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DEPARTMENT OF NATURAL RESOURCESCITY CLERK CITY OF BAINBRIDGE ISLAND OFFICE OF THE HEARING EXAMIN 'i APPLICATION FOR SHORELINE ) SSDP/SCUP04-29-99-1 CONDITIONAL USE PERMIT ) FINDINGS OF FACT APPLICANT: WASHINGTON STATE ) CONCLUSIONS OF LAW DEPARTMENT OF NATURAL ) AND DECISION RESOURCES ) ) FINDINGS OF FACT 1. The Washington State Department of Natural Resources has filed an application to obtain a Shoreline Conditional Use Permit for (SCUP) the commercial harvest ofgeoduck clams from State owned subtidal bedlands around Bainbridge Island. This geoduck fishery is currently managed by Department of Natural Resources (DNR), Washington State Department of Fish and Wildlife (WDFW), and the Puget Sound Treaty Indian Tribes. This SCUP would regulate the activities of commercial harvesters under contract with DNR. Each tribe is responsible for managing its own geoduck fishery. 2. This application for a SCUP was filed with the City of Bainbridge Island in April of 1999. The DNR began the process of supplementing its Shoreline Environmental Impact Statement (SEIS) in May of 1999. A final SEIS was issued by the DNR on September 24, 2001. The City of Bainbridge Island adopted that SEIS on April 9, 2003. No additional environmental review was done by the City. 3. The DNR is proposing to harvest geoduck clams on 1,549 acres of subtidal bedlands on shorelines of statewide significance. The areas of harvest are all waterward of extreme low water. The bedlands are identified in five areas: Port Madison (222 acres), Agate Passage (259 acres), Battle Point North (Manzanita) (723 acres, Murden Cove (222 acres), SkiffPoint (123 acres). These geoduck tracts are identified in the State of Washington 2002 Geoduck Atlas published by WDFW [EXHIBIT 97]. Properties landward of the proposed harvest areas carry the following upland shoreline environmental designations: 1) between Agate Passage Bridge and Battle Point - Semi-Rural from Battle Point to Manzanita Bay and from Manzanita Bay to Agate Passage Bridge. The area immediately adjacent to Manzanita Bay is designated Rural; 2) between Point Monroe and the northernmost tip of Bainbridge Island - Semi Rural except for an area near the West Port Madison Nature Preserve which is designated Rural. The point of Point Monroe is designated Natural; 3) between Fay Bainbridge State Park and SkiffPoint - Semi Rural except for Fay Bainbridge State Park which is designated as Conservancy; 4) between SkiffPoint and Yeomalt Point - Semi Rural except for the area within Murden Cove which is designated SCUP04-29-99-1 Hearing Examiner WSDNR Page - 1- City of Bainbridge Island Conservancy. The Comprehensive Plan designations for all upland properties are Open Space Residential, except for Point Monroe which has been designated Urban Residential. 4. The proposed harvest areas for geoduck clams are limited to the portion of the identified tracts located between elevations of minus 18-feet and minus 70-feet from -0- tide. The harvesting will take place at about 70-feet below the surface of the water. The harvest operations will be conducted between 8:00 a.m. and 4:00 p.m., Monday through Friday, except on State holidays when no harvesting will be allowed. Boats used to harvest the geoducks range in size from 20-60 feet long, have a crew of two divers and a tender. Contractors will provide an average of one harvest vessel for every 20-acres of designated harvest area. Compressor engines on board the boats supply oxygen to the divers and power the water jets for clam harvesting. After harvest by a diver, the geoducks are weighed and recorded in the presence of DNR staff, then unloaded at a pre-approved Marina or boat ramp. Processing will occur off-site at a location outside the City of Bainbridge Island. 5. State managers and Indian Tribal managers have agreed to limit the annual harvest rate to 2.7 percent of commercial geoduck biomass in each region [EXHIBIT67, Pg. 44]. The 2.7 percent harvest rate is predicted to preserve 40% of the unfished spawning potential of the commercial population [EXHIBIT67, Pg. 45]. This 2.7 percent annual harvest rate may change as research continues on the biology ofgeoducks. Research is underway to determine if growth rates differ among the six management regions and to refine the estimated rate of natural mortality among geoducks. WDFW is performing a study to independently compare the yield model predictions to geoduck populations which have been fished in the past. Average projected recovery time for all tracts with statistically significant density data is 39 years. Studies show that on average, 2.56 percent of the biomass lost to fishing is replenished each year. The 2.7 percent harvest rate developed for geoducks is currently the best estimate of the largest proportion of commercial biomass which can be removed each year, while maintaining the spawning stock at a stable intermediate level [EXHIBIT 67, Pg. 48]. Natural recovery is relied upon for repopulation of the geoduck beds. No artificial enhancement is proposed for repopulation of the tracts after harvesting is complete [Testimony of Leigh Espy.] 6. The DNR, through harvest contracts with commercial divers, limits the number of boats that can harvest geoducks in Puget Sound at any one time. Typically 8-10 boats are in operation, tracts are selected for harvest in a single geographic area to facilitate monitoring with on-site compliance and enforcement. Harvest vessels operate in a single area for no more than 4 months at a time. An environmental assessment is completed by WDFW prior to the State harvest. A geoduck survey of each tract is completed prior to State and Tribe harvest [EXHIBIT 67, Pg. 6]. A test harvest is conducted before sale of the harvest area to commercial harvestors [Testimony of Leigh Espy]. 7. According to the SEIS, the geoduck harvest has been conducted for over 30 years without significant adverse environmental impact, other than the reduction of the local geoduck SCUP04-29-99~ 1 Hearing Examiner WSDNR Page -2- City of Bainbridge Island Page -3- population. The geoduck harvest provides benefits to the State and to the Tribes. The revenue generated from the fishery provides funding for the following programs: clean up and restoration of contaminated sediment in Puget Sound, inventory of all near shore aquatic habitat in Puget Sound, control of the invasive aquatic weed "Spartina," geoduck fishery management and harvest compliance programs, State/Tribe shellfish negotiations, operating and capital improvement monies for WDFW including intertidal shellfish enhancement, and grants to local governments for the purchase, development and restoration of aquatic lands for public access and salmon habitat restoration. 8. The DNR has determined that the harvest of individual geoducks by divers using hand held water jets, is the most environmentally benign method of harvest currently available [EXHIBIT 67, Pg. 5]. Depth monitors are worn by divers to ensure compliance with boundaries of depth maximum and minimum. Buffers are maintained between the harvest area and eel grass beds and any substrate used for Herring spawning. Seasonal restrictions for fishing are established on tracts located in, or adjacent to spawning areas. 9. The geoduck harvest operation involves three primary sources of noise; the vessel engine, the pump or compressor engines powering the water jets and life support system, and the two- way diver communication system. The auxiliary equipment and the communication system operate continuously during harvest and are the major sources of noise from the harvest activities. Engine noise occurs only when the boat is entering or leaving the tract, or repositioning The boat remains at anchor in one location while harvesting occurs. Auxiliary equipment is usually placed in the boat's hold to provide more working space on the deck. This equipment is required to be muffled to meet State noise standards and to allow for radio communication with the divers. State law prohibits harvest within 200 yards of the shoreline. Predicted harvest noise levels on a boat with equipment on deck would be 46.7 to 49.7 dBA. If the boat stored the equipment below deck that dBA would drop to 42.7 to 44.7 dBA. The geoduck harvest vessels normally operate below the Department of Ecology (DOE) noise standard of 55 dBA [EXTtlBIT 67, Pg. 104]. Noise impacts for shoreline residents are minimized by restricting the harvest to daylight hours, Monday through Friday, and by prohibiting harvest within 200 yards of the shoreline. DNR enforcement crews monitor sound levels with handheld noise meters. Vessels found to exceed 50 dBA are suspended from harvest until the vessel is brought into compliance. DNR will maintain a cellular phone on its contract compliance vessel and publicize appropriate phone numbers to allow shoreline residents to contact DNR, the compliance vessel and the WDFW patrol boats to lodge complaints regarding harvest activities and excessive noise levels. 10. The geoduck harvest occurs underwater. The anchored vessel, more than 200 yards offshore, is the only aspect of the harvest visible from the surface. The presence ofa geoduck SSDP/SCUP04-29-99-1 Hearing Examiner WSDNR City of Bainbridge Island Page -4- vessel with divers in the water means other vessels in the area must use caution. Commercial geoduck boats must display diver flags to alert other boat traffic of ongoing harvest operations. Restrictions on harvest hours and days of fishing reduce conflicts between geoduck operations and sport fishing in the area. Geoduck harvesters unload their boats at public and private boat ramps, docks and marinas. These offioading procedures will be monitored by the DNR enforcement personnel and WDFW patrol officers to ensure that conflicts with the normal use and operation of public facilities will not occur [EXHIBIT 67, Pg. 107 and Condition 15]. 11. At the public hearing several citizens expressed concerns about the lack of data showing actual biomass of geoducks in individual tracts now sought to be harvested around Bainbridge Island. According to the 2002 Atlas of Geoduck Tracts [EXHIBIT97], the tracts of Battle Point North (Manzanita), Skiff Point, Murden Cove, and Agate Passage were surveyed in 1994 and 1995. The Port Madison Tract was last surveyed in 1975. The number, biomass and density estimates included in the Atlas have been adjusted to account for subsequent fishing. Post fishery assessment of the tract will be made once the tract has reached a 65-80 percent depletion level. A recovery study will then be done on the tract. 12. Environmental assessments have been done by the WDFW for the Murden Cove, Skiff Point, Agate Passage and Battle Point tracts. Those specific assessments are available from WDFW in Olympia. 13. Additional concerns were voiced at the hearing regarding dangers from the transport of sediments to Murden Cove from harvest sediment plumes. The SEIS [EXHIBIT 68] discusses the transport and fate of the suspended sediment plumes associated with commercial geoduck harvesting. The report concludes that the transport and fate of suspended sediment associated with commercial geoduck harvesting will have minimal impacts on the physical environment in the harvest tracts and adjacent areas [See Appendix 4, Pg. 8-3]. The numerical model run by Ebasco Environmental shows that the amount of material that could be deposited in the intertidal zone, even under the worst case conditions, would be extremely small. The SEIS suggests that additional work is needed to confirm the limited impact of sediment plumes generated during the geoduck harvest [EXHIBIT 67, Pg. 7]. 14. On Wednesday, May 21, 2003, a Public Hearing was held before the Hearing Examiner to consider the application. Prior to the hearing, notice was published in the Bainbridge Review on April 26, 2003, notice of the public hearing was mailed to the owners of property within 300 feet SSDP/SCUP04-29-99-1 Hearing Examiner WSDNR City of Bainbridge Island Page -5- of the proposed project on April 21, and notices were posted at the City Hall, the Chamber of Commerce, and the Ferry Terminal on April 18, 2003. Notice was posted near the shorelines adjacent to the identified tracts on May 6, 2003 [EXHIBIT 90]. CONCLUSIONS OF LAW 1. This application for Shoreline Conditional Use Permit is properly before the Hearing Examiner under jurisdiction established in BIMC 16.12.380(C)(4)and BIMC16.12.180. Adequate legal notice was given of the public hearing held on this application on May 21, 2003. A Shoreline Substantial Development Permit is required for these harvesting activities. 2. The Washington State Department of Natural Resources (WSDNR) is the lead agency for an Environmental Impact Statement (EIS) which discussed the probable environmental impacts from geoduck harvesting on Hood Canal and in Puget Sound. The DNR issued an ElS in 1985 and updated that EIS with addenda in succeeding years. A final Supplemental ElS was issued by the Department on May 23, 2001, as required by RCW 43.21.C030(2)(c). This final SEIS was adopted by the City of Bainbridge Island in April 2003 as the SEPA review for the current application. Additional environmental assessments on each tract proposed for harvest will be made by the Washington State Department ofFish and Wildlife (WDFW) prior to the beginning of contract harvesting. The site specific assessments have been conducted for the Murden Cove, SkiffPoint, Agate Passage and Battle Point tracts. Environmental assessment for the Port Madison tract will be required prior to harvesting. 3. BIMC 16.12.170(B)(28) requires that the applicant show that the proposed harvesting operation will not harm fish or shellfish resources. The SEIS and its appendices [EXHIBITS 67 and 68] demonstrate that the geoduck harvest does not have significant long term adverse impacts on the benthic environment and on non-geoduck flora and fauna in the individual tracts. The geoduck biomass on individual tracts is temporarily reduced and the total harvestable geoduck biomass will eventually be permanently reduced by these harvesting program. The biomass of geoducks available to the commercial fishery represents less than a quarter of the total geoduck biomass estimate in the State. Scientific literature, cited in the SEIS and its appendices, concludes that the total commercial biomass of harvestable geoducks will eventually be reduced to between 40 and 62 percent of the unfished total geoduck biomass available before harvesting. Scientific literature cited in the SEIS suggests that this is adequate to maintain a sustainable SSDP/SCUP04-29-99-1 Hearing Examiner WSDNI~ City of Bainbridge Island Page -6- fishery. The harvest of individual geoducks by divers using hand held water jets has been determined to be the most environmentally benign method of harvest currently available. A geoduck survey of each tract is completed prior to State and Tribe harvest. Tracts which have been fished down may not be refished until a new survey demonstrates that the geoduck density has reached or exceeded the prefishing density. Annual regional harvest quotas are limited to 2.7 percent of the commercial biomass, pursuant to an agreement between the State and the Tribes. The SEIS also considered potential impacts to fish and other shellfish resources in the area. A 2- foot vertical buffer, or a minimum 1 gO-foot buffer is maintained between the geoduck harvest area and any eel grass beds or any substrate used for Herring spawning. During pre-harvest surveys tracts are inspected for important fish habitat. The presence of different species of marine fish are noted on a transect by transect basis. This data is included in the environmental assessments made by the WDFW. If spawning areas or other important habitats are present, these areas may be closed to harvest or closed seasonally during spawning periods or other critical times. Geoduck harvest is not allowed during the spawning period offish such as Pacific Cod or English Sole in areas known to be used for spawning [EXHIBIT67, Pg's 90 and91]. Mitigation measures taken by the DNR will help ensure protection of endangered fish stock and other shellfish resources. 4. A SCUP may be granted only after the applicants have demonstrated compliance with the requirements listed in BIMC 16.12.3 g0 (C)(1).Each of those conditions have been addressed by this application and its supporting environmental documents. 5. BIMC 16.12.380 (C)(1) states: Uses class~ed as conditional uses may be authorized; provided, that the applicant can demonstrate all of the following: a. The proposed use will be consistent with the policies of RCW 90.58. 020 or its successor and the policies of the master program. These policies seek protection for the resources and eco-systems on the shoreline by preserving the natural character of the shoreline. The harvesting activities proposed by DNR allow use of a renewable resource at a sustainable level which provides for environmental protection while generating significant revenue for the State of Washington. Harvesting is not allowed in areas where harvesting activities would result in significant long term adverse impacts to the aquatic environment. Geoduck tracts which have been fished out may not be refished until a new survey demonstrates that the geoduck density in that tract has reached or exceeded prefishing density. Annual regional harvest quotas are set by the State and the Tribes to ensure that a sustainable fishery is maintained. The geoduck harvest does not have significant long term adverse impacts on the benthic environment or on the non-geoduck flora and fauna in the harvest SSDP/SCUP04-29-99-1 Hearing Examiner WSDNR City of Bainbridge Island Page -7- area, according to the studies included in the SEIS. Public use of the public shoreline will not be significantly impacted by these harvesting activities, since all harvesting operations will take place in aquatic lands no closer than 200 yards from the shoreline. Shoreline sediment dritt processes should not be affected by these activities. While sediment plumes will be generated by harvesting techniques, the transport of suspended sediment associated with this geoduck harvesting will have minimal impacts on the physical environment in the harvest tracts and in adjacent areas [See Appendix 4 to the SEIS, Pg. 8-3]. Harvest vessels are required to use motor noise dampening devices to minimize noise impacts on surrounding land and water uses. The harvest activities are also limited to daylight hours on Monday through Friday and will not be operated on weekends or on State holidays. No processing of the geoducks will be done in the City of Bainbridge Island. No pollutant discharge from harvest vessels is permitted by this application. The DNR will have compliance and enforcement vessels on site during all harvesting activities to ensure compliance with State and local regulations. These harvesting activities, if conducted as proposed, will comply with the policies of the State and City Shoreline Management Master Programs. 6. BIMC 16.12.380 (C)(1) states: Uses classified as conditional uses may be authorized; provided, that the applicant can demonstrate all of the following: b. The proposed use will not interfere with the normal public use of the public shoreline. All harvesting activities will be conducted in aquatic bedlands located between minus 18- feet MLLW to minus 70-feet. State harvests will be conducted at locations which are a minimum of 200-yards from the shoreline. Public boat ramps may be used by harvest contractors to access geoduck tracts around the island. Five different identified tracts will be fished under this proposed permit. Conditions will be attached to the permit which limit the number of harvesting vessels working in an area at the same time. There may be minor interference with recreational boating on the shoreline during harvest activities. Diver locations will be clearly marked to avoid conflicts with recreational boaters. Noise levels generated by the harvest vessels and diving equipment will be monitored to ensure compliance with State and City noise regulations. During all State harvest operations, DNR enforcement crews monitor sound levels with hand held noise meters to ensure that vessels do not exceed maximum allowed noise levels. The harvesting vessels will be visible from the shore, however, no vessel will be allowed to anchor closer than 200-yards from the shoreline. The presence of harvest vessels will not create a significant aesthetic visual impact for users of the public shoreline. The normal public use of the public shoreline will not be significantly disrupted by these harvesting activities. 7. BIMC 16.12.380 (C)(1) states: Uses classified as conditional uses may be authorized; SSDP/SCUP04-29-99-1 Hearing Examiner WSDNR City of Bainbridge Island Page -8- provided, that the applicant can demonstrate all of the following: ... (c) The proposed use of the site and design of the project will be compatible with other permitted uses within the area. The SEIS discusses, at length, possible impacts on residential and recreational use of the shoreline. Geoduck harvest is conducted off-shore and is a temporary activity, so that impacts to the built environment along the shoreline is limited. Conditions will be attached to the permit that require cellular phones on contract compliance vessels to allow shoreline residents to contact DNR and the WDFW regarding complaints about activities during the harvest. The harvest activities will be conducted under water. The temporary alterations to the substrate habitat will not be visible from the shoreline. Restrictions on noise levels generated by harvest vessels will help protect shoreline residents' peaceful enjoyment of their surroundings. Harvest activities will be limited to daylight hours from 8:00 a.m to 4:00 p.m. on Monday through Friday, to help minimize impacts on shoreline residents. Studies cited in the SEIS conclude that the geoduck harvest will not have significant adverse long term impacts on the benthic environment, or on the non geoduck flora and fauna in the harvest area. Additional Studies are being conducted to determine the post harvest recovery ofgeoduck populations and possible effects on other marine flora and fauna. The managing agencies and Tribes have the authority and flexibility to apply site specific restrictions on the geoduck harvest, to control potential impacts or conflicts unique to any harvest site. The pre-harvest surveys conducted by the WDFW identify specific habitat concerns. These pre-harvest surveys are included in the environmental assessment completed by WDFW prior to the State harvest. A geoduck survey of each tract is used to estimate the geoduck biomass available for harvest. Careful monitoring of harvest operations will help ensure compliance with permit conditions. These harvesting operations, if conducted as conditioned, will be compatible with other permitted uses within the area. 8. BIMC 16.12.380 (C)(1) states: Uses classified as conditional uses may be authorized; provided, that the applicant can demonstrate all of the following: ... (d) Ihe proposed use will cause no unreasonably adverse effects to the shoreline environment designation in which it is located The areas ofgeoduck harvest are all waterward of the extreme low water line and are on shorelines of statewide significance. The DNR and the WDFW have prepared a Supplemental ElS to update scientific information related to the geoduck harvesting. These studies have been included in the appendices to the SEIS. This analysis has been made available for public review to assure compliance with local, state and federal environmental policies. The SEIS has concluded that the geoduck harvest does not have any significant long term adverse impacts, other than the reduction of the local geoduck population. Population models predict that the total commercial SSDP/SCUP04-29-99-1 Hearing Examiner WSDNP, City of Bainbridge Island Page -9- biomass of harvestable geoducks will eventually be reduced to between 40-62 percent of the unfished level. According to the WDFW, scientific literature suggest that this level is adequate to maintain a sustainable fishery. In addition to the information compiled for the SEIS, the WDFW will also complete an environmental assessment of each identified tract before harvesting operations are allowed. The information contained in this environmental assessment will be used to place restrictions or limitations on harvest activities if required to protect fish habitat or spawning areas located in the vicinity. Buffers are established on tracts located in, or adjacent to areas of Herring spawning. Seasonal limitations on harvest activities also may be required to protect the spawning period for other important fish known to use the harvest areas. If conducted as proposed, these geoduck harvesting activities will not have significant long term adverse effects on the aquatic environment. 9. BIMC 16.12.380 (C)(1) states: Uses class~ed as conditional uses may be authorize& provided, that the applicant can demonstrate all of the following: ... (e) The public interest suffers no detrimental effect. This geoduck harvesting is conducted as a revenue generator for the State of Washington. Beneficial impacts of the geoduck fishery include direct employment of approximately 50-60 people, marketing of about 4 million pounds ofgeoducks annually, positive international trade, and between 5 and 7 million dollars per year of revenue. The revenue generated from Washington's commercial geoduck fishery provides funding for the following programs: 1) clean up and restoration of contaminated sediment in the Puget Sound, 2) inventory of all near shore aquatic habitat in Puget Sound, 3) control of the invasive aquatic weed "Spartina," 4) geoduck fishery management and harvest compliance programs, 5) State and Tribal shellfish negotiations, 6) operating and capital improvement monies for WDFW, including intertidal shellfish enhancement, and 7) grants to local governments for purchase, development and restoration of aquatic lands for public access and salmon habitat restoration [EXHIBIT67, Pg. 4 and5]. Since the proposed use will cause no significant long term adverse effects to the shoreline environment, the public interest will suffer no substantial detrimental effect from these geoduck harvesting activities. 10. BIMC 16.12.380 (C)(1) states: Uses classified as conditional uses may be authorized; provided, that the applicant can demonstrate all of the following: ...(/) The proposed use is consistent with the provisions of the zoning ordinance and the comprehensive plan. The Comprehensive Plan goals and policies which apply to properties adjoining or adjacent to critical areas are included in the StaffReport on pages 9, 10 and 11. The harvesting methods SSDP/SCUP04-29-99-1 Hearing Examiner WSDNR City of Bainbridge Island Page -10- required by the DNR are the most environmentally benign method currently available, according to the SEIS. Harvest vessels are required to modi~' their noise emissions to comply with State regulations for activities adjacent to residential areas. The State agencies will continue to conduct research and monitor the impacts of the geoduck fishery. Addenda will be attached to the ElS to reflect new science related to the industry~ Temporary damage to the benthic environment will naturally repair itself over a period of months after the harvest. The harvesting of aquatic life is a resource function which will help retain local aquaculture development. While sediment plumes associated with the geoduck harvest will temporarily impact marine water quality, this impact should have no long term significant adverse impacts on the shoreline environment, according to current studies cited in the SEIS. Water quality will be periodically monitored during harvest activities. Aquaculture activities are allowed in the aquatic environment in compliance with BIMC regulations. The proposed harvesting ofgeoducks in the tracts identified as Murden Cove, SkiffPoint, Port Madison, Agate Passage and Battle Point is a use of these aquatic lands which is consistent with the provisions of the Zoning Ordinance and Comprehensive Plan. This geoduck fishery has previously been permitted by the City. New environmental studies included in the updated SEIS prepared by the State support the continued use of State aquatic lands for geoduck harvesting. 11. To ensure compliance with the provisions of the Comprehensive Plan and BIMC, certain conditions must be attached to this SCUP. Those conditions are as follows: 1. HARVEST WITHIN MAXIMUM SUSTAINED YIELD. a. The Washington State Department of Natural Resources (DNR) and Washington State Department of Fish and Wildlife 0NDFW) shall provide copies of all information and research regarding the geoduck fishery available to the City of Bainbridge Island as such information is generated and published. (The WDFW Geoduck Tract Atlas is published annually.) SSDP/SCUP04-29-99- I Hearing Examiner WSDNR City of Bainbridge Island Page -1 l- b. The agreed sustained yield rate for statewide management of geoduck clams is an average of 2.7 percent of commercial geoduck biomass per year. WDFW is investigating the regeneration rate of geoduck beds and may produce data that changes the statewide annual regional harvest quotas and alters the agreed sustainable yield rate either on a statewide, individual tract, or biological region basis. If WDI%V determines a different harvest rate is needed for a sustainable geoduck fishery, then future DNR geoduck sales under this permit shall not exceed the newly adopted sustainable yield rate. If WDFW determines a new harvest rate for different biological regions, then further DNR geoduck sales under this permit shall not exceed the appropriate regional sustainable yield rate. c. When calculating whether geoduck sales meet either a state or regional harvest rate, or a harvest rate for a biological region, the pasl four years of geoduck sales shall be averaged. For example, a particular year could exceed total allowable catch, as long as averaged geoduck sales for the past four years do not exceed the total allowable catch required to maintain a sustainable geoduck fishery. 2, MAXIMUM HARVEST FROM EACH BED. a. No more than 80 percent of the geoduck population shall be harvested from each bed or identified tract. b. DNR shall provide the City with documentation of the number of pounds of harvested geoducks taken from each tract at the end of each individual contract period during the harvest. It is understood that the harvest period will vary in length from 30 to 120 days. 3. CONTRACT COMPLIANCE BY DNR. DNR shall maintain its current daily monitoring of geoduck harvesting to enforce terms of its contract with harvesters, to enforce the inner boundary of harvest areas (-18 feet below 0 water, minimum 600 feet from shore), and to enforce the noise control requirements of its contract. DNR shall not reduce its contract compliance program in the City of Bainbridge Island except after consultation and agreement with the City of Bainbridge Island. Copies of DNR harvest contracts including compliance provisions, shall be provided to the City of Bainbridge Island prior to harvest activities under each contract. 4. PHONE CONTACT. DNR shall maintain a cellular phone on its contract compliance vessel and publicize appropriate phone numbers to allow shoreline residents to contact DNR and its compliance vessel and the WDFW patrol. SSDP/SCUP04-29-99-1 Hearing Examiner WSDNR City of Bainbridge Island Page -12- 5. LOG COMPLAINTS AND COMPLIANCE. DNR shall keep a log of all complaints and compliance activity regarding harvest activities in the City of Bainbridge Island and make such information available to the City. 6. EELGRASS. DNR shall not sell harvest rights to take geoduck clams from any land that WDFW has identified as an eelgrass bed. a. In geoduck areas with adjacent eelgrass beds, the shoreward boundary of the area will be no shallower than that set by RCW 75.24.100 and no shallower than 2 vertical feet seaward of the deepest eelgrass present. b. Because eelgrass exists in the Agate Passage area, the shoreward harvest area boundary in this area shall be no shallower than the -20 foot contour (MLLW). c. Because eelgrass exists between Skiff Point and Fay Bainbridge State Park, the shoreward harvest boundary in this area shall be no shallower than the -22 foot contour (MLLW). 7. HERRING SPAWNING. a. DNR shall not allow geoduck harvesting to occur during herring spawning season in an area identified as herring spawning ground in WAC 220-110-260, or if identified as a herring spawning ground by WDFW. b. No geoduck harvesting shall be permitted in the Agate Passage area between December 1 and April 30 due to rock sole, Pacific cod and herring spawning seasons. 8. STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES (DSHS). No harvesting shall occur in any area not duly certified by DSHS or the State Department of Health for water quality. 9. NOISE CONTROL. DNR shall include in the harvesting contract requirements that noise generated by geoduck harvesting activities not exceed 50 dBA when measured 600 feet from the vessel. 10 TIME OF HARVEST. Harvest shall not exceed seven working hours per day, and those seven hours per day will be between 8 a.m. and 4.00 p.m. No harvesting will be allowed on Saturdays, Sundays or State holidays. 11. DNR shall provide the City of Bainbridge Island with a copy of the pre-harvest environmental assessment made by WDFW on the Port Madison Tract, the Skiff Point Tract, the Murden Cove Tract, the Battle Point (Manzanita) Tract, and the Agate Passage Tract. These Environmental Assessment Reports shall be submitted to the City of Bainbridge Island prior to any harvesting activities under this Shoreline Conditional Use Permit. SSDP/SCUP04-29-99-1 Hearing Examiner WSDNR City of Bainbridge Island Page -13- 12. EXPIRATION. The shoreline substantial development permit shall expire five years from dale of issuance. A new permit shall be required for continued geoduck harvesting. 13. MAXIMUM NUMBER OF HARVEST VESSELS ON THE HARVEST AREAS. a. No more than 15 harvest vessels shall be permitted on the combined Kitsap County and Bainbridge Island harvest areas in Agate Passage at any one time. b. No more than 10 harvest vessels shall be permitted on the combined harvest areas on either the east or on the west side of Bainbridge Island at any one time. 14. The release of oil, chemicals, or other hazardous materials onto or into the water is prohibited. Equipment for the transportation, storage, handling, or application of such materials shall be maintained in a safe and leak-proof condition, ff there is evidence of leakage, the further use of such equipment shall be suspended until the deficiency has been satisfactorily corrected. 15. The use of public ramps, docks and marinas as off-loading locations shall not cause conflicts with the normal use and operation of the public facilities. DECISION A Shoreline Conditional Use Permit is granted to the Washington State Department of Natural Resources to allow geoduck harvesting in the Battle Point (Manzanita), Port Madison, Agate Passage, SkiffPoint and Murden Cove geoduck tracts, as identified in the application. This Shoreline Substantial Development Permit and Conditional Use Permit is granted subject to the conditions listed in Conclusion of Law No. 11 above. Dated this 8thth day of September, 2003 Robin Thomas Baker Hearing Examiner Pro Tem SSDP/SCUP04-29-99-1 Hearing Examiner WSDNR City of Bainbridge Island Page - 14- APPEAL This decision will be forwarded to the Washington State Department of Ecology and the Washington State Attorney General within eight days of the date of the Decision. This decision may be appealed through the procedures set forth in BIMC 16.12.380(C)(7) and (8). SSDP/SCUP04-29-99-1 Hearing Examiner WSDNR City of Bainbridge Island