Independent Panel Raises Questions Over National Park Service Science Concerning Oyster Farm

An independent panel's review of a draft environmental study into impacts an oyster farm is having at Point Reyes National Seashore suggests substantive revisions for the final document.

While the authors note that their comments "should not be interpreted as a conclusion that the (draft Environmental Impact Statement) does not meet NEPA requirements," they also point out that the DEIS features a good amount of uncertainty in the conclusions it reaches.

"Of the eight resource categories, the committee judged that the projected impact levels for seven had moderate to high levels of uncertainty and, for many of these an equally reasonable alternate conclusion of a lower impact intensity could be reached based on the available data and information," the panel noted.

Areas of the DEIS cited as having "moderate to high levels of uncertainty" include oyster company impacts on harbor seals, coastal flood zones, water quality, soundscapes, eelgrass, fish, and wetlands.

Seashore staff have been crafting an Environmental Impact Statement to assess impacts the Drakes Bay Oyster Co. might be having on seashore waters. The issue is timely, as the oyster company's 40-year lease runs out in November, and Congress long ago said the estero should be designated as official wilderness once all non-conforming uses are removed from it.

The interest in the fate of an oyster company that produces between 450,000-500,000 pounds of Pacific oyster meat a year for Bay Area outlets has been fanned by both U.S. Sen. Dianne Feinstein, an ardent supporter of the oyster company and its small workforce, and environmentalists and conservationists who want to see the estero granted official wilderness designation.

The outside review that arrived last week is the second on the DEIS. An earlier review, performed by Atkins North America, found that the DEIS was not perfect, but it was an "adequate analysis" in light of the "available scientific information."

The latest review (attached below), by an arm of the National Research Council, was requested by Congress. The report seconds a conclusion reached in a preview review by the national Marine Mammal Commission that it is hard, if not impossible, to currently assess how the oyster company's operations might be impacting, long-term, harbor seals in the estero.

"Indeed, no study worldwide has been designed to assess the impact of disturbance (from mariculture or other sources) on harbor seal haul-out distribution patterns," the NRC report states. "Consequently, 'research that has been conducted in Drakes Estero cannot be used either to directly demonstrate any effects of the oyster farm on harbor seals or to demonstrate the absence of potential effects.'"

Concerning the Atkins review, the NRC panel found that that firm lacked the expertise to fully analyze the DEIS and, as a result, "does not consider the Atkins report to be 'fundamentally sound and materially sufficient.'”

The NRC review pointed to the general lack of scientific literature on the estero as standing in the way of a more thorough DEIS.

To help remedy that dearth of information, the panel, among other things, recommended that in working on the final EIS the Park Service be more clear on how it defines "impact intensities," ie, beneficial, minor, moderate, major; "Qualify each impact intensity conclusion in terms of levels of uncertainty such as those used by the committee; Clearly identify and explain all assumptions made in reaching conclusions concerning impact intensities; Describe potential alternate conclusions as appropriate", and; consider additional mitigations that could be built into a permit extension for the oyster company.

AttachmentSize
PORE Oyster Farm DEIS Review.pdf1.54 MB

Comments

I really don't get it. The lease runs out in November and that's it. The oyster farming has to be removed on that day and vacate the estero. I can't see any need for an EIS or anything else.

As the penultimate act of this melodrama unwinds (stay tuned for the lawsuits), MRC is too afflicted with reason to comprehend the misdirected focus on this 8th scientific review of what is actually a tricky tenant’s crusade to renege on his signed agreements with the Park Service, the Coastal Commission, and Marin County court.

After seven years of heinous squabbling it is worth recalling this quote from Mr. Kevin Lunny, the Drakes Bay Oyster Company’s (DBOC) proprietor, published 23Feb2006 Point Reyes Light: “‘The park administration has told us they’re not going to renew our lease in 2012, because they need to actively make this a full wilderness,’ he continued. ‘Well if that’s what the people of the United States want, that’s what they’re going to get. But I’d like to make sure that people know what they’re losing. They have to know the cost of making this a wilderness. When people know and the people decide. I think we’ll be fine with that.’”. The US public has been fully informed, we’ve made our choice, but for Mr. Lunny, a deal is never a deal.

The verbatim conclusions from the National Research Council committee shouldn’t be overshadowed by the coy filigree about ‘uncertainties’ inserted to satisfy shellfish industry hardliners, and which are essential for shielding committee members from character assassination by DBOC’s ‘crisis management’ media attack dogs.

Here are the key conclusions on the eight science elements:
1) Wetlands "The committee finds that the impact definitions, review of scientific information, and conclusions on wetland impacts are reasonable. [DBOC permit] … would continue to have an adverse impact on wetlands …",
2) Eelgrass "the committee finds that the data support the DEIS findings [DBOC permit B or C] would sustain the current level of adverse impact while [increased intensity] could increase the amount of vegetation damaged",
3) Wildlife and Habitat.
- nonindigenous bivalves "constitute a moderately adverse impact".
- harbor seals "impacts from mariculture operations do appear to have a greater influence on harbor seal site choice... would likely result in moderate adverse impacts on harbor seals due to potential displacement... Overall, the best available scientific information was used in the DEIS".
- birds "The committee finds that the DEIS conclusion that alternative A [closing DBOC] would have a beneficial impact, because habitat would improve for foraging and migratory birds, is valid and scientifically sound".
4) special-status species "The committee proposes no alternate conclusions to the DEIS findings [adverse impact of DBOC] for special-status species - esp.: Myrtle's silverspot butterfly, red-legged frog, California least tern",
5) coastal flood zones "quantitative analysis is important for determining the magnitude of the impact",
6) soundscapes "The committee concurs with and assigns a low level of uncertainty to the conclusion that alternative A [closing DBOC] would have beneficial impacts since anthropogenic noise levels would be reduced in the long-term.",
7) water quality "data on water quality parameters... to enable implementation of validated numerical models of hydrodynamics and water quality... were not provided in support of [dEIS conclusion of minor adverse impact by DBOC]".

Regarding '8) Socioeconomic Resources', while Mr. Lunny blocks disclosure of essential records no socioeconomic assessment can be quantitatively rigorous enough to be considered 'scientific'. The committee notes that, "some members of the public have a significant non-use value for the removal of DBOC." This refers to the avalanche of public comments (~50,000) against DBOC's continued tenure in Drakes Estero. The overwhelming public voice rejects Mr. Lunny's aggressive assault on coastal resource protections. Only his politically powerful network of allies, aqua-agri-biotech-industry lobbyists, private resource investment brokers, self-interested reactionaries, and the gullible well-meaning-but-confused see undermining public protection of national treasures and ecological sanctuaries of global importance, as a noble ideal - vital for averting West Marin's imminent collapse into starvation and economic peril.

Beyond this clique of 1%ers and neo-ideologues, honorable business relations are defended, but we’ll have to wait and see if Ken Salazar has the spine to stand up to the immense pressure from Senator Feinstein and the Grand Inquisitor crew – Issa, Vitter, and Inhofe...

Ed's note: The last 15 words of this comment were removed for being a gratuitous comment. That edit did not change the tenor nor substance of the comment.

I wanna see the last 15 words!

We need to have a parallel website: www. nptDirector'sCut. com

:-)

I'm curious as to the "last 15 words" too.

As for the lengthy treatise, I have neither the time nor the inclination to go over that. However, I would address one point about "a deal". I am a landlord. I had also been a tenant (long story) at the same time. I know what it's like preparing a lease and signing a lease. I know what it's like when the lease terms are up. It's never a case where "a deal is a deal". An interested tenant reaches out to the landlord and asks if it might be possible to sign a new lease or (or in California) simply pay and have the landlord accept the same monthly rent past the lease term, at which point it legally converts to a month to month agreement with standard terms spelled out under the law. When my term was up, my landlord didn't say, "Sorry - you're out - that was the deal". I contacted him and asked him if he was interested in extending the rental on a month to month basis. If I were there long-term, I think I could have requested another lease. It doesn't sound like Lunny was thinking any more than a guy who looked at the original lease, saw the terms, and asked the manager (Don Neubacher was not the landlord) if it might be possible to extend the term. From my understanding, that's when the fun started with the threats to close them down before 2012.

The whole deal has been way more complicated than "a deal is a deal". From my reading of the history of the oyster farm, had the previous Superintendent stayed on the job, it would have been almost a forgone conclusion that a special use permit have been issued to replace the original reservation of use. This is a policy decision. When it comes to natural resources decisions with the Federal government, it's always a case where politics are involved. Do I like it that politicians like Darrell Issa who look at this issue more as a way to "stick it to the environmentalists"? Not in the least. I do see politicians of good will who have expressed their wish that the oyster farm continue, such as Barbara Boxer, Lynn Woolsey, and (most notably) Dianne Feinstein. Feinstein isn't Issa, and whatever meager donations she's gotten from Lunny probably don't even pay the travel bills and time that she's personally spent on this issue. She's handling this because she takes it personally. Feinstein is hardly an enemy of our national parks or wilderness. She's been an outspoken opponent of a proposed Indian casino outside the entrance of Joshua Tree NP. She sponsored the California Desert Protection Act of 1994.

Sounds like y_p_w is describing a residential lease with a human individual landlord who had no competing use for his property. Quite an incongruent case. BTW "never" is big assumption. Anyone can "request" anything, and any request can be turned down. Such vague diversions seem pointless and unhelpful.

Mr. Lunny, Drakes Bay Oyster Company's (DBOC) proprietor, purchased in 2005 the 7-year remainder period of leasehold interest, along with 'goodwill' and moveable property, from Johnson Oyster Company (JOC) for a bargain price of about $275,000; a good chunk of that was credited to 'in-kind' cleanup services by Lunny's heavy equipment operation, Lunny Paving. The contract of sale stacks up at least 50 pages. This is no seat-of-the-pants handshake deal; Lunny did his homework and seems to have concluded that with his clout (he's on a score of politically potent local and aqua-agri-industry boards) he could bluster his way to a perpetual gold mine for a pittance. He was told by NPS beforehand, and acknowledged that he understood that extension past 30Nov2012 would NOT be forthcoming. Because he is determined to fight to the bitter end he battled mightily to avoid signing any new documents that would limit his leverage. It was only the threat, via his own attorney, that Senator Feinstein would be unsupportive of his continued bad-faith diversionary tactics, which eventually pressured him to sign, on 22Apr2008 a Special Use Permit with NPS. This is the current, controlling agreement allowing DBOC's use of both shoreline facilities AND the submerged acreage of shellfish cultivation in Drakes Estero. It clearly specifies a non-renewal clause.

y_p_w's further speculation that John Sansing would have acted differently, is overwhelmed by the reality that a final execution of a Cease-and-Desist Order was imminent when DBOC took over from JOC. Without Lunny, the place would have been shuttered in 2005; the cannery was shut down ca.2003. Lunny assumed all JOC's obligations: for septic&water system upgrades, cleanup of legacy debris onshore and in adjacent waters, removal of unpermitted development, pursuant to a stipulated agreement under Marin County court jurisdiction, as well as additional obligations to remediate violations regulated by the California Coastal Commission (CCC). Needless to say, DBOC still and again, has been notified by the CCC that his newest Cease-and-Desist order is reaching the pivotal point of no return - Lunny's independent legacy of violations is wearing out all reasonable lenience. Like I've said, brace yourself for interminable litigation.

In light of the fact that Lunny has not fulfilled these obligations, and has compounded them with new violations of his own, it is inconceivable that any but a masochistic landlord would entertain extending relations with such a troublesome tenant. Perhaps y_p_w can offer a landlord's perspective on the desirability of corporate tenants which show close to $80,000 in recent Federal and State Tax Liens and whose 'fixture loan' is held by a defunct financial institution under FDIC management. Shellfish harvesting has been shut down by the Health Department and all DBOC products recalled since 17July, due to an outbreak of toxic levels of Vibrio parahaemolyticus which sickened several consumers of DBOC's oysters.

It is unfortunate that the brief excerpts capturing the substance of the NRC's recent 70+ page review are too tedious for y_p_w's taste. He needn't worry his dear head with this entry either. Would that the length of his obscurantist speculations were commensurate to his interest in actual facts. To each his own.