January 19, 2010

In a victory for citizens, the State of Washington Growth Management Hearings Board rejected the shellfish industry's attempt to undo Pierce County's interim regulations on geoduck and shellfish aquaculture.  The decision can be found here.

In July, 2009, Seattle Shellfish, LLC and the Pacific Coast Shellfish Growers Association petitioned the Board, asserting that Pierce County's amendment to the Shoreline Master Program violated the Shoreline Management Act, the SMP Guidelines and the Growth Management Act.  The Board stated:
 
"The Board finds and concludes that Petitioners have failed to demonstrate that Pierce County's and Ecology's actions in adopting and approving the amendments to the County's Shoreline Use Regulations, Chapter 20, as enacted by Ordinance 2009-26 violated the provisions set forth in Petitioners' issue statements.  Therefore, CPSGMHB Case No. 09-3-0010 is dismissed."

CISA comments:

We would like to thank the Hearings Board for sorting out the facts in their review.  We would also like to thank Seattle Shellfish, LLC and the Shellfish Growers Association for bringing this issue up in the first place, for adding to the public record, and for shedding additional light on several of their more absurd arguments.  For example:

 Shellfish growers argued that the county failed to consider the net loss of ecological functions by not allowing shellfish farms!  The county correctly argued that the amendment provides greater protections.  The Board stated: "Petitioners have not demonstrated that banning new shellfish farming in the Natural Environment or that regulating future shellfish operations in other zones constitutes a 'net loss'."

  Shellfish growers argued that shellfish farms are critical saltwater habitat and priority habitat, and that native and even invasive shellfish are a priority species under the SMA.  The Board ruled that Pierce County has a valid Critical Areas Ordinance that protects shellfish beds, and that this argument was untimely since this would be addressed under the SMP update.  Hence, the Board dismissed this argument.
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Are commercial shellfish beds "priority habitat"?  According to the SMA definitions, "priority habitat" means a habitat type with a unique or significant value to one or more species.  Ecology makes reference to only native shellfish species in describing priority habitats.
Commercial shellfish sites do not necessarily offer a "unique or significant value" to aquatic species.  Indeed, commercial shellfish sites typically remove, displace or damage known "priority habitats" such as eelgrass, sand dollars and woody debris.  Commercial shellfish operations are subject to constant disturbances from culture and harvest activities, whereas a "habitat" usually remains relatively undisturbed.
Are farmed shellfish a "priority species"?  According to SMA definitions, "priority species" means species requiring protective measures and/or management guidelines to ensure their persistence at genetically viable population levels.  According to the criteria, a commercial species can only be a "priority species" if it is vulnerable to habitat loss or degradation.
Thus, according to the SMA, commercial shellfish are neither a "priority habitat" nor are they a "priority species".  Commercial and recreational shellfish beds are considered "critical saltwater habitat" under the SMA, but in 1971 this was limited to oysters and clams.
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Shellfish growers argued that aquaculture is a "water dependent" and "preferred use".  Based on the language of the SMA, the Board concluded that it is within Pierce County's authority to properly manage aquaculture, and to establish use and location restrictions for aquaculture operations.  Similar to the County, Ecology also asserted that there is nothing in the SMA or SMP Guidelines which mandates that all water dependent or preferred uses be allowed in all environments or under any or all circumstances.  Rather, Ecology argued that the SMA expressly contemplates that shoreline alterations will be authorized only under limited circumstances so as to minimize ecological or environmental damage.  Case law upholds Ecology's position that the SMA grants authority to restrict or condition these uses based on the overarching policies of the SMA.  

Shellfish growers argued that the county was required to consult with the Army Corps, NOAA/NMFS and USFWS.  The Board determined that there is no prerequisite requirement for this in the SMA, and that the Amendment had been submitted before the NMFS and USFWS reports had been initiated anyway.

Shellfish growers argued that the Bush Callow Act of 1895 provided for the private purchase of tidelands for the sole purpose of shellfish farming, and that the prohibition of this use constitutes an unconstitutional taking of property.   The Board found nothing in the SMA or SMP Guidelines that provides any criteria to address this issue.  Also, the Board dismissed this for lack of jurisdiction.  CISA would suggest that Bush Callow is completely irrelevant to the argument.  Under the original Act, it was illegal to grow anything but oysters, so clams or geoduck would not have been permitted on Bush Callow oysterlands.  Further, Bush Callow lands, as with virtually all tidelands in Washington State, are subject to The Public Trust Doctrine, and there can be no expectation of economic gain from any tidelands, public or private, if the activity interferes with certain public rights in the tidelands.  The enjoyment of nature is one of these rights.

The Hearings Board also stated in their ruling: 
"The Board notes that the SMP Amendment also subjects recreational docks and piers to new prescriptive regulations, which have not been appealed."       

Also of note: Ecology notified Pierce County that the amendment would be approved if the county removed its prohibition on intertidal aquaculture in the Urban and Rural Residential environments, and removed its restriction on night and weekend operating hours.  Ecology's approval would not be effective until Pierce County's written notification of compliance.  Ecology did not articulate how these changes transformed the limited amendment from being denied, to being approved. 
 
 
December 6, 2009

Another trespass on public tidelands by Taylor Shellfish, this time in Case Inlet's North Bay near the Taylor/Engman lease site between Rocky Point and Victor.  View the map here.  View the SEPA Determination of Nonsignificance here.  View the environmental checklist here.  Comments must be submitted to the SEPA Center by 4:30 PM, December 18, 2009.  Submit comments to the Sepa Center.  Include File number 09-120402 in your email.

As usual, Diane Cooper of Taylor Shellfish states the typical false propaganda in the environmental checklist.  Page 8: "Aquaculture is a water dependent use and encouraged under the Washington State's Shoreline Managment Act and Mason County's Shoreline Master Program."

Page 6: "There is evidence that shellfish beds, including geoduck farm sites, enhance habitat values and functions and serve to mitigate impacts resulting from other activities that may occur in the vicinity.  Additionally, NOAA's National Marine Fisheries Service conducted a formal consultation on shellfish activites, including activites that may occur at this site, and concluded that these operation are not likely to adversely impact salmonids, their prey, or essential fish habitat."

CISA comments:

Cooper's comments under the environmental checklist are unfortunate but not surprising.  Aquaculture is not a use that is prioritized under the Shoreline Management Act.  As practiced, it violates both the SMA and the Public Trust Doctrine.  And there is very clearly NO evidence that geoduck farms enhance habitat values.  The science so far seems to suggest the opposite is true.  And the NOAA National Marine Fisheries Service document referenced by Cooper is an 'opinion' with nothing conclusive.  The fact is, both the National Marine Fisheries Service and the Army Corp. of Engineers stated that existing shellfish aquaculture is likely to adversely affect essential fish habitat for all fish in Puget Sound, and to adversely affect critical habitat for endangered Puget Sound Chinook salmon and Hood Canal Chum salmon.  So in reality, the truth is nearly the complete opposite of Ms. Cooper's unfortunate comments.

December 5, 2009

In a staggering display of unmitigated hypocrisy, Brian Allen of Allen Shellfish, and "resident ecologist" from the Puget Sound Restoration Fund, applies for permits to culture geoducks in Case Inlet, on 4-1/2 acres of public tidelands on the Eastern shores of Stretch Island.  View the Joint Public Notice here.  Comments are due by January 6, 2010.  Send comments to ACOE.  Reference Allen Shellfish, LLC; NWS -2009-88.  Include your name, address and phone number in your email.  You may request a public hearing.
Also send comments to the Dept. of Ecology.

CISA comments:
 
There is certainly nothing in Mr. Allen's plans that could be considered restoration.  Although we agree with and appreciate much of PSRF's efforts, this tends to advance the evidence that the Puget Sound Restoration Fund functions to some extent as a public relations tool for the shellfish industry.  The introduction of hundreds of tons of dioxin leeching PVC plastics into the pristine tidelands of Case Inlet hardly constitutes "restoration" or anything "ecological".