Findings of Fact and Conclusions of Law in Sound Action v. King County and Mike Spranger

1 SHORELINES HEARINGS BOARD
STATE OF WASHINGTON
2
SOUND ACTION, a Washington non-profit
3 corporation,
SHB No. 23-002
4 Petitioner,
v. FINDINGS OF FACT, CONCLUSIONS OF
5 LAW AND ORDER
KING COUNTY, a political subdivision of
6 the State of Washington; and
MIKE SPRANGER, Applicant,
7
Respondents.
8
9 I. INTRODUCTION
10 On February 1, 2023, Petitioner Sound Action filed a petition with the Shorelines Hearings
11 Board (Board) for review of two 1 decisions: (1) the Shoreline Substantial Development Permit
12 Report and Decision issued by King County on January 10, 2023, to approve File No. SHOR22-
13 0015, a proposal titled SPARO Kelp and Shellfish Farm and (2) King County’s Mitigated
14 Determination of Nonsignificance for SPARO Kelp and Shellfish Farm.
15 The Board held a seven-day hearing on this matter on May 1-9, 2023, by Zoom
16 videoconference. The Board deciding this matter was comprised of Board Chair Carolina Sun-
17 Widrow, and Members Neil L. Wise, 2 Michelle Gonzalez, Jason Sullivan, and Dennis Weber.
18 Administrative Appeals Judge Heather L. Coughlan presided for the Board. Attorney
19
1
In its petition, Sound Action also listed a third decision: the Shoreline Substantial Development Permit Application
20 Decision. Pet. for Review, p. 1. Sound Action’s Closing Brief only seeks reversal of the Permit and the Mitigated
Determination of Nonsignificance. As a result, the Board concludes that the third decision has either been abandoned
21 or combined with the Permit. Sound Action’s Closing Br., p. 20.
2
Board Member Wise participated in the hearing and Board discussion but retired before issuance of this decision.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

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1
1 Kyle A. Loring represented Petitioner Sound Action. Attorneys Lena Madden and Noah Mikell
2 represented Respondent King County. Attorney Jesse G. DeNike represented Respondent
3 Mike Spranger. Court Reporters Evelyn Adrean, Nicole Buldis, Patricia Jacoy, Nancy Kottenstette,
4 Andrea Ramirez, and Anita Self of Buell Realtime Reporting LLC provided court reporting
5 services.
6 The parties agreed to 17 legal issues governing this appeal, as established in the February 28,
7 2023, Prehearing Order. Sound Action has withdrawn legal issues 12, 15, 16, and 17, Sound Action
8 Closing Br., p. 2, leaving the following issues to be resolved:
9 1. Did King County clearly err under the State Environmental Policy Act (“SEPA”) on the
basis that it applied the optional [Determination of Nonsignificance (“DNS”)] process
10 to review the impacts of a novel type of marine development when that integrated review
process is reserved for proposals for which the lead agency has a reasonable basis for
11 determining that significant adverse environmental impacts are unlikely?
12 2. Did King County clearly err under SEPA when it issued the Mitigated Determination of
Nonsignificance (“MDNS”) on the basis that it did not have reasonably sufficient
13 information about the location of the kelp and shellfish installation and critical saltwater
habitats like seagrass and macroalgae, and without reasonably sufficient information
14 about the amount of shade that will be caused by the kelp facility, the number of anchors
that will displace critical saltwater habitats, and risks to orcas and humpback whales
15 known to spend time in the area, including but not limited to entanglement and exclusion
from a feeding area?
16
3. Did King County clearly err by issuing an MDNS on the basis that it did not carefully
17 consider the full range of probable impacts, including short-term and long-term impacts,
as required by KCC 20.44.030 and WAC 197-11-060(4)(c)?
18
4. Was King County’s decision to issue the MDNS clearly erroneous on the basis that the
19 mitigation conditions do not require redress for project impacts associated with cetacean
entanglement and feeding exclusion and shade and displacement impacts to submerged
20 aquatic vegetation within and adjacent to the project footprint?
21

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2
1 5. Did King County clearly err by determining that an Environmental Impact Statement
was not required on the basis that this is a novel type of commercial development with
2 unevaluated impacts associated with cetacean entanglement and feeding exclusion and
shade and displacement of critical saltwater habitats?
3
6. Does Permit No. SHOR22-0015 (“Permit”) conflict with Comprehensive Plan policy S-
4 207 on the basis that it is inconsistent with the hierarchy of uses that King County must
observe for shorelines of statewide significance?
5
7. Does the Permit conflict with Comprehensive Plan policy S-538 on the basis that it is
6 inconsistent with the policy that all developments and uses on navigable waters or their
beds in the Aquatic Shoreline Environment be located and designed to minimize
7 interference with surface navigation, to consider impacts to public views, and to allow
for the safe, unobstructed passage of fish and wildlife and materials necessary to create
8 or sustain their habitat, particularly those species dependent on migration?
9 8. Does the Permit conflict with Comprehensive Plan policy S-539 on the basis that it is
inconsistent with the policy not to allow uses in the Aquatic Shoreline Environment that
10 adversely impact the ecological processes and functions of critical saltwater and
freshwater habitats, except when necessary to achieve the objectives of Revised Code
11 of Washington 90.58.020, and then only when the adverse impacts are mitigated
according to the sequence described in Washington Administrative Code 173-26-
12 201(2)(e) as necessary to ensure no net loss of shoreline ecological processes and
functions?
13
9. Does the Permit conflict with the [shoreline master program (“SMP”)] on the basis that
14 it is inconsistent with the SMP’s no net loss standards, including the policy that the
County shall ensure that new uses, development and redevelopment within the shoreline
15 jurisdiction do not cause a net loss of shoreline ecological processes and functions
(Comprehensive Plan policy S-601), the requirement to ensure that the use and
16 modification of the nearshore area for a commercial kelp growing facility does not cause
a net loss of shoreline functions and complies with the sequencing requirements under
17 KCC 21A.25.080 (KCC 21A.25.090), and the requirement to apply the mitigation
measures pursuant to the order of priority established by the mitigation sequence
18 (KCC 21A.25.080)?
inconsistent with the policy that docks, bulkheads, bridges, fill, floats, jetties, utility
20 crossings, and other human-made structures shall not intrude into or over critical
saltwater habitats except when conditions are satisfied?
21

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inconsistent with the policy that aquaculture activities shall be designed, located and
2 operated in a manner that supports long-term beneficial use of the shoreline and protects
and maintains shoreline ecological processes and functions, and that aquaculture permits
3 shall not be approved where it would result in net loss of shoreline ecological functions;
net loss of habitat for native species including eelgrass, kelp, and other macroalgae;
4 adverse impacts to other habitat conservation areas; or interference with navigation or
other water-dependent uses?
5
13. Does the Permit conflict with the SMP on the basis that it is inconsistent with the SMP’s
6 standards for experimental activities, including the policy that experimental aquaculture
projects in water bodies should be limited in scale and should be approved for a limited
7 period of time (Comprehensive Plan policy S-725), the requirement to include specific
performance measures and provisions for adjustment or termination of the project if
8 monitoring indicates that significant, adverse environmental impacts cannot be
adequately mitigated (KCC 21A.25.110.I), and the limitations on experimental facilities
9 to five acres in area and three years in duration (KCC 21A.25.110.J), given the potential
impacts of the facility on cetaceans and underlying and adjacent submerged aquatic
10 vegetation and lack of tested methodology?
11 14. Does the Permit conflict with the SMP on the basis that KCC 21A.25.110.W directs that
aquaculture shall not be approved where it will adversely impact eelgrass and
12 macroalgae?
13 The Board received prehearing briefs, sworn testimony of witnesses, exhibits, and written
14 closing arguments. Based upon the evidence and arguments presented, the Board enters the
15 following Findings of Fact, Conclusions of Law, and Order affirming the King County Department
16 of Local Services, Permitting Division’s Shoreline Substantial Development Permit and Mitigated
17 Determination of Non-Significance, with an additional modification.
18
19
20
21

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1 II. FINDINGS OF FACT
2 Project Background
3 1.
4 Mike Spranger proposed the SPARO Kelp and Shellfish Farm (Project), consisting of an
5 integrated and regenerative kelp (seaweed) and shellfish farm that would grow sugar kelp, clams,
6 mussels, oysters, and possibly scallops at one location. Kelp and seaweed are used interchangeably
7 here and refer to the species Saccharina latissima. All the species are either native or naturalized to
8 the proposed area. The appeal focused mainly on the kelp proposed to be grown from seeds attached
9 to lines and secured with a system of anchors, buoys, and suspended lines. Ex. RKC1, pp. 0001,
10 0003.
11 2.
12 The Project would be located 300 feet offshore of the mean low tide at the southwest corner
13 of Vashon Island, in Colvos Passage. The site would be entirely in open water, between depths of
14 30 feet and 80 feet. Ex. RKC1, p. 0001. The site measures approximately 1,200 feet by 350 feet, for
15 a total of 9.6 acres. Ex. RKC4, p. 0001. The maximum farmable area of the site, however, is 6.6
16 acres. Spranger Testimony at 814. In comparison, Colvos Passage is approximately 9,819.97 acres.
17 Ex. RKC12, p. 10. Puget Sound, where the Project would be located, is a shoreline of statewide
18 significance and within the designated Aquatic environment under the King County Shoreline
19 Master Program (SMP). KCC 21A.25; Ex. RKC1, p. 0001. The purpose of the Aquatic environment
20 designation is to protect, restore, and manage the unique characteristics and resources of the areas
21 waterward of the ordinary high-water mark. The adjacent shoreland environment is designated as

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1 Conservancy. KCC 21A.25; Ex. RKC1, p. 0008. The purpose of the Conservancy shoreline is to
2 conserve areas that are a high priority for restoration, including valuable historic properties, or to
3 provide recreational opportunities. Ex. RKC1, p. 0008.
4 3.
5 Spranger hired a marine engineering firm, DSA Ocean, to design the farm. Spranger
6 Testimony at 813; Ex. RS11. Colin Wilson, the registered engineer who led the analysis for the
7 Project design, has ten years’ experience at DSA Ocean as a marine and hydrodynamic engineer.
8 Wilson Testimony at 1216-17, 1219; Ex. RS24 (Wilson CV). DSA Ocean completed a metocean
9 assessment, using a one-in-50-year storm condition to determine the necessary size of the anchors
10 and mooring components. Wilson Testimony at 1219. DSA Ocean also determined wave loads
11 based on fetch (distance along open water or land over which the wind blows 3) and storm duration,
12 using data from local weather stations. Id. at 1220. Wilson testified that DSA Ocean applied
13 relevant international standards throughout its analysis. Id.
14 4.
15 Spranger contacted and obtained approval for the Project from several federal, state, and
16 local agencies. He first contacted the Puyallup Tribe, which supported the Project. Spranger
17 Testimony at 843. In October 2021, Spranger began to seek approval from King County and, around
18 the same time, from the State of Washington, Department of Fish and Wildlife (WDFW). Id. at
19 843-44. He also obtained approval from the State of Washington, Department of Ecology. Id. at
20
21
3
https://www.merriam-webster.com/dictionary/fetch

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1 843. Spranger also proceeded through the Army Corps of Engineers’ (Corps) approval process. Id.
2 at 848. The Corps shared information regarding the Project with the National Marine Fisheries
3 Service (NMFS) and the U.S. Fish and Wildlife Service (USFWS). Id. at 849. Both NMFS and
4 USFWS issued letters of concurrence regarding the Project. Spranger Testimony at 849; Ex. RKC14
5 (U.S. Fish and Wildlife Service Concurrence Letter). After those two federal agencies issued letters
6 of concurrence, the Corps approved the Project. Spranger Testimony at 849-50; Ex. RKC18 (Corps
7 Permit). The Corps then contacted the U.S. Coast Guard, which required Spranger to install buoys
8 as navigational aids at each side of the Project grow area. Spranger Testimony at 850.
9 5.
10 Around October 2022, after contact from Sound Action, the Corps reinitiated its approval
11 so that NMFS could evaluate the Project’s potential effects on humpback whales. Carey Testimony
12 at 331-35; Spranger Testimony at 895-96. NMFS issued an updated letter, concluding that the
13 Project’s effects on the movement of humpback whales and Southern Resident Killer Whales
14 (SRKW) was insignificant considering the size of the farm relative to the passage, SRKW’s
15 echolocation abilities, the lack of any reported entanglements of humpback whales or SRKW with
16 kelp aquaculture farms, and the lower probability of an ESA-listed Distinct Population Segment of
17 humpback whales in the action area. Ex. RKC12, p. 0012 (NMFS Concurrence Letter). NMFS again
18 concurred with the Project, and around January 2023 the Corps again approved it. Spranger
19 Testimony at 896.
20
21

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1 Other Kelp Farms
2 6.
3 The Project would not be the only seaweed farm in Washington state. Blue Dot Sea Farm is
4 a seaweed and shellfish integrated suspended aquaculture farm in North Hood Canal. Davis
5 Testimony at 1515-16. Dr. Jonathan Davis is Blue Dot Sea Farm’s co-founder and senior scientist.
6 Ex. RS36, p. 1 (Davis CV). Davis completed his Ph.D. in fisheries in 1994 and has worked as a
7 researcher in the shellfish industry since that time. Davis Testimony at 1515; Ex. RS36. He is also
8 an affiliate professor at the University of Washington School of Aquatic and Fishery Sciences. Id.
9 at 1515.
10 7.
11 Blue Dot Sea Farm has been cultivating seaweed and shellfish at its 5.7-acre site since 2016.
12 Id. at 1516. Davis testified that the seaweed Blue Dot Sea Farm cultivates is grown based on
13 methods that have been used extensively throughout the world. Id. Blue Dot Sea Farm currently
14 cultivates sugar kelp, which it typically plants on grow lines in late November and harvests at the
15 end of March or the first week of April. Id. at 1516-17. Davis is familiar with the methods and
16 technologies that Spranger plans to use for the Project and stated that Spranger’s approach is
17 essentially the same as what Blue Dot Sea Farm has been doing in North Hood Canal. Id. at 1530-
18 31. Davis testified that seaweed cultivation is quite standardized throughout the industry. Id. at
19 1531.
20
21

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1 8.
2 Lummi Island SeaGreens, based near Lummi Island, also farms kelp. Spranger Testimony
3 at 841. Spranger testified that Lummi SeaGreens was recently granted a permit and harvested
4 seaweed in April. Id. Similar to the Project’s design, Lummi Island SeaGreens grows sugar kelp
5 from seeds attached to lines, which are secured with anchors. Id.
6 9.
7 The Board also heard testimony regarding similar kelp farms outside of Washington. Scott
8 Lindell, a research specialist with the Woods Hole Oceanographic Institution, reviewed the Project
9 design and testified that it was the same design his lab had been using successfully for five years in
10 New Hampshire, where the design supports five lines that are 200–300 feet in length. Lindell
11 Testimony at 1261, 1270. Lindell’s lab has been using a much larger but similarly designed system
12 in Kodiak, Alaska, for four years. Id. at 1270.
13 King County Permitting Process
14 10.
By statute, the lead agency is a local government which oversees the process of issuing a
15
shoreline substantial development permit (SSDP) consistent with the Shoreline Management Act
16
(SMA), its own SMP, and other regulations. See RCW 90.58.140(1)-(2). King County is the lead
17
agency, which issued the SSDP for the Project. Ex. RKC10. King County is also the lead agency,
18
which issued the Mitigated Determination of Nonsignificance (MDNS) pursuant to the State
19
Environmental Policy Act (SEPA), Ch. 43.21C RCW.
20
21

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1 11.
2 King County Department of Local Services, Permitting Division (Permitting) conducted a
3 preliminary review of the Project during the pre-application process that began in October 2021,
4 months before the application was submitted. Spranger Testimony at 847-48. Spranger recalls that
5 King County assigned staff to conduct the pre-application review in March 2022. Id. at 844. On
6 June 2, 2022, Spranger applied to King County for an SSDP for the Project. Ex. RKC1, p. 0001.
7 12.
8 Ty Peterson testified for King County regarding its permitting process. Peterson is the
9 commercial product line manager for Permitting. Peterson Testimony at 975; Ex. RKC52 (Peterson
10 Resume). He has an undergraduate degree in urban and regional planning and a graduate degree in
11 construction management technology. Id. at 979. Peterson has worked for King County for nearly
12 ten years. Id. He estimates that in that time he has reviewed an average of 20 SSDP permits per
13 year. Id. at 977-78. Prior to working for King County, Peterson worked for several cities as a
14 planner, planning and development services manager, and community development and public
15 works director. Id. at 979-80; Ex. RKC52.
16 13.
17 Peterson has served as the designated SEPA official for his entire tenure at King County
18 and for a total of more than 20 years in the various jurisdictions for which he has worked. Peterson
19 Testimony at 987-88. A SEPA official is the lead agency’s designee who is essentially responsible
20 for carrying out the agency’s duties under SEPA. Id. at 988. One determination a SEPA official
21 must make is whether a project is exempt under SEPA. If a project is not exempt under SEPA, then

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1 review proceeds to assess whether the SEPA threshold determination is likely to be a Determination
2 of Significance (DS), DNS, or MDNS. Id. at 988-89. One of those three determinations is reached
3 before King County can proceed with issuance of a permit decision that is subject to SEPA. Id. at
4 989.
5 14.
6 King County uses the optional DNS process for the majority of SEPA-related permit
7 applications. Peterson Testimony at 1014-16. The optional DNS process is allowed under
8 WAC 197-11-355. The notice must specify that the agency expects to issue a DNS for the proposal,
9 that the optional DNS process is being used, that the comment period announced in the notice may
10 be the only opportunity to comment on the environmental impacts of the proposal, and that a copy
11 of the subsequent threshold determination for the proposal may be obtained upon request.
12 WAC 197-11-355(2)(a); See also Peterson Testimony at 1014. Peterson testified that King County
13 uses the optional DNS process by default because it would not be able to issue two separate public
14 notices within the required timeline for rendering a permit decision. Peterson Testimony at 1015-
15 16. Among other recipients specified in the regulation, the notice of application and environmental
16 checklist must be sent to anyone who requests a copy of the environmental checklist for the specific
17 proposal. WAC 197-11-355(2)(d). The responsible official must consider timely comments on the
18 notice of application and then may take actions including issuing a DNS or MDNS with no
19 comment period or requiring additional information or studies prior to making a threshold
20 determination. WAC 197-11-355(4). Under the optional DNS process, King County may include
21

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1 in the notice the likely SEPA determination. Id. at 1014. Listing the likely SEPA determination,
2 however, does not bind the agency to a particular determination. Id. at 1016, 1033-34.
3 15.
4 King County used the optional DNS process for the Project, issuing a Notice of Application
5 on August 11, 2022. Ex. RKC4, p. 0001. The Notice of Application states that the optional DNS
6 process was being used and that the responsible official had a reasonable basis for expecting to
7 issue a SEPA DNS. Id. The public comment period for the Notice of Application extended to
8 September 13, 2022, and the Notice of Application states that the provided comment period may
9 be the only opportunity to comment on the environmental impacts of the proposal. Id. Peterson
10 testified that King County continues to accept comments after the comment period has closed,
11 however, until the time it makes a decision. Peterson Testimony at 1040. Public comments were
12 received and reviewed by King County and the applicant. Ex. RKC1, p. 0002. The applicant
13 provided written responses to the public comments. Id.
14 16.
15 King County relied in part on federal agencies—NMFS and USFWS—in reviewing the
16 status of the location as a foraging area for marine mammals. See Peterson Testimony at 1171-72.
17 17.
18 During the review process, King County required Spranger to complete a macroalgae survey
19 on the Project site. Spranger Testimony at 851. Before completing the survey, Spranger reviewed
20 survey guidelines from WDFW and obtained advice from an environmental consulting firm,
21 Confluence Environmental Company, on how to conduct the survey. Id. at 852-53, 890;

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1 Ex. RKC15. Spranger conducted the survey in May 2022, using his remote-operated vehicle (ROV).
2 Spranger Testimony at 851-52; Ex. RKC15, p. 0004. He completed the survey by using GPS
3 coordinates to identify the site, then he divided the site into transects, along each of which he guided
4 the ROV, taking either video or pictures of the seafloor from the ROV as it drove along each
5 transect. Spranger Testimony at 881-82; Ex. RKC15, pp. 0005-06. The transects were spaced 50
6 feet apart. Spranger Testimony at 882; Ex. RKC15, p. 0005.
7 18.
8 To estimate the macroalgae coverage in the Project site, Spranger printed a picture of the
9 site and overlaid it with a grid, filling in boxes in the grid where he found macroalgae during the
10 survey. Spranger Testimony at 883. He concluded that there was macroalgae coverage between 10
11 and 60 percent in certain areas of the Project site, which decreased in coverage as the depth
12 increased. Id. at 883-84; Ex. RKC15, p. 0006. Confluence confirmed the identity of the macroalgae
13 found. Spranger Testimony at 853. While Spranger stated in the survey that “a comprehensive
14 identification of macroalgae species” was beyond the scope, Ex. RKC15, p. 0007, Spranger testified
15 that he meant this statement to allude to the fact that the survey did not reflect spores and other
16 microscopic components of macroalgae, which would not be visible from the ROV. Spranger
17 Testimony at 884. Spranger testified that although there is a bull kelp bed approximately 750 feet
18 away from the Project site, he saw only one piece of bull kelp at the site itself, which was located
19 at a shallower elevation than he planned to plant sugar kelp. Id. at 868.
20
21

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1 19.
2 King County considered whether the Project constituted an “experimental” aquaculture project
3 under the Comprehensive Plan. Peterson Testimony at 1102. The Comprehensive Plan provides:
4 “Experimental aquaculture projects in water bodies should be limited in scale and should be
5 approved for a limited period of time. Experimental aquaculture means an aquaculture activity that
6 uses methods or technologies that are unprecedented or unproven in the State of Washington.” King
7 County Comprehensive Plan, Policy S-725 (Policy S-725). Because King County had not processed
8 this type of aquaculture before, it asked its consultants and staff whether the Project was
9 “experimental.” Id. at 1103. Peterson testified that staff and decision makers at King County
10 ultimately agreed that the Project—which uses a series of anchors, lines, and buoys—would not
11 use methods or technologies that are unprecedented or unproven in the state of Washington. Id.
12 Rather, these methods and materials are used for a variety of purposes, including for mooring ships,
13 docks, and other structures. Id. Thus, King County concluded that the Project would not be an
14 experimental aquaculture project. Peterson Testimony at 1103-04.
15 20.
16 King County prioritized its review of the Project ahead of other applications, per request of
17 the King County Executive. Peterson Testimony at 1109. The review process, however, was the
18 same as if it had not been prioritized ahead of the review of other applications. Id.
19 21.
20 On October 5, 2022, King County requested additional information from Spranger
21 regarding the Project. Ex. P71. On several issues, including potential effects on marine mammals

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1 and macroalgae, King County asked Spranger to provide additional written commentary and
2 documents. Id., pp. 2, 7.
3 Marine Biologist Consultants
4 22.
5 King County coordinated with the King County Department of Natural Resources and Parks
6 (DNRP) to find and retain marine biologists to consult on the Project. Peterson Testimony at 1054-
7 55. King County required outside consultants because Permitting does not employ on-staff marine
8 biologists, and DNRP did not have capacity to assist in reviewing the Project. Peterson Testimony
9 at 1054, 1057. King County retained from the consulting firm Anchor QEA to review the project.
10 Peterson Testimony at 1060.
11 23.
12 The Anchor QEA scope of work, dated August 3, 2022, states that the firm’s marine
13 biologists would assist “King County staff in objectively determining whether the projects have
14 impacts on the surrounding shoreline environments and meet the goals and regulations of the
15 Shoreline Management Act (WAC 173‐27) and King County Shoreline Master Program
16 (KCC 21A.25), particularly from an ecological / biological perspective.” RKC35, p. 0001 (scope
17 of work). Anchor QEA’s review included the scientific credibility of the applicant’s studies, impact
18 analysis, and scientific references. RKC35, p. 0001. In addition, the consultants reviewed potential
19 changes from existing conditions on the following species and habitats: marine mammals
20 (including potential for entanglement), eelgrass and kelp, the benthic community, substrate
21 composition, and protected/Endangered Species Act-listed species (including salmonids, Orca,

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1 other marine mammals), non-listed species, and adjacent shorelands. RKC35, pp. 0001-02. The
2 scope of work also included recommending project mitigation measures and reviewing
3 King County reports and decisions. Id., p. 0002.
4 24.
5 Elizabeth Greene, an Anchor QEA principal biologist who reviewed the Project for King
6 County, testified at the hearing. Greene Testimony at 1557; Ex. RKC50 (Greene Resume). Greene
7 has a master’s degree in marine resource management and 23 years’ experience working as a
8 biologist. Greene Testimony at 1557. In her role, Greene evaluates impacts of proposed projects
9 on aquatic resources, primarily aquatic species and their habitats. Greene Testimony at 1557.
10 Earlier in her career, Greene conducted around 10 macroalgae or eelgrass surveys as a diver. Id.
11 at 1560-61. She no longer personally dives to conduct eelgrass or macroalgae surveys, but she
12 manages projects that require hiring a diver to complete such surveys. Id. at 1560.
13 25.
14 Greene completed an initial evaluation on August 31, 2022, and completed a second review
15 around the end of October 2022. Id. at 1587, 1657.
16 In evaluating the Project, Greene reviewed materials including:
17 • Applicable code provisions;
18 • Spranger’s application materials;
19 • An impact analysis prepared by Confluence Environmental Company;
20 • NMFS’s first letter of concurrence;
21

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1 • The best management practices, avoidance, and minimization measures that
2 Spranger agreed to implement;
3 • USFWS’s letter of concurrence;
4 • The eelgrass and macroalgae survey completed by Spranger with assistance from
5 Confluence;
6 • The permit from the Corps;
7 • The SPARO seaweed/shellfish farm planting and harvesting narrative;
8 • The Biological Evaluation for Informal ESA Consultation; and

9 • The Joint Aquatic Resources Permit application form.
10 Greene Testimony at 1579-80, 1598-1606; Exs. RKC17 (Confluence Impact Analysis), RKC13
11 (SPARO Aquatics Best Management Practices, Avoidance, and Minimization Measures), RKC14
12 (USFWS letter of concurrence), RKC15 (eelgrass and macroalgae survey), RKC18 (Corps permit),
13 RKC20 (SPARO seaweed/shellfish farm planting and harvesting narrative), RKC25 (Biological
14 Evaluation for Informal ESA Consultation), RKC27 (Joint Aquatic Resources Permit application
15 form). During review, Greene also requested additional information from Spranger and reviewed
16 and responded to his written responses. Greene Testimony at 1584-88; Exs. RKC32, RKC34.
17 26.
18 Sound Action challenges King County’s reliance on the NMFS concurrence letter, which
19 it asserts was flawed. Sound Action Closing Br., p. 12. Sound Action contends that the NMFS letter
20 was based on incorrect assertions that humpback whales would not be present at the site and that
21 the site would serve as a core summer habitat for SRKW, such that SRKW would avoid the site

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1 during the winter months when farm activities would occur. Id. As Greene testified, however, it is
2 reasonable to rely on letters of concurrence from NMFS and USFWS because those agencies are
3 required to use best available science and are responsible for managing the recovery of species.
4 Greene Testimony at 1637; Ex. P68; see also Bain Testimony at 706 (Sound Action’s expert
5 acknowledging that NMFS is the main agency responsible for protecting the marine mammals and
6 fish that could be affected by the Project); Gornall Testimony at 1332 (veterinarian with significant
7 experience with marine mammals, agreeing with NMFS’s conclusions). Moreover, as is apparent
8 from the reinitiation process that the Corps and NMFS engaged in, NMFS did consider the
9 presence of humpback whales before issuing its second concurrence letter. Ex. RKC12, p. 0012
10 (NMFS Concurrence Letter). The Board finds it was reasonable for King County to rely on the
11 NMFS concurrence letter.
12 27.
13 Greene also testified regarding potential positive benefits from the Project. Those benefits
14 include increased benthic community diversity and abundance as well as the structure that would
15 provide habitat for fish and other organisms. Greene Testimony at 1629. Based on her evaluation,
16 Greene concluded the Project would not result in a net loss of ecological function or process. Id. at
17 1610. Scientists from King County DNRP performed a quality assurance review of Greene and
18 Montgomery’s work to confirm that they had completed the review that King County had requested.
19 Peterson Testimony at 1062. The DNRP scientists were generally in agreement with the consultants.
20 See Peterson Testimony at 1066, 1071.
21

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1 King County MDNS and SSDP Issuance
2 28.
3 e On January 10, 2023, King County issued both the MDNS and the SSDP for the Project.
4 Exs. RKC1, RKC10. The Project, as approved by King County, includes six anchors with three
5 arrays of lines. Peterson Testimony at 1084; Spranger Testimony at 817, 948; Ex. RKC1, p. 0003
6 (SSDP provision stating that “[t]he farm will utilize 6 anchor locations to secure the farm in
7 place.”). Each array will be equipped with “spreader bars,” which will allow Spranger to include
8 up to five grow lines per array—constituting a total of 15 grow lines as approved in the SSDP.
9 Spranger Testimony at 819-20, 948. The five-line arrays will be spaced approximately 125 feet
10 apart. Id. at 820. Peterson, who signed the MDNS, testified that he made the final decision about
11 the conditions in the MDNS and that he was satisfied that he had all information he needed to do
12 so. Peterson Testimony at 1042.
13 29.
14 Below is a diagram of the Project, depicting the three arrays of lines and six anchors, with
15 bathymetry measurements showing the depth of each anchor:
16
17
18
19
20
21

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19
1
10
11
12 Ex. RS11, p. 3.
13 30.
14 Sound Action contends that King County failed to evaluate the impacts from the complete
15 scope of the Project, citing a Farm Planting and Harvesting Narrative in which Spranger wrote that
16 in years two and beyond he would add more grow lines to fill the full farmable area. Sound Action
17 Closing Br., p. 6; Ex. RKC20, p. 0004. Several of Sound Action’s witnesses testified to their
18 understanding that Spranger would build out the Project to include more than six anchors and three
19 arrays of grow lines. See, e.g., Carey Testimony at 77; Myers Testimony at 411-13.
20
21

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20
1 31.
2 The text of the SSDP, however, indicates that Spranger is limited to installing six anchors,
3 which can support a total of three arrays of grow lines. The SSDP states that “[t]he farm will utilize
4 6 anchor locations to secure the farm in place.” Ex. RKC1, p. 0003. The SSDP also provides that
5 the Project “shall be in general conformance to the project plans and information provided by the
6 applicant listed as exhibits in this report, and following, [sic] except as modified by conditions of
7 approval contained herein or as otherwise approved by Permitting.” Id., p. 0019. Peterson testified
8 that this provision means that the Project would need to be constructed in the basic configuration
9 proposed, which in this case includes using six anchors. Peterson Testimony at 1168.
10 32.
11 Consistent with the text of the SSDP, both Spranger and Peterson testified that the Project
12 is limited to the description in the SSDP. Spranger explained his understanding that the SSDP
13 authorizes three arrays with a total of up to 15 lines and that he would need to obtain approval from
14 all relevant agencies if he wanted to add additional arrays or lines. Spranger Testimony at 824-25,
15 866-67. Peterson also testified that the SSDP allows a maximum of six anchors with three arrays
16 that can have up to 15 lines. See Peterson Testimony at 1084.
17 33.
18 Furthermore, Spranger testified that when referring to the full farmable area in the Farm
19 Planting and Harvesting Narrative, he meant the maximal farmable area based on what he could
20 afford and what he paid his marine engineer to design—that is, three arrays attached to a total of
21 six anchors. Spranger Testimony at 916-17. Spranger initially intended to plant between 10 and 15

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21
1 lines in the first year, as reflected in documents, but later decided to start smaller in the first year
2 and gradually add more lines up to the maximum permitted in the SSDP. Id. at 821-24; see also
3 Ex. RKC20, p. 0004. The Board finds and concludes that King County properly based its review of
4 environmental impacts on the scope of the Project that it approved—that is, six anchors that support
5 three arrays of grow lines, for a total of up to 15 grow lines.
6 34.
7 In the SSDP, King County noted that a map of existing kelp relative to the proposed farm
8 location had been provided. Ex. RKC1, p. 0003. The map and accompanying report show that the
9 two anchors at the shallowest depth were at 30-40’, the two mid-depth anchors would be located at
10 a depth of 50-60’, and the anchors at the deepest position would be at 70-90’. Ex. RKC16, pp. 0001-
11 02. Peterson testified that he used this information in determining where macroalgae was present at
12 the Project site. Peterson Testimony at 1160. King County also imposed a condition requiring
13 additional photographs of macroalgae with an ROV to be taken prior to and at the time of
14 installation of the anchors, and quarterly after that. Id. at 1158; Ex. RKC1, pp. 19-21; Ex. RKC10,
15 p. 8. Annual monitoring of macroalgae extent and quantification of no net loss following WDFW
16 macroalgae survey guidelines to the extent practicable is also required. Ex. RKC1, p. 0021.
17 35.
18 King County imposed several conditions under SEPA to mitigate the potential adverse
19 environmental impacts of the Project. Exs. RKC1, pp. 0019-22; RKC10, pp. 0007-10. The
20 conditions include, among others:
21

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22
1 • Siting aquaculture lines in areas where minimal to no existing macroalgae is
2 present;
3 • Positioning of anchors to avoid existing macroalgae to the extent practicable,
4 through the use of an ROV;
5 • Taking photographs upon anchor installation and quarterly after that;
6 • Monitoring of macroalgae extent and quantification of no net loss on an annual basis,
7 following WDFW macroalgae survey guidelines to the extent practicable;
8 • Monitoring before and after construction and operations to see if Project provides
9 benefits or impacts to the benthic community;
10 • Avoiding in-water activities if marine mammals are in the area;

11 • Keeping longlines taut to reduce potential for marine mammal entanglement; and
12 • Developing a marine mammal entanglement response plan.
13 Ex. RKC1, pp. 0019-22.
14 Macroalgae Survey
15 36.
16 Macroalgae Survey
17 Sound Action contends that the macroalgae survey Spranger completed, and King County
18 relied on, was flawed. Sound Action Closing Br., p. 7. To opine on the macroalgae survey, Sound
19 Action called witness Doug Myers, the Maryland senior scientist at the Chesapeake Bay Foundation
20 and a Sound Action Board member. Myers Testimony at 404, 409; Ex. P60 (Myers Resume). Myers
21 discussed eelgrass and kelp surveys, which he has conducted in Puget Sound. Myers Testimony at

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23
1 435-36. Referring to guidelines prepared by WDFW, Myers testified that a survey should include
2 not just the footprint of the project itself, but an area 25 feet waterward of the project footprint and
3 at 10 and 25 feet from the outer edges of the project footprint. See Myers Testimony at 436; Ex. P6,
4 p. 2 (Eelgrass/Macroalgae Habitat Interim Survey Guidelines). Myers further testified that the
5 survey should be conducted using transects by divers who are qualified to identify species. Myers
6 Testimony at 436.
7 37.
8 According to the WDFW survey guidelines, a preliminary survey is conducted to determine
9 if eelgrass or macroalgae is present at the site, evaluate that the project can be located and constructed
10 to avoid impacting eelgrass or macroalgae, and establish a project location that would minimize
11 impacts when avoidance is impossible. Ex. P6, p. 1. If a preliminary survey indicates that the project
12 footprint potentially impacts existing eelgrass or macroalgae beds, the protocol provides that an
13 advanced survey is required. Id., p. 3. The guidelines state that advanced surveys—to quantify the
14 impacts to eelgrass and macroalgae and to quantify the performance of mitigation actions—shall
15 occur between June 1 and October 1. Id., p. 3.
16 38.
17 Myers testified that the survey was inconsistent with the WDFW guidelines in several
18 respects. Myers Testimony at 439-40, 443. The survey was conducted outside of the June 1 to
19 October 1 timeframe, limited to the actual footprint of the Project site, completed by an ROV
20 instead of a diver, and conducted without the participation of someone who was qualified to identify
21 the species. Id. at 443.

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24
1 39.
2 On cross-examination, however, Myers acknowledged that the WDFW survey guidelines,
3 as well as protocols of the Corps, were indeed only guidelines from which a permitting agency
4 could deviate. Myers Testimony at 504-05. Similarly, the guidelines concerning the use of a diver
5 rather than an ROV to conduct a survey are not mandatory requirements—they can be waived by
6 the permitting agency. Id. at 506-07.
7 40.
8 Myers opined, however, that these deviations from the survey guidelines mean that the
9 survey could have failed to identify extant macroalgae. The Project survey noted a small area of bull
10 kelp approximately 1,000 feet to the south of the proposed farm site, for example, which Myers
11 testified means that spores from that bull kelp could be moving into the Project area. Id. at 445.
12 Myers testified that without a survey in the proper season, very young bull kelp in the Project site
13 could have been overlooked, particularly when a survey is conducted via ROV rather than by a
14 knowledgeable diver. Id. Myers further noted that just because species like bull kelp and eelgrass
15 are not expressed at one time does not mean they would not be seen in the area at other times. Id. at
16 446. Myers opined that it is important to not just survey an area’s existing kelp, but to also estimate
17 the amount of shading that would result from a project because shade may exclude kelp from
18 growing in the future. Id. at 451.
19 41.
20 Other witnesses, however, opined that the macroalgae survey was sufficient and meets the
21 WDFW Eelgrass/Macroalgae Habitat Survey Guidelines for a preliminary survey, which may be

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25
1 conducted at any time of year. Greene Testimony at 1611-12, 1617; Ex. P6, p. 2. Greene testified
2 that the macroalgae survey was sufficient for her to evaluate the potential impacts of the Project on
3 macroalgae and eelgrass. Greene Testimony at 1613. Although she was not provided a map with an
4 overlay indicating where macroalgae was present at the Project site, Greene stated that she was
5 given all the information she needed to map out the macroalgae herself. Id. at 1614. Greene
6 reviewed the elevations where macroalgae was found and assumed that a similar percent cover
7 composition would be found at the same elevations throughout the site. Id. at 1614-15; see also
8 Ex. RKC15, p. 9 (survey photos indicating elevation and depicting macroalgae presence) and
9 Ex. RCK16, p. 1 (bathymetry survey showing Project site depths). Greene testified that the survey
10 showed the presence of scattered kelp on the substrate on the bottom, but it did not show any
11 eelgrass or kelp beds. Greene Testimony at 1616-17. Rather, the scattered kelp is interspersed with
12 other types of macroalgae. Id. at 1616.
13 42.
14 Because macroalgae was found in the survey, Greene recommended baseline monitoring as
15 well as postconstruction and operation monitoring on an annual basis to confirm there was no net
16 loss. Greene Testimony at 1617; Ex. RKC1, pp. 0019-20. As stated, she opined the survey was
17 sufficient for a preliminary survey, and her recommendations included using advanced survey
18 protocols for later monitoring. Greene Testimony at 1617. Consistent with Greene’s
19 recommendation, the conditions in the SSDP include “[m]onitoring of macroalgae extent and
20 quantification of no net loss on an annual basis following WDFW macroalgae survey guidelines to
21 the extent practicable.” Ex. RKC1, p. 0021.

SHB No. 23-002
26
1 43.
2 Greene also testified that it is not atypical that the survey was conducted by video and without
3 a diver, particularly because it is a preliminary survey. Greene Testimony at 1620. Greene found it
4 was also acceptable that the preliminary survey was limited to the Project footprint rather than
5 including the outskirts, which could be monitored in the future per the SSDP condition. Id.
6 44.
7 Chris Cziesla, a marine and fisheries biologist with Confluence Environmental Company,
8 also testified on behalf of Spranger regarding submerged aquatic vegetation and surveys. He has
9 conducted dozens of eelgrass and macroalgae surveys, ranging from small areas to areas of one
10 hundred acres or more. Cziesla Testimony at 1369. In his experience, the survey methods have been
11 modified almost every time for a variety of reasons, including the depth of the location and the
12 plants being observed. Id. at 1424. Cziesla testified that the quadrat system—using a quarter-meter-
13 squared hoop to estimate the density of aquatic plants—is more important when surveying eelgrass.
14 Id. at 1427-28. Macroalgae, on the other hand, is surveyed with more of a “broad brush,” without
15 quantifying percent coverage per species, which Cziesla testified is not required in relevant
16 guidance. Id. at 1428-29.
17 45.
18 Given the characteristics of the Project site, Cziesla testified that a diver transect survey
19 would not be desirable or feasible. Id. at 1432. The site is too deep for eelgrass to grow, and it is a
20 large, uniform site, which would justify reducing the sampling intensity. Id. at 1430-31. Also,
21 because of the two-to-three knot sweeping current, it would be virtually impossible to have a scuba

SHB No. 23-002
27
1 diver complete the survey using 25-foot transects. Id. Cziesla testified that Spranger’s methods,
2 including using an ROV and the spacing of the transects, were appropriate for the aquatic vegetation
3 survey. Id. at 1438.
4 46.
5 Cziesla also stated that the timing of Spranger’s survey in May, although outside the
6 recommended window of June through October, made sense because Spranger would be harvesting
7 at about that time. Id. at 1441. Although conducting the survey in the summertime would have been
8 better, Cziesla explained that the May window is a borderline month and that he commonly will
9 conduct surveys outside of the recommended window. Id. Additionally, Cziesla testified that
10 images of the proposed anchor sites taken later in the year—in August and September—are
11 consistent with the findings in the earlier survey. Id. at 1442-44; Ex. RKC16.
12 47.
13 The Board finds and concludes that King County did not err in relying on the macroalgae
14 survey. Although Sound Action contends the survey failed to meet certain WDFW survey
15 guidelines, it is undisputed that those guidelines are not mandatory requirements. Rather, as Cziesla
16 and Greene testified there is flexibility in how macroalgae surveys are conducted depending on
17 specific site location and conditions. They further testified that the deviations from the guidelines
18 pointed out by Sound Action here were appropriate and reasonable given site-specific conditions
19 as well as conditions imposed in the SSDP.
20
21

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1 Macroalgae Impacts
2 48.
3 In addition to challenging the sufficiency of the macroalgae survey, Sound Action contends
4 the Project will impermissibly impact macroalgae, including bull kelp. Sound Action Closing Br.,
5 pp. 15-16. Myers opined that because there are macroalgae present within the shade footprint of the
6 Project, there will be net loss of macroalgae if the Project goes forward. Myers Testimony at 468-
7 69. He further opined that the Project’s proposed growing schedule—seeding the sugar kelp in
8 November and harvesting by April—would not prevent impacts to macroalgae because
9 gametophyte generation may already be present at that time, when the macroalgae would be very
10 sensitive to the amount of light received. Id. at 459; Ex. RKC20, p. 0001.
11 49.
12 Myers criticized the evidence supporting the MDNS as well as the terms within the MDNS.
13 He opined that the MDNS fails to support the conclusion that the Project’s effects on macroalgae
14 would be mitigated by adjusting the location of lines to areas of minimal or no existing macroalgae.
15 Myers Testimony at 470; Ex. RKC10, p. 0003. Furthermore, to the extent mitigation was
16 appropriate, Myers testified that it is impossible to know how the lines can be placed to minimize
17 shading of macroalgae because no macroalgae map was prepared. Myers Testimony at 471.
18 50.
19 Sound Action’s executive director, Amy Carey, testified regarding the presence of a
20 particular type of macroalgae, bull kelp, at the Project site. Sound Action submitted maps prepared
21 by King County DNRP, showing the presence of bull kelp in 2017 or 2019. Ex. P4, p. 1. Carey

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29
1 testified that these maps depicted the presence of bull kelp along the shoreline, including through
2 the Project area. Carey Testimony at 141; Ex. P4, pp. 2-3. Carey testified that she had seen bull
3 kelp at or near the Project site, which she said is visible during parts of the season when the kelp
4 extends up to the surface. Carey Testimony at 142.
5 51.
6 Witnesses for Spranger disagreed with Sound Action’s assertion that macroalgae would be
7 negatively impacted by the Project. Greene evaluated the potential impact of shading, concluding
8 that there would not be a probable impact to existing macroalgae. Greene Testimony at 1625. This
9 conclusion was based on scientific literature and the short growing season anticipated for the kelp,
10 which would be harvested right at the beginning and just before the macroalgae growth season. Id.
11 at 1624-26; Ex. RKC77. Greene also considered Spranger’s commitments to site the farm in deeper
12 water where there would not be macroalgae, to use an ROV to observe where the anchors were
13 being placed, and to avoid macroalgae to the extent possible. Greene Testimony at 1626. She also
14 found it would be difficult to measure any loss of ecological function from the two anchors that
15 would be placed in areas that supported macroalgae growth, since they are relatively small and their
16 surface area would support macroalgae growth. Id. at 1626-27.
17 52.
18 Even assuming there was a substantial shading of native kelp due to the Project, that would
19 be offset by the kelp that is being cultivated, which is also native. Cziesla Testimony at 1458-63.
20 The farmed kelp will filter nutrients from the water column and will provide a structure for fish and
21 other organisms, including macroalgae that will likely colonize the surface of the anchors. Id. at

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30
1 1458-59. Cziesla testified that the Project is in an area with generally limited macroalgae presence
2 and that it is sited specifically to avoid the area toward the shoreline, which has the densest
3 macroalgae presence. Id. at 1457-58.
4 53.
5 The Board finds and concludes that Sound Action has failed to show the Project will
6 adversely affect macroalgae. The Project has been sited in an area with minimal macroalgae. In
7 addition, native kelp will grow near the two anchors, which are located in the shallower area of the
8 Project site. While bull kelp has been found near the Project site, the evidence does not establish
9 that it grows at the site itself. Furthermore, the SSDP and MDNS conditions require annual
10 “[m]onitoring of macroalgae extent and quantification of no net loss…” Exs. RKC1, p. 0021;
11 RKC10, p. 10.
12 Whale Impacts
13 54.
14 Sound Action contends King County failed to adequately consider the risks the Project poses to
15 whales.
16 Carey Motion in Limine
17 55.
18 Carey, Sound Action’s executive director, testified regarding the Project’s effects on
19 whales. Carey Testimony at 25. Sound Action’s mission is the protection of nearshore habitat and
20 species. Carey Testimony at 26. As executive director, Carey regularly reviews environmental
21 assessments and works with scientists and project collaborators. Carey Testimony at 27; see also

SHB No. 23-002
31
1 Ex. P58 (Carey Resume). Carey is not a research scientist. Carey Testimony at 44. As a resident of
2 Vashon Island, however, Carey has been monitoring and tracking SRKW around the island. Id. at
3 54. Carey has visited the Project site. Id. at 32.
4 56.
5 Before the hearing, King County and Spranger moved in limine to exclude Carey’s expert
6 testimony regarding ecological processes and functions or impacts on nearshore habitat or species.
7 Respondents’ Mot. in Limine to Limit Amy Carey’s Expert Testimony and Opinions. The Board
8 initially denied the motion in limine so that more foundation for Carey’s testimony could be
9 provided at hearing. Order on Mot. in Limine, p. 7 (Apr. 28, 2023).
10 57.
11 The Pollution Control Hearings Board (PCHB) has ruled on the admissibility of Carey’s
12 expert testimony in two cases that have recently been reviewed by the Court of Appeals. In an
13 unpublished decision, the Court of Appeals affirmed the PCHB’s decision to partially exclude
14 Carey’s testimony, concluding “that the Board’s determination that Carey was not an expert in
15 nearshore ecology and development impacts was not arbitrary and capricious.” Sound Action v.
16 Pollution Control Hr’gs Bd., No. 56641-9-II, 2023 Wash. App. LEXIS 424, at *51 (Ct. App. Mar 7,
17 2023). In another unpublished decision, filed on the last day of hearing in this appeal, the Court of
18 Appeals again affirmed the PCHB’s decision limiting the scope of Carey’s testimony. Sound Action
19 v. Pollution Control Hr’gs Bd., No. 57308-3-II, 2023 Wash. App. LEXIS 909, at *22 (Ct. App.
20 May 9, 2023) (“Gerlach”). In Gerlach, the Court of Appeals found that the PCHB had “examined
21 each factor from ER 702 as it related to Carey’s qualifications—scientific knowledge, skill,

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32
1 experience, training, and education.” Gerlach, Wash. App. LEXIS 909 at *20. The PCHB’s “order
2 further explained that Carey’s assertion that she had relevant training was not supported by any
3 certification or other proof of formal training and, regarding education, she did not have a college
4 degree or other degree in the sciences.” Id. at *20-21. The Court of Appeals concluded that Sound
5 Action had not shown that the PCHB “abused its discretion in limiting Carey’s expert testimony,
6 and not qualifying her as an expert on biology, and not allowing her to testify regarding the
7 ecological impacts of the Gerlach project.” Id. at *22.
8 58.
9 At the hearing the Board received additional foundational testimony from Carey, who was
10 subject to voir dire. The Presiding Officer granted the motion in limine to exclude her testimony on
11 ecological processes and functions as not meeting ER 702 requirements. Oral Ruling at 130-31.
12 The Presiding Officer noted that Carey does not have formal education, training, or peer reviewed
13 scientific publications in this subject. Id. at 130-32. Furthermore, the Presiding Officer explained
14 that Carey’s testimony as an expert in biology had been excluded in Gerlach and found that no
15 significant additional support had been provided since then that would justify a different result. Id.
16 at 131; see also Gerlach, at *20-22. Carey was allowed to testify as a lay witness on other topics,
17 such as whale sightings.
18 Whale Sightings
19 59.
20 The parties dispute the extent to which whales are present at the Project site or its vicinity,
21 such that the Project would potentially affect them. Several witnesses testified regarding the Project

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33
1 site and its surrounding areas without precisely defining the terms. See, e.g., Carey Testimony at
2 213-14. For clarity and consistency, the Board finds that the “Project site” is the 9.6-acre area
3 referenced in the Notice of Application. See Ex. RKC4, p. 0001; Spranger Testimony at 870. The
4 Board finds that “Project vicinity” encompasses the Project site as well as a small area on all sides
5 surrounding the Project site.
6 Carey testified about sightings of whales at or around the Project, and introduced photos
7 and videos of whales, including SRKW. Carey Testimony at 213-25; Exs. P16, P17, P18. However,
8 the evidence offered at hearing does not establish the location of the whales depicted in the exhibits.
9 For example, Carey asserted that a photo showed a whale traveling into the Project site based on
10 her description that a building in the photo “generally is along” the southern line of the Project site.
11 Carey Testimony at 213; Ex. P16, p. 1. It was unclear from the photos, however, how near the whale
12 was to the building and the Project site. See Ex. P16, p. 1. Carey testified as to another photo that
13 she knew it showed whales at the Project site because it was sent to her from someone on the water
14 monitoring the whales, without further explanation or support to demonstrate that it in fact showed
15 whales at the Project site. See Carey Testimony at 219; Ex. P16, p. 11. The Board finds that neither
16 Carey’s testimony nor the photos and videos conclusively establish that whales depicted in the
17 exhibits were in the Project site or Project vicinity.
18 Carey also testified regarding her own observation of whales in or around the Project site.
19 She stated that she has seen Bigg’s killer whales “in the vicinity of the site,” that she has
20 “[f]requently” observed humpbacks at the site, and that it is “fairly common” to see SRKW spend
21 “a bit of time in that area.” Carey Testimony at 226-28. The Board finds that Carey’s testimony

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34
1 regarding her personal observations—which does not specify either location or frequency of whale
2 sightings beyond general terms—does not conclusively establish that whales were at either the
3 Project site or Project vicinity.
4 60.
5 Carey also presented estimates of whales in the Project area, based on reported whale
6 sightings. Carey Testimony at 236-47; Exs. P8, pp. 5-7 (Carey Summary), P10, P11, P12. To
7 prepare the estimates, Carey compared and correlated sighting data from the Whale Museum with
8 sighting reports from the Orca Network. Carey Testimony at 243. The sighting data from the Whale
9 Museum is broken down into grids, meaning that a whale reported in any of several grids adjacent
10 to the Project site possibly would have been within the actual vicinity of the Project. Id. at 240-41;
11 Ex. P8, pp. 3-4. In a written report, Carey explained that the Project site is located at the nexus of
12 three grids: 418, 420, and 422. Id. Accordingly, Carey included sightings from all three grids in
13 estimating the number of days whales were seen around the Project site. Id., p. 3. Carey explained
14 that she cross-referenced the Whale Museum data with other data and information “as well as with
15 personal observation information to determine a more precise location.” Id., p. 4. On cross-
16 examination Carey testified that the Whale Museum data contained 25 to 30 errors including dates
17 and type of whale identified that she corrected. Carey Testimony at 369. Per Carey’s calculations,
18 SRKW were seen in the Project area between two and eight days per year from 2014 to 2022.
19 Ex. P8, p. 5. Carey estimated that Bigg’s killer whales were seen around the Project site between
20 eight and 32 days per year and that humpback whales were seen between one and 88 times per year.
21 Id., pp. 6-7.

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35
1 61.
2 Sound Action also called Alisa Lemire Brooks, who has been the whale sighting network
3 coordinator for the Orca Network since 2015. Brooks Testimony at 152, 156; Ex. P62 (Brooks
4 Resume). Orca Network collects reports from researchers, naturalists, trained volunteers, and
5 members of the public who observe orcas, humpbacks, and other whales in the Puget Sound. Brooks
6 Testimony at 153-54. Brooks provided expert testimony on whale presence and sightings in the
7 Salish Sea. Brooks Testimony at 161.
8 62.
9 The Orca Network collects data from a variety of sources, including emails, phone calls,
10 and social media. Brooks Testimony at 164. Each report is documented and then compiled into a
11 spreadsheet by one of the Orca Network’s board members. Id.; Ex. P86. The Orca Network also
12 collaborates on a whale alert app, which collects reports of whale sightings and records them on a
13 map. Brooks Testimony at 167; Ex. P13. Brooks testified that the whale alert map reflected whale
14 sightings in the vicinity of the Project site. Brooks Testimony at 171. Brooks also personally
15 observed orcas and other whales in the vicinity of the project along the southwest corner of Vashon
16 Island. Id. Based on her observations, Brooks would expect SRKW, Bigg’s killer whales, and
17 humpback whales to spend time in the Project site. Id. at 173, 180, 182.
18 63.
19 Brooks has not been to the Project site. Id. at 190-91. On cross examination, she
20 acknowledged that she cannot say that she observed whales in the actual Project site (as opposed to
21 the vicinity of the site) because she did not know about the Project when she observed whales in

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36
1 the area. Id. at 191-92. According to Brooks, she had seen whales foraging within as close as 50 or
2 100 yards to the Project site. Id. at 192. She estimated that she had observed SRKW foraging in the
3 area of the Project site around six times and humpbacks around three times. Id. at 192-93. When
4 she observed whales in the area, she was either on a ferry approximately one-half to one mile away
5 from the Project site or on a shoreline approximately two miles from the Project site. Id. at 191.
6 64.
7 Dr. David Bain, the chief scientist for Orca Conservancy, also testified in support of Sound
8 Action. Bain Testimony at 600. Bain has a PhD in biology from the University of California, Santa
9 Cruz, and completed postdoctoral fellowships at the University of California, Davis, and at
10 NOAA’s national mammal laboratory. Id.; Ex. P59 (Bain CV). Among other positions related to
11 marine mammal research and observation, Bain was also a scientist for the Marine World
12 Foundation and worked for approximately 20 years as a contractor for NOAA. See Bain Testimony
13 at 600-03. Bain has also authored publications on marine mammal issues. Id. at 603. Bain was
14 permitted to testify as an expert on whale biology, behavior, and risks in the Salish Sea and beyond.
15 Id.; see also Ex. P21. Bain sits on the board for Sound Action. Bain Testimony at 607.
16 65.
17 Bain provided evidence regarding whale sightings. Bain testified regarding a peer-reviewed
18 scientific paper from 1990, which reflected humpback whale sightings in 1988. Bain Testimony at
19 617-18; Ex. P27. Based on a figure in the report that depicts humpback whale sightings as “dots”
20 on a low detail map (scale of 1 inch representing 10 kilometers), Bain testified that two of the “dots”
21 were in or just outside of the Project site. Bain Testimony at 619; P27 at 46 (Fig. 1). Bain had not

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1 looked for more recent literature. Bain Testimony at 620. In his report, Bain also cited an NMFS
2 report from 2008, which reflects 26-100 SRKW sightings in or around the vicinity of the Project.
3 Ex. P21, p. 6. Bain’s report does not indicate the period over which the SRKW sightings were
4 reported. See Ex. P21, p. 6.
5 66.
6 Bain acknowledged that many of the whale sighting reports from the Orca Network do not
7 give an exact location of where a whale was located. Bain Testimony at 722. Moreover, even as to
8 sightings where a location is provided, uncertainty arises from how individuals perceive and
9 describe the location of whales. If a whale is reported to be “halfway across the channel,” for
10 example, it is uncertain how far offshore the whale is located and whether it was straight ahead
11 from the observer or not. Id. at 725. Bain testified that such sightings do indicate that a whale is
12 “somewhere between Tacoma and the south end of Vashon Island.” Id.
13 67.
14 Bain testified that humpback whales are likely to be found at the Project site from early
15 spring into late fall, although it is possible they will be seen in the area year round. Id. at 628. Bain
16 would expect to see humpback whales inshore of the Project site. Id. at 629. Bain also testified
17 regarding Bigg’s killer whales, opining that he would expect to see them at the Project site any time
18 of year. Id. at 630. Bain has not personally seen SRKW forage at the Project site. Id. at 778. Bain
19 testified about SRKW, stating that they circumnavigate Vashon Island fairly regularly over the
20 winter. Id. at 630-31.
21

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1 68.
2 Cziesla testified on behalf of Spranger regarding whales. He discussed whale sightings in
3 the area and challenged the reliability and usefulness of the sighting analysis proffered by Sound
4 Action’s witnesses. Cziesla Testimony at 1366; Ex. RS28 (Cziesla CV). For the past 25 years,
5 Cziesla has been conducting research, collecting data, and analyzing projects, primarily in the
6 Northwest. Cziesla Testimony at 1367. Cziesla’s focus areas include marine and estuarian ecology,
7 fisheries biology, habitat classification, nearshore oceanography and circulation, marine mammals,
8 and shellfish. Id.. Cziesla first became involved with the Project when Spranger reached out to
9 Confluence for assistance during the permitting process. Id. at 1374.
10 69.
11 Cziesla relied on a study of SRKW sightings from 1976 to 2014, which was published in
12 2018. Id. at 1393-94; Ex. RS12 (Olson JK, et al., Sightings of southern resident killer whales in the
13 Salish Sea 1976–2014: the importance of a long-term opportunistic dataset. Endang Species Res
14 37:105-118 (2018)). According to the 2018 study, Cziesla explained that the Project is within an
15 area that is in the lowest group of sighting frequencies, supporting the conclusion that the Project
16 site does not represent a frequent use area for SRKWs. Ex. RS60, pp. 3-4.
17 70.
18 In his initial analyses, Cziesla avoided using sighting data relied upon by Sound Action’s
19 witnesses because they consist of opportunistic observations that are not corrected for sampling
20 bias, meaning that they are collected in such a way that there is a lower or higher probability of
21 detection under the methods being used. Cziesla Testimony at 1394-95. In particular, Cziesla

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1 testified that the data would show a higher incidence of whale presence where there are overlooks
2 or viewpoints to observe whales and a higher bias for daytime versus nighttime hours. Id. at 1395.
3 Ferry routes also heavily influence the datasets, according to Cziesla, because ferry captains are
4 obligated to report every whale sighting, ferries provide an effective platform for viewing whales,
5 and all the passengers are observers. Id. at 1395-96.
6 71.
7 Furthermore, Cziesla criticized Carey’s use of the Whale Museum data for all three separate
8 grids in the vicinity of the Project—grid numbers 418, 420, and 422. According to Cziesla, the
9 majority of grid 420 is away from the Project area, and the sighting frequency data are biased by a
10 large population of potential observers from Point Defiance, Tacoma, and ferry passengers.
11 Ex. RS60, pp. 1-2 (Cziesla Report); see also P8, p. 4 (Carey Report). Even using Carey’s data and
12 analysis, however, Cziesla concluded that the 2-8 sighting days of SRKW per year in grid numbers
13 418, 420, and 422 is relatively low compared with other areas such as Elliott Bay and the
14 Edmonds/Kingston area, which have up to 34 and 37 sighting days respectively. Ex. RS60, p. 2.
15 72.
16 Spranger also testified regarding his own observations while at the Project site. He visits the
17 Project site via boat about 3-5 times per week, totaling approximately 200 to 250 visits. Spranger
18 Testimony at 868-70. In his visits, he has never seen any whales within the Project site (i.e., within
19 the footprint of the approximately 10-acre site). Id. at 870.
20
21

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1 73.
2 The Board finds and concludes that King County did not err in concluding that the proposed
3 farm is located in an area that is not known as a particularly high use area for marine mammals as
4 compared to other sites in Puget Sound. RKC1 p.2; RKC10 p. 2. The Board finds Cziesla’s and
5 Spranger’s testimony regarding the frequency of whale sightings in or around the area is generally
6 more reliable than the evidence presented by Sound Action’s witnesses. Cziesla’s opinion that the
7 Project site does not represent a frequent use area for SRKW is supported by a 2018 published study
8 of whale sightings, which attempted to correct for sampling bias. Cziesla Testimony at 1397-98;
9 Ex. RS60, pp. 3-4. The Board also places more weight to Spranger’s testimony as it was based on
10 frequent firsthand observation at the Project site. In contrast, the opinions of Sound Action’s
11 witnesses regarding whale sighting data were not corrected for sampling bias and included data
12 from areas well beyond the Project site.
13 Whale Behavior
14 74.
15 The parties also disputed the behaviors that whales engage in at the Project site that would
16 either be limited by the Project or would expose them to risk if the Project is built. Monika Wieland
17 Shields, director of the Orca Behavior Institute, testified for Sound Action as an expert on whale
18 presence, behavior, and the Project’s potential effects on whales. Shields Testimony at 534-37; Ex.
19 P61 (Shields CV). Orca Institute’s mission is to conduct noninvasive behavioral and acoustic
20 research on Bigg’s killer whales and SRKW in the Salish Sea. Shields Testimony at 535. Shields’s
21 responsibilities at the Orca Institute include implementing the group’s research projects, analyzing

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1 data, and publishing research. Shields Testimony at 535. She has a degree in biology with a focus
2 in animal behavior. Id. at 536. Shields also has more than 20 years of experience in the San Juan
3 Islands. Id.; Ex. P61.
4 75.
5 Shields testified that she would expect SRKW to use the Project site for foraging or
6 traveling. Shields Testimony at 547-48. She stated she would expect to see SRKW in the area
7 primarily from September through January, for a total of about one-to-two weeks. Id. at 548. The
8 amount of time humpbacks spend in the vicinity varies, she stated, and most sightings occur
9 between May and December. Id. at 565-66.
10 76.
11 Shields also testified that SRKW, Bigg’s killer whales, and humpback whales all engage in
12 a behavior called “kelping,” during which they swim through kelp beds and interact with the kelp.
13 See Id. at 549-53; Ex. P36. Shields discussed photos she had taken of whales kelping. Shields
14 Testimony at 549-53; Ex. P36. Although the photos show whales interacting primarily with bull
15 kelp, Shields testified that she had seen whales interacting with a variety of kelp species and that
16 she did not think orcas would interact differently with the sugar kelp to be grown at the Project site.
17 Shields Testimony at 553-54; Bain Testimony at 774-75. Given the tendency of SRKW to interact
18 with kelp, Shields opined that the Project would pose a risk of entanglement. Shields Testimony at
19 554.
20
21

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1 77.
2 Alternatively, if whales, particularly SRKW, avoided the Project site, Bain testified that
3 they would suffer from the loss of foraging habitat. Bain Testimony at 646. The fact that SRKW
4 only spend a week or two at the Project site did not change Bain’s opinion that the Project posed a
5 risk to SRKW, particularly because the population’s foraging abilities are already limited. Id. at
6 674; Ex. P21.
7 78.
8 Thomas Gornall, a retired veterinarian with significant marine mammal experience, testified
9 on behalf of Spranger and disagreed with testimony from Sound Action’s witnesses that whales
10 may be attracted to the Project site. Gornall Testimony at 1325-26. While whales engage in kelping,
11 Gornall testified that whales use bull kelp or giant kelp—which form canopies. Id. at 1325-26.
12 Sugar kelp, which Spranger plans to grow, is a hanging kelp that does not form a canopy. Id. at
13 1326. Gornall also testified that orcas are found throughout the world, yet there are no reports of
14 whales kelping in kelp farms and becoming entangled. Id. at 1326-27. Gornall did not believe
15 whales would be attracted to the sugar kelp to engage in kelping. Id. at 1326.
16 79.
17 Cziesla did not believe the approximately ten-acre Project site or even the 1,500 feet further
18 around the Project site are important foraging or high-use areas. Cziesla Testimony at 1376, 1392;
19 see also Ex. RS60, pp. 1-5. He explained that prey resources accumulate more to the south—where
20 the water that comes around Point Defiance mixes, or “seams,” with the water from Dalco Pass,
21 accumulating materials. Cziesla Testimony at 1382. The prey resources that accumulate in the

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1 “seam” include everything from plankton and krill, to fish such as herring and anchovies that feed
2 on plankton and krill, and to salmon that feed on the herring and anchovies. See Id. at 1378, 1383.
3 He estimated that the “seam” area is about a mile south of the Project site and further south in the
4 Tacoma Narrows during the flood tide. Id. at 1383-84. Cziesla testified that such prey aggregation
5 features are not found in the Project site or its vicinity. Id. at 1385. Furthermore, Cziesla explained
6 that salmon, SRKW’s primary prey, are a highly mobile species that does not stay in one place for
7 a long period of time. Id. at 1389-90. Cziesla thus disagreed with Bain’s opinion that the Project
8 would result in loss of foraging habitat from whales avoiding the site. Id. at 1389.
9 80.
10 The Board finds and concludes that the evidence in the record does not show that the Project
11 site is likely to attract whales or that they will lose a significant foraging area if they avoid it. No
12 evidence of whales kelping in an aquaculture farm was presented, which is consistent with Gornall’s
13 testimony that whales use canopy-forming kelp for this behavior, not hanging kelp such as the sugar
14 kelp that Spranger intends to grow. The Board is also persuaded by Cziesla’s testimony explaining
15 the accumulation of prey resources further south of the Project site, indicating that the Project site
16 itself is not a significant foraging area. Additionally, the small size of the Project site in comparison
17 to Colvos Passage—which is approximately 9,819.97 acres—supports the conclusion that whales
18 are unlikely to use the site or be detrimentally impacted if they avoid it.
19
20
21

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1 Entanglement Risk
2 81.
3 The parties presented conflicting opinions on the risk of entanglement that the Project may
4 pose to whales. Sound Action’s witnesses argued the Project presents a significant risk of
5 entanglement to whales, referring to whale entanglements that involved other types of aquaculture.
6 Bain testified regarding the entanglement of a Bigg’s killer whale in what was likely a crab pot line
7 and opined that there were no significant differences between that material and the structure of the
8 Project. Bain Testimony at 654-55. Bain also testified that there are examples of whales being
9 entangled in shellfish lines. Id. at 647. Bain opined that the Project’s configuration consisting of an
10 anchor at the bottom and a float on top was a design in which whales commonly get entangled. Id.
11 at 645. Shields also testified regarding examples of orcas being entangled in different types of lines
12 and opined that any type of fishing or aquaculture line presents a risk of entanglement. Shields
13 Testimony at 555, 558.
14 82.
15 Bain and Shields opined that the Project would create the risk of entanglement for all three
16 types of whales discussed—humpback, Bigg’s killer whales, and SRKW. Bain Testimony at 654,
17 661; Shields Testimony at 563-67, 571; see also Ex. P21 (Bain Report). Bain testified that the
18 Project would pose the most risk to humpback whales, which lack the ability to echolocate. Bain
19 Testimony at 642. And while killer whales do echolocate, they do not do so all the time. Id.; Shields
20 Testimony at 555. With regard to SRKW, Shields noted that because of their critically endangered
21

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1 status, the loss of even a single individual can have detrimental impacts on the potential for recovery
2 of the population. Shields Testimony at 571-72.
3 83.
4 Shields reviewed the conditions that were placed on the Project in the MDNS, including the
5 condition of increasing line tension. Id. at 567. Although Shields acknowledged that “the best
6 practice to reduce risk of entanglement is to have the lines taut rather than loose[,]” which reduces
7 risk, she testified that there would nevertheless be a significant risk of entanglement. Id. at 568,
8 577. Shields proposed seeking an alternative location in Puget Sound for the Project or using
9 alternative gear, such as breakaway lines, to reduce the risk to whales. Id. at 570-71. On cross
10 examination, Shields stated the risk of entanglement due to kelp farming, as opposed to other types
11 of aquaculture, is unknown because it is an emerging industry. Id. at 592.
12 84.
13 Spranger’s expert witness, Gornall, opined that the Project raised no entanglement concerns,
14 explaining that the Project contained none of the loose lines that could form a loop and entangle a
15 marine mammal. Gornall Testimony at 1323. Nor did Gornall see an entanglement risk posed by
16 the Project’s proposed shellfish cages because they would be securely attached. Id. at 1323-24.
17 Gornall testified that the Project was well designed to avoid entanglement and sited to avoid
18 important areas for reproduction and migration. Id. at 1328-29.
19 85.
20 NMFS similarly concluded that the risk that the Project will entangle or obstruct either
21 SRKW or humpback whales is “very low.” Ex. RKC12, p. 0012. In its concurrence letter, NMFS

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46
1 wrote that there have been no whale entanglements with aquaculture equipment in Puget Sound. Id.
2 Contrary to Bain’s and Shields’s opinions, NMFS distinguished the Project’s design from
3 aquaculture gear that was involved in past entanglements. The NMFS letter reflects that a recent
4 review of entanglements within aquaculture gear (specifically for longline mussel culture) found
5 just 19 occurrences globally since 1982, and those examples involved offshore shellfish aquaculture
6 operations in deep water habitat. Id. Indeed, it is undisputed that there are no reported instances of
7 whale entanglements in a kelp farm aquaculture facility, even though kelp farms are located
8 throughout the world. Shields Testimony at 579; Bain Testimony at 647. Also, NMFS concluded
9 that the Project’s small farmed area of approximately 6-7 acres is insignificant in light of the size
10 of Colvos Passage, which is approximately 9,819.97 acres. Ex. RKC12, pp. 10, 12.
11 86.
12 Bain also testified regarding potential biological removal, which he described as a
13 measurement of how much impact people can have on a species without jeopardizing its future
14 existence. Bain Testimony at 625-26. The potential biological removal for SRKW is 0.13 per year,
15 which according to Bain’s testimony, means that if one SRKW is killed per year, the population’s
16 risk of extinction is substantially increased. Id. at 626.
17 87.
18 Cziesla also addressed the “potential biological removal” issue that Bain discussed in his
19 testimony. According to Cziesla, “potential biological removal” is defined in the Marine Mammal
20 Protection Act as the maximum number of animals, not including natural mortalities, that may be
21 removed from a marine mammal stock while allowing that stock to reach or maintain its optimal

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1 sustainable population. Cziesla Testimony at 1412. In other words, Cziesla disagreed with Bain’s
2 opinion that the 0.13 potential biological removal level for SRKW indicated that the loss of a single
3 individual would substantially increase the population’s chance of extinction—instead, the
4 potential biological removal represents the numbers that may be removed while allowing the stock
5 to reach its maximum sustainable population. Compare Cziesla Testimony at 1412-13 with Bain
6 Testimony at 626. Cziesla testified that extinction is addressed by NMFS under the Endangered
7 Species Act any time a project has a federal nexus, such as the Corps permit that was required in
8 this matter. Cziesla Testimony at 1413-14.
9 88.
10 The Board finds and concludes that King County did not err in evaluating the risk of whale
11 entanglement. The Project does not pose a significant risk of entanglement, particularly considering
12 that there have been no reported instances of whales becoming entangled in kelp aquaculture farms.
13 Gornall reasonably explained a difference between kelp aquaculture and other types of aquaculture
14 that have resulted in entanglements—namely, the fact that the Project will use taut lines in which
15 whales are less likely to become entangled. Furthermore, the MDNS includes a mitigation measure
16 requiring Spranger to develop a marine mammal entanglement response plan “to define steps to be
17 taken if a marine mammal were to become entangled or otherwise negatively interacting with the
18 aquaculture site.” Ex. RKC10, p. 0008. Because the MDNS does not specify a deadline for creating
19 the marine mammal entanglement response plan, however, the Board directs King County to set a
20 deadline for Spranger to submit a marine mammal entanglement response plan before any lines are
21 installed at the Project site, per the order below.

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1 Alternatives to Avoid Risk to Whales
2 89.
3 The witnesses also testified regarding potential alternatives to the Project as approved by
4 King County. Several of Sound Action’s witnesses opined that an alternative to lessen the Project’s
5 potential impacts on whales would be to site the Project in a different area of the Salish Sea. See,
6 e.g., Carey Testimony at 361; Bain Testimony at 676, Shields Testimony at 570-71. As Peterson
7 testified, however, it is beyond King County’s purview to propose a different location for an
8 applicant’s project—rather, Permitting’s role is to review a proposal and make a decision based on
9 it. Peterson Testimony at 1092-93. Sound Action did not offer any evidence that conflicted with
10 Peterson’s explanation.
11 90.
12 Sound Action’s witnesses also testified regarding the possibility of growing kelp on the
13 seafloor to avoid the risk of entanglement. Carey Testimony at 361-62; Bain Testimony at 745.
14 Spranger’s witnesses explained in unrebutted testimony, however, that it would be infeasible, if not
15 impossible, to commercially grow kelp at the Project site either at or near the seafloor. Lindell, a
16 research specialist, testified that he is testing growing kelp on lines positioned near, but not on, the
17 seafloor. Lindell Testimony at 1274-75. He explained that attempts to grow kelp in water depths of
18 more than 15 feet have not resulted in anything commercially viable because the light at that depth
19 is insufficient to support enough growth to be commercially viable. Id. at 1275, 1288-89.
20 Installation also requires scuba divers, making the cost of production uneconomical. Id. at 1275.
21 Lindell also testified that he did not believe kelp could be grown near the seafloor in areas where

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1 the tidal amplitude is greater than 10 feet: the kelp would receive too little light at high tide, and at
2 low tide the kelp could be washed ashore due to wave energy. Id. The tidal amplitude in Puget
3 Sound is greater than 10 feet. Id. at 1276. Furthermore, as Bain acknowledged on cross-
4 examination, growing kelp directly on the seafloor would impact the environment by affecting the
5 natural substrate. Bain Testimony at 745.
6 91.
7 Witnesses also testified regarding using grow lines that would break apart if a whale became
8 entangled. Carey Testimony at 361-62; Bain Testimony at 676. The evidence does not indicate,
9 however, that “breakaway” lines are a feasible alternative for the Project. Lindell testified that he
10 is familiar with breakaway lines, which are mandated for lobster trap buoys in New England. Lindell
11 Testimony at 1277. He stated that they would not be workable for vertical farm lines or horizontal
12 grow lines, which are under considerably more tension. Id. at 1277-78. This conclusion is consistent
13 with testimony from Wilson, the licensed engineer who designed the structure of the Project and
14 analyzed its ability to withstand storm conditions. He testified it would be very difficult to design
15 a system that would bear regular environmental loading yet come apart if a whale made contact.
16 Wilson Testimony at 1226.
17 92.
18 The Board finds and concludes the alternatives proposed by Sound Action are either beyond
19 the scope of King County’s authority or infeasible from a technical standpoint. As Peterson
20 testified, King County cannot direct an applicant to use a different site—a project is reviewed based
21 on the terms of the proposal. As for the technical alternatives Sound Action posits, growing kelp at

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1 or near the seafloor is impractical due to the depth of the Project site, and no evidence was presented
2 indicating that “breakaway” lines are a commercially viable alternative. Sound Action did not
3 provide evidence that these technical alternatives would be possible for the Project, which
4 encompasses a standard design used in kelp farming. See Davis Testimony at 1530-31.
5 93.
6 Hydrodynamic Impacts
7 Sound Action also contends King County failed to evaluate the Project’s potential
8 interference with hydrodynamic impacts—in particular, the wave attenuation impacts on the coastal
9 geological processes on the shoreline. Sound Action Closing Br., p. 14. Sound Action’s witness
10 Myers was allowed to testify at the hearing as an expert in ecology and nearshore ecological
11 processes and development impacts. Myers Testimony at 411. Myers testified regarding shore forms
12 in the Project area. In the context of nearshore ecosystems, shore forms include bluffs, low
13 shorelines, and sand pits. Id. at 413-14. Shore forms contribute to the nearshore ecosystem over
14 time. For example, a shore form that is high off the water with landslide features could be a “feeder
15 bluff” that supplies sediment to the near shore. Id. at 414. A littoral drift cell is a sediment transport
16 region between feeder bluff and a depositional feature. Id. A sand pit is a shore form consisting of
17 sediment accumulated from long-term deposition. Id.
18 94.
19 Myers identified photographs of a feeder bluff at the Project site, which he testified would
20 be the sediment source for a littoral drift cell that would go on for several miles down the shoreline.
21 Id. at 415-46; Ex. P1. Myers testified that the sediment released by the feeder bluff is ecologically

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1 significant because almost every shore form down to the Tahlequah ferry dock, southeast of the
2 Project site, can derive its sediment source from that feeder bluff. Id. at 418. According to Myers,
3 a sand lance spawning area and an eelgrass area around the Tahlequah ferry dock are probably
4 related to the fact that they are in the depositional area of the drift cell. Id. at 420. Myers opined
5 that it is possible the Project could interfere with coastal geologic or geomorphic processes. Id. at
6 480.
7 95.
8 Discussing the SSDP, Myers testified that King County did not review the potential impacts
9 of wave attenuation on coastal geomorphic processes through the feeder bluff, erosion heading
10 down to the end of the drift zone, or any fine sediment deposition created by shellfish grown on the
11 Project site. Id. at 490-91; Ex. RKC1. On cross-examination, however, Myers stated that he had not
12 conducted any studies or analysis to demonstrate the likelihood that the Project would attenuate
13 waves and therefore impact the feeder bluff. Myers Testimony at 500. Without a site specific
14 analysis, which he had not conducted, Myers could not say with confidence that wave attenuation
15 would likely occur because of the Project. Id. at 501-02.
16 96.
17 The SSDP indicates that King County considered the Project’s potential to affect water
18 velocity and attenuate waves. Ex. RKC01, p. 0007. According to a study cited in the SSDP, scale is
19 an important factor in considering the potential impact of a farm on wave energy attenuation, such
20 that a small kelp farm on its own is unlikely to have a large effect on the marine environment. Id.
21 Furthermore, examples in literature of suspended aquaculture affecting hydrodynamics have

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1 involved very dense aquaculture designs, unlike the Project design here. See Id. Also, the SSDP
2 explains that the Project’s orientation—parallel to the shoreline—is meant to function with the local
3 hydrodynamics to minimize potential impact on shore forms. Ex. RKC01, p. 0007. The SSDP
4 concludes that the Project is unlikely to have an impact on the hydrodynamics and sediment
5 transport within the farm area. Id.; see also Greene Testimony at 1639-40.
6 97.
7 The assertion that the Project was designed to minimize impacts on hydrodynamics is
8 consistent with testimony from Wilson, the engineer who designed it. He stated that the farm
9 structure was designed to be compliant with waves, unlike wave attenuation structures that are
10 generally large, immobile, and positioned at the top of the water column to reflect or refract waves.
11 Wilson Testimony at 1230-31.
12 98.
13 Cziesla also discussed the potential impacts of the Project on nearshore processes. Cziesla
14 agreed with Wilson that the structure was designed to comply with waves, not resist them, and he
15 further explained that the structure depth—eight feet below the surface—is deep enough that it
16 would be interacting with only a fraction of the wave energy present at the surface. Cziesla
17 Testimony at 1466-67. Cziesla opined that any reduction to the amount of wave energy on the
18 shoreline would be nominal. Id. at 1467.
19 99.
20 The Board finds and concludes that King County adequately considered the Project’s
21 potential hydrodynamic impacts. Wilson provided detailed testimony regarding the kelp farm

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1 structural design and the Board finds his testimony more persuasive than the testimony from Myers,
2 who did not perform a site analysis on the Project’s wave attenuation effects. As Wilson testified,
3 the Project was designed to reduce impacts on hydrodynamics, and is situated below the surface to
4 avoid much of the wave energy. The SSDP indicates that the Project’s design as well as relevant
5 studies were considered when evaluating potential hydrodynamic impacts.
6 100.
7 Any Conclusion of Law deemed properly to be considered a Finding of Fact is hereby
8 adopted as such.
9 Based on the foregoing Findings of Fact, the Board enters the following:
10 III. CONCLUSIONS OF LAW
11 Board Standard of Review
12 1.
13 The Board considers whether King County’s issuance of the Permit and MDNS is consistent
14 with the SEPA, SMP, SMA, Ch. 90.58 RCW, and Ecology’s implementing regulations, Ch. 173-
15 27 WAC and. WAC 461-08-505. The scope and standard of review for this matter is de novo unless
16 otherwise required by law. WAC 461-08-500(1). The Board has jurisdiction over the parties and
17 the subject matter in this case under RCW 90.58.180 and WAC 461-08-315. The Board generally
18 makes findings of fact based on the preponderance of the evidence. WAC 461-08-500(2).
19 2.
20 As a quasi-judicial agency created by RCW 90.58.170, the Board may exercise only those
21 powers expressly granted to it by statute or necessarily implied from the statutory grant of

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1 jurisdiction. Skagit Surveyors and Eng’rs, L.L.C. v. Friends of Skagit Cnty., 135 Wn.2d 542, 558,
2 958 P.2d 962 (1998).
3 State Environmental Policy Act (Issues 1-5)
4 3.
5 The legislature passed SEPA in 1971 with the express purpose:
6 “(1) To declare a state policy which will encourage productive and enjoyable
harmony between humankind and the environment; (2) to promote efforts which
7 will prevent or eliminate damage to the environment and biosphere; (3) and [to]
stimulate the health and welfare of human beings; and (4) to enrich the
8 understanding of the ecological systems and natural resources important to the state
and nation.”
9
RCW 43.21C.010 (alteration in original). SEPA is a procedural law that ensures State agencies and
10
other decision makers consider environmental impacts and alternatives before taking certain
11
actions. Cornelius v. Dep’t of Ecology, 182 Wn.2d 574, 598, 344 P.3d 199 (2015).
12
4.
13
When a proposed agency action requires SEPA environmental review, the relevant agencies
14
will identify the “lead agency” responsible for the environmental analysis and procedural
15
requirements under SEPA. Wild Fish Conservancy v. Dep’t of Fish & Wildlife, 198 Wn.2d 846,
16
856, 502 P.3d 359 (2022). The lead agency must evaluate the proposal’s likely environmental
17
impacts through a series of specified procedures created by Ecology. Wild Fish Conservancy, 198
18
Wn.2d at 846. Part of this process includes the “threshold determination” of whether the proposal
19
will result in “probable significant adverse environmental” impacts. Id.; WAC 197-11-330(1)(b);
20
RCW 43.21C.031.
21

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1 In order to facilitate a SEPA “threshold determination,” an applicant prepares an
2 environmental checklist, which must provide information reasonably sufficient to evaluate the
3 environmental impact of the proposal. WAC 197-11-315, et seq. The responsible official is required
4 to thoroughly consider a proposal’s potential environmental significance as documented in the
5 environmental checklist. WAC 197-11-315(1)(a). Based upon independent review of all relevant
6 information and analysis, the responsible official determines whether the proposal is “likely to have
7 a probable significant adverse environmental impact.” WAC 197-11-330(1)(b).
8 If the agency determines the proposal is not likely to have significant adverse impacts on
9 the environment, it will issue a DNS, and no further environmental review is required. WAC 197-
10 11-340. If the agency finds the proposal will likely have significant adverse impacts on the
11 environment, it will issue a DS, and the process of preparing an Environmental Impact Statement
12 (EIS) begins. RCW 43.21C.031. An EIS is an impartial discussion and analysis of the proposal’s
13 probable, significant adverse environmental impacts and the reasonable alternatives that would
14 avoid or minimize adverse impacts or enhance environmental quality. WAC 197-11-400, -402;
15 RCW 43.21C.031.
16 5.
17 An agency may issue an MDNS when the proposal can be conditioned to have no probable,
18 significant adverse impacts by imposing specific mitigation measures. WAC 197-11-350. When an
19 agency makes an MDNS threshold determination, the agency determines that by requiring certain
20 specific mitigations, it can reduce the environmental impacts to a level acceptable under SEPA.
21 Wild Fish Conservancy, 198 Wn.2d at 856. Imposing mitigation measures in an MDNS that

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56
1 specifically target a proposal’s potential adverse impacts “may provide more effective
2 environmental protection than promulgation of an EIS, since an EIS does not automatically result
3 in substantive mitigation.” Id. at 857 (quoting Anderson v. Pierce Cty., 86 Wn. App. 290, 305, 936
4 P.2d 432 (1997)).
5 The MDNS process involves less intense public participation than when an agency issues a
6 DS and prepares an EIS. As the Court of Appeals explained:
7 The Legislature created the MDNS process to encourage agencies and applicants to
work together to reduce the impacts of a project below the threshold level of
8 significance. WAC 197-11-350. With an MDNS, promulgation of an EIS and
intense public participation are rendered unnecessary because the mitigated project
9 will no longer cause significant adverse environmental impacts.
10 Anderson, 86 Wn. App. at 303.
11 6.
12 In its review of King County’s SEPA decision, the Board exercises not its SMA jurisdiction,
13 but its SEPA jurisdiction. See McQuarrie v. City of Seattle, SHB No. 08-033, p. 20 (April 27, 2009);
14 RCW 43.21C.075(7).
15 7.
16 Agency threshold decisions under SEPA are accorded substantial deference. 4
17 RCW 43.21C.090; Anderson, 86 Wn. App. at 302. The Board reviews SEPA threshold
18 determinations under a “clearly erroneous” legal standard. Ass’n of Rural Residents v. Kitsap Cnty.,
19
4
King County and Sound Action dispute whether the local government’s decisions in this appeal are entitled to
20 “substantial deference,” citing Buechel v. Dep’t of Ecology, 125 Wn.2d 196, 884 P.2d 910 (1994). See King County
Closing Br., pp. 1-2 n.5; Sound Action Closing Reply, p. 1. As noted above, King County’s threshold SEPA decisions
21 are entitled to substantial deference. RCW 43.21C.090. Buechel discusses the Board’s review under the SMA, which
is discussed below.

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1 141 Wn.2d 185, 195-96, 4 P.3d 115 (2000). The appealing party has the burden to show that the
2 agency’s SEPA threshold decision is clearly erroneous. McQuarrie, SHB 08-033 (Aug. 5, 2009);
3 ASARCO Inc. v. Air Quality Coal., 92 Wn.2d 685, 700-701, 601 P.2d 501 (1979); RCW 43.21C.075.
4 To satisfy this burden, Sound Action must present sufficient evidence such that the Board is left with
5 a definite and firm conviction that the Project will have a significant environmental impact despite
6 any conditions imposed on the MDNS and Permit. Murden Cove Preserv. Ass’n v. Kitsap Cnty.,
7 41 Wn. App. 515, 523, 704 P.2d 1242 (1985); Donovan v. Sperry Ocean Dock Ltd., SHB No. 10-
8 024c, p. 19 (July 13, 2011). In other words, Sound Action must demonstrate that environmental
9 factors were not adequately considered in a manner sufficient to establish prima facie compliance
10 with the procedural requirements of SEPA, and that King County’s decision to issue an MDNS was
11 not based on information sufficient to evaluate the Project’s environmental impact. Quinault Indian
12 Nation v. City of Hoquiam, SHB No. 13-012c, p. 15-16 (Nov. 12, 2013).
13 SEPA Optional DNS Process (Issue 1)
14 8.
15 Sound Action contends King County clearly erred under SEPA by employing the optional
16 DNS process for its review of the Project. Sound Action Closing Brief at 2-5. The lead agency may
17 use the optional DNS process if it “has a reasonable basis for determining significant adverse
18
19
20
21

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58
1 environmental impacts are unlikely.” WAC 197-11-355(1). Sound Action raises multiple grounds
2 challenging King County’s decision to proceed with the optional DNS process.
3 9.
4 First, Sound Action argues that King County should have completed its environmental
5 review before deciding to engage in the optional DNS process. Sound Action Closing Brief, p. 3.
6 Sound Action relies on the Washington Department of Ecology’s State Environmental Policy Act
7 Handbook (SEPA Handbook), which states that a lead agency may use the optional DNS process
8 when it has completed its environmental review at the time it will issue the Notice of Application.
9 Id. (citing Washington State Dep’t of Ecology, State Environmental Policy Act Handbook (2018
10 Updates)). 5 Sound Action, citing the SEPA Handbook, argues the optional DNS process is intended
11 for minor projects and that a Notice of Application must contain sufficient information about the
12 proposal, including proposed mitigation measures, to allow the public to understand the proposal
13 and provide comments. Sound Action Closing Brief, p. 3. The SEPA Handbook, however, is not a
14 legally binding document. As stated on the first page of the SEPA Handbook: “This SEPA guidance
15 is intended to be used in conjunction with the State Environmental Policy Act (Chapter 43.21C
16 RCW) and the SEPA Rules (Chapter 197-11 WAC) and consequently does not have the legal effect
17 as the RCW or the Rule.” SEPA Handbook, p. 1 (emphasis added). The regulation that governs the
18
19 5
Sound Action asks the Board to take judicial notice of the SEPA Handbook, which may be found through the
following link: https://ecology.wa.gov/Regulations-Permits/SEPA/Environmental-review/SEPA-guidance. Sound
20 Action Closing Brief, p. 3 n.1. Notice may be taken of facts that are not subject to reasonable dispute in that they are
either (1) generally known within the territorial jurisdiction or (2) capable of accurate and ready determination of by
21 resort to sources whose accuracy cannot reasonably be questioned. ER 201(b). No party opposes Sound Action’s
request for judicial notice, which the Board grants because the SEPA Handbook is available on Ecology’s website.

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59
1 optional DNS process, WAC 197-11-355, does not require a lead agency to complete its
2 environmental review before engaging in the optional DNS process, nor does it include the other
3 limitations on use of the optional DNS process that Sound Action advocates. Sound Action has not
4 provided other binding authority that would impose such requirements, either.
5 10.
6 Second, Sound Action contends that King County lacked a reasonable basis to determine that
7 significant adverse environmental impacts were unlikely because the county had not conducted its
8 review of the Project’s environmental impacts and had not identified proposed mitigation measures.
9 Sound Action Closing Brief at 3-4. In particular, Sound Action notes that King County had not
10 obtained review from its outside consultants by the time it issued the Notice of Application. Id. As
11 explained above, however, Sound Action has not identified any binding authority obligating a lead
12 agency to complete its environmental review before issuing notice of application.
13 11.
14 Related to the above, Sound Action contends that King County employed the optional DNS
15 process out of an effort to expedite review of the Project per the request of the King County
16 executive. Id. at 3. Peterson testified that the agency leadership has discretion to prioritize the order
17 in which applications are reviewed. Peterson Testimony at 1108-09. In this instance, King County
18 prioritized review of the Project in response to a request from the King County Executive. Id. at
19 1109. Peterson testified, however, that “once the review process starts, it goes through the same
20 process every application did.” Id. Sound Action has not shown that King County’s use of the
21 optional DNS process, while expedited ahead of other applications, was clearly erroneous.

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1 12.
2 Furthermore, nothing in the Notice of Application bound King County to a course of action
3 if the work of its consultants or other review indicated that significant adverse environmental
4 impacts would result from the Project. Consistent with the applicable regulation, the Notice of
5 Application states that “[t]he responsible official has a reasonable basis for expecting to issue a
6 SEPA [DNS]” Ex. RKC4, p. 0001 (emphasis added); see also WAC 197-11-355(1). If King
7 County’s further review—including of timely comments to the Notice of Application—indicated
8 that a DNS was inappropriate, King County retained the authority to take actions including issuing
9 a DS or requiring additional information or studies before making a threshold determination.
10 See WAC 197-11-355(4).
11 13.
12 Third, Sound Action argues that the Notice of Application lacked sufficient information
13 about the Project, including mitigating measures, to fully understand and comment on it. Sound
14 Action Closing Br., p. 4. However, Sound Action has not provided any authority indicating that the
15 information it lists—such as the number of shellfish cages, location of the project in relation to
16 macroalgae, and details about farm operations—was required to be in the Notice of Application.
17 See Id., p. 3. The regulation governing the optional DNS process does not obligate lead agencies to
18 provide the level of information about a proposal that Sound Action demands. See WAC 197-11-
19 355.
20
21

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61
1 14.
2 Fourth, Sound Action asserts King County overuses the optional DNS process, contending
3 it should be “an exception to standard SEPA review that is intended to avoid unnecessary
4 duplication and delays for simple projects.” Sound Action Closing Br., pp. 4-5. This argument
5 appears to be based on the same limitations on the use of the optional DNS process that Sound
6 Action raised based on the SEPA Handbook, which, as discussed above, does not have the force of
7 law. Sound Action has not provided any binding authority supporting its assertion that King County
8 impermissibly overuses the optional DNS process.
9 15.
10 In Issue 1, Sound Action characterizes the Project as a “novel type of marine development”
11 for which King County lacked sufficient information to make such a determination. Although the
12 Project is one of the first kelp farms proposed in King County, it is similar to the two existing kelp
13 farms in Washington as well as kelp farms in other parts of the country. In addition, King County
14 determined the equipment, which included anchors and lines has been used in other types of
15 projects. The Board concludes that the Project is not a “novel type of marine development” as
16 specified in Issue 1, or a “novel type of commercial development” as specified in Issue 5. FF 19.
17 16.
18 Spranger argues that Sound Action did not specifically appeal King County’s decision to
19 use the optional DNS process citing Sound Action’s Petition For Review (PFR), which identifies
20 the three decisions to be reviewed as (1) the SSDP application and decision, (2) the SSDP decision,
21 and (3) the MDNS. Spranger Closing Br., p. 10 (citing PFR ¶ 4). Sound Action responds that

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1 paragraph 6 of its petition for review states: “The county used the optional DNS process that
2 precludes public review and comment on the final SEPA threshold determination and prevents King
3 County from incorporating new information and revising that determination, prior to issuance of
4 the Permit.” Sound Action’s Closing Reply Br., p. 2 (citing PFR ¶ 6.1). The Board concludes that
5 Sound Action challenged the use of the optional DNS process in the PFR as well as in the joint
6 agreed legal issues. Agreed Legal Issues, p. 1 (Feb. 17, 2023).
7 17.
8 The Board concludes that, based on the information received from Spranger about the
9 Project before and during the application process, as well as King County’s experience with similar
10 types of projects and equipment, King County had a reasonable basis for determining that
11 significant adverse environmental impacts were unlikely. FF 2-4, 11, 15-19, 21. In sum, the Board
12 concludes Sound Action has not met its burden of showing King County’s use of the optional DNS
13 process for the Project was clearly erroneous.
14 SEPA MDNS Issuance (Issues 2-5)
15 18.
16 Sound Action contends that King County clearly erred under SEPA by issuing the MDNS
17 without carefully considering whale entanglement risk and forage exclusion, macroalgae shading,
18 and hydrodynamic impacts. Sound Action Closing Br., pp. 5-15.
19 19.
20 As noted above, the MDNS was issued through the threshold determination process, during
21 which the lead agency considers whether the proposal was “likely to have a probable significant

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1 adverse environmental” impact. WAC 197-11-330(1)(b). The lead agency must make the threshold
2 determination “based upon information reasonably sufficient to evaluate the environmental impact
3 of a proposal.” WAC 197-11-335.
4 The record shows that King County had reasonably sufficient information to evaluate the
5 environmental impact of the Project, including, among other materials, a biological evaluation, an
6 impact analysis prepared by an environmental consulting firm, a macroalgae survey, a farm planting
7 and harvesting narrative, best management practices and minimization measures that Spranger
8 agreed to implement, letters of concurrence from NMFS and USFWS, a Joint Aquatic Resources
9 Permit application form, and a permit from the Corps. See, e.g., FF 4-5. The information in these
10 documents, along with testimony on whale entanglement risk, forage exclusion, hydrodynamic
11 impacts, and macroalgae shading impacts demonstrate that King County’s MDNS was not clearly
12 erroneous. FF 25. As to macroalgae impacts, the Board specifically finds and concludes that King
13 County could reasonably rely on the macroalgae survey and that there is no evidence establishing
14 that bull kelp grows within the Project site. See FF 17, 18. King County also retained experienced
15 marine biologists to assist with the review, further showing that King County based its threshold
16 determination on reasonably sufficient information. FF 24-27.
17 Sound Action has not shown that King County clearly erred by issuing insufficient
18 mitigation conditions in the MDNS. See Sound Action Closing Br., pp. 8-9. As explained above,
19 the Board finds that King County properly determined the Project does not pose a significant risk
20 of whale entanglement. FF 23, 35, 81-85, 88. The mitigation measures imposed in the MDNS,
21 including keeping longlines taut, avoiding in-water activities if marine mammals are present, and

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64
1 developing a marine mammal entanglement response plan, reduce the risk to marine mammals. See
2 Ex. RKC10, p. 0008. To ensure the marine mammal response plan is ready at the appropriate time,
3 however, the Board orders King County to set a deadline for Spranger to submit the plan and gain
4 approval before construction of the farm begins. Whaleback LLC (Runstad) v. San Juan Cnty.,
5 SHB 19-004, p. 10 (May 26, 2020) (citing San Juan Cnty. v. Dep’t of Nat. Res., 28 Wn. App. 796,
6 800, 626 P.2d 995 (1981) (Board has power to condition permit approval). The mitigation
7 conditions also reduce risk to macroalgae, requiring Spranger to use an ROV while placing the
8 anchors to avoid existing macroalgae to the extent practicable and to monitor macroalgae extent
9 and quantification of no net loss on an annual basis. Ex. RKC10, pp. 0008, 10.
10 20.
11 Sound Action argues that King County improperly segmented its environmental review
12 rather than considering the impacts of the Project at the applicant’s full build-out of the site. Sound
13 Action Closing Br., p. 6. Sound Action raised concerns based on the language of the farm operations
14 narrative, Ex. RKC-20, that the Project would use the entire farmable area of ten acres to cultivate
15 kelp and shellfish. FF 30. The text of the SSDP, however, limits Spranger to installing at most six
16 anchors, which can support only three arrays of grow lines. See FF 31. Spranger himself testified
17 that the permit only allowed him to build the planned six-anchor project containing three arrays of
18 no more than five lines each covering at most 6.7 acres contained in the diagram in Ex. RKC-20.
19 FF 32, 33. King County confirmed that any changes to that Project would need a new Permit. The
20 Board concludes that King County did not improperly segment its review of the Project as the
21 Permit authorizes only the six-anchor design that King County reviewed.

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1 In sum, the Board concludes that Sound Action has not met its burden to show that
2 King County clearly erred by issuing the MDNS.
3 Shoreline Master Program (Issues 6-11, 13, 14)
4 21.
5 Sound Action has the burden of proving the SSDP was inconsistent with the requirements
6 of the SMA and King County’s SMP. WAC 461-08-500,-505; Donovan v. Dep’t of Ecology,
7 SHB No. 10-024, p. 19 (July 13, 2011). The Board accords substantial weight to the legal
8 interpretation by a local government of its own SMP where that interpretation falls within its
9 specialized expertise. Ackerson v. King Cty., SHB No. 95-026, pp. 8-9, CL IV (Mar. 19, 1996).
10 However, the Board’s review of shoreline decisions is de novo, and no particular deference is given
11 to the decision of the local government. Buechel v. Dep’t of Ecology, 125 Wn.2d 196, 202, 884 P.2d
12 910 (1994).
13 Aquaculture is an allowed shoreline use in all Shoreline Environment Designations when in
14 compliance with the applicable development standards in the SMP and KCC 21A.25. Ex. RKC1,
15 p. 0008. Department of Ecology guidelines provide that aquaculture is of statewide interest and
16 preferred shoreline use when consistent with pollution control and preventing damage to the
17 environment. WAC 173-26-241(3)(b); See also Policy S-716 (“Aquaculture is a water-dependent
18 use and should be an allowed use of the shoreline when consistent with control of pollution and
19 avoidance of adverse impacts to the environment and preservation of habitat for native species.”).
20
21

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1 Hierarchy of Uses, Impact to the Environment, and No-Net-loss Standards (Issues 6, 8 and
2 9)
3 22.
4 Sound Action argues that the SSDP conflicts with the hierarchy of uses in Policy S-207
5 (Issue 6); Policy S-539’s terms regarding adverse impacts with ecological processes and functions
6 of critical saltwater and freshwater habitats (Issue 8); and the no-net-loss standards in Policy S-601
7 (Issue 9). Agreed Legal Issues, p. 2 (Feb. 17, 2023). The Board considers each issue in turn.
8 Policy S-207 provides:
9 In developing and implementing its Shoreline Master Program for shorelines of

statewide significance, King County shall give preference, in the following order of
10 preference, to uses that:
11 a. Recognize and protect the statewide interest over local interest;

b. Preserve the natural character of the shoreline;
12 c. Result in long-term over short-term benefit;
d. Protect the resources and ecology of the shoreline;
13 e. Increase public access to publicly owned areas of the shorelines;
f. Increase recreational opportunities for the public in the shoreline; and
14 g. Provide for any other element as defined in Revised Code of Washington
90.58.100.
15
Sound Action has not shown that King County’s review of the Project application conflicted
16
with Policy S-207. King County found that the Project complies with S-207 because it enhances
17
water quality, prey, and habitat resources for juvenile salmonid, and it preserves the natural
18
character of the shoreline. Ex. RKC1, pp. 0009-10; FF 78-80, 98. The Board concludes that these
19
findings are supported by the record and consistent with Policy S-207.
20
21

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67
1 23.
2 Policy S-539 provides that King County shall not allow uses in the Aquatic Shoreline
3 Environment that adversely impact the ecological processes and functions of critical saltwater and
4 freshwater habitats, except when necessary to achieve the objectives of RCW 90.58.020, and then
5 only when the adverse impacts are mitigated.
6 Greene conducted an extensive review of the Project before concluding that it would not
7 result in a net loss of ecological function or process and recommending several methods to mitigate
8 potential environmental impacts. FF 42,43. King County staff reviewed Greene’s conclusions and
9 generally agreed, and included some of her recommendations as MDNS (and SSDP) conditions.
10 FF 42,43. The Board concludes that the SSDP and MDNS conditions will ensure no net loss of
11 shoreline ecological functions. Sound Action has not shown that the SSDP conflicts with
12 Policy S-539.
13 Policy S-601 and KCC 21A.25.090 require King County to ensure that uses and
14 modifications within the shoreline jurisdiction do not cause a net loss of shoreline ecological
15 functions and comply with the sequencing requirements under KCC 21A.25.080. 6
16 The mitigation sequence set forth in KCC 21A.25.080 consists of the following:
17 1. Avoiding the impact altogether by not taking a certain action or parts of an action;
2. Minimizing impacts by limiting the degree or magnitude of the action and its
18 implementation by using appropriate technology or by taking affirmative steps to
avoid or reduce impacts;
19 3. Rectifying the impact by repairing, rehabilitating or restoring the affected
environment;
20
21 6
The mitigation sequence in KCC 21A.25.080 is identical to the sequence in WAC 173-26-201(2)(e), referred to in
Policy S-539.

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68
1 4. Reducing or eliminating the impact over time by preservation and maintenance
operations;
2 5. Compensating for the impact by replacing, enhancing or providing substitute
resources or environments; and
3 6. Monitoring the impact and the compensation projects and taking appropriate
corrective measures.
4
As noted above, Sound Action has not shown that the Project will result in a net loss of
5
shoreline ecological functions, and mitigation measures were included in the SSDP and MDNS to
6
mitigate any potential impacts. FF 27, 35, 96-98. Those mitigation measures also include
7
monitoring of ecological functions. FF 35, 99. The Board concludes that Sound Action did not meet
8
its burden of showing that King County’s actions were inconsistent with Policy S-601,
9
KCC 21A.25.090, or KCC 21A.25.080.
10
24.
11
In sum, the Board concludes Sound Action has not demonstrated that the project is
12
inconsistent with Policies S-207, S-539, S-601, or with KCC 21A.25.080 and -.090.
13
Safe passage (Issue 7)
14
25.
15
Policy S-538 requires all developments on navigable waters or their beds in the Aquatic
16
Shoreline Environment to be located and designed to “minimize interference with surface
17
navigation, to consider impacts to public views, and to allow for the safe, unobstructed passage of
18
fish and wildlife and materials necessary to create or sustain their habitat, particularly those species
19
dependent on migration.” Sound Action argues that the Project poses a significant risk of
20
entanglement to orcas and humpbacks that may fail to recognize the presence of grow lines and
21

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69
1 would be attracted to farmed kelp without necessarily recognizing the risks associated with the
2 longlines or the navigation buoys. Sound Action Closing Br., p. 19.
3 26.
4 The Board considered all the testimony, as well as photographic and video evidence
5 presented on whale behavior. No evidence was presented that whales have ever become entangled
6 in similar kelp cultivation equipment. FF 78, 84, 85, 88. Whales have become entangled in lines
7 that have enough slack to form loops that can wrap around whales. FF 84, 88. The Project, however,
8 is designed with taut lines which avoids whale entanglement. FF 83, 88. Moreover, SRKW and
9 Bigg’s killer whales can echolocate and avoid structures. FF 82.
10 27.
11 Additionally, after weighing all testimony on the issue, the Board finds that no evidence
12 was presented that conclusively located any whale on the Project site. The Board acknowledges
13 SRKW, Biggs and humpback whales are present in Colvos Passage, and there was evidence of
14 whale sightings in the general area. However, the Project site is approximately ten acres, or 0.1%
15 of Colvos Passage, and the Project site is not a preferred foraging location. FF 85. Whales would
16 be more likely to forage one mile south of the Project or near the Puyallup River where prey would
17 be more likely to be present. FF 79, 80. Also, NMFS analyzed the essential physical and biological
18 features relevant for SRKW critical habitat and determined the Project would not adversely modify
19 such habitat because all effects are discountable, insignificant, or beneficial. FF 5, 26, 86.
20
21

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70
1 28.
2 The Board concludes Sound Action has not demonstrated that the project is inconsistent
3 with Policy S-538. The Board notes that the Permit and MDNS require a marine mammal
4 entanglement response plan to be developed but sets no deadline for its completion other than prior
5 to “occupancy or use of a structure or prior to commencement of a nonstructural activity.” Ex. RKC-
6 1 p.18. The Board orders that the marine mammal entanglement response plan be completed by
7 Spranger and approved by King County prior to construction of the Project.
8 Eelgrass and Macroalgae (Issues 10, 11 and 14)
9 29.
10 Sound Action argues the SSDP conflicts with: Policy S-631’s proscription against installing
11 human-made structures in critical saltwater habitats, except where conditions are satisfied (Issue
12 10); Policy S-718’s instruction against approving permits that would result in net loss of shoreline
13 habitat (Issue 11); and the prohibition in KCC 21A.25.110.W of approving aquaculture that will
14 adversely impact eelgrass and macroalgae (Issue 14). Sound Action Closing Br., pp. 15-17.
15 Sound Action argues under Policy S-631 that the Project site constitutes a critical saltwater
16 habitat due to the presence of kelp beds and because priority species (humpback whales and SRKW)
17 have a “primary association” with the area. Id., p. 16. King County and Spranger both contend that
18 Sound Action has failed to prove that the Project site is critical saltwater habitat. King County
19 Closing Br., pp. 12-13; Spranger Closing Br., pp. 13-14.
20
21

SHB No. 23-002
71
1 30.
2 The Board concludes that Sound Action has not proved the Project site constitutes critical
3 saltwater habitat, and therefore that Policy S-631 does not apply. While the survey showed scattered
4 macroalgae, Greene explained that the macroalgae growth does not constitute a kelp bed because it
5 is not a continuous bed—rather, the kelp is scattered and interspersed with other types of
6 macroalgae. FF 41. Sound Action also has not proved that a priority species has a “primary
7 association” with the Project site, which is an argument that was raised for the first time in Sound
8 Action’s closing brief. See Spranger Closing Br., p. 14.
9 As the Board found above, the Project site is unlikely to be used frequently by whales,
10 weighing against the argument that either humpback whales or SRKW have a “primary association”
11 with it. FF 69,73. As King County contends, adopting Sound Action’s interpretation of “primary
12 association” would require a finding that all of Puget Sound is critical saltwater habitat, which is
13 not supported by the record. King County Closing Br., p. 13; see also Ackerson, SHB No. 95-026,
14 pp. 8-9, CL IV (March 19, 1996). (Board gives substantial weight to a local government’s
15 interpretation of its SMP where the interpretation falls within its specialized expertise).
16 31.
17 Sound Action also argues that the SSDP conflicts with Policy S-718 because it would cause
18 a net loss of habitat for kelp and other macroalgae and cetacean habitat without ensuring that
19 resulting shading and habitat loss would be mitigated. Sound Action Closing Br., pp. 16-17.
20 Similarly, Sound Action contends the SSDP contravenes KCC 21A.25.110.W by adversely
21 impacting macroalgae. Id., p. 16.

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1 The Board concludes that Sound Action has failed to prove that the SSDP contravenes either
2 Policy S-718 or KCC 21A.25.110.W. As noted above, the Board finds the Project will not adversely
3 affect macroalgae. FF 50-52. Additionally, the evidence does not show that whales frequent the
4 Project site or that they would be detrimentally impacted if they avoid it. FF 73, 80. Sound Action
5 has not proven that Project will result in a net loss of shoreline ecological functions, net loss of
6 habitat, or adverse impacts to macroalgae.
7 Experimental activity (Issue 13)
8 32.
9 Sound Action argues the Project should be limited in geographic and temporal scope
10 because it is an “experimental” aquaculture activity under both Policy S-725 and
11 KCC 21A.25.110.I. Sound Action Closing Br., at 19-20.
12 Policy S-725 states that “experimental aquaculture means an aquaculture activity that uses
13 methods or technologies that are unprecedented or unproven in the State of Washington.” The
14 policy provides that experimental aquaculture projects should be limited in scale and approved for
15 a limited period of time. Policy S-725. Similarly, KCC 21A.25.110.J limits aquaculture permits
16 approved on an experimental basis to five acres and three years in duration. Sound Action argues
17 that the Project is experimental because only one other kelp farm (Blue Dot Farm) has grown kelp
18 for more than one season in Washington and that the Project uses different methods and design.
19 Sound Action Closing Br., pp. 19-20.
20
21

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1 33.
2 Dr. Davis of Blue Dot Farm testified that his commercial kelp and shellfish farm in Hood
3 Canal uses similar methods and technologies to those proposed in the Project. FF 32. The methods
4 and technologies are neither unprecedented nor unproven. Moreover, the methods and technologies
5 used in the project are common in kelp farms on the east coast and Alaska. FF 32. The Board
6 concludes Sound Action did not meet its burden of proving that the Project is an experimental
7 activity under either. Policy S-725 or KCC 21A.25.110.J.
8 34.
9 Although Sound Action did not address KCC 21A.25.110.I in its closing briefs, the Board
10 addresses it briefly because it is raised in Issue 13. Prehearing Order, p. 4. This provision states
11 that “If uncertainty exists regarding potential impacts of a proposed aquaculture activity and for all
12 experimental aquaculture activities, unless otherwise provided for, the department may require
13 baseline and periodic operational monitoring by a county-approved consultant….”
14 KCC 21A.25.110.I (emphasis added).
15 To the extent Sound Action contends the SSDP conflicts with KCC 21A.25.110.I, the Board
16 concludes Sound Action has failed to meet its burden to establish that conflict. As an initial matter,
17 the provision uses the permissive “may,” indicating that King County is not obligated to require the
18 monitoring described in KCC 21A.25.110.I. Additionally, both the MDNS and SSDP do require
19 significant monitoring, including before and after construction and during various operations to
20 determine whether the Project provides benefits or impacts to the benthic community. FF 34, 35,
21

SHB No. 23-002
74
1 42, 52; Exs. RKC-1, p. 19; RKC-10, p. 9. The Board concludes that the monitoring provided for in
2 the SSDP and MDNS complies with KCC 21A.25.110.I.
3 35.
4 Any Finding of Fact deemed to be a Conclusion of Law is hereby adopted as such. Having
5 so found and concluded, the Board enters the following:
6 IV. ORDER
7 The King County Department of Local Services, Permitting Division’s Shoreline
8 Substantial Development Permit File No. SHOR22-0015, SPARO Kelp and Shellfish Farm and
9 Mitigated Determination of Non-Significance for SPARO Kelp and Shellfish Farm is
10 AFFIRMED, with the modification that Spranger prepares and King County approves the
11 required marine mammal entanglement response plan prior to the construction of the farm.
12 SO ORDERED this 29th day of August, 2023.
13 SHORELINES HEARINGS BOARD
14
__________________________________________
15 CAROLINA SUN-WIDROW, Chair
16
__________________________________________
17 MICHELLE GONZALEZ, Member
18
__________________________________________
19 JASON SULLIVAN, Member
20
__________________________________________
21 DENNIS WEBER, Member

SHB No. 23-002
75
1
2
__________________________________
3 HEATHER L. COUGHLAN, Presiding
Administrative Appeals Judge
4
5
This is a FINAL ORDER for purposes of appeal to Superior Court within 30 days. See
6 WAC 461-08-570 and 575, and RCW 34.05.542(2) and (4).
7 You are being given the following notice as required by RCW 34.05.461(3): Any party may
file a petition for reconsideration with the Board. A petition for reconsideration must be filed with
8 the Board and served on all parties within ten days of service of the final decision. WAC 461-08-
565.
9
10
11
12
13
14
15
16
17
18
19
20
21

SHB No. 23-002
76
1 BEFORE THE SHORELINES HEARINGS BOARD
2
3 SHB Case No. 23-002
4 SOUND ACTION a Washington non-profit corporation v. KING COUNTY, a political
subdivision of the State of Washington; and MIKE SPRANGER, applicant
5
6 ELECTRONIC DECLARATION OF SERVICE
7
I, Carrie Janway, under penalty of perjury under the laws of the State of
8
Washington, declare as follows:
9
I am the Legal Assistant for the Shorelines Hearings Board. On the date indicated
10
11 below a copy of the FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER in the
12 above-entitled case was sent to the following via CMS and U.S. Mail:
13
14 Kyle Loring Lena Madden
Loring Advising PLLC Noah Mikell
15
PO Box 2256 King County Prosecuting Attorney’s
16 Friday Harbor, WA 98250 Office
17 kyle@loringadvising.com 1191 2nd Avenue, Suite 1700
18 Seattle, WA 98101
Ty Peterson Lena.madden@kingcounty.gov
19 Tracy Cui nmikell@kingcounty.gov
20 King County Department of
21 Local Services, Permitting Division Samuel W. Plauche
919 SW Grady Way, Suite 300 Jesse G. DeNike
22 Renton, WA 98057 Plauche & Carr LLP
23 Ty.peterson@kingcounty.gov 1218 3rd Avenue, Suite 2000
24 Tracy.cui@kingcounty.gov Seattle, WA 98101
jesse@plauchecarr.com
25
billy@plauchercarr.com
26 tammy@plauchecarr.com
27
28
DATED this 29th day of August, 2023
29
30
31
32 Carrie Janway, Legal Assistant
Shorelines Hearings Board

ELECTRONIC DECLARATION OF SERVICE 1111 Israel Road SW, Suite 301
SHB Case No. 23-002 P.O. Box 40953
August 29, 2023 Olympia, WA 98504-0953
Page 1 of 1 Phone: 360-664-9160
Fax: 360-586-2253

Findings of Fact and Conclusions of Law in Sound Action v. King County and Mike Spranger

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Findings of Fact and Conclusions of Law in Sound Action v. King County and Mike Spranger

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1 SHORELINES HEARINGS BOARD

14 Determination of Nonsignificance for SPARO Kelp and Shellfish Farm.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

2 represented Respondent King County. Attorney Jesse G. DeNike represented Respondent

8 Closing Br., p. 2, leaving the following issues to be resolved:

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

17 Determination of Non-Significance, with an additional modification.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

3 provide recreational opportunities. Ex. RKC1, p. 0008.

13 relevant international standards throughout its analysis. Id.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

12 in Kodiak, Alaska, for four years. Id. at 1270.

13 King County Permitting Process

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

2 King County Department of Local Services, Permitting Division (Permitting) conducted a

15 works director. Id. at 979-80; Ex. RKC52.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

19 comment period or requiring additional information or studies prior to making a threshold

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

13 provided written responses to the public comments. Id.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

6 feet apart. Spranger Testimony at 882; Ex. RKC15, p. 0005.

19 at a shallower elevation than he planned to plant sugar kelp. Id. at 868.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

14 experimental aquaculture project. Peterson Testimony at 1103-04.

20 On October 5, 2022, King County requested additional information from Spranger

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

2 documents. Id., pp. 2, 7.

3 Marine Biologist Consultants

10 Peterson Testimony at 1060.

21 composition, and protected/Endangered Species Act-listed species (including salmonids, Orca,

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

3 King County reports and decisions. Id., p. 0002.

15 around the end of October 2022. Id. at 1587, 1657.

16 In evaluating the Project, Greene reviewed materials including:

17 • Applicable code provisions;

18 • Spranger’s application materials;

19 • An impact analysis prepared by Confluence Environmental Company;

20 • NMFS’s first letter of concurrence;

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

2 Spranger agreed to implement;

3 • USFWS’s letter of concurrence;

6 • The permit from the Corps;

7 • The SPARO seaweed/shellfish farm planting and harvesting narrative;

8 • The Biological Evaluation for Informal ESA Consultation; and

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

11 NMFS concurrence letter.

20 See Peterson Testimony at 1066, 1071.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

12 so. Peterson Testimony at 1042.

15 bathymetry measurements showing the depth of each anchor:

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

16 that can have up to 15 lines. See Peterson Testimony at 1084.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

5 three arrays of grow lines, for a total of up to 15 grow lines.

20 conditions include, among others:

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

3 • Positioning of anchors to avoid existing macroalgae to the extent practicable,