national importance that extends far beyond its ability to grow shellfish commercially. Regulations and permitting through the Shoreline Management Act and the Clean Water Act have created a well-structured regulatory framework controlling development along its shores, on its tidelands and in its waters. They have prevented profits alone from driving decisions. Closed meetings guided by NOAA, the Governor and the shellfish industry should not be allowed to undo this regulatory framework.

Jules Michel, 3rd generation tideland and shoreline property owner in Mason County

The Wizard of Oz and the Shellfish Industry

Welcome to 2012. 

Bill Dewey with Taylor Shellfish received great chuckles from the audience at the Shellfish Initiative press conference when he described Christine Gregoire being "dressed down" at a meeting with the shellfish industry. This clip from the Wizard of Oz came to mind.

(click arrow to play)

Governor Gregoire has awoken in a land where the shellfish industry Wizard is claiming the only thing that can save Puget Sound and the economy is the expansion of commercial shellfish farming. Through the levers and buttons of the political process the Wizard is trying to convince agencies and politicians that having to apply for permits is preventing that from happening.  Through booming rhetoric the Wizard is trying to convince the public that restoring a mere 100 acres with native shellfish and improving access to the few remaining public tidelands is worth undoing regulations developed through an open public process over the past four years.  Through meetings held without public notice or the public's involvement the Wizard is hoping to remain hidden behind the curtain.  It's time the curtain be pulled back and the Shellfish Initiative be exposed for what it is.

For another analogy of the Shellfish Initiative, see here:
http://olyopen.wordpress.com/2011/12/10/the-new-walrus-and-the-carpenter-yesterday-in-shelton/

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).