Regulatory Structures
Washington State shoreline management: Laws
- Callow: 1891, Bush: 1895
- Allow for private ownership of tidelands used for shellfish aquaculture
- Originally instated to promote reestablishment of the Pacific Oyster
- Updated in 2002 to affirm diversity of shellfish crop
- Aquaculture must be maintained, else land ownership reverts to the state
- The Acts were repealed in 1935 and a 1971 Amendment definitely prevented new sales of state-owned tideland to private owners. Private owners who had purchased land while the Acts were active maintained ownership of those lands and remained bound to the stipulations of the Acts
Private ownership of aquaculture tidelands is unique to Washington State. Though they can no longer purchase tidelands, new growers or growers looking to expand can lease state-owned tidelands
(Photo source: Flickr user willapalens)
Boldt Decision
- 1974 State Supreme Court decision to grant Native tribes the right to 50% of fish catch on traditional lands, including those now privately owned
- 1994 Federal District Court Judge Edward Rafeedie ruled that shellfish were included in “fish” catch
- 2007 settlement between shellfish growers and tribes
- Settled outside of court
- Monetary loss of tribes due to denial of tribal fishing rights determined to be $2million/year
- Tidal owners were determined to be innocent at time of purchase because the state did not inform purchasers about treaty rights
- $33 million trust fund set up with federal and state money
- Shellfish industry must give $500,000 over ten years towards improving harvest in public beds
- Shellfish growers do not have to hand over 50% of harvest biomass or profits
The fight for rights is not yet over according to some tribal members
Read about Tribal treaty rights here
- Passed by State Legislature in 1971, approved by voters in 1972
- Sets the guidelines for local Shoreline Master Programs
- Concerned with promoting a more unified approach to shoreline management
- Uses language of “preferred use” to refer to Act’s priorities
- Prioritizes public access
- Prioritizes shoreline conservation (environmental protection)
- Uses are required to mitigate environmental damage
- Prioritizes “water-dependent” recreational and commercial development
(Photo source: Flickr user majorbonnet)
The principles outlined in the SMA are derived from the The Public Trust Doctrine upheld by the State Supreme Court (see Caminiti v. Boyle). The Doctrine protects right to private property on shore and near shore but maintains public priority over water resources.
- Local laws pertaining to shoreline use; guided by Shoreline Management Act
- Tailored to the “specific geographic, economic and environmental needs” of cities and counties within the state
- Identify zones of preferred use
- Set up a permitting process for shoreline use
- Require public notice and comment
- Require approval from the state Department of Ecology
A barrier to entry: the permitting process
The disjointed nature of the shellfish aquaculture permitting process reflects Washington’s largely single-sector management process where various regulatory agencies are concerned with specific aspects of shellfish aquaculture. While Washington’s SMA attempts to streamline the vision for state shorelines, it does not streamline the time-intensive and expensive shellfish permitting process. In order for the Washington State Shellfish Initiative to reach its goal of promoting the shellfish farming industry, the state must address the substantial barrier to entry posed by the legal system.
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