Olympic Peninsula Environmental News

Commissioners:
Having spent eight years in the Jefferson County Marine Resources Committee including a number of years as it’s chairman, along with volunteering hundreds of hours in helping write the existing SMP, I am urging you to require standard conditional use permits for future geoduck applications.

There is currently no real permitting nor oversight on geoduck operations in the county, with the county relying on the State and Federal Government to do whatever it feels necessary to manage and control these operations. We have no idea how much shoreline is being handed over to commercial operations, what damage is being done, nor do we as tax payers of this county have the opportunity to speak in favor or not of new operations that will lock up our shorelines for generations to come. It’s really an outrageous situation.

I join the residents of Squamish Harbor and Discovery Bay in calling for a fair process for evaluating future geoduck proposals. We urge the Board of County Commissioners (BOCC) to require, in its update of Jefferson County’s SMP, a standard Conditional Use Permit (CUP) process for all future applications for geoduck cultivation, whether for “new,” “expanded,” or “converted” tideland.

I personally, along with others in this county have seen many consequences of geoduck operations, including: illegal harvesting (documented and admitted); unauthorized expansions; hundreds of loose tubes strewn in shallow water and on beaches; hazards to recreation; underwater loose tubes of unknowable quantity; marine life trapped in nets; harvest operations in native eelgrass; vanishing eelgrass and sand dollar populations; beaching a boat in and trampling a fish stream; and many more practices of environmental concern.

The late Michael Adams, who chaired the MRC for years and was a small time commercial oyster farmer, documented numerous illegal intrusions onto his beaches. Often these were done at night and he told me he had been threatened by the people engaged in it.

Previous legal cases have gone against the industry time and time again.

For over two decades, citizens have been ignored by Washington State Agencies and most Counties as shellfish aquaculture lobbying paved the way for the unlimited proliferation of this industrial conversion of our shorelines. Citizens have had to go to court to get their voices heard. Many of the cases against Taylor, for example were won by the plaintiffs.

A case in 2019 brought against the Army Corp of Engineers was very instructive on this issue. The Corps lost the case. Federal Judge Lasnik stated in his findings that the Army Corps of Engineers in our Corp district, “The Court finds that the Corps has failed to adequately consider the impacts of commercial shellfish aquaculture activities authorized by NWP 48, that its conclusory findings of minimal individual and cumulative impacts are not supported by substantial evidence in the record, and that its EA does not satisfy the requirements of NEPA and the governing regulations.”

While citizens have been pointing out the limited scientific findings that the Corps and the shellfish industry have used to gain permitting, the Judge noted: “There is no discussion of the impacts on other types of aquatic vegetation, on the benthic community, on fish, on birds, on water quality/chemistry/structures, or on substrate characteristics. There is no discussion of the subtidal zone. There is no discussion regarding the impacts of plastic use in shellfish aquaculture and only a passing reference to a possible side effect of pesticide use.”

So a Federal Judge has found that the ’science’ being presented to you the county representatives, is apparently a fraud. Internal records surfaced during this court case actually showed that the Corps had purposely removed key findings supporting the plaintiff’s case from their documents before sending them to the court in discovery.

This is a map of existing shellfish farms in other counties to the south of us. The number, I understand, is over 700. Is this what we want Jefferson County to look like?

Why A Standard CUP is Important

The three most important features of a standard CUP are: 

• The decision is made by a neutral hearing examiner;

• The decision is made only after a public hearing before the hearing examiner; and

• The decision is made based only on the record, both written and testimonial.

These features ensure that all parties are treated fairly and that all parties can see and contest the information presented. A standard CUP avoids the suspicion that decisions are influenced by private conversations and unsupported assertions.

For more than two years, the requirement for a standard CUP for all future geoduck applications was in the Planning Commission’s draft, which was preliminarily approved by the state Department of Ecology (ECY). The same CUP requirement is in Kitsap and Clallam county SMPs, as approved in final form by ECY. Jefferson lies in close shoreline-proximity to these counties, sharing Hood Canal, Discovery Bay, and other waters of the Salish Sea. Notably, all of Hood Canal, including its tidelands and shoreline, and most of Puget Sound and the Strait of Juan de Fuca are Shorelines of Statewide Significance, under the state Shoreline Management Act. By adopting the standard CUP process, Jefferson County will harmonize with Kitsap and Clallam counties in how they review commercial geoduck operations in our common waters.

Why the Planning Commission Recommendation is Misguided

In late October 2023, a new recommendation was proposed, which, after an initial stalemate, was adopted by the Planning Commission in November (by a 5-4 vote). It requires a standard CUP only for “new” geoduck operations. It prescribes a “discretionary” CUP for “expansions” and “conversions” of existing shellfish tidelands. A discretionary CUP allows county staff to make the decision, after public comment but with no public hearing. Alternatively, staff, in its sole discretion, may (but need not, for any reason) refer the case to the hearing-examiner process.

This scheme is arbitrary and discriminatory. It favors existing shellfish farmers over newcomers and over the citizenry, even though the environmental effects are identical. It is subject to evasion, for example by first farming oysters on a new plot and then converting to geoducks. Also, of great concern: all (or possibly nearly all) existing shellfish farmers in Jefferson County are operating with no county shoreline permit whatsoever, so there is no baseline. The County simply doesn’t know how many acres might be converted or expanded under a discretionary CUP.

Advocates for the Planning Commission recommendation like to argue that the industry is already subject to federal, state, and local oversight, so the need for county regulation is lessened. I and others have first-hand experience with federal oversight, and it is entirely lacking. A citizen can’t even get basic information about a shellfish farm without filing a FOIA request, which can take a year for a response. It took more than two years to find out what happened to very well documented harvesting violations. (Answer: the violations were admitted but there was no consequence.) Other state and other local regulations relate to different subjects.

As County Commissioners, you need not decide whether commercial geoduck farms are “good” or “bad.” Rather, it’s the job of the BOCC to adopt a fair process for making such a decision on a particular application for a particular site. That process is the standard CUP process, and we urge you to require it for all future applications for geoduck cultivation.

Al Bergstein
Former Chair of the Jefferson County Marine Resources Committee and former member of the SMP citizens advisory committee for Jefferson County
Port Townsend

Filed under: Aquaculture, Environmental Activism, Environmental Law, Environmental Protection, Government, Jefferson County, Olympic Peninsula, Shellfish |