Examiner lets Taylor use black oyster bags

Taylor Shellfish will not have to use costly blue or green oyster bags but will still need third-party monitoring for environmental impacts of its proposed floating oyster bag farm in Oakland Bay, the Mason County hearing examiner ruled Nov. 21, revising an original decision.

The seafood company objected to requirements that the black color of the oyster bags be replaced with blue or green and that it pay for a monitoring plan prepared by a third-party expert and filed a motion for reconsideration after the project was approved Oct. 9.

“The condition requiring green bags has been eliminated. The color of the bags (at least green/blue as opposed to black) does not make enough of a difference to aesthetic impacts to be validly regulated,” Hearing Examiner Phil Olbrechts wrote in the reconsideration decision.

The original approval decision found that changing the color of the oyster bags from black to green or blue would make an important aesthetic difference.

“The DOE guidelines favor green and blue colors, finding that those colors are best suited to blend into the environment. The guidelines note that black, the color proposed by the applicant, has variable impact dependent upon surrounding conditions,” according to the original decision.

“Notably, all the photographs and renderings presented by the applicant involve gray skies reflected off dark waters. Of course, the applicant’s proposed black gear is well camouflaged amongst these dark colors. The contrast of the black against reflections of green trees and blue skies is not depicted in any of the applicant’s submissions. Given the findings of the DOE guidelines, green and/or blue gear is required for the proposal,” the original decision said.

Olbrechts justified striking the requirement after new evidence was presented and also said it was subjective and could be legally challenged.

“Basing the green/blue requirement upon this criterion is vulnerable to invalidation. An ordinance violates due process if its terms are so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application.

“Given the renderings of the project under blue skies presented by the applicant as part of its reconsideration request, persons of common intelligence certainly could differ as to whether green/blue bags make any material difference from black bags in aesthetic impacts. Reasonable minds could certainly differ as to whether more likely than not green/blue bags are necessary to minimize aesthetic impacts,” according to the decision.

In challenging the original color imposition, Taylor said obtaining green or blue oyster bags would add an additional $600,000 to the project and the colors would not be appreciably different from black bags.

Independent review of the monitoring plan is still required, “but in a more limited and directed manner,” the decision says.

Taylor submitted a proposed plan with its reconsideration request. The final decision requires Taylor to submit the plan “to peer review by a qualified professional paid for the applicant and selected by the county.”

The examiner also found Taylor’s submitted plan lacked performance standards and set several new guidelines, including setting a benchmark for water circulation changes and oxygen levels in Oakland Bay, providing a baseline of water quality, a baseline fish migration study and benchmark and corrective action for southern resident killer whale adverse interactions.

“The monitoring plan should include a mailing to residents in view of the project site with the contact information of the agency to which sightings should be reported,” the decision says regarding the orcas.

The reconsideration decision grants final approval of a Shoreline Substantial Development Permit for the project. It is still subject to appeal to the Washington State Shoreline Hearings Board within 21 days of the Nov. 27 notice.