State appeal sought in Pierce County geoduck permit decision


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Chris Fitzgerald, KP News

Lack of regulation in the permitting system of geoduck farming is often cited as one of the main concerns of local residents and environmental groups when permits are filed with Pierce County. These types of concerns have prompted meetings among interested parties beyond standard county hearing protocol. Among other concerns, acknowledged by Taylor Shellfish Farm’s Diane Cooper in a letter to Pierce County Deputy Hearing Examiner Terrence McCarthy, is the industry’s self-policing for compliance. She writes: “Taylors indicated they are looking to hire a third-party beach monitor to review Taylor compliance with Environmental Codes of Practice.” Those codes of practice were created by the shellfish industry. Cooper’s letter goes on to say, “Parties of record do not believe that a person paid for by Taylors to monitor compliance can be trusted to be independent.”

A pair of permits (sought by Taylor Shellfish Farms acting as agents for two waterfront owners) in the Vaughn area, SD55-05 and SD53-05, were approved recently.  Although the permits were approved by the county subject to acquisition of other relevant permits and regulations (standard protocol), recent activities by both county officials and Taylor Shellfish Farms, have brought them back for more scrutiny, this time at a state level.

When the two initial applications were received in October 2005, Pierce County Planning and Land Services (PALS) prepared and sent a report based on existing requirements, site visits, and other criteria to all interested parties of record (applicants, groups and/or individuals following public proceedings) in June 2006. July 5 was set for the standard public hearing by McCarthy’s office.

Documentation provided by permit opponents at that meeting compelled McCarthy’s cover letter to his Nov. 30 decision to read, “I will review this matter in three years to… help facilitate the minimization of impacts upon the environment and those involved. I still have concerns about the Canadian study ‘Sustainable Shellfish’ by Heather Deal, M.Sc., which may need attention in the future.” (That research document details potential environmental impacts resulting from the proliferation of intense aquaculture. Find it at McCarthy’s letter concludes by saying conditions given in his decision “may also be modified when and if the county adopts regulations governing geoduck aquaculture.”

Both Taylor and PALS have submitted “Reconsideration of Hearing Examiner’s Decision” applications within the seven-day deadline following McCarthy’s decision. Each party (PALS and Taylor) requested minor rewording of some requirements, but several significant conditions were challenged by at least one of the parties.

Taylor requested broader harvest times to accommodate low tide. (McCarthy stipulated Monday through Friday 8:30 a.m. to 4:30 p.m. only.) According to RCW 77.12.047, “The commission may specify the times… (when taking) shellfish is lawful or unlawful.” WAC 220-52-019 says, “It is unlawful to take…geoduck taken for commercial purposes… between 7:00 p.m…and 7:00 a.m.”

Taylor Shellfish was dissatisfied with language prohibiting access on the shorelands without approved county permits, and wanted the property owner “… or anyone approved by them (to have) … legal access to the property,” and requested the same change regarding vehicles and heavy equipment on intertidal areas and beaches. PALS requested language stating, “No wetland or fish and wildlife review will be required…” be amended because “fish and wildlife review will be necessary.”

PALS added two new conditions: a final site plan submitted “for review and approval prior to any planting activity on site… showing farm location and boundaries, type and color of buoys proposed, location and number of tubes and netting, and the location of any eelgrass and buffers. Simultaneously, the applicant will submit the bond for materials. Upon approval of the final site plan, bond, and issuance of all other necessary permits, the work may begin.” PALS also called for yearly status reports listing “all conditions of approval from this decision… describe actions the applicant has taken to comply… provide timeframes… explain modifications to approved plans.”

McCarthy included, in addition to “a bond or financial guarantee in the amount of $1 per tube placed,” a provision addressing default by the permittee. Among other specific timelines for permittee action, he wrote: “All approvals granted to harvest the geoduck will become null and void if the applicant fails to remove all of the tubes, netting and securing devices.” This default provision was unacceptable to Taylor, although the company did earlier agree to post a bond. Another condition read: “This project shall be reviewed in three years from the effective date of approval by the Hearing Examiner to examine impacts of operations, and each of these conditions. If the county passes regulations governing geoduck aquaculture, either party may request a review.” Taylor’s representative, Diane Cooper, wrote this in reply: “We do not believe it is within your authority to review our operations again in three years… it is not appropriate to re-open review of these permits if the county passes additional regulations…”

Shortly thereafter, on Dec. 21, attorneys from Seattle-based Buck & Gordon LLP filed a “Petition for Review” before the Washington State Shorelines Hearings Board on behalf of Taylor Shellfish Farms regarding the examiner’s decision. The petition cites as grounds for the appeal, “The conditions… are unreasonable and inconsistent with applicable laws and regulations…(and) are not supported by evidence… and are based on unsupported assumptions.” Supporting their grounds are complaints that “the work window… functionally precludes the permitted activity.” Regarding posting of a bond and the “null and void” default mechanism: “(This) condition is unreasonable... is more onerous than what is required to bring the development into compliance… revocation of the authorization is punitive…”

Testifying at the July hearing, Sherri Luedke brought four bags of debris collected from the beach over two years from the Taylor Shellfish operation near her home. Her written testimony asks, “Who will monitor these sites? What is the penalty for violation? Who will enforce the conditions?” McCarthy crafted a decision that addressed some of these community concerns, and permitted Taylor to move forward with some new regulatory obligations. PALS requested modest new compliance.

The Pierce County Council and state legislators are drafting guidelines; opposition continues to strengthen. In two years, a new shoreline plan will be drafted. Today, one thing most participants concede, from the industry itself to state agencies and opposition groups, is the idea best described in a statement made by State Rep. Pat Lantz in a September 2006 interview with the Puget Sound Business Journal, “The bottom line is, this (proliferation of geoduck farms/applications) happened so quickly…We have to know what the price is, in terms of the ecological balance of Puget Sound… and that’s why the science is so terribly important.”