A state hearings board upheld a King County permit for a proposed kelp farm near Tahlequah in Colvos Passage, saying the farm will not threaten whales with entanglement, shade out native aquatic vegetation or disrupt critical ecological processes.

In a decision issued Aug. 29, the Shoreline Hearings Board also found that King County was correct to use a lower level of review in granting the permit — a “determination of non-significance” rather than a more robust Environmental Impact Statement — because kelp-growing is not a “novel type of marine development” that requires a higher level of scrutiny.

The board’s ruling is a significant win for islanders Mike Spranger and Gretchen Aro, co-owners of Pacific Sea Farms, a proposed commercial kelp-growing enterprise west of the Tahlequah ferry dock. Sound Action, a regional environmental advocacy group, appealed the county’s issuance of a permit to Spranger and Aro earlier this year, resulting in a seven-day hearing before the board in May.

The board’s five-member panel ruled in Pacific Sea Farm’s favor on all of the 14 issues Sound Action raised. The ruling can be read in full here.

Amy Carey, an islander who heads Sound Action, says her organization plans to appeal the board’s ruling, which will put the issue before a King County Superior Court judge.

In an emailed statement, Aro said she and Spranger were not surprised by the board’s decision, which she said was based on testimony from 15 witnesses, numerous exhibits and information provided by government agencies “tasked with protecting Puget Sound.” The board, she said, “carefully and thoroughly rejected each of Sound Action’s allegations.”

Aro also took aim at Sound Action’s decision to appeal.

“We are surprised to hear Sound Action plans to spend donor money on another appeal considering the unanimous and resounding opinion in our favor,” she wrote. “We strongly encourage the Sound Action board members and donors to fact-check the Sound Action executive director’s statements and read the (board’s) ruling.”

Carey, however, said her organization had no choice but to appeal. She said the hearings board’s decision “missed by a mile” the facts of the case, “omitted and ignored unquestionable facts about whale use and entanglement” and failed to recognize that Spranger and Aro’s proposed farm is in an area known for high whale use.

“There’s too much on the line,” Carey said, explaining Sound Action’s decision to appeal. “The entanglement risk is serious and substantive.”

Meanwhile, in a related development, a neighborhood group filed an appeal last week challenging King County’s recent decision to permit Mike Kollins’ kelp farm near Fern Cove on the northwest side of the island — a second commercial kelp farm proposed off of Vashon’s shoreline.

The Fern Cove Preservation Alliance appealed the permit on behalf of 35 neighbors who live on Cedarhurst Road, Burma Road and the Kitsap Peninsula, according to Mary Bruno, an islander who helped create the alliance.

“We’re disappointed and very concerned that the county didn’t adequately assess environmental, recreational and aesthetic impacts before it okayed a 10-acre, 12-year commercial kelp business right in front of the Fern Cove Preserve, which is a nature sanctuary that was purchased with public monies and that the county itself has called ‘historic and iconic,’” the alliance said in a statement.

“Our neighborhood alliance is actively urging the state Department of Natural Resources to be more rigorous as it evaluates whether and where to lease our public aquatic lands to private, commercial enterprises like this one,” the alliance added. “Today’s decisions are tomorrow’s precedents, and there are many more such proposals in the pipeline.”

Kollins, who said he had yet to see the appeal, declined to comment.

The Shoreline Hearings Board, in its 77-page decision on Spranger and Aro’s farm, outlined the many issues raised by Sound Action and the conflicting testimony offered up on each one. In every instance, the board sided with Pacific Sea Farm’s experts, saying Sound Action had failed to prove its allegation.

The board, for instance, disputed Sound Action’s contention that the proposed site is one used frequently by whales, noting that the organization offered up what the board called “opportunistic observations” rather than scientific data.

Instead, the board found in favor of one of Spranger’s experts, Chris Cziesla, a marine biologist at an environmental consulting firm, who cited a 2018 study that attempted to “correct for sampling bias” and did not find extensive whale usage at the site, according to the board’s decision.

The board also ruled in Spranger’s favor on whether he adequately surveyed the site’s aquatic vegetation — the board said he did — and whether his farm would shade out native aquatic plants. Sound Action, it said, “failed to show the project will adversely affect macroalgae,” adding: “Even assuming there was a substantial shading of native kelp due to the project, that would be offset by the kelp that is being cultivated, which is also native.”

The biggest issue before the board was that of whale entanglement, an issue that Carey said has made this fight a huge one for her and her organization.

The whales that frequent Puget Sound — both resident and transient killer whales and humpback whales — are highly imperiled, Sound Action’s experts testified. In fact, according to Monika Wieland Shields, director of the Orca Behavior Institute, one of Sound Action’s experts, even the death of one Southern Resident killer whale by a longline could “have detrimental impacts on the potential for recovery of the population.”

But the board sided with Spranger’s experts, including retired marine mammal veterinarian Tag Gornall, who testified that the project would not entangle whales because the longlines would be taut; whale entanglement, he testified, occurs from loose or derelict lines, which can loop around and trap or injure a whale. The board noted that the National Marine Fisheries Service, in its letter in support of the project, also found no evidence of entanglement risk.

“Indeed, it is undisputed that there are no reported instances of whale entanglements in a kelp farm aquaculture facility, even though kelp farms are located throughout the world,” the board wrote.

Nor are so-called breakaway lines a possibility, according to the board’s decision. Sound Action has argued repeatedly for the use of lines that break on contact with a whale, saying such technology exists and would make kelp farming safer for cetaceans.

But the board said evidence does not uphold the organization’s contention. Citing Scott Lindell, a research specialist at Woods Hole Oceanographic Institution, the board said such lines work for lobster trap buoys in New England but would not work for vertical farm lines, which are under far more tension.

Sound Action also raised concern over King County’s process, noting that it opted for an expedited review — a determination of non-significance — per the request of King County Executive Dow Constantine. County officials acknowledged during the seven-day hearing that the executive requested that they place Spranger’s review ahead of other permit applications but added that Spranger’s project did not receive preferential treatment beyond that.

Carey expressed frustration with the board’s far-reaching decision, saying the board ignored what she called “deep testimony” about whale use in the area, the risk of entanglement and several other issues. “All of this was ignored by this body, and the repercussions are significant,” she said.

“This wasn’t me saying there was an entanglement risk. These were top experts,” she added, noting that David Bain, the chief scientist for Orca Conservancy, was among those sounding the alarm.

The board’s finding that this is not a site used frequently by whales is particularly confounding, she said. “You have this decision saying we don’t know that whales are at the site. Well yes, we do.”

Aro, meanwhile, said she and Spranger are eager to begin their farming project. “We plan to move forward,” she said.

Should the issue land in Superior Court, she added, they’re confident they’ll again win, “given the amount of scientific evidence presented at the appeal and given that the (hearings board) ruled unanimously in our favor and determined that none of the allegations brought against our plan had merit.”

Leslie Brown is a former editor of The Beachcomber.