100809_DNR_GEODUCK_HEX_DECISIONBEFORE THE HEARING EXAMINER
FOR THE CITY OF BAINBRIDGE ISLAND
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION
SUMMARY
Applicant: Washington State Department of Natural Resources
C /O: Celia Barton
1111 Washington Street SE
P. O. Box 47027
Olympia, WA 98504
File No: SSDP /CUP15615
Request: Shoreline Substantial Development and Conditional Use Permit
Location: Approximately 709 acres of subtidal bedlands in four general areas
around the perimeter of Bainbridge Island: Battle PointNorth/
Manzanita (306 acres), Restoration Point (141 acres), Murden
Cove (222 acres), and Skiff Point (40 acres).
Shoreline
Environment: Aquatic /Shorelines of Statewide Significance
Summary of
Proposal: To harvest wild geoducks from state owned subtidal bedlands
bordered by elevations -18 to -70 feet below 0 tide. Harvest areas
will be leased to commercial harvesters who use boats between
25 and 70 feet long with a normal crew of two divers and a tender.
Harvesting is requested to occur between 8:00 a.m. and
4:30 p.m. Monday through Friday, except for state holidays.
Permission to harvest is sought on a year around basis, but will
generally be carried out in a 60 day harvest window in any area,
predominantly in the fall or winter. Communications between
divers and vessels will primarily use a new low volume in -ear
system. Deck speakers employed in the past will be used only as a
backup. Noise from boats will be limited to 50 dBA at 200 yards
from the source. The permit will expire in five years.
Public Hearing: The Hearing Examiner conducted a public hearing on due notice
on September 17, 2009.
Decision: The application is approved, subject to conditions.
FINDINGS OF FACT
1. The Washington State Department of Natural Resources (DNR) seeks a
Shoreline Substantial Development and Conditional Use Permit to authorize the
harvesting of wild geoducks from state -owned tidelands around Bainbridge Island for a
period of five years.
2. The harvesting will take place on four subtidal tracts totaling approximately
709 acres. They are: Battle Point North/Manzanita (306 acres), Restoration Point (141
acres), Skiff Point (40 acres), and Murden Cove (222 acres).'
3. Although the permit seeks permission for harvest year- around, harvesting will
likely be predominantly confined to the fall and winter seasons. Generally a 60 -day
harvest window will be used in each area. Harvesting will not occur in all five areas in
any one year.
4. Harvesting will be conducted by commercial operators who secure leases from
DNS to operate in the assigned harvest areas. Harvesting hours will be during weekdays
(exclusive of state holidays) between the hours of 8:00 p.m. and 4:30 p.m. Boats
involved in the harvest operations will generally be between 25 and 70 feet long and the
operations will normally involve three persons — two divers and a tender. The boats will
anchor at least 200 yards offshore.
5. Harvest operations will take place underwater from subtidal lands between -18
and -70 feet below 0 tide. Compressors on board will supply oxygen to the divers and
willpower water jets. The water jets, approximately 18 -24 inches long with a 5/8 inch
diameter nozzle, will be used to liquefy the substrate around a geoduck. Up to 800
geoducks per day can be harvested on a high- density commercial tract under good digging
conditions.
6. The uplands adjacent to the harvest areas are in residential zones. In the past,
harvest operations have generated noise complaints. Under the present harvest proposal,
communications between diver and boat will be via a new type of radio system that
transmits to in -ear receivers. Deck mounted speakers will be allowed only as a back up
system. For shoreline residents, this should eliminate the sound of the rhythmic breathing
of divers which has been disturbing to some in the past. Harvest vessels are required to
use motor noise dampening devices. Noise from boats, compressors and pumps may not
exceed 50 dBA at 200 yards. The State will monitor the site to insure that the noise limits
are being met.
' Harvest in Murden Cove began in 1996 and is on- going. Because of prior harvesting activity, harvest in
Murden Cove under the subject permit will be limited and may not occur at all. The Port Madison Tract
was originally part of the application but has been removed and placed in recovery status.
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7. The maximum number of vessels allowed at any one time shall be 15 for the
combined Kitsap County and Bainbridge Island harvest area in Agate Passage. No more
that 12 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.
8. The harvested geoducks will be reported and weighed in the presence of DNR
staff members. Unloading will occur be at pre- approved marinas or boat ramps. No
processing will take place onboard the harvest boats. The geoducks will be transported
from the boats to processors or to market .2 Moorage for harvest vessels will be at
locations other than harvest areas. No upland development is proposed or associated
with the proposed harvest operations.
9. The overall geoduck harvest is managed by both the State and various Tribal
resource managers, under a Harvest Management Plan that currently runs through March
31, 2010. The Tribes are entitled to take 50 percent of the harvestable geoducks within
their usual and accustomed grounds and stations. An allocation model agreed to by the
State and Tribes allows an annual harvest rate of 2.7 percent of the total commercial
biomass. The commercial biomass consists of 27 percent of the total geoduck biomass
in Washington State. The 2.7% harvest is predicted to preserve 35 -40% of the remaining
spawning potential of the population.
10. Geoducks are allowed to regenerate naturally and, as managed, the geoduck
population is expected to sustain itself at historic levels. The harvest is rotated around
the Puget Sound from year to year. Once a site is harvested, it will not be harvested
again until surveys show that it has regenerated.
11. The instant permit application relates only to the State - managed portion of
the harvest. The State geoduck harvest program is operated cooperatively by the DNR
and the Washington State Department of Fish and Wildlife (DFW). In general, DFW
handles the biological evaluation of sites and DNR manages the leasing of the subtidal
beds and policing of operations.
12. The State commercial geoduck fishery harvested between 1.7 and 2.2 million
pounds of geoducks annually between 2000 and 2006, while taking less than the State's
share of the 2.7 %. The harvest has generated an average of about $8 million in annual
revenue for the State, which has been used for, among other things, recreation and aquatic
lands enhancement. One of the programs funded by geoduck revenues involves
the enhancement and protection of eelgrass beds.
13. Environmental review for the subject applications has been exhaustive. A
Final Supplemental Environmental Impact Statement for the State Commercial Geoduck
Fishery was issued by DNR and DFS in 2001. The SEIS was not appealed. The City of
Bainbridge Island (City) adopted this document in its review of the subject application on
August 8, 2009.
2 Most of the geoduck harvested are sold live to buyers in Asia,
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14. The DFW performs three separate surveys of each harvest area. An initial
survey is done to identify subtidal beds suitable for geoduck harvest and to locate eelgrass
beds and other sensitive areas. A second survey about a year before harvest inventories
the geoduck population, studies the substrate, and identifies the other features of the
biota. The first two surveys provide information for establishing fishing boundaries and
harvest times. A third survey occurs after each harvest is completed, re- inventorying the
geoduck populations and looking at effects on other plants and animals.
15. For the subject permit, a separate Environmental Assessment was prepared
for each of the harvest areas proposed. These were derived from biological field work by
scuba divers who systematically explored the seabed, transect by transect. The work
included counts and samples from which the density and average weight of geoducks
were derived, observations of the substrate types, and identification of the other plants
and animals in each area.
16. The Environmental Assessments led to an overall conclusion that no
significant adverse impacts are expected from the proposed harvest in any of the areas
studied. In general, the habitat for geoducks and pelagic fish are distinct. No
interaction between the harvest activity and salmon is expected because the harvest areas
are deeper than juvenile rearing areas and migratory corridors. Some herring spawning
areas were identified in the Skiff Point and Manzanita tracts, and limitations will be
instituted there to prevent conflicts. In herring spawning areas geoducks may not be
taken above -25 feet at any time and not above -35 feet during spawning. Eeelgrass beds
are excluded from geoduck harvest areas. A buffer of two vertical feet (or around 180
horizontal feet) is established around eelgrass, meaning that geoduck harvest may occur
only in areas two feet deeper than the deepest eelgrass. Dungeness crabs occur in parts of
three of the proposed harvest tracts, but it is predicted that crabs will not be significantly
disturbed by the harvest activities. No adverse impacts on marine mammals and sea
birds are expected.
17. The Washington State Department of Health (DOH) conducts a separate
review to ensure that State and Federal water quality standards are met and that harvested
geoducks are safe for human consumption. Prior to harvest each of the tracts must be
certified as "approved" by DOH.
18. Harvest areas will be marked with orange buoys prior to harvesting activities.
DNR enforcement personnel will closely monitor the activities. Each harvest vessel
will receive permission to go out. DNR will observe anchor changes and ensure that
harvest occurs only within the marked areas at appropriate depths. DNR will have divers
on site with underwater cameras. As noted, noise levels will also be monitored.
19. Under the local shoreline master program (SMP), the general regulations for
avoidance of environmental impacts require protection of water quality, control of
pollutant discharges, control of hazardous material releases, minimizing of adverse
impacts to fish and wildlife, non - interference with natural shoreline processes,
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minimizing adverse impacts on surrounding land uses, and avoidance of hazards to public
health and safety. See BIMC 16.12.140. On the record made, the proposed activities
comply with these requirements. Disturbance of water quality will be limited to
temporary sediment plumes associated with harvesting. These will rapidly settle out.
Pollutant discharges and chemical releases are not proposed or permitted. They are
unlikely to occur. Comprehensive surveys disclose little likelihood of adverse impacts to
fish and wildlife. Natural shore processes will be unaffected. Noise controls should
prevent adverse impacts to residences in the vicinity. DOH monitoring will insure that
public health is protected.
20. All of the harvest tracts are within the Aquatic Environment under the SMP.
Management policies for this environment prohibit non water dependent structures and
uses, encourage aquaculture on suitable beds, encourage protection of fishing and water
recreation, and call for minimizing interference with surface navigation and fish
migration. See BIMC 16.12.140. On the record made, the proposed activities comply
with these requirements. No structures are proposed. Harvest areas have been carefully
selected by experts. Multiple use of the areas may continue. Surface interference with
navigation will be minimal.
21. The harvest activities area form of aquaculture. As such, harvesting is
allowed as a shoreline conditional use in the Aquatic Environment. Detailed
requirements for the contents of aquaculture applications have all been complied with.
Substantive requirements for aquacultural development have likewise been met. See
BIMC 16.12.170. The approval of this application will not result in damage to any
established aquacultural enterprise. No wildlife refuges or habitats of significance for
birds of mammals have been identified within the areas of proposed harvest. Harvesting
is not proposed in existing kelp beds or eelgrass beds. Temporary disruption of the
substrate will repair itself and not result in significant adverse impacts.
22. Shoreline conditional use criteria require that uses be consistent with the
policies of the Shoreline Management Act and the policies of the SMP; that proposed
uses not interfere with normal public use of public shorelines; that proposed uses be
compatible with other permitted uses in the area; that the proposed uses cause no
reasonable adverse impacts to the shoreline environment designation; that the public
interest suffers no substantial detriment; and that the proposed use is consistent with the
provisions of the applicable zoning ordinance and Comprehensive Plan. See BIMC
16.12.380. On the record made, the proposal meets these criteria. Compatibility is
shown by the minimal impact on navigation, residential uses, recreation and the existing
biota. The public interest is served by the generation of income for both the State
and private enterprises.
23. The Staff Report contains a thorough review of the proposed activities in
light of the Comprehensive Plan's goals and policies, concluding that the proposal is
consistent with the Plan. (See Staff Report, pages 10 -12.) The Hearing Examiner
concurs with this analysis and adopts the same. The Staff Report is by this reference
incorporated herein as though fully set forth.
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24. By definition water lying seaward of the line of extreme low tide are
classified as Shorelines of Statewide Significance. Under the policies of RCW
90.58.020 and the SMP, preference shall be given to uses on such shorelines, in the
following order of preference: (1) Recognize and protect the state -wide interest over local
interest; (2) Preserve the natural character of the shoreline; (3) Result in long term over
short term benefit; (4) Protect the resources and ecology of the shoreline; (5) Increase
public access to publicly owned areas of the shorelines; (6) Increase recreational
opportunities for the public in the shoreline.
25. On the record made, the proposal affirmatively conforms to the top four of
these preferences and does not cause interference with the lower ranked two. The permit
fits into a statewide program of geoduck management through a minimally invasive
harvesting program that effectively preserves natural features. Over the long term the
benefit is the sustainable maintenance of a renewable resource. The ecology of the
shoreline will not be seriously disturbed.
26. At the hearing six citizens testified to their concerns about the proposed
geoduck harvesting operations. Principally they were concerned with noise,
enforcement, duration of operations, sustainability of the resource, and impacts on birds,
mammals and marine life. The program experts testifying for DNR and DFW
effectively answered these concerns. They pointed out that the harvesting program of the
Tribes is under separate jurisdiction and not covered by the subject permit. A list of
numbers of call to report enforcement complaints was distributed. The probable
annual duration of operations was explained. Information on sustainability and impacts
was reiterated. Noise was discussed specifically and, it was emphasized that the latest
communications equipment does not use deck mounted speakers.
27. DNR has stated that geoduck harvest has been conducted in the State for
over 30 years without significant adverse environmental impact. Taking the instant record
as a whole, the Examiner finds that the subject harvest operations have been meticulously
planned and that, on the whole, the activity proposed is likely to be environmentally
benign. The Examiner finds that noise concerns have been addressed adequately through
provisions for new equipment, the setting of standards, and the commitment to
monitoring.
28. The Staff recommends approval of the application with a permit duration of
five years — the normal time for a completion of a shoreline development. They point
out that prior permits for such harvest activities have been granted by the City and that the
experience under these permits has, in general, been good. The City has recommended
fourteen conditions of approval which the Examiner has decided to adopt.
29. Any conclusion herein which may be deemed a finding is hereby adopted as
such.
CONCLUSIONS OF LAW
1. The Hearing Examiner has jurisdiction over this proceeding.
2. The requirements of SEPA have been met.
3. The proposed harvest activity is a substantial development under the Shoreline
Management Act. RCW 90.58.030(3)(e). As such, it requires a Shoreline Substantial
Development Permit. By virtue of the SMP it also requires approval as a shoreline
conditional use. BIMC 16.12.170.
4. A substantial development can be permitted when consistent with the
applicable master program, the policies of the Shoreline Management Act, and the permit
rules of the Department of Ecology. See WAC 173 -27 -150. The instant proposal meets
these criteria.
5. In the instant case, the SMP for Bainbridge Island satisfactorily implements
the policies of the statute. Under the facts found above, the proposal, as conditioned, is
consistent with this local SMP, including provisions for Shorelines of Statewide
Significance. No inconsistency with provisions of Ecology's permit regulations has
been identified. Accordingly, the proposal, as conditioned, meets the requirements for
issuance of a Shoreline Substantial Development Permit.
5. Under the facts found above, the proposal, as conditioned, is consistent with
the criteria of BIMC 16.12.380 and therefore meets the requirements for the issuance of
a Shoreline Conditional Use Permit.
such.
6. Any finding herein which may be deemed a conclusion is hereby adopted as
CONDITIONS
1. Harvest within an equilibrium harvest rate.
a. The Washington State Department of Natural Resources (DNR) and
Washington State Department of Fish and Wildlife (DFW) shall make
continuing information regarding geoduck surveys and biomass
available to the City of Bainbridge Island when such information is
generated and published.
b. The equilibrium harvest rate for statewide management of geoduck clams
is 2.7 percent of fishable geoduck stocks per year. DFW is investigating
the regeneration rate of geoduck beds and may produce data that changes
the statewide yield (or quota), either on a statewide rate, or with rates
applicable to biological regions of the state. If DFW determines a
different harvest rate on a statewide basis, then future DNR geoduck
sales on a statewise basis shall not exceed the changed statewide yield
(or quota). If DFW determines geoduck yield for different biological
regions, then further DNR geoduck sales on a regional basis shall not
exceed the appropriate regional yield (or quota).;
2. Maximum harvest from each bed.
a. No more than 80 percent of the geoduck population shall be harvested
from each tract.
b. Monthly statistics on the number of geoducks harvested from the harvest
areas shall be available to the City upon request.
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 boundary of harvest areas and to enforce the noise control
requirement of its contract. The shallow water boundary of any tract shall be no
less than -18 feet (below 0 water) and the deepwater boundary shall be -70 feet
(below 0 water).
a. Regardless of any depth restrictions, vessels conducting operations must
remain seaward of a line two - hundred (200) yards from and parallel to the
ordinary high tide. Divers may harvest up to the shallow water boundary
as determined by DFW.
b. DNR will require a non hailer diver -to- tender communication system.
The hailer system shall be used only in cases of emergency failure.
Vessels shall not be allowed to return to harvest until the primary non
hailer system is functional.
c. 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.
4. Phone contact. DNS 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 DFW patrol.
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 upon request.
6. Eelgrass. DNR shall not sell harvest rights to take geoduck clams on any
land that DVW has identified as an eelgrass bed.
a. In geoduck areas with adjacent eelgrass beds, the shoreward boundary
of the area shall be not shallower than that set by RCW 77.60.070 and
no shallower that two (2) vertical feet seaward of the deepest eelgrass
present.
b. 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 /Habitat Protection
a. For all tracts — shoreward boundaries of -18 feet mean lower low water
(MLLW).
b. For all tracts — where eelgrass extends deeper than -16 feet (MLLW), a
protection boundary of two (2) vertical feet deeper than the deepest
occurrence of eelgrass on the tract.
c. For tracts in documented herring spawning grounds — having the tract
either closed to harvest, or harvest restricted to deeper than -35 feet
during the timing window for the herring spawning season.
d. For tracts in documented herring spawning grounds — shoreward
boundaries of -25 feet (MLLW), or where the extent of marine algae
coverage is determined by survey, a protection boundary of two
vertical feet beyond the deepest occurrence of preferred marine algae
within the tract.
e. DNR will provide for all habitat protection requirements as identified by
DFW in the Environmental Assessment reports for each tract.
f. DNR will manage the fishery to meet ESA habitat protection measures
required by the National Marine Fisheries Service Permit 1608 and the
United States Fish and Wildlife Service Permit PRT-TE 1878 10-0.
8. The Washington State Department of Health (DOH). No harvesting shall
occur in any area not duly certified by the State Department of Health.
9. Noise control. DNR shall include contract requirements that geoduck
harvesting vessels not exceed 50 dBA measured 600 feet from the vessel.
10. Time of harvest. Harvest shall not exceed eight working hours per day, and
those eight hours shall between 8 a.m. and 4:30 p.m. No harvesting shall be
allowed on Saturdays, Sundays or State holidays.
11. Expiration. The Shoreline Substantial Development and Conditional Use
Permit shall expire five years from the date of issuance. A new permit shall be
required for continued geoduck harvesting.
12. 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 12 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.
13. The release of oil, chemicals, or other hazardous materials onto or into the
water is prohibited. Equipment for transportation, storage, handling, or
application of such materials shall be maintained in a safe and leak -proof
condition. If there is evidence of leakage, the further use of such equipment
shall be suspended until the deficiency has been satisfactorily corrected. DNR
shall maintain an Oil Spill Response Plan which shall be available to the City
on request.
14. 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
The requested Shoreline Substantial Development and Conditional Use Permit is
approved, subject to the conditions set forth above.
DONE this 8th day of October, 2009
Wick Duffo , Hearing Examiner Pro Tempore
NOTE: It is the responsibility of a person seeking review of a Hearing Examiner
decision to consult applicable Code sections and other appropriate sources, including
State law, to determine his/her rights and responsibilities relative to appeal.
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