Tide begins to turn for unregulated aquaculture
Legislature, county council, industry, opposition square up


By Chris Fitzgerald
KP News

Editor’s note: This is the last article in an ongoing series about the geoduck issue on the Key Peninsula. As a conclusion to the series, the KP News, in collaboration with Shellfish Partners and Key Peninsula Community Council, will sponsor a forum on the topic in April. 

 The burgeoning shellfish industry makes no bones about its intention to change the shorelines of Puget Sound and the marine environment. In a letter to the Pierce County Planning Commission in January, Peter Downey, shellfish farmer and local government liaison for Pacific Shellfish Growers Association, wrote: “Private tidelands are misrepresented as residential/recreational beaches. The county must recognize that the primary purpose of privately held tidelands is shellfish farming and not residential recreation… Moreover, shellfish farmers have every right to post these private tidelands and prevent trespass.” 

Throughout the long history of leasehold and privately-owned tidelands involving Washington state agencies — Departments of Natural Resources, Fish and Wildlife, Ecology, Health — there is limited accounting of exactly how many shellfish sites exist, how large they are, and where precisely they are located. Documentable evidence, from estuaries whose courses have been altered by grading for planting beds, to the bottoms of bays where derelict aquaculture gear lies side-by-side with invasive beggiatoa bacteria, threaten inland Puget Sound waters that produce more than half of the world’s geoduck.  A recent slew of applications trying to beat the tide of proposed regulation, and the opposition those applications created, have prompted both the Pierce County Council, and the state Legislature to draft language calling for science and caution.

Last fall, Pierce County Councilman Terry Lee sponsored a call for interim regulations that were researched and drafted by Senior Advance Planner Mike Erkkinen and staff of Pierce County Planning and Land Services. They pulled conditions from recently approved applications, resulting in 43 recommendations to the Peninsula Advisory Commission, which held multiple public hearings on the issue. After public testimony and correspondence pro and con, the PAC made additional recommendations. Those, and PALS’ draft report, were sent to the Pierce County Planning Commission. All the recommendations were drafted into one ordinance sent in mid-February to the county council. Lee expects the full council to discuss the proposed interim ordinance, which includes 25 geoduck-specific regulatory measures, in May. (To obtain a copy of the “Title 20 Shoreline Management Use Regulations” concerning “Chapter 20.24 – Aquacultural Practices,” email Erkkinen at merkkin@co.pierce.wa.us.)

Pierce County Senior Advance Planner Mike Erkkinen speaks during a recent hearing of Peninsula Advisory Commission on proposed interim shoreline regulations that include an extensive list on geoduck farming.

Both Lee and Erkkinen anticipate that passage of any regulation will result in appeal filed by one or both sides. In an interview, Lee said applications submitted prior to the effective date of any new regulation will be grandfathered in under existing shellfish regulations, despite the fact that geoduck farming is a new aquaculture, developed long after current laws went into effect. Any pre-interim regulation vesting “would stay in place,” Lee said, “unless it becomes a health, safety or (public) welfare issue.”

This legislative session, Rep. Pat Lantz sponsored HB-1547, examining geoduck aquaculture techniques and practices. Rep. Bill Eickmeyer sponsored HB-1728, promoting a coordinated shellfish aquaculture regulatory process; a companion Senate bill has also emerged. (For a comparison of the two bills, click here.)

Locally, the battle over geoduck production has been discussed at Key Peninsula Community Plan meetings. Claude Gahard, Lakebay resident and member of the KP Community Planning Board, said, “We need to have a balance here; to see what has happened in the past and what is happening now, to look at this issue through science, not emotion.”

The battle over owners’ property rights continues to be tested. Two Shoreline Substantial Development Permits, filed by Taylor Shellfish Farms on behalf of waterfront owners Meyer and Stratford for geoduck farming on their tidelands, received approval, with conditions, last November. Immediately, both Taylor and Pierce County filed appeals, each claiming conditions were either too strict or too lenient. In January, Hearing Examiner Terrance McCarthy issued his decision on reconsideration. Pierce County filed that document with the Department of Ecology, the next player in the process. The property owners and Taylor received a letter from Ecology on Feb. 2, informing them of the filing of their permit (amounting to approval, subject to a waiting period of 21 days to allow for possible appeal) to cultivate geoduck.

Taylor apparently was not satisfied. According to documents obtained by the KP News, a petition for review, dated Feb. 20, as sent to the state Shorelines Hearings Board from Buck and Gordon LLC, Attorneys at Law, on behalf of Taylor Shellfish Farms (and Meyer/Stratford), challenging the hearing examiner’s decision. Although the permits were approved, and the property owners granted the privilege of using their private residential tidelands for commercial purposes, Taylor claims in court documents, “The permit(s) impose conditions that are unreasonable and inconsistent with applicable law… are not supported by evidence, are arbitrary, and are based on unsupported assumptions.” Of particular concern appears to be the “work window,” which provides relief for surrounding property owners, while still granting harvest protocol to the growers, and the financial bond requirement for clean up in the event of grower default. Both of these issues were of particular concern to surrounding property owners.

Where do the “rights” of all parties begin and end? It is a contentious question with no legal end in sight, subject to re-review, appeal upon appeal, headed up the legal food chain, where eventually it will be decided by legislative action and/or the courts.

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