Proposed Thurston County Geoduck Farming Applications Heard
by Janine Unsoeld
Thurston County Hearing Examiner Sharon Rice heard lengthy applicant and public testimony on Monday by Taylor Shellfish Company, Arcadia Point Seafood, and concerned citizens about three proposed geoduck shellfish and manila clam production projects on Henderson Inlet. The hearing was held at the Thurston County Fairgrounds.
The hearing was significant because these are the first geoduck aquaculture applications recommended for approval by Thurston County since 2007.
The applicants have requested approval of a shoreline substantial development permit for intertidal commercial geoduck shellfish production. Two of the proposed projects are adjacent to each other, one property owned by the Theisen's, and one owned by the Lockhart's. The McClure property is about 1/4 of a mile away from the other properties.
Taylor is seeking to farm the shoreline of Lockhart, and Arcadia Point Seafood LTD is seeking to farm the Theisen and McClure properties.
Rice clarified the confusing interrelationships, saying in her opening remarks, "Normally, each case would be heard separately, but that would entail three tortuously redundant hearings." All documentation is shared by all applicants, with minor variances.
Mike Kain, planning manager for the Thurston County Resource Stewardship Department, presented the county's summary recommendation that all three applications be approved with conditions. In his verbal report, Kain said that "cumulative impacts are not significant."
However, cumulative impacts are exactly what many of those concerned with commercial shellfish farming believe is important. The applicants first proposed their projects in 2010 and have a long procedural history.
The parties involved in yesterday's hearing were there because, in January 2011, Thurston County hearing examiner Tom Bjorgen issued a summary judgement that states, in part, that the proposed geoduck operations are deemed a "development" under the Shoreline Master Act because they involve "construction of a structure." This judgement required a hearing on a substantial development permit for the proposed operation.
Taylor company attorneys and staff started the day's proceedings, taking nearly two hours to present its case, saying they were a fifth generation family owned company that employs 400 family wage earners. They also said the company has recently received a certified sustainable agriculture label from Food Alliance. Food Alliance is a Portland based nonprofit organization.
Armed with easels of photos, site maps, and foam board posters depicting geoduck culture, Taylor staff explained the process by which geoducks are planted, nurtured, and harvested.
Brian Phipps, Taylor's geoduck division manager, concluded his geoduck rearing lesson by telling Rice, "I'm out there everyday - it's nice that the science is catching up with what we knew all along."
Rice asked Phipps several clarifying questions including those about plastic debris left on the shoreline and asked how many tubes wash up on a normal weather day. He admitted that when they conducted their first Puget Sound wide garbage clean up day six years ago, they found 800 PVC pipes that weren't necessarily belonging to Taylor. The last clean up, which is now held biannually, garnered two tubes within a 125 mile area.
Diane Cooper, Taylor's head of regulatory affairs, presented a study and talking points using PowerPoint to affirm its belief that geoduck aquaculture is a no net loss industry.
"Although Henderson Inlet has had an up and down history with water quality issues, there have been, as a result of close monitoring, several upgrades that make the area ideal for commercial shellfish production." She stated that they are doing their part to fulfill Governor Gregoire's Washington Shellfish Initiative, which calls for clean water commerce, family wage jobs, and expanding and promoting the shellfish production industry.
Recent Case Law and Public Testimony
Commercial geoduck shellfish farming is a new industry, becoming prevalent in the mid 1990s. Project proposals, permit applications, hearings, and potentially precedent setting case law are being monitored daily by all involved on a local, national, and international level.
Local geoduck project opponents have worked for years with a plea for environmental balance. Numerous local shellfish growers were present and were equally passionate in their testimony in their belief that they are involved in an industry that gives back to the environment.
Susan Macomson, who lives on Nisqually Reach, and Laura Hendricks, chair of the Sierra Club -Marine Ecosystem Campaign for Washington State, both belong to several organizations that urge the protection of Puget Sound shorelines to preserve natural habitat. They were the only ones present who chose to testify against the proposals. Numerous written letters and emails recently sent to county staff were entered into the formal record.
Macomson said that she bought her waterfront home 11 years ago and her neighbors on either side of her have shellfish aquaculture farms on their properties. She brought a bag of debris left on her property from the shellfish industry, and said she has witnessed first hand the devastation that the shellfish industry has had on her land. It was not clear if the debris involved the applicants.
The county staff report for the Henderson Inlet cases say that homeowners may ask for a reduction in their appraised value, which may imply these shellfish operations have an adverse impact on shoreline owners. Macomson said in her testimony that she will apply for this reduction.
In her testimony, Laura Hendricks said that the hearing examiner has the discretion to determine whether cumulative impacts were considered adequately, as done in a July 19, 2012 decision against Taylor by Thurston County hearing examiner Tom Bjorgen.
In that case, Taylor sought to expand its north Totten Inlet mussel raft operation there to 58 rafts anchored to the sea-floor, off-shore, covering an area leased from the Washington State Department of Natural Resources of 11.25 acres. Taylor lost that case based on their failure to adequately analyze three critical cumulative impacts the rafts may have on the marine environment: impacts of low dissolved oxygen on aquatic life and habitat; effect on the benthic (sea bottom water creatures) community; and the potential spreading of or genetic pollution by Gallo mussels.
Bjorgen's decision was recently upheld by the Thurston County commissioners in a letter to the Washington State Department of Ecology dated November 16, 2012. Quoting portions of the state Shoreline Management Act of 1971 and recent Shoreline Hearing Board case law, the commissioners also quoted Fladseth v. Mason County, SHB No. 05-026 (2007), stating that "consideration of potential cumulative effects and precedential effects is warranted in any case where there is proof of impacts that risk harm to habitat."
In the most recent Coalition to Protect Puget Sound Habitat v. Pierce Co. and Longbranch Shellfish, LLC, SHB No. 11-019 (2012), Taylor won but opponents scored some points - the shellfish industry can't do work during forage fish spawning season. The Longbranch case was mentioned up front by Taylor's attorney in his opening remarks, saying, "that case sets the stage...virtually every issue here was raised there."
Hendricks asked that the permits be denied on the basis that there was an inadequate analysis of cumulative impacts. The Washington State Department of Natural Resources has a pending lease for the publicly owned tidelands adjacent to the Lockhart/Theisen project, and she stated that such projects fragment the shorelines and create a piecemeal development. Hendricks said if cumulative impacts were not considered - as in the Totten Inlet mussel raft case - the examiner may ask for a cumulative impacts analysis.
Hendricks repeatedly questioned the shellfish industry's benefit to the public.
"If I were an animal listening to this testimony, I'd be scared to death, wondering who is representing me...nobody is talking about the protection and conservation of Puget Sound species for what it is...The permits do not address the mitigation of impacts...they purge the beach of native species....it's part of the process....PVC pipes don't go through shellfish, moon snails, (and) sand dollars, so you have to assume it's what it is: industrial agriculture. We're not just oyster farmers anymore, that's why people got along for five generations. Now we're talking about tubes, nets, canopy nets, harvesting, liquefying, boats, barges, and generators. You have to show mitigation of the impacts, and that hasn't been done...."
Hendricks also brought a "sustainable bag filled with the most unsustainable things I've ever seen...." and produced little bands that pull apart, zip ties, and other shellfish industry debris. "These come up on our beach...it's not safe for citizens, the public...."
She also asked where the public benefit is, if the industry does not pay export, sales, or excise taxes, saying that 90% of south Puget Sound geoducks are shipped out of state.
At the hearing, Hendricks admitted that she thought the hearing was about the legal reasons the applications are not consistent with the Thurston County Shoreline Master Plan and Shoreline Master Act, and did not bring science-related information with her to counter Taylor's testimony. Rice said she would hold the record open to allow Hendricks to offer that information. Hendricks did so, and provided studies relating to nitrogen and canopy netting. The record was closed Tuesday at the close of business.
Eloquent testimony by numerous local shellfish growers, some with current or former tribal affiliations, was heard in support of the applications. Most, if not all, of their testimony was based on personal experience in the industry. Many of them followed Macomson's and Hendricks' testimony and thus responded to their comments.
Don Gillies, a shellfish grower from Pacific County, said he was in support of the applications. He said he is a small family owned operation and is farming on the same beds his ancestors did, who homesteaded the land in Willapa Bay in 1865. He sees the long-term benefits of shellfish growing. "Curiosity motivated my attendance today about what this whole process was about and what was going on. My 'what' questions have been answered, but my 'why' questions still need to be answered."
Susan Shotwell, shellfish farm manager for the Nisqually Tribe, testified that the Nisqually Tribe approves of the applications. She detailed her work history in the shellfish industry since she was 14 years old, which includes Taylor Shellfish Company and Arcadia Point Seafood owners Steve and Vicki Wilson.
Mark Schaffel, a shellfish farmer in Olympia, said in part that he is glad to be involved in an industry that doesn't use pesticides or fertilizers. He said he employs "a bunch of young people....I'm helping the economy pretty well, and pay taxes related to pipes, fuel, boats, and payroll taxes...and with all the I-Pads and computers we buy, it's kind of nice to sell something back to China...."
Rice will issue three separate application decisions. At the end of the hearing, there was a collective sigh of relief and laughter from those present as Rice worked out the particulars of what happens next.
"...I really don't know much about shell fishing - farming - this will all be new information to me. I don't want to be quick about it. One of my favorite things about my job is that I get to be a mini-expert but this is a lot of expertise!" said Rice. Taylor attorneys encouraged Rice to take all the time she needed, especially given the upcoming holidays.
"I've never had an applicant ask me to take more time - I'm excited to know more about the issue...." she added. A decision date by January 10, 2013 was agreed upon as acceptable by all parties.
Hearing Examiner Sharon Rice is a principal at the Offices of Sharon Rice Hearing Examiner PLL, president of the Hearing Examiner Association of Washington, and a partner at Toweill Rice LLC. She holds a BA in environmental policy and political economy from The Evergreen State College and received her law degree from the University of Washington School of Law.
For more information, including pictures of existing and proposed farms, go to Protect Our Shoreline at www.ProtectOurShoreline.org, the Association for the Protection of Hammersley, Eld, and Totten Inlets at www.APHETI.com or the Sierra Club at www.sierraclub.org.
Project applications and Thurston County staff reports: http://www.co.thurston.wa.us/permitting/hearing/agenda-staff-report/shellfish-hearing/record.html
The Taylor-Totten Inlet mussel raft expansion case can be found at www.co.thurston.wa.us/permitting/devactivity/totten/totten-hearing.html
For more articles written by Janine Gates Unsoeld about the geoduck industry, use the search button at www.janineslittlehollywood.blogspot.com