Oyster FEIS under fire for content and timing

11/29/2012

The Final Environmental Impact Statement (FEIS) on Drakes Bay Oyster Company was released last Wednesday, and with it a laundry list of negative impacts the National Park Service said would result from the company’s continued operation. Largely unchanged from a draft version that was criticized in a report by the National Academy of Sciences last summer, the FEIS describes long-term adverse effects on harbor seals, eelgrass, birds, water quality, visitor experience and more.

It claims to rely on a 2009 report by the Academy that addressed the same effects; however, its findings are often at odds with that report, which found “a lack of strong evidence that shellfish farming has major adverse ecological effects on Drakes
Estero.”

The more than 1,000-page document classifies impacts on harbor seals, eelgrass and birds as long-term, moderate adverse and impacts on water quality and fish as long-term, minor adverse. Long-term major adverse impacts are projected for categories labeled “soundscape” and “wilderness.”

Over and over, the FEIS states that renewing the farm’s permit would be “inconsistent with relevant law and policy.” It repeatedly characterizes a permit renewal as a strictly one-time affair—despite legislation stating the renewal would include the same terms and conditions as the existing permit, which contains a renewal clause.

But criticism this week has not been limited to the document’s content: the manner in which the FEIS was released and the timing of its release are also under fire.

According to the National Environmental Policy Act (NEPA), an inadequate FEIS “that precludes meaningful analysis” requires the preparation and circulation of a new draft, said Ryan Waterman, a San Diego environmental lawyer who is representing the oyster farm owners, Kevin and Nancy Lunny, pro bono.

Neither has the document been submitted to the Environmental Protection Agency, which would trigger a filing of a Notice of Availability—the standard procedure. That filing commences a 30-day public review and comment period that must be completed before any action related to the FEIS is taken.

Since the oyster company’s permit expires on November 30, and Interior Secretary Ken Salazar has promised to make a decision to renew or terminate the permit before that day, there is not enough time to fulfill this process.

The statement

The announcement of the FEIS, which will help guide Secretary Salazar in his decision this week, was made by the Cabinet member during a visit to Point Reyes on Wednesday—surprising journalists huddling around him for a brief press conference at Bear Valley Visitor Center.

The document is the culmination of a process that absorbed millions of taxpayer dollars. And the need for it at all was disputed: In 2009 Congress authorized the Secretary to renew the farm’s Special Use Permit (SUP) for a period of 10 years through legislation authored by Senator Dianne Feinstein.

The Lunnys and their supporters have long pointed to the actual language of their permit, which states that the Reservation of Use and Occupancy can be renewed through an SUP—typically granted by the seashore superintendent.

They have also referred to a 1998 Environmental Assessment conducted by then-Seashore Superintendant Don Neubacher, which resulted in a Finding of No Significant Impact.

That assessment was done in concert with plans to expand the farm’s footprint as an interpretive, processing and retail center for the former operator, Johnson’s Oyster Company.

Perhaps the main way the FEIS differs from the draft is in the data related to soundscape. Some of the strongest criticism levied on the draft was that the data used to represent the sounds emitted by the Lunnys’ oyster tumbler, a device for sorting oysters, and two motorboats, came from a cement truck and New Jersey police jet skis.

Critics urged the park service to use actual measurements submitted by the owners, which showed far quieter emissions.

The FEIS replaces the cement truck data with data from a metal cement mixer filled with gravel and rock—far louder than the plastic tumbler—which the FEIS claims can be heard 1.85 miles away.

The jet ski data is replaced by three-year-old recordings made for a Federal Aviation Administration study that the park service said “unambiguously” detected the motorboats.

Critics, including Corey Goodman and Richard Steffel of ENVIRON, who made actual recordings of the motorboats and oyster tumbler, said the boats were not operating at the times of the alleged recordings, based on the Lunnys’ GPS records.

Mr. Waterman said this fatal flaw in the soundscape section of the FEIS, which influences the wilderness section, nullifies the document’s core conclusion.

Alternatives

The park service outlined four alternatives in the FEIS, the first called a “no-action” alternative and the latter three called “action” alternatives. Alternative A would close the oyster farm immediately. It was chosen as the “environmentally preferred alternative.”

Alternative B would keep the farm open for 10 more years at 2010 production levels (about 600,000 pounds of shucked oysters annually) and allow the cultivation of Pacific oysters, Manila clams and one acre of purple-hinged rock scallops—the current shellfish cultivated.

Alternative C would reduce production by over 15 percent, prohibit the cultivation of Manila clams and require the owners to take down unpermitted buildings—according to Mr. Lunny, a few picnic tables placed near the bay.

Alternative D would raise the production limit by 40 percent, allow currently cultivated shellfish plus native Olympia oysters, and expand the farm as an interpretive and retail facility.

Under each alternative the park would require the Lunnys to forfeit their state water-bottom lease, which is good until 2029. The state would therefore cease to receive lease payments, and the Lunnys would instead pay an increased fee determined by the park service in a recent appraisal.

The action alternatives would also require the owners to dredge an area beneath a floating dock that was damaged in a recent storm; rebuild that dock; and build a new concrete work platform, conveyor, wooden ramps and washing system.

Impacts associated with this work are deemed adverse in numerous categories, including water quality, eelgrass, harbor seals, visitor experience and wilderness.

Also under each action alternative the Lunnys would be required, upon termination of their permit, to remove all mariculture infrastructure—an estimated 47,000 posts and 179,000 linear feet of lumber—and hire divers to scour the estero floor for debris. Mr. Lunny said that infrastructure predated the purchase of the property by the park service in 1972, so it belongs to the federal government.

Under each action alternative, the park service would designate a full-time employee to oversee the implementation of the SUP.

Under the no-action alternative, the park service stated the estero would gain full wilderness status—though it is unclear by what process.

Superintendent Cicely Muldoon and Melanie Gunn, seashore spokeswoman for oyster company matters, were both out of the office this week. Ms. Gunn referred all comments regarding the FEIS to Secretary Salazar’s office, which did not respond to requests for comment.

If the park were to shutter the oyster farm, it would keep the road, parking lot and vault toilets, and install a gate to limit access to Drakes Estero during harbor seal pupping season.

The FEIS notes that the Lunnys’ goals are to “operate an environmentally friendly and sustainable oyster farm” under a new SUP that includes the possibility of ongoing renewal and to obtain permission from the park service to complete the work authorized under the 1998 Environmental Assessment, with “select physical improvements.”

Yet it states that the park service “lacks authority” to allow the oyster farm to continue after November 30, 2012, citing a 1976 House Report from the hearings on the Point Reyes Wilderness Act. The report reads: “It is the intention that those lands and waters designated as potential wilderness additions will be essentially managed as wilderness, to the extent possible, with efforts to steadily continue to remove all obstacles to the eventual conversion of these lands and waters to wilderness status.”

The author of the Point Reyes Wilderness Act, former Congressman John Burton, has contested the park service’s interpretation of that statement. He argues that the intention of the potential wilderness designation for Drakes Estero was to keep the oyster farm in operation indefinitely.

Additionally, the Feinstein legislation expressly states that keeping the oyster farm in Drakes Estero cannot be cited as a precedent for any other potential wilderness area in the country.

Impacts

In its public scoping period prior to writing the draft Environmental Impact Statement, the park service solicited ideas for possible impacts that should be considered. In the final document it announced that it had dismissed proposed impacts on “cultural resources,” “local food” and “environmental justice,” among others. 

Changes to infrastructure at the oyster farm have made it ineligible for national historic status, the FEIS states, even though mariculture there is “significantly associated with the rebirth and development of the California oyster industry, which began in the 1930s.” The only period of historic significance for the site extends from 1957 to 1965, when the Johnson family ran the operation with little changes, according the report.

In dismissing the issue of local food, the FEIS states other forms of protein are produced in the vicinity and that the farm represents only 3.5 percent of the county’s total agricultural production.

Impacts that did make the cut were eelgrass, on which the park service projects a long-term, moderate adverse effect from the continuation of mariculture, citing boat propeller scarring, wake erosion and increased turbidity resulting in “sediment resuspension.”

Long-term, minor adverse impacts on fish; long-term, moderate adverse impacts on harbor seals; long-term, moderate adverse impacts on birds; and short-term and long-term, minor adverse effects on water quality are also noted.

The FEIS cites the Marine Mammal Protection Act’s penalties for disturbing harbor seals. In fact there is an the exemption for oyster workers in the Act.

The report notes but then diminishes the beneficial effects of the filter-feeders on water quality, saying the estero is already flushed by strong tidal cycles and coastal upwelling.

The long-term, major adverse effects on soundscape are defined as two people standing 16 feet apart and 50 feet from the oyster tumbler having to yell in order to communicate, and as the natural soundscape being interrupted more than 10 percent of the time. The FEIS states that such interferences are incompatible with wilderness, according to the Code of Federal Regulations.

Long-term, major adverse impacts on “wilderness” are explained as the oyster farm interfering with visitors seeking “solitude and a primitive or unconfined type of recreation, ”particularly in a place Congress intended as a wilderness.” The buildings also detract from views of Drakes Estero, especially at low tide when the bags and racks are visible.

The wilderness section fails to mention a letter sent during the public scoping period by the kayak tour operators in Drakes Estero, each of whom wrote personal testimonials stating that the oyster farm does not diminish the wilderness experience for their clients, but rather enhances it.

The operators supported the continuation of the oyster farm.

The FEIS found the socioeconomic effects of closing the farm to be long-term minor adverse, noting the staff comprise only .01 percent of the county’s population. “…Even if all former staff relocates to another community and or county, the impact on the regional economy would be minimal,” it states.

It also states that the impacts of closing the farm on the California shellfish industry could be long-term, major adverse, though it goes on to say the cumulative effect would only be minor.

Mr. Lunny sees the human impacts in a different light. “I went to the farm this morning at 7, and it was raining and it was dark,” he said Wednesday. “People that live there were coming out of their homes, people that commute were getting out of their cars. And they were smiling. They know their jobs could end in a few days. They are dedicated. We lose those members of our church and our schools—how can we call that insignificant? To me that’s objectionable.”

On Monday Mr. Waterman requested the seashore make available more than a half-dozen documents cited in the FEIS but missing from the appendices. These included a 2012 United States Geological Study assessment of photographs taken by hidden wildlife cameras above Drakes Estero, a 2011 report by Sarah Allen and Sarah Codde on harbor seal monitoring in the seashore, a 2012 letter from the State Historic Preservation Officer and a 2012 socioeconomic study.

Mr. Waterman wrote that NEPA requires that materials cited in a FEIS must be “readily available upon request.” He sent his request to Ms. Gunn. He had not received a response by press time.