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

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

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

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

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

New Burley Lagoon Area Geoduck Operations

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

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

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

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

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

Ecology Issues New 401 Certification

Kilisut Harbor Geoduck Farm

Approved by Ecology

Kilisut Harbor

(From Google Maps)

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

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

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

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

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

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

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

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

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

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

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

Geoducks in Burley Lagoon, Purdy

90 Acre Geoduck Operation

Proposed for Burley Lagoon

Burley Lagoon

(near Purdy, Pierce County)

(from Google Earth)

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

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

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

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

Priority Habitats of Burley Lagoon

(from WDFW)  





Ecology Rescinds Trident Marine 401 Certification

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

Clean Water Act Permitting of Geoduck Farms

ECOLOGY ISSUES ITS FIRST

WATER QUALITY CERTIFICATION

- WITH CONDITIONS -

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

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

 

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

Trident Marine's Unpermitted Farm in July of 2007

 

(click to enlarge)

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

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

(click to enlarge)

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

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

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

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

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

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

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

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

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

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

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

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

(click to enlarge) 

 

Ecology and Economics of Geoducks

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

Some comments include:

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

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

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

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

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

Whose Tidelands Are They?

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

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

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

Harstine Island

(click to enlarge)

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

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

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

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

What are Fudge Point's Tidelands Worth?

$47,500/acre or $250/acre?

(click to enlarge)

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

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

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

December 30, 2010 Tideland Sale

$475,000 for ~10 Acres 

(click to enlarge)

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

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

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

What is the Value of Fudge Point's Tidelands?

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

 Is this the pedestrian easement 

Ralph Scott saw on Fudge Point's tidelands?

(click to enlarge)

Note:  This picture has been altered

to show what the proposed

geoduck farm would look like.

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

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

Ralph Scott's Vision for Fudge Point's Tidlands

(click to enlarge)