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Conservation Groups Sue State, Demanding Shoreline Protection
April 12, 2018
Protect Zangle Cove, the Coalition to Protect Puget Sound Habitat and Wild Fish Conservancy filed suit today against the Washington Department of Fish and Wildlife (“WDFW”), demanding an end to the improper exemption of industrial shellfish aquaculture projects from state standards designed to protect fish and marine habitats.
Most construction projects in or near Washington waters must receive an Hydraulic Project Approval (“HPA”), which requires that they have safeguards in place to protect fish and their habitat. WDFW has exempted commercial aquaculture from this statutory requirement for many years, meaning aquaculture projects go forward without these crucial environmental safeguards.
The lawsuit filed in Thurston County Superior Court contends this exemption has no legal basis and asks the court to direct WDFW to apply the HPA law consistently to shellfish aquaculture projects. The suit also asks the court to halt development of a geoduck farm planned for Zangle Cove, a near pristine estuary in South Puget Sound, until it receives an HPA permit.
“With threatened Southern Resident killer whales and endangered native salmon at extreme risk, our state agencies have failed to implement the environmental protections that are critical to the broad scale ecological recovery of Puget Sound,” says Patrick Townsend, president of Protect Zangle Cove. “The action we are taking today is one important step toward restoring sanity to the recovery process. We must protect the tidelands from further loss of ecological function or we will see the loss of iconic species so important to the people of Washington State.”
Laura Hendricks, director of the Coalition To Protect Puget Sound Habitat, emphasizes that the lawsuit only asks the state to apply the law consistently.
“There is a double standard that exempts commercial shellfish aquaculture from the state HPA permitting system, even though these operations pose a severe threat to our fragile coastal habitats,” Hendricks says. “A private citizen installing a small dock needs to get an HPA permit, but a commercial shellfish facility would not need an HPA permit before constructing a facility that disrupts miles of pristine shoreline, destroys natural vegetation and aquatic life, and inserts tons of harmful plastic tubing, netting, and rebar into the tidelands.”
Commercial shellfish aquaculture is in the midst of dramatic expansion in Washington. These factory-farm like facilities already take up as many as 50,000 shoreline acres, or as much as one-quarter of all Washington tidelands. Significant expansion is planned in the immediate future, focusing largely on geoducks raised to sell in the Asian luxury market.
A single-acre geoduck operation usually includes around 44,000 PVC tubes, four- or six-inches in diameter, and approximately ten inches long. This amounts to approximately seven miles of PVC tubing per acre, weighing between 11 and 23 tons. Plastic nets are typically installed over the entire geoduck bed to keep out native wildlife that would normally feed and shelter there.
Kurt Beardslee, co-founder and Executive Director of the Wild Fish Conservancy, says: “There’s no way around it, it’s a scientific fact: the industrial shellfish aquaculture industry routinely damages vast amounts of habitat critical to federally protected species, including wild salmon and steelhead, with little or no agency oversight.”
Protect Zangle Cove, the Coalition to Protect Puget Sound Habitat and Wild Fish Conservancy are represented in the litigation by the law firm of Lane Powell P.C.
A typical commercial geoduck planting, which uses approximately seven miles of PVC tubing per acre, weighing between 11 and 23 tons
How Much Plastic Do You Want In Your Orcas and Salmon?
Concerns about plastic in our marine environments are increasing—as they should! Every week new articles appear across news media and scientific journals, documenting the marine plastics disaster. The devastating impacts, and escalating dangers are clear. So we ask, “How much plastic do you want in your orcas and salmon?” Similarly, “How much plastic will we tolerate in our marine ecosystems?”
Governor Inslee establishes Southern Resident Killer Whale Recovery and Task Force with Executive Order 18-02
The geoduck aquaculture industry embeds approximately 8 miles of PVC pipe per acre in pristine intertidal habitat areas of Puget Sound, mostly in South Sound. Based on the approximate weight per acre calculations provided by the geoduck industry, 4 inch schedule 10 PVC tubes, the smallest size used, weigh about 32,000 pounds, or 16 tons per acre of PVC. The best current estimate according to the Shellfish Aquaculture Regulatory Commission, as of June 1, 2010, suggests there are currently 364 acres of active geoduck farms in Puget Sound. This represents nearly 3 thousand miles, 12 million pounds or 6 thousand tons of PVC in Puget Sound from geoduck aquaculture. If one assumes that at any given time only one-third of all geoduck farms have PVC tubes installed in the tidelands, then this would yield about 1 thousand miles, 4 million pounds or 2 thousand tons of PVC.
Presentation that documents the harm to Washington Marine Life, Including Whales–
Charles Moore Presentation to the Shoreline Hearings Board:
KCTS asks: How Much Plastic Do You Want In Your Oysters and Clams?
Center for Food Safety Files Suit to Protect WA Coastal Waters
Portland, OR—Today [August 17, 2017], Center for Food Safety (CFS) filed a federal lawsuit to stop the Trump administration, through its U.S. Army Corps of Engineers (Corps), from greenlighting a massive expansion of industrial shellfish aquaculture in Washington state coastal waters. Industrial aquaculture already threatens Washington’s iconic and invaluable shorelines and bays, which are home to numerous marine species, including endangered salmon. However, the new 2017 permit issued by the Trump administration and now challenged in this case would allow an enormous expansion of the $100-million-dollar-a-year Washington state aquaculture industry, without any marine wildlife or water quality protections for these unique and sensitive ecosystems.
Please read the complete press release on the website of the Center for Food Safety.
Coalition Turns Up Heat as Army Corps Shirks Responsibility
The Coalition to Protect Puget Sound Habitat filed a Supplemental Complaint with the US District Court’s Western Division on June 5, 2017. The complaint addresses ongoing and expanding harm to the Puget Sound ecosystem caused by the rapid expansion of industrial agriculture. The Supplementary Complaint details the many levels of damage directly caused by industrial activity on Puget Sound, and makes explicit the responsibilities of the US Army Corps under the Clean Water Act and the National Environmental Policy Act to regulate aquaculture and protect Puget Sound. The Corps has completely abandoned these responsibilities and has maintained a blanket aquaculture permitting fast-track, in utter disregard of their fundamental duties, and of the law.
The full complaint may be read here, or by clicking the image below:
Shellfish Growers Netting Off Puget Sound Shorelines
The Coalition is hearing from more and more citizens about the negative impacts of industrial aquaculture practices in area waters. These images depict a small part of those impacts—in the form of plastic netting used in geoduck production. These nets, combined with other practices used throughout the geoduck production cycle on these tidelands, restrict the natural ecosystem, as well as citizens’ own access to the natural beauty of Puget Sound.
Coalition Sues Army Corps Over Cumulative Impacts
See a map of existing and proposed shellfish farms.
July 31, 2016
Coalition Comments on Proposal to Reissue and Modify Nationwide Permits under the Clean Water Act
Submitted to the U.S. Army Corps of Engineers
Excerpt: Our members appreciate the opportunity to comment on the U.S. Army Corps of Engineers (“Corps”) proposed reissuance and modification of the nationwide permits (“NWPs”) under Section 404 of the Clean Water Act (“CWA”). The Coalition to Protect Puget Sound Habitat (CPPSH) is disappointed that the Corps has failed to protect our natural resources by allowing more than minimal cumulative adverse impacts on the environment as required under the CWA; continues to ignore the need for compliance with the National Environmental Policy Act (NEPA); and without completing formal programmatic ESA consultations with National Marine Fisheries Service (“NMFS”) and Fish and Wildlife Service (“FWS”) by not completing the formal programmatic ESA consultations.
The Corps and State Agencies have reiterated at meetings that we have attended, that streamlining the process is of upmost importance. However, it appears that this streamlining has resulted in regulations that will allow significant adverse environmental harm individually and cumulatively to both non-listed and listed aquatic species that rely on protection from this Federal Agency. It is also obvious from various documents, that pressure from legislators and lobbyists have resulted in lax regulations that put corporate profits above the public’s interest to preserve these species for future generations. While industry continues to mislead regulators on the jobs created by this industry, a look at the Washington State quarterly workers’ compensation filings document the minimal working wage jobs this industry actually reports. Also, it is dis-ingenuous to state that luxury commodities like high priced shellfish can help with feeding the world.
The NWPs authorize activities on a wide range of activities that can adversely impact the Nation’s wetlands and waters and the aquatic species that rely on them for survival. These activities include: exploration, production and transportation of oil, gas and minerals; utility lines, transportation projects; bridges, hydropower projects; coal mining activities; shellfish and finfish aquaculture. Since our organization is the most knowledgeable regarding aquaculture in Washington State, we will be focusing our comments on that specific activity. We do concur with other organizations that have commented on the other activities that cascading adverse effects from those activities must also be considered when analyzing the individual and cumulative adverse impacts that are known to occur from aquaculture. Aquaculture is now being conducted using industrial practices that are very damaging to the natural ecosystem.
June 22, 2016
The Coalition to Protect Puget Sound Habitat files suit against the US Army Corps of Engineers
Excerpt: The Coalition to Protect Puget Sound Habitat announced that it has filed suit against the US Army Corps of Engineers, challenging the Seattle District of the Corps for its excessive issuance of shoreline aquaculture permits. The lawsuit, filed in Federal District Court for the Western District of Washington, outlines how the Seattle District has issued almost 1,000 permit verifications/registrations for industrial-scale shellfish operations in Puget Sound over the last four years, under a Nationwide Clean Water Act Permit (#48) – but it claims that the Corps has never done a cumulative impact analysis of the effects of all those permits on the Sound, the Orcas and salmon of the Sound, and the many other resources. Nor, claims the Coalition, has the Corps evaluated the cumulative impacts of these operations on the people who live and recreate in the Sound.
The Coalition is an alliance of citizens, scientists and conservation groups concerned about the pollution and adverse impacts (both short and long term) of the industrial scale aquaculture that is proliferating in Puget Sound. Local Chefs have also expressed concerns about the potential effects of these operations on the Sound.
“We tried repeatedly to get the Corps to stop issuing these permits, until an evaluation of the cumulative effects of all this nearshore habitat degradation and massive amount of PVC and High Density Polyethylene plastic pollution has been looked at.” said Laura Hendricks of the Coalition.
“We talked to them; we sent them many sets of detail written comments, along with more than 40 supporting studies. We even filed a Petition asking them to suspend the use of the permit here in Puget Sound, until the analysis of the cumulative effects were done. But they just kept issuing more registrations. They really left us no choice but to ask the federal courts to make them do their job and follow the law.” Hendricks lamented.
The suit alleges that the Corps violated the National Environmental Policy Act and the Clean Water Act, by not evaluating the cumulative impacts of issuance of so many registrations. “Our environmental laws require the Corps to fully evaluate the effects of these kinds of permits, and to not allow more than minimal harm.” said Curt Puddicombe of the Coalition. “The Corps’ own records showed that in the first year of the current Nationwide permit, the Corps issued more than 800 registrations – over 3 times the number that it thought would be issued. When that happened, the Corps had an obligation to step back and re-evaluate the cumulative effects. That is what any reasonable person would do, that is what the law requires, and that is certainly what we should expect a Federal agency charged by the law with protecting and restoring the waters of the Sound to do.” said Puddicombe.
“We recognize the shellfish production in Puget Sound should be an important component of a sustainable Northwest. But that production has to be done on a rational and sustainable scale. A balanced approach is needed. Right now, the insane number of these registrations already issued, with another hundred applications already pending at the Corps, is converting Puget Sound into an industrial shellfish production site ignoring native aquatic species protection and restoration goals.” said Hendricks.
Geoduck Rule Criticized as Farming Expands
In this KING-5 report from August 14, 2015, Taylor Shellfish spokesperson Bill Dewey admits that geoduck aquaculture practices result in plastic pollution in Puget Sound, and offers to “work with neighbors” to find alternatives. With your help, the Coalition is working hard to hold the industry to this pledge.
Coalition Petitions Army Corps to Suspend New Permits
Read the Petition here
PRESS RELEASE
The Coalition To Protect Puget Sound Habitat filed a legal Petition today with the US Army Corps of Engineers, asking that the Corps suspend the use of the Clean Water Act Nationwide Permit 48, which allows industrial aquaculture activities in Puget Sound.
The Coalition contends that the Corps has authorized too many of these industrial style shellfish operations. This Petition follows on the heels of the same group prevailing in Thurston County Superior Court. On April 3, 2015 the Court upheld a Shorelines Hearings Board Decision that ruled there was insufficient cumulative impact analysis in a Pierce County Shoreline permit for one of the industrial aquaculture projects at issue.The Conservation group cited and submitted over 51 studies and other documents, supporting their Petition. They claim the Corps is acting unlawfully, by continuing to issue permits without adequate analysis of the impacts.
Numerous detailed comments have been filed by the Coalition with the Corps, and with County planners, opposing operations of the sort allowed by NWP 48. Scientists have pointed to scientific studies documenting harm of many types from industrial scale aquaculture, including plastic pollution in Puget Sound waters. Shellfish operations use hundreds of thousands of plastic PVC tubes, High Density Polyethylene (HDPE) netting, plastic bands, HDPE oyster bags and HDPE mussel disks for their operations.
Scientists who have looked closely at the issue say the resulting plastic debris and plastic particles harm aquatic life. According to Charles Moore, the world renowned marine plastic debris expert who has testified for the Coalition in a recent Shorelines Hearings Board proceeding: “At the present time, it does not appear possible to introduce any conventional plastic into the marine environment, without harmful consequences.”
At the heart of the Coalition challenge is an analysis that the Seattle District of the Corps did when NWP 48 was reauthorized in 2012. That analysis presumed that the permit would be used only about 50 times a year, for 5 years. So the impact evaluation that the Corps conducted was premised on a maximum number of shellfish operations of roughly 250. However, in the first 2 years of the NWP’s existence, the Corps has already received over 1,000 applications and already issued over 900 permits. A map of the applications provided by the Coalition shows in stark contrast the enormous number of applications approved or pending in South Puget Sound.
The Conservation group contends that the Corps should have long ago stepped back and reevaluated. Laura Hendricks, a Citizen Representative said her members were outraged that the Corps continued to process and issued these permits, after it should have become clear to the Corps in the first 6-8 months that they had grossly underestimated the number of shellfish operations that would seek authorization under NWP 48.
“We’ve been advocating for a cumulative impacts analysis to be completed for years” said Hendricks. “For some reason, the Corps simply refuses to listen.” Coalition to Protect Puget Sound representative Curt Puddicombe was equally upset: “We don’t understand why the Corps continues to process permits at this insane pace. They are supposed to be implementing the Clean Water Act in a way that does not allow harm to the public interest, and they are supposed to take a thorough ‘hard look’ at the environmental impacts of a project, before they approve it. Instead, they seem to be using a proverbial ‘rubber stamp’ and allowing the commercial shellfish industry to potentially damage the Sound with an excessive number of industrial scale aquaculture operations.”
This legal action comes shortly after the Coalition voiced opposition to the shellfish industry’s use of pesticides in Washington marine waters and the intended spraying of the new pesticide Imidacloprid. After public outcry, the Washington Department of Ecology (Ecology) canceled the Imidacloprid permit, but Imazamox is scheduled to be sprayed in Willapa Bay/Grays Harbor in the next few weeks on over 3,000 acres unless the Pollution Control Hearings Board (PCHB) grants a new injunction. The Coalition filed an injunction in 2014 to stop the prior spraying on 300 acres and the PCHB denied the motion based on Ecology’s objection.
State (At Last) Disallows Neurotoxin Use In Willapa Bay
Many Coalition members and supporters are echoing the shock and dismay described in Danny Westneat’s April 28, 2015 Seattle Times article, Disbelief over state plan to spray neurotoxin into oyster beds.
What can we do? The Coalition is consulting with experts about options, including filing an appeal with the Pollution Control Hearings Board. We will post updates as plans coalesce.
UPDATES:
April 9, 2018 No Imidacloprid Permit-You Saved Willapa Bay!!
Our Coalition is excited that finally Washington regulators are not allowing more Washington native species to be destroyed in order to expand shellfish exports.
Many thanks to all of you who helped us!!
Washington Department of Ecology – NEWS
April 9, 2018
Contact: Jessica Payne, communications, 360-407-6408, @ecologyWA
Shellfish growers’ request to use neonicotinoid pesticide too risky for Washington’s environment
Imidacloprid would cause harm to Willapa Bay and Grays Harbor
SOUTH BEND – Shellfish growers from Willapa-Grays Harbor Oyster Growers Association requested a permit from the state to use the pesticide imidacloprid on oyster and clam beds to control native burrowing shrimp.
After thoroughly evaluating the request, the Washington Department of Ecology has determined that the environmental harm from this neonicotinoid pesticide would be too great. Therefore, Ecology is denying the request for a permit.
“We’ve been working with this community of growers for years to move away from chemical pesticides and find a safer alternative to control burrowing shrimp,” said Ecology Director Maia Bellon. “The science around imidacloprid is rapidly evolving and we can’t ignore it. New findings make it clear that this pesticide is simply too risky and harmful to be used in Washington’s waters and estuaries.”
October 1, 2016—A Coalition member submitted a report on the current status of pesticide use in the Willapa Bay area: Life in the Dead Zone – The 2015 Eelgrass Die Off
May 7, 2015—It is important to note that pesticides (in particular Imazamox, aka Raptor) are still in use in Willapa Bay and elsewhere in Puget Sound region shellfish aquaculture. Imazamox is classified by the National Institutes of Health as “very toxic to aquatic life with long lasting effects.” The Coalition’s position is clear—no pesticides in our shellfish!
May 4, 2015—First Taylor Shellfish, and then the Department of Ecology, have backed away from this plan. The permit to use these dangerous chemicals is canceled as of May 4, 2015. This is indeed a victory, and demonstrates the power that we have as citizens, when our voices come together. But this is also the tip of the iceberg with regard to environmental damage caused by industrial aquaculture practices. The Coalition is at work today to effect deeper change in the Puget Sound region.
Seattle Times: State, growers scrap pesticide permit for oyster beds after outcry
Seattle Times: Oyster pesticide battle shows who really wields power
Protest The Spraying Of Neurotoxin On Grays Harbor and Willapa Bay
Monday, May 4, 2015, noon to 2:00 p.m.
Video from this protest:
We need your help to stand against this deeply foolish decision. Please give what you can.
You can also add your voice to many others by signing our petition: Governor Inslee: Stop Enabling Plastic and Pesticide Pollution in Puget Sound
Cliff Mass has an excellent article on his blog: Oysters and Pesticides: The Washington State Department of Ecology Stumbles.
More from Seattle Times: Chefs ‘horrified’ by plan to spray pesticide on oyster beds.
Whole Foods will NOT be purchasing any oysters treated with pesticides: http://www.wholefoodsmarket.com/mission-values/seafood-sustainability/aquaculture
Bloomberg Business broke this story: Washington State Turns to Neurotoxins to Save Its Oysters
Also see: Pesticide Use On Shorelines Carries Heavy Risks
and Pesticides Used in Commercial Aquaculture
Court of Appeals Upholds SHB, Superior Court Decisions
The Washington State Court of Appeals, Division 1 decision affirmed the Shorelines Hearings Board (SHB) decision to deny the 5 acre geoduck aquaculture permit in Henderson Bay/Pierce County. The Court of Appeals stated:
1. “We conclude the SHB did not err in concluding the Coalition met its burden of proving the permit buffers did not adequately protect eelgrass from adverse impacts in violation of the SMA (Shoreline Management Act) and Pierce County SMP (Shoreline Master Program).”.. The Coalition relied on the FSEIS buffer to argue the buffers approved by the Hearing Examiner were inadequate. The FSEIS identifies the need for a “2-foot vertical buffer or a minimum of 180-foot horizontal buffer” between eelgrass and subtidal geoduck harvest areas to protect eelgrass.”
“The SHB found that while Meaders (industry expert) “is knowledgeable of the geoduck industry and science underlying aspects of industry practices,” she was not “a credible expert in all aspects of study related to the nearshore environment to which she claimed expertise.”
2. “Evidence presented at the hearing showed there are potential adverse impacts to critical habitat.”
3. “Because the consideration of a cumulative impact analysis prior to approval of the permit is consistent with the purpose of the SMA and clearly furthers the goal of the SMA to prevent “uncoordinated and piecemeal development,”the SHB did not err in concluding consideration should be given to preparing a cumulative impacts analysis.”
4. “De Tienne contends the SHB decision is not timely….. Because de Tienne stipulated to consolidation of the petition he filed on June 28, 2013 and there is no dispute the SHB extended the time period for good cause for an additional 30 days, the SHB complied with the time limits of the statute.”
Our Coalition members, who have been fighting to protect our Washington aquatic life, are relieved that the Court of Appeals recognized the record of harm of industrial aquaculture and the need to protect eelgrass, herring and critical habitat said Hendricks. We are thankful to Dan Penttila, Wayne Daley and Dr. Gary Ritchie, the scientists who testified and have spoken out about the adverse effects of shellfish aquaculture. Tahoma Audubon, Center for Food Safety and Jim Brennan have pointed out the harm as well. We are also grateful to Brad and Sandy Newell who were responsible for over $20,000 of the $60,000 of legal costs for this appeal. The Court of Appeals did award legal fees to the Coalition.
Read the full decision
Prior Decision by Thurston County Superior Court
Thurston County Superior Court Decision in Darrell de Tienne and Chelsea Farms, LLC v. Shoreline Hearings Board, Coalition to Protect Puget Sound Habitat and Paul and Betty Garrison, Pierce County
On April 3, 2015, Thurston County Superior Court Judge Carol Ann Murphy announced her decision regarding the appeal of the Shorelines Hearings Board (SHB) denial of the Shoreline Substantial Development permit for a five plus acre commercial geoduck farm in Henderson Bay on a site that included extensive eelgrass beds that had been earlier devastated by the illegal harvest of geoduck by the applicant, Darrell de Tienne, and his former harvest partner, Washington Shellfish.
Judge Murphy concluded that the SHB decision in January 2014 correctly interpreted and applied the relevant law and that its Findings of Fact were supported by substantial evidence. Judge Murphy’s decision means that, absent a further appeal to the Court of Appeals, the permit to operate the farm issued by Pierce County was revoked. The case and the Shoreline Hearings Board decision were noteworthy in several respects. The geoduck farm, had it been permitted, would have been the first subtidal farm in Pierce County. There has been a rapid expansion of commercial nearshore geoduck farms in recent years as the demand for the geoduck has exploded in Asian markets, particularly China, where the long necked clam is perceived by many as an “aphrodisiac.”
Laura Hendricks, Citizen Representative for the Coalition to Protect Puget Sound Habitat (Coalition), said her organization was especially pleased by Judge Murphy’s decision because it meant, for the first time, there would be a scientific examination and analysis of potential adverse environmental impacts associated with the proliferation of geoduck farms in south Puget Sound. “We’ve been advocating for a cumulative impacts analysis to be completed for some time now,” said Hendricks. “This is a major win.” “The commercial shellfish industry has been resisting calls for greater environmental scrutiny of their operations for years. Now, for the first time, the people who care about the environmental health of Puget Sound and the impacts of the tremendous expansion of the commercial shellfish industry in the Sound will have their concerns addressed.”
Judge Murphy’s ruling also upheld the Shoreline Hearings Board’s rejection of the 10 feet and 25 feet seaward eelgrass protection buffers contained in the Pierce County Permit for the farm. Eelgrass enhancement is one of the top three recovery goals established for Puget Sound, and protection and restoration of eelgrass in Puget Sound has been a longtime goal of the Puget Sound Partnership. The Coalition fought for seaward buffers for eelgrass protection of at least 100 feet and just recently found that the Canadian science paper that the shellfish industry presented to the SHB to try to justify smaller eelgrass buffers was rejected for publication by the Journal of Shellfish Research after the hearing.
The substantially reduced protection for eelgrass, which occurred after the formal Pierce County hearing concerning the farm’s permit had commenced, was deeply troubling to opponents of the farm, Brad and Sandra Newell, Coalition members and Henderson Bay residents. Said Brad, “That was a last minute backroom political deal, so we’re delighted the SHB decision rejecting the minimal buffer will remain in place. There was no scientific basis for such a reduction.” “It also is completely contrary to the suggested 180 foot waterward buffer for subtidal farms to protect submerged aquatic vegetation just adopted by the Pierce County Commission in its updated Shoreline Master Program last month,” added Thane Tienson, attorney for the Coalition.
The Coalition also opposed the planned farm, as it has many others, as they continue to point to scientific studies documenting harm from plastic pollution like the widespread aquaculture gear plastic pollution in Puget Sound waters. Shellfish farms use hundreds of thousands of plastic PVC tubes, HDPE netting, plastic bands and HDPE bags for their operations as scientists say the resulting plastic debris and plastic particles harm aquatic life. According to Charles Moore, the world renowned marine plastic debris expert who has testified for the Coalition, “at the present time, it does not appear possible to introduce any conventional plastic into the marine environment without harmful consequences.”