Geoduck Staff Report

Staff Report Project: File number:

Geoduck Harvest SSDP/CUP15615

Date:

September 1, 2009

To:

Wick Dufford, Hearing Examiner Pro-Tem

From:

Katharine Cook, Director

Project Managers:

Joshua Machen, AICP, Senior Planner

City of Bainbridge Island Department of Planning and Community Development

Introduction Applicant:

Washington State Department of Natural Resources Contact: Celia Barton 1111 Washington Street SE P.O. Box 47027 Olympia, WA 98504-70 Phone #360 902-1025

Request:

Harvesting of wild geoducks from state owned subtidal bedlands. A total of approximately 709 acres in the following four general areas: Battle Point North/Manzanita, Restoration Point, Murden Cove and Skiff Point North. (Note: the Point, Port Madison Tract was originally part of the application, but was removed since it is now being placed in recovery status- See Exhibit #60). Geoducks are burrowing clams that usually dig themselves two to three feet into soft bottom sediments with only their necks showing. Geoducks average about two pounds in weight, but may weigh up to 10 pounds. It takes from 11 to 73 years (average of 39 years) for natural recruitment in each geoduck area after harvesting. (See Exhibits #3- Supplemental Environmental Impact Statement and 2 – Commercial Geoduck Fishery Management Plan for more detailed descriptions.) Geoducks occur from fairly shallow tidelands to elevations of less than -360 feet. DNR harvest areas will be a portion of these geoduck beds bordered by elevations of -18 feet and -70 feet from 0 tide, which measures to about 80 feet below the surface of the water.

Washington State Department of Fish & Wildlife(WDFW)performs three separate surveys for each harvest area: i. The first survey identifies subtidal bedlands suitable for geoduck Harvest. This survey also identifies eelgrass beds and other sensitive areas. ii. The second survey is performed about a year before harvest and inventories the geoduck population, studies the substrate, identifies plants and animals living within the geoduck population, locates sensitive biological organisms, and quantifies the size and quality of geoduck samples. WDFW uses the information from the first two surveys to set fishing boundaries and harvest times. iii. Each area is resurveyed after each harvest is completed. In this survey, the geoduck population is again inventoried, the substrate studied and the plants and animals are identified. A short-term reduction in the amount of plants and animals is usual, and is usually back to normal within a year. Harvesting will take place between 8:00 a.m. and 4:30 p.m., Monday through Friday, except on state holidays, when no harvesting will be allowed. These harvest areas will be leased to commercial harvesters, who use boats that are usually about 25 to 70 feet long and have a crew of two divers and a tender. Compressor engines on board supply oxygen to the divers and power water jets. The water jets are approximately 18-24 inches long with a 5/8-inch diameter nozzle. The divers utilize these jets to liquefy the substrate surrounding a geoduck and then grasp the geoducks exposed neck. A diver using this method can often harvest 800 geoducks per day on a high-density commercial tract with good digging conditions. The geoducks are weighed and reported in the presence of DNR staff and then unloaded to a pre-approved marina or boat ramp. From the vessel the geoducks are transported to a processor or market. An allocation model agreed to by State and Tribal managers allows an annual harvest rate of 2.7% of the total commercial biomass. The commercial biomass consists of 27 percent to the total Washington State geoduck biomass. The 2.7% harvest rate is predicted to preserve 35-40% of the unfinished spawning potential of the population. The harvest is rotated around Puget Sound on an annual basis. Background:

The geoduck fishery is jointly managed by DNR, the Washington State Department of Fish and Wildlife, and the Puget Sound Treaty Indian Tribes that have a right to 50 percent of harvestable surplus of geoducks. A December 20, 1994 U.S. district court decision by Judge Edward Rafeedie affirmed and quantified the Puget Sound Treaty Indian Tribes’ right to 50

percent of the harvestable surplus of geoducks within their usual and accustomed grounds and stations. According to the applicant, the State commercial geoduck fishery has harvested between 1.7 and 2.2 million pounds of geoducks annually between 2000-2006. The harvest generates revenue for Washington State ($6-$10 million in annual revenue), commercial harvesters and seafood companies. Revenue from the harvest program is used to help support a variety of State programs that preserve and maintain marine habitat areas. For a detailed project description see the Commercial Wild Stock Geoduck Fishery Management Plan August 2008 Edition, The Habitat Conservation Plan for Washington Department of Natural Resources’ Geoduck Fishery – July 2008 and Washington State Final Supplemental Environmental Impact Statement dated May 23, 2001. (See Exhibits 1-3). Locations:

Zoning Designation:

Certain subtidal bedlands that lie between -18 feet at 0 tide to a point no greater than -70 feet from 0 tide, which measures about 80 feet below the surface of the water unadjusted for tides. The bedlands are in the following four general areas: Restoration Point – 141 acres Battle Point North /Manzanita - 306 acres Murden Cove- 222 acres Skiff Point – 40 acres.

Property landward of the proposed harvest areas carries various zoning designations. For details, please see Section II.A.7 of this report.

Comprehensive Plan Designation: All landward property carries Open Space Residential comprehensive plan designations except that land on the Point Monroe sand spit, which is Urban Residential. Shoreline Environment:

Environmental

Aquatic - The areas of harvest are all waterward of extreme low water and are shorelines of statewide significance. Properties landward of extreme low tide have various environmental designations under the Bainbridge Island Shoreline Management Master Plan. For details, please see Section II.A.9. As part of this application, the city has adopted the 2001 final SEIS.

Review: The Department of Natural Resources is the lead agency under the rules of the State Environmental Policy Act. An EIS was issued in 1985 with addenda over the course of years and a Final SEIS issued May 23, 2001 was provided as required by RCW 43.21C.030(2)(c). The City Adopted the Existing Environmental documents on August 28, 2009 (Exhibit #27).

RECOMMENDATION Approve the requested conditional use permit to harvest geoduck clams in approximately 709 acres of state-owned subtidal bedlands around Bainbridge Island. Approval is subject to the conditions of approval as follows: 1. Harvest within an equilibrium harvest rate. a. The Washington State Department of Natural Resources (DNR) and Washington State Department of Fish and Wildlife (WDFW) shall make continuing information and research 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. WDFW 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 WDFW determines a different harvest rate on a statewide basis, then future DNR geoduck sales on a statewide basis shall not exceed the changed statewide yield (or quota). If WDFW 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 will be no less than -18 feet (below 0 water) and the deepwater boundary is –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 WDFW.

b.

c.

DNR will require a non hailer diver-to-tender communication system. The hailer system will only be used in cases of emergency failure. Vessels will not be allowed to return to harvest until the primary non hailer system is functional. 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. 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.

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 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 77.60.070 and no shallower than 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 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 of the herring spawning season. d. For tracts in documented herring spawning grounds – shoreward boundaries of minus 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 the Washington Department of Fish and Wildlife in the Environmental Assessment reports for each tract. f. DNR will manage the fishery to meet the ESA habitat protection measures required by the National Marine Fisheries Service Permit 1608 and the United States Fish and Wildlife Service Permit PRT-TE187810-0

8. State Department 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 per day will be between 8 a.m. and 4 p.m. No harvesting will be allowed on Saturdays, Sundays or State holidays. 11. Expiration. The shoreline substantial development permit shall expire five years from 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 the 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 will 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.

Staff Analysis II. Findings Of Fact A. Site Characteristics 1. AREA AND DIMENSIONS a. Tax Lot Numbers: None b. Assessor's Record Information Owner of record: State of Washington Project size: a total of about 709 acres Land use: Undeveloped subtidal lands 2. TERRAIN a. The benthic topography of most harvest areas is flat or gently sloping, although some areas slope more than 30 degrees. (See Exhibit #3, Section 3.1.1.)

b.

Although entire subtidal bedlands may contain harvestable geoducks, the applicant is restricting harvesting areas to a strip defined by a shallowest point and a deepest point. i. The shallowest point is -18 feet at 0 tide (harvest vessels are to be at least 200 yards from the mean high water line. If eelgrass occur at any location, harvest is not allowed, an additional two feet of depth is needed before harvest can occur. In cases where the bedland contains a mound, no harvesting will occur above -18 feet, which means the diver will harvest around the mound and not on top of it. ii. The deepest point the applicant will allow harvesting to occur is -70 feet at 0 tide. c. Harvest areas will be surveyed and marked with orange buoys prior to harvesting activities. DNR's enforcement vessel will patrol the areas to ensure harvest will occur only within the marked areas and verify depths to harvesting activities. Each harvesting boat is equipped with a device to measure the distance to shore and each diver is equipped with a depth gauge to show depth. d. All beds to be harvested are to be free from pollutants and will be certified by DSHS or the State Department of Health prior to harvesting. (See Exhibit #3, Section 2.4). WDFW is directed by RCW75.08.012 to preserve and protect the geoduck resource and will (i) continue its studies regarding crabs and sustainable harvest, (ii) will observe individual soil conditions on proposed harvest areas, (iii) will survey the area for eelgrass and (iv) will survey each harvest area for geoduck population before and after completed harvesting activities. 3.

4.

SOILS a. The most common bed type of the harvest areas is a mixture of mud and sand, although geoducks live in substrates ranging from soft mud to coarse gravel. (See Exhibit #3 Section 3.1) MARINE ANIMALS a. Infauna. Infauna are animals that live within the substrate. The most common infauna on geoduck harvest sites is the polychaete tubeworm. Horse clams and several other small clams are also common, as well as ghost and mud shrimp. Although small infauna are likely to be destroyed or disturbed by the harvest, these animals repopulate the harvest areas rapidly. (See Exhibit #3¸ Sections 3.5) The effect of the harvest on infauna is described in Exhibit #3, Section 3.5. It is expected to have little or no effect on benthic infauna. b. Geoducks. For a detailed description of geoduck reproduction, commercial status, and removal please see Exhibit #3, Section 3.4. c. Epifauna. Epifauna are animals that live on, not in, the substrate. Various species of crab, such as the dungeness and the red rock, are common on harvest sites. (See Exhibit #3, Sections 3.5) The effect of the harvest on epifauna is described in Exhibit #3, Section 3.5.2. It is expected to have little or no effect.

d.

e.

Fish. Flounder and sole are the most common fish associated with geoduck beds (type: flatfish). Perch, although they do not live on the beds, often pass over them. Pacific cod are common over geoduck beds in the Agate Passage area. Salmonids are rarely observed during WDFW dive surveys. Herring spawn on or near 55 geoduck tracts. (See Exhibit #3 Section 3.6.) As conditioned (Condition of Approval #7), the effect of the harvest on fish is described in Exhibit #3, Sections 3.6.2. & 3.6.3. Geoduck harvest is expected to have little or no effect on fish. Bainbridge Island is not in the area of a major Chinook salmon tributary. (See Exhibit #3, Figure 8.) Marine mammals. Harbor seals, California sea lions, killer and gray whales, Dall’s porpoise, harbor porpoise, and river otters all move through and over geoduck harvest tracts. (See Exhibit #3, Section 3.7.) Presence of the mammals appears to have more effect on the harvest than the harvest has on the mammals, as harvesting in one area is now prohibited because of seals, and harvest activities stop until the mammals swim through.

6.

SITE DEVELOPMENT All harvest areas are in navigable waters seaward of the mean lower low water.

7.

SURROUNDING ZONING a. Uplands adjacent to the harvest areas are zoned as follows: i. Battle Point North/Manzanita Tract: R-2. ii. Skiff Point North R-6 and R-2. iii. Murden Cove: R-2. iv. Restoration Point R-2 and R-0.4

8.

SURROUNDING COMPREHENSIVE PLAN DESIGNATIONS a. All upland comprehensive plan designations are Open Space Residential.

9.

SHORELINE DESIGNATIONS a. Upland shoreline environmental designations adjacent to the harvest areas are as follows: i. Battle Point North/Manzanita Tract: Semi-rural and Rural ii. Skiff Point North : Conservancy and Semi-rural iii. Murden Cove: Semi-rural iv. Restoration Point Conservancy and Rural

. b.

Aquatic shoreline environmental designations in and immediately surround the harvest areas are all listed as Aquatic.

10. ACCESS a. Moorage for harvest vessels will be at locations other than the harvest areas.

Location of moorage is part of the plan of operation, which is submitted by harvesters prior to DNR approving individual contracts. See Exhibit, Section 4.3 for more information. 11. PUBLIC SERVICES a. Police: Bainbridge Island Police Department. DNR has two compliance vessels, which will be available during active harvesting times and may assist the BIPD if needed. b. Fire: Bainbridge Island Fire District. B. History 1. Skiff Point was fished in 1976 and 1977. Recent harvest activities began in 1995 to the present and have included harvest in the Manzanita tract, Port Madison Tract, Murden Cove Tract and a Tract along the Agate Passage. 2. A determination of significance was issued by DNR on February 19, 1991. DNR adopted the existing 1985 EIS entitled The Puget Sound Commercial Geoduck Fishery Management Plan and Environmental Impact Statement, 1985. 3. An SSDP was granted by the city council in 1995 under Resolution 95-48 allowing a geoduck harvest. The permit contained 20 conditions of approval and expired after two years. A request for one one-year extension was granted in 1997. 4. In 1999 the DNR began the process to supplement its environmental impact statement (SEIS). 5. The draft SEIS was received December 1, 1999. 6. On September 24, 2001 the City received the Final SEIS issued by Washington State Department of Natural Resources. A “responsiveness summary” to public comments was also provided on the same date. 7. On September 8, 2003, the City issued a Shoreline Conditional Use/Shoreline Substantial Development Permit for geoduck harvest around the Island under permit # SSDP/ SCUP04-29-99-1. 8. On April 4, 2009, the City granted a one year extension of the geoduck harvest permit until September 8, 2009. 9. On March 10, 2009 a pre-application conference was held to discuss a new application for geoduck harvest in the waters surrounding Bainbridge Island. 10 On April 23, 2009, the Washington Department of Natural Resources submitted an application for geoduck harvest. 11. A notice of application was published in The Review newspaper on June 5, 2009. Several public comment letters were received, which were transmitted to DNR for response. 12 The City adopted the FSEIS on August 28, 2009. 13. The application is properly before the Hearing Examiner. C. Comprehensive Plan Goals and Policies

1.

2.

EN 1: Preserve and enhance Bainbridge Island's natural systems, natural beauty, and environmental quality. According to the September 24, 2001 Final SEIS issued by Washington State, the natural systems and environmental quality on Bainbridge Island will not be permanently affected by the proposed Geoduck harvest. The applicant states the harvest has been conducted for over 30 years without significant adverse environmental impact other than the reduction of the local geoduck population. Other temporary impacts including turbidity created by the harvesting will dissipate before reaching shore. The effect in the immediate subsurface area of the harvesting will result in "pock marks" in the tract. These holes are temporary, refilling within several days to seven months depending on the substrate composition and the strength of the local water current. (See Section II.A.4.) EN 1.2: Properties adjoining or adjacent to critical areas must be developed in observance of the following principles: • Avoid the impact, if possible. An Environmental Impact Statement has been prepared and it was determined the proposal is not likely to have a probably significant adverse impact on the environment. Harvest methods and ongoing monitoring along with several mitigation measures attached to the proposed harvest will reduce impacts (see Conditions of Approval). • Minimize or limit the degree or magnitude of the action and its implementation by using appropriate technology to avoid or reduce impacts. The proposed geoduck harvest will occur by hand using a method of extraction that causes minimal impacts. The proposal also includes restrictions to regulate noise impacts associated with the harvest. Washington Department of Ecology regulations (WAC 173-60-040) allow activities of up to 55 dBA continuous next to residential areas. According to the applicant noise levels normally are kept below the DOE noise standard (55 dBA). The State harvest is limited to daylight hours (typically 8:00 a.m. to 4:30 p.m.) Monday through Friday. WAC 220-52-019 prohibits harvest on weekends and State holidays. Boats are required to control noise. (See Exhibit #3, Section 4.1 & Conditions of Approval 3 & 9.) (BIMC 16.16). • Reduce or eliminate the impact over time by preservation and maintenance operations during the life of the action. The agencies will continue to conduct research and monitor the impacts of the geoduck fishery. A compliance vessel shall be available during harvest times. (Condition of Approval #3.) • Rectify by repair, rehabilitation, or restoration of the affected -environment. The benthic environment will repair itself over a period of seven months or less. See Exhibit #3, Sections 3.1 & 3.3. • Compensate for unavoidable impacts by replacing, enhancing or providing substitute resources or environments. The State revenue gen-

•

•

3.

4.

5.

6.

erated from geoduck harvest is used to help support several State programs including, clean-up of contaminated sediment in Puget Sound, inventory of nearshore aquatic habitat in Puget Sound, control of the invasive weed Spartina, geoduck management and harvest enforcement programs, State/Tribal shellfish negotiations, and grants to local governments for the purchase, development and restoration of aquatic lands for public access and salmon habitat restoration. Reduce the potential for personal injury, loss of life, or property damage due to flooding, erosion, landslides, seismic events, or soil subsidence. No flooding, erosion, landslides, seismic events or soil subsidence are possible with this proposal. Potential for physical injury or loss of life is reduced by the presence of the compliance vessel and adherence to industry safety standards. Protect against publicly financed expenditures due to the misuse of critical areas, which cause: 1) Unnecessary maintenance and replacement of public facilities 2) Public funding of mitigation for avoidable impacts 3) Public emergencies that were avoidable 4) Degradation of the natural environment No city funds will be used in this proposal.

FW 1.7: The City shall work closely with the Washington State Department of Wildlife (the agency with expertise to "preserve, protect, and perpetuate" wildlife resources of the State) in matters involving wildlife. The Washington Department of Fish & Wildlife is given authority over the harvest to ascertain quotas and stop the harvest if environmental degradation is determined. The state Department of Health ascertains whether the harvest sites are free from toxic substrates and are able to be harvested. AQ 1: Preserve and protect the Island's remaining aquatic resources' functions and values. Harvesting aquatic life is a resource function. The proposed protection of the aquatic resources is provided in the Final SEIS. Exhibit #3 EP-4. The comprehensive plan encourages retention and growth of locally-oriented marine industry, including aquaculture, as well as local agriculture and forest products management, if significant adverse impacts to the environment are avoided. The proposed harvesting practices will help retain local aquaculture development. Conditions of approval should reduce adverse environmental impacts. NS-6. Shorelines should be developed to pose no hazards to life and property, to preserve views and water quality, and to minimize harm to natural systems. The proposed harvest should pose no hazard to life or property. All harvest activities will be located in aquatic lands underwater. Views will not be affected by the harvest. Sediment plumes associated with the harvest will temporarily impact marine water quality. Retention of water quality is critical because geoduck harvest requires

water of very high quality. Department of Health conducts monitoring of water quality. LG-17. Noise levels, both on site and on adjacent properties, should be compatible with the land uses found in each designated area type and should support the intent of and be in conformance with standards adopted pursuant to the Washington State Noise Control legislation (RCW 70.107 and WAC 173-60). Washington Department of Ecology regulations (WAC 173-60-040) permit activities of up to 55 dBA continuous next to residential areas. According to the applicant noise levels normally are kept below the DOE noise standard (55 dBA). The State harvest is limited to daylight hours (typically 8:00 a.m. to 4:30 p.m.) Monday through Friday (Condition #10). WAC 220-52-019 prohibits harvest on weekends and State holidays. Boats are required to control noise. (See Exhibit #3, Section 4.1 & Conditions of Approval 3 & 9.) (BIMC 16.16.020 City Noise Regulations) 8.

BIMC 16.12Section III H, Shorelines of State-wide Significance are waters within the City's jurisdiction and lying seaward from the line of extreme low tide. [RCW 90.58.030 (1)(e)(iii) or its successor]. Policies (In order of preference): a. Recognize and protect the state-wide interest over local interest. The draft SEIS was circulated statewide. The applicant has sought comments, opinions, and advice from individuals with expertise in ecology and other scientific fields pertinent to shoreline management (See Exhibit #3 pages 124-135). Preserve the natural character of the shoreline. Designate and administer shoreline environments and use regulations to minimize damage to the ecology and environment of the shoreline as a result of man-made intrusions on shorelines. The natural character of the shoreline will not be affected because the harvest will not include permanent structures or ongoing activities (See Exhibit #3, Section 2.1). c. Result in long-term over short-term benefit. According to the application materials, harvesting is not allowed in areas where it will result in significant long term adverse impacts to the surrounding environment. Tracts which have been fished once may not be re-fished until a new survey demonstrates that geoduck density has reached or exceeded pre-fishing density. Aquatic resources and values of shorelines of state-wide significance for future generations will be preserved to assure future availability of geoducks and the supporting shoreline habitat. d. Protect the resources and ecology of the shoreline. The proposed development will not interfere with the natural functions of

the shoreline ecosystem. According to the application materials, harvesting is not allowed in areas where it will result in significant long term adverse impacts to the surrounding environment (See Exhibit #3). e. Increase public access to publicly owned areas of the shorelines. The proposed harvest is all within aquatic lands. Public access will not be impacted by the harvest other than vessels will need to steer around harvest boats. Increase recreational opportunities for the public on the shoreline. Plan for and encourage development of facilities for recreational use of the shorelines. Recreational opportunities will not be negatively affected by the proposed harvest. An indirect impact of the harvest is revenue going to increase opportunities to public access to the shorelines and preserving existing access areas (See Exhibit #3, Section 2.5. D. Bainbridge Island Shoreline Management Master Program (SMP) Requirements 1. BIMC 16.12.070 – Section III, Environmental Impacts. Regulations. a. The location, design, construction, and management of all shoreline uses and activities shall protect the quality and quantity of surface and ground water adjacent to the site and shall adhere to the guidelines, policies, standards, and regulations of applicable water quality management programs and regulatory agencies. Ground water will not be impacted by the proposed harvest. Marine water quality will be temporarily impacted by sediment plumes associated with the harvest. According to the SEIS most of the sediment plume settles immediately to the bottom and forms a berm around the harvest hole, while fine particles settle more slowly and remain in the water for longer periods. The SEIS cites a number of studies that indicate no significant impacts on water quality from hydraulic clam harvest. Retention of water quality is critical because geoduck harvest requires water of very high quality. The Department of Health conducts monitoring of water quality. According to the applicant, runoff from adjacent development impacts results in closures of geoducks tracts (See Exhibit #3, Section 3.3.2). b. Solid waste, liquid waste, and untreated effluent (i.e., discharge from a source containing pollutants) shall not be allowed to enter any water bodies or to be discharged onto land. If there is evidence of discharge, the activity shall be suspended until the deficiency has been satisfactorily corrected. Pollutant discharge from the harvest vessels is not proposed or permitted by this application. c. 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. If there is evidence of leakage, the further use of such equipment shall be suspended until the deficiency has been satisfactorily corrected. The proposed harvest is conditioned to comply with regulations (See condition #13).

d. All shoreline uses and activities shall be located, designed, constructed, and managed to minimize adverse impacts to fish and wildlife resources including spawning, nesting, rearing and habitat areas, and migratory routes. The proposed harvest has been designed to minimize impacts to fish and wildlife resources. According to the application materials, harvesting is not allowed in areas where it will result in significant long term adverse impacts to the surrounding environment. Impacts to infauna and epifauna located in and near the harvest tracts would be temporary. All conditions attached to the project will minimize adverse impacts to fish and wildlife resources (See Exhibit #3, Section 3.0). e. All shoreline uses and activities shall be located, designed, constructed, and managed to minimize interference with beneficial natural shoreline processes such as water circulation, sand and gravel movement, erosion, and accretion. The proposed harvest is a temporary activity that will not affect water circulation. Other natural shoreline sediment drift processes will not be affected. Sediment supply may be temporarily increased in geoduck tracts due to sediment plumes generated during harvesting. See Exhibit #3, Section 3.3. f. The location, design, construction, and management of shoreline uses and activities shall minimize adverse impacts to surrounding land and water uses. Harvest vessels are required to use motor noise dampening devices and a non hailer (loud speaker) communication system between the diver and tender. (See Conditions of Approval 3 & 9, and Exhibit #3, Sections 2.2 & 4.1.) g. The location, design, construction and management of shoreline uses and activities shall avoid hazards to public health and safety. No public health or safety hazards are anticipated by this action. (See Exhibit #3, Sections 3.3.2 & 3.3.3.) 2. BIMC 16.12.140 - Section IV Aquatic Environments. Aquatic Environment The Aquatic Environment consists of all marine water areas seaward of the ordinary high water mark (OHWM) which have not been designated Aquatic Conservancy. This includes estuarine channels, sloughs, and associated marshes, bogs, and swamps. The purpose of the Aquatic environment designation is to protect the unique characteristics of the aquatic environment by managing uses and activities and by assuring compatibility between upland and aquatic uses. The Aquatic environment may allow either multiple water‑dependent uses or specific dominant water-dependent uses. It is intended to promote the wise use of the natural features and resources of Aquatic areas that are substantially different in character from those of the adjoining uplands and backshores. Management Policies Structures which are not water-dependent and uses which will substantially degrade the existing character of the area should be prohibited. No structures are proposed. Harvesting geoducks would not alter the existing character.

Aquaculture practices should be encouraged in those tidelands, waters, and beds most suitable for such use. The proposed harvest areas are selected based on review by DFW, DNR and DOH. In appropriate areas, fishing and water recreation should be protected from competing uses. This is a temporary use that will allow for continued multiple use of the aquatic lands. All uses and activities in navigable waters or their beds should be located and designed to minimize interference with surface navigation, and allow for the safe, unhindered passage of fish and animals, particularly those whose life cycles are dependent on such migration. The proposed harvest will result in temporary interference with surface navigation. BIMC 16.12.170 – Section V Aquaculture Applicability - Aquaculture, like all other uses, is subject to the provisions in Section IV, Environment Designations, including the standards in Table 4-2. Section III, General Regulations also apply. Regulations - General Aquaculture may be allowed as a conditional use in the Conservancy, Rural, Semi-rural, Urban and Aquatic environments. Aquaculture shall be prohibited in the Natural and Aquatic Conservancy environments. The applicant has submitted a shoreline conditional use permit application to harvest geoducks in the Aquatic environment. No upland development is proposed or associated with the proposed harvest in the waters adjacent to Bainbridge Island. Applicants shall include in their applications all information needed to conduct thorough evaluations of their aquaculture proposals, including but not limited to the following: Species to be reared. No species are being reared. Existing geoducks are being harvested from subtidal lands. The harvesting practices are intended to preserve the habitat and retain geoducks as a long-term sustainable resource (See Exhibit #3, Section 2.1). Aquaculture method(s). The aquaculture methods are explained in detail in the application and supporting documents (See Exhibit #3, Section 2.1). Anticipated use of any feed, pesticides, herbicides, antibiotics, or other substances and their predicted impacts. The use of feed, pesticides, herbicides, antibiotics or other substances are not proposed nor approved by this approval. Manpower/employment necessary for the project. According to the applicant the project will directly employ approximately 50 to 60 people (See Exhibit #3, Section 2.1). Harvest and processing location, method, and timing. Harvest locations are detailed in the application and supporting documents. Harvest locations are also listed previously in this report. All processing will be located outside the jurisdiction of the City of Bainbridge Island.

Location and plans for any shoreside activities, including loading, unloading, and product processing. Shoreside activities are limited to using public or private boat ramps, docks or marinas for loading and unloading boats from trailers. Processing is done outside the city limits. Methods of traffic control and waste disposal. Some tracts lie in or near navigation channels, although few conflicts occur. In cases where harvest tracts are close to harbors DNR and DFW consults with the appropriate authority prior to harvest to determine harvest restrictions. Traffic control will not be required other than the occasional boat, which will need to steer around a harvest support vessel (See Exhibit #3, Section 4.3). Environmental assessment, including best available background information on water quality, turbidity, tidal variations, prevailing storm wind conditions, current flows, flushing rates, aquatic and benthic organisms, and probable impacts on water quality, biota, currents, littoral drift, and any existing shoreline or water uses. Further baseline studies may be required, depending upon the adequacy of available information, existing conditions, the nature of the proposal, and probable adverse environmental impacts. Baseline monitoring shall be at the applicant's expense unless otherwise provided for. Extensive studies have been conducted on the affects of geoduck harvesting. An EIS and SEIS were prepared for the proposed harvest. According to the September 24, 2001 Final SEIS issued by Washington State, the natural systems and environmental quality on Bainbridge Island will not be permanently affected by the proposed Geoduck harvest. The SEIS addresses the environmental assessment issues listed in this SMP regulation. The applicant states the harvest has been conducted for over 30 years without significant adverse environmental impact other than the reduction of the local geoduck population (See Exhibit #2). Method of disposal of dead fish to control noxious odors. Once the geoducks are removed from the substrate they are sent to a processor or market. Methods of predator control, if any. Predator control is not an issue of concern with the proposed harvest. Use of lights and noise-generating equipment and their potential impacts on surrounding uses. See Exhibit #3, Section 4.1 & Conditions of Approval 3 & 9. Other pertinent information deemed necessary by the City such as noise levels and visual impact. See the application materials including the SEIS Exhibit #3, Sections 4.0 Noise and 4.2.2 Aesthetics. Permit applications shall identify all pesticides, herbicides, antibiotics, vaccines, growth stimulants, anti‑fouling agents, or other chemicals that the applicant anticipates using. Such materials shall not be used until approval is obtained from all appropriate State and Federal agencies, including, but not limited to, the U.S. Food and Drug Administration, the Washington State Departments of Ecology, Fish and Wildlife

and Agriculture, as required, and proof thereof is submitted to the City. When feasible, the cleaning of nets and other apparatus shall be accomplished by air drying, spray washing, or hand washing, rather than chemical treatment and application. The use of pesticides, herbicides, antibiotics, vaccines, growth stimulants, anti‑fouling agents, or other chemicals is not proposed. Permit applications shall identify any noise generation associated with the project and also the amount of marine and truck or other vehicle traffic that will occur during the regular operation of the facility. The SEIS that was submitted with the application provides information regarding noise. See Exhibit #3, Section 4.1. The SEIS also provides information regarding transportation needs and impacts. See Exhibit #3, Section 4.3. The location of floating and submerged aquaculture structures shall not unduly restrict navigation to or along the shoreline, or interfere with general navigation lanes and traffic. Floating structures shall remain shoreward of principal navigation channels. Other restrictions on the scale of aquaculture activities to protect navigational access may be necessary based on the size and shape of the affected water body. The use of structures is not proposed. Navigation impacts are detailed in the SEIS (See Exhibit #3, Section 4.3). No aquatic organism shall be introduced into Bainbridge Island salt or fresh waters without prior written approval of the Washington Department of Fish and Wildlife for the specific organism proposed for introduction. The required approval shall be submitted in writing to the Director prior to the introduction or the granting of the permit, whichever comes first. Unless otherwise provided in the shoreline permit issued by the City, the repeated transfer (or placement) of an approved organism in the same location shall require approval by the City only at the time the permit is issued. For purposes of this section, introduction shall mean the placing of any aquatic organism in any area within the waters of the City, regardless of whether it is a native or resident organism, and regardless of where it is being transferred. Introduction of aquatic organisms is not proposed. Aquacultural structures and activities that are not water‑dependent (e.g., warehouses for storage of products, parking lots) shall be located landward of the OHWM, upland of water-dependent portions of the project, and shall minimize detrimental impacts to the shoreline. New structures are not proposed. The applicant is not proposing non water-dependent activities. Aquacultural structures and equipment shall be of sound construction and shall be so maintained. Abandoned or unsafe structures and equipment shall be removed or repaired promptly by the owner. Aquacultural structures are not proposed. Aquaculture equipment will be maintained. See page 5 of Geoduck Fishery Management Plan (Exhibit 70). Legally established aquacultural enterprises, including authorized experimental projects, shall be protected from incompatible uses which may seek to locate nearby. Demonstration of a high probability that such an adjacent use would result in damage to, or destruction of, such an aquacultural enterprise shall be grounds for the

denial of that use. The only legally established aquacultural enterprise, including authorized experimental projects is located in the waters off the south end of Bainbridge Island. The fish farm located in Rich Passage is a substantial distance from any of the proposed harvest tracts. The approval of this application would not result in damage to established aquacultural enterprises. Operational monitoring may be required if and to the extent that it is necessary to determine, ensure, or confirm compliance with predicted or required performance. Such monitoring requirements shall be established as a condition of the permit and shall be conducted at the applicant's (operator's) expense. Operational monitoring is required and included in the application. (See Exhibit #3, Section 3.4). No processing of any aquacultural product, except for the sorting or culling of the cultured organisms and the washing or removal of surface materials or organisms, shall occur in or over the water after harvest, unless specifically approved by permit. All other processing and processing facilities shall be located on land and shall be governed by, in addition to these provisions, the regulations of other applicable sections of the SMP, in particular, provisions addressing commercial and industrial uses. Processing of geoducks is not proposed in this application. The geoducks will be processed or sold in markets in other locations outside the city limits and the jurisdiction of the BISMP. Aquacultural wastes shall be disposed of in a manner that will ensure compliance with all applicable governmental waste disposal standards. No garbage, wastes, or debris shall be allowed to accumulate at the site of any aquaculture operation. No garbage, waste or debris will result from the harvesting of geoducks. Required separations between aquacultural uses and facilities and national wildlife refuge lands and/or habitats of special significance for birds or mammals, as identified by the Washington State resource agencies, shall be established based on analysis of the potential impacts on the resources. No national wildlife refuge lands and/or habitats of special significance for birds or mammals, have been specifically identified by the Washington State resource agencies within the area of the proposed harvest (See Exhibit #3, Sections 3.7 and 3.8). Hatchery and other aquaculture operations shall be required to maintain a minimum fifty (50) foot wide vegetated buffer zone along the affected streamway, provided that clearing of vegetation shall be permitted for essential water access points. The proposed geoduck harvest does not involve a hatchery or other aquacultural operations that would require a fifty-foot vegetation buffer. Vegetative buffers are not required. Onshore support structures shall meet the height and setback standards established in Table 4-2, Site Development Standards Matrix, except that reduced setbacks may be permitted where necessary for the operation of hatcheries and rearing ponds. Onshore support structures are not proposed with this application. Predator control shall not involve the killing or abusive harassment of birds or mammals. Approved controls include, but are not limited to, double netting for seals, overhead netting for birds, and three‑foot high fencing or netting for otters. The use

of other nonlethal, nonabusive predator control measures shall be contingent upon receipt of written approval from the National Marine Fisheries Service and/or the U.S. Fish and Wildlife Service, as required. Predator controls are neither proposed nor needed. For aqacultural projects using over‑water structures, storage of necessary tools and apparatus seaward of the OHWM shall be limited to containers of not more than three (3) feet in height, as measured from the surface of the raft or dock, provided that, in locations where the visual impact of the proposed aquaculture structures will be minimal, the City, based upon written findings and without requiring a variance, may authorize storage containers of greater height. In such cases, the burden of proof shall be on the applicant. Materials which are not necessary for the immediate and regular operation of the facility shall not be stored seaward of the ordinary high water mark. The proposed project does not include over water structures, storage of tools and apparatus. Mechanical and/or hydraulic clam harvesting or other activities that involve substantial substrate modification through dredging, trenching, or digging shall be prohibited in existing kelp beds or in beds of native eel grass (Zostera marina) containing more than two (2) turions per one-quarter (1/4) square meter in winter or three (3) turions per one-quarter (1/4) square meter in summer. The hydraulic harvesting that is proposed will modify the substrate, however the harvesting is not proposed in kelp beds and native eelgrass areas. WDFW has recommended that the harvesting not occur in eelgrass beds. This is accomplished by conducting preharvest eelgrass surveys (See Exhibit #3 - Section 3.9.1 Eelgrass and Condition of Approval #6). Fish net‑pens shall meet, as a minimum, State‑approved administrative guidelines for the management of net‑pen cultures; where any conflict in requirements arises the more stringent requirement shall prevail. Fish net pens are not proposed. Aquacultural proposals that include net-pens or rafts shall not be located closer than one (1) nautical mile to any other aquacultural facility that includes net-pens or rafts, provided that a lesser distance may be authorized by the City if the applicant can demonstrate to the City's satisfaction that the environmental and aesthetic concerns expressed in the SMP shall be addressed. If a lesser distance is requested, the burden of proof shall be on the applicant to demonstrate that the cumulative impacts of the existing and proposed operations would not be contrary to the regulations of the SMP. Fish net pens or rafts are not proposed. Except as provided in Regulation 18 above, aquacultural developments approved on an experimental basis shall not exceed five (5) acres in area, except anchorage for floating systems, and five (5) years in duration, provided that the City may issue a new permit to continue an experimental project as many times as is deemed necessary and appropriate. This application does not include aquaculture development that involves floating systems. Where necessary to preserve the integrity of any research data collected, aquaculture developments which would be likely to jeopardize an experimental aquaculture de-

velopment shall not be allowed within the same bay, harbor, or cove with any such aquaculture development, or within one mile (1) of such a development if the water body is larger than one (1) square mile in area, until after the experimental project is granted nonexperimental status or terminated. The proposed harvest activities would not be located near an experimental aquaculture development. For floating culture facilities, the City shall reserve the right to require a visual impact analysis consisting of information comparable to that found in the Department of Ecology's Aquacultural Siting Study (1986). Such analysis may be prepared by the applicant without professional assistance, provided that it is competently prepared. This project does not include floating culture facilities. Any shoreline designated a "shoreline of state-wide significance" with aquacultural activities proposed in that area shall be subject to: first, the policies and priorities contained in Section III, subsection H, Shorelines of State-wide Significance and, second, the regulations contained in this section. This report includes applicable policies from shorelines of statewide significance and the regulation contained in the aquaculture section of the SMP. See Section II C and Section II D of this report. Aquaculture activities proposed in an area designated a “shoreline of state-wide significance” shall be subject to setback and height standards as shown in Table 4‑2. The proposed harvest does not include the development of structures. Aquaculture will be conducted so that there will be no significant adverse disruption of the substrate. According to the Final S.E.I.S the substrate will be temporarily disturbed by the proposed harvest activities, however the substrate sediment will settle ultimately removing the pock marks associated with geoduck harvests (See Exhibit #3, Section 3.1). Mechanical and/or hydraulic clam harvesting operations, which use a hydraulic harvester or similar floating equipment shall be required to obtain a Substantial Development Permit and a Conditional Use Permit. Such permits shall only be issued if the applicant can show that the proposed operation will not harm fish or shellfish resources. The applicant has submitted a Shoreline a Substantial Development Permit and a Conditional Use Permit for the hydraulic harvesting of Geoducks. The applicant, as the lead agency, has determined that the proposed operation will not harm fish or shellfish resources (See Exhibit #3). Aquaculture activities are not subject to the regulations found in Section VI.D, Dredging and Dredge Material Disposal. The proposed development has not been reviewed as a dredging project. BIMC 16.12.380 – Part VII Shoreline Variance and Shoreline Conditional Use Permits Conditional Uses - The purpose of a shoreline conditional use permit is to allow greater flexibility in applying the use regulations of the SMP in a manner consistent with the policies of RCW 90.58.020, or its successor provided that shoreline conditional use permits should also be granted in a circumstance where denial of the permit would result in a thwarting of State policy enumerated in RCW 90.58.020 or its successor. In authorizing a conditional use, special conditions may be attached to the

permit by the City or the State Department of Ecology to prevent undesirable effects of the proposed use. Uses which are specifically prohibited by the SMP may not be authorized with approval of a shoreline conditional use permit. Uses classified as conditional uses may be authorized provided that the applicant can demonstrate all of the following: The proposed use will be consistent with the policies of RCW 90.58.020 or its successor and the policies of the SMP. The proposed geoduck harvest recognizes and is consistent with the policies of the Shoreline Management Act and the Bainbridge Island SMP (See Section II (D.) of this Staff Report). The proposed use will not interfere with the normal public use of the public shorelines. The proposed harvest will result in temporary activity that is not likely to interfere with normal public use of the public shorelines. See Exhibit #3, Section 4. The proposed use of the site and design of the project will be compatible with other permitted uses within the area. See #3, Section 4. The proposed use will cause no unreasonably adverse effects to the shoreline environment designation in which it is located. See Exhibit #3, Section 4. The public interest suffers no substantial detrimental effect. [WAC 17314-140(1) or its successor]. The public interest will benefit from the harvest. The State of Washington will generate revenue, which revenue is used for a variety of shoreline restoration projects, grants to local governments for purchase and restoration of aquatic lands and public access, and other State programs that protect and study the aquatic environment (See Exhibit #3, Section 2.5). The proposed use is consistent with the provisions of the Zoning Ordinance (BIMC Title 18) and the Comprehensive Plan (Ordinance 94‑21). The proposed harvest is in compliance with the Comprehensive Plan (See Section II C. of this report). E.

SEPA Determination: The Department of Natural Resources is the lead agency under the rules of the State Environmental Policy Act. An EIS was issued in 1985 with addenda over the course of years and a Final SEIS issued May 23, 2001 was provided as required by RCW 43.21C.030(2)(c). The City Adopted the Existing Environmental documents on August 28, 2009.

III. A.

Conclusions Site Characteristics 1. The applicant represents the ownership of the bedlands, i.e., citizens of the State of Washington. 2. The underwater terrain is suitable for harvesting activities. WDFW will observe the nature of the terrain prior to harvesting activities. 3. WDFW will examine the exact nature of the soils prior to harvesting activities. 4. Effects on marine animals probably will not be significant. 5. Harvest areas are undeveloped, adjacent shorelines are single family residential environments. 6. The proposed use is consistent with surrounding zoning, comprehensive plan and shoreline designations.

History This application was properly noticed and is now properly before the Hearing Examiner for review and decision. Comprehensive Plan Goals and Policies Per the analysis contained in section II C. of this staff report the proposal, as conditioned, is consistent with the Comprehensive Plan. Bainbridge Island Shoreline Management Master Program Requirements The proposal, as conditioned, is consistent with the SMP. SEPA Determination All requirements of the State Environmental Policy Act are satisfied. IV.

Exhibits: See Hearing Examiners Exhibit List.