Diani Taylor

Professor’s Introductory Note:  Having Diani in the Food Law & Policy class has been a great asset for many reasons. But one of the big reasons is her years of experience in a local food industry that is so important to the regional economy. Plus I am a huge fan of her family’s business, Taylor Shellfish Farms (http://www.taylorshellfishfarms.com/). 

When you slurp an oyster on the half shell, it would be impossible (and disappointing) to not also drink the water in the shell. That water is the last breath the oyster took from the sea before it was picked up off the tide and brought to your table. The oyster, being a filter feeder, also has a belly full of all the algae and other food it has gleaned from the marine waters of its intertidal home (its last meal). As you can imagine, water quality is an important part of a healthy and delicious oyster that is safe to eat. However, clean water has been and continues to be a major issue to overcome for shellfish farmers and consumers.

Oysters

From the 1920’s to the 60’s, oysters in Washington State experienced high rates of mortality or were made inedible due to pulp mill and other waste being dumped into the Puget Sound. Though oysters were in high demand, it was difficult for farmers to prove that waste from a pulp mill miles away could affect crops of oysters further up the bay.

Today, pulp mill waste has been addressed, but new threats to water quality have emerged as major issues. Failed septic systems, storm water runoff, oil spills, and agricultural waste can lead to illness and close shellfish harvest areas. Heightened water quality regulation and clean water initiatives provide hope for an even brighter future for public health and safety and for the longevity of Washington’s shellfish farms.

Shellfish Consumption and Farming in Washington State

Shellfish have been consumed by people since the beginning of humankind. Shellfish are high in protein and are easy to collect and eat raw or cooked. Some suggest that Chinese were the first to cultivate shellfish, but there is evidence of prehistorical shellfish farming on marine shorelines across the globe, particularly in the Mediterranean, Great Britain, and Pacific Northwest of North America. For more information: http://www.foodtimeline.org/foodlobster.html#oysters.

The oldest sites evidencing intense shellfish consumption in the Pacific Northwest are called “shell middens” where shellfish shells were discarded in piles. The oldest middens in the Northwest found to date are over 8,000 years old. Evidence of pre-historical shellfish cultivation has been found in the form of intertidal rock wall gardens in British Columbia. These shellfish gardens created ideal conditions for shellfish to grow.

shell midden

Figure 1: part of a shell midden, British Columbia, Canada, http://learning.royalbcmuseum.bc.ca/themes/human-history/

It is said that Native Americans rubbed shellfish on their lips before eating them, and, if their lips went numb or tingly, they wouldn’t eat the shellfish. This, it can be argued, is the first instance of shellfish health and safety inspection. Numbness and tingling was a result of neurotoxins caused by harmful algal blooms like “red tide.” See: http://en.wikipedia.org/wiki/Paralytic_shellfish_poisoning, and http://en.wikipedia.org/wiki/Red_tide.

Shellfish were also an important source of food for early settlers in Western Washington. Native Americans traded with the settlers for many important products, including oysters. Shellfish were a highly nutritional and welcomed source of food for settlers on the Puget Sound. See: http://olympiawa.gov/community/parks/percival-landing/olympia-oyster#.

“No longer a slave of ambition,

I laugh at the world and its shams,

And I think of my happy condition,

Surrounded by Acres of Clams.”

“The Old Settler” by Francis Henry (Mayor of Olympia) 1874, http://en.wikipedia.org/wiki/Old_Settler%27s_Song_%28Acres_of_Clams%29#Lyrics

The first people to sell shellfish in Washington were Native Americans. Women gathered Olympia Oysters on the mud flats around the City of Olympia and sold or traded the oysters for other goods. Early Chinese immigrants and American settlers also saw economic opportunity in the oyster and began harvesting them for sale in broader markets.

Oystermen

Figure 2: Oystermen, Asahel Curtis, USGS, 1910

The California gold rush of 1849 incited demand for Olympia oysters. San Francisco was known for serving the coppery-tasting morsels raw, and the San Francisco Bay could not produce oysters fast enough. Notably, Mark Twain’s favorite food was an Olympia oyster on the half shell.  A combination of pollution and overharvesting in the Bay would lead to the near extinction of the Olympia oyster species during the gold rush, making the Oly’s in Washington State highly valuable. For more information on the Olympia oyster craze, see: http://www.smithsonianmag.com/arts-culture/the-decades-long-comeback-of-mark-twains-favorite-food-88119462/.

“But most of all, San Francisco was oysters – oysters by the bushel at the Occidental Hotel, where the day might begin with salmon and fried oysters and reach its culinary climax at 9 p.m., when, Twain wrote in 1863, he felt compelled ‘to move upon the supper works and destroy oysters done up in all kinds of seductive styles’ until midnight, lest he offend the landlord.”

The Decades-Long Comeback of Mark Twain’s Favorite Food (see link, above, for full article)

Soon, Olympia oysters slurped in San Francisco were almost exclusively coming from Willapa Bay on the Washington coast. The oyster industry in Washington was thriving and frontiersmen were turning into shellfish farmers in the bays and inlets along the coast and in the Puget Sound. After statehood (1889), the Washington legislature sought to promote the shellfish industry, passing the Bush and Callow Acts which allowed State owned tidelands to be sold into private ownership for shellfish cultivation (RCW 79.135.010).

Sorting Oysters

Figure 3: Oyster sorting in Washington State, 1900’s

Rise of the Pulp Mills

The shellfish industry was growing and going strong until the 1920’s when pulp mills started moving in to the shoreline. Railroads had expanded in Washington, facilitating the shipment of wood products, not just lumber, out of heavily forested (and logged) areas in Western Washington. New products were being made out of the pulp, from paper to rayon and cellophane. See, http://www.historylink.org/index.cfm?DisplayPage=output.cfm&file_id=9591.

pulp mill

Figure 4: Rayonier Pulp and Paper Co Mill, Shelton, 1930’s

An unfortunate byproduct of pulp mills is spent Sulphur liquor (SSL). After production, the mill waste would be drained into the nearest body of water. Dumping the waste into the waters of the State would not be regulated until 1945 when Washington passed the Pollution Control Act (just three years before Congress would pass the Federal Water Pollution Control Act, the basis of the Clean Water Act). The Water Pollution Control Commission, a predecessor to the Department of Ecology, issued permits for dumping and set limitations on dumping of mill waste. See, http://www.ecy.wa.gov/programs/wq/permits/permithistory.html; http://www.atg.wa.gov/ago-opinions/offices-and-officers-state-pollution-control-commission-adoption-water-quality-0. The policy of the Act was:

“to maintain the highest possible standards to insure the purity of all waters of the state consistent with public health and public enjoyment thereof, the propagation and protection of wildlife, birds, game, fish, and other aquatic life, and the industrial development of the state.”  RCWA 90.48.010

Pulp mills along the Sound were successful and pulp production increased over the years. Despite new regulatory authority over water quality for the health of humans and other animals and plants, oysters within a few miles of the new pulp mills were dying. Some crops experienced heavy mortality while others found oysters inedible and unmarketable.

Shellfish farmers saw a correlation between the dead oysters on their beaches and the dumping of tons of waste into the water. Similar to San Francisco, the Olympia oysters, which are particularly sensitive to pollution, were nearly wiped out in Washington due to pollution and overharvesting. New oyster species, like the Pacific oyster, were brought in to help mitigate the decline of the Olympias, but the Pacifics were also unable to withstand the low quality water. For information on the Olympia oyster and oyster restoration, see: http://www.restorationfund.org/sites/default/files/20080400OysterProject.pdf; http://wsg.washington.edu/mas/pdfs/olyoysterlr.pdf.

Oyster Farmers v. Pulp Mills

Oyster farmers took to the courts to solve this dilemma. Three major cases made it to federal court between 1941 and 1964 (1. Pioneer Oyster v. Puget Sound Pulp & Timber, 41 F.Supp. 919, 1941; 2. Ellison v. Rayonier Inc, 156 F.Supp. 214, 1957; and 3. Olympia Oyster v. Rayonier Inc, 229 F.Supp. 855, 1964). The oyster farmers’ claims, sounding in tort law, were for private nuisance. They lost in all three cases.

Pioneer Oyster Company, located in Padilla Bay, brought the first suit against a pulp mill, Puget Sound Pulp & Timber, in 1940. The suit was for damages to the oyster company’s crops allegedly caused by the pulp mill’s dumping of SSL waste into Bellingham Bay and Anacortes Harbor (about 9 miles away). The District Court found that the evidence did not point to the possibility of the waste being in any substantial amount over the plaintiff’s oyster beds, and that plaintiff’s oysters had died or become inedible for other reasons.

Both Ellison’s and Olympia Oyster Company’s lawsuits (in 1957 and 1964, respectively) were against Rayonier, Inc., a pulp mill located in Shelton, Washington. The claims were for dead or deteriorated oyster crops located in Oakland Bay, further up the Bay than the pulp mill. The court concluded in both cases that the defendant pulp mill had met all of its permit conditions, which should be sufficient to prevent conflict with the farmers’ oysters. All in all, the plaintiffs were unable to provide any evidence that the SLL waste was the cause of their dead and deteriorated oysters.

A common theme in the above cases was that the scientific studies and sampling done for water quality did not find significant amounts of waste. These samples detected waste in parts per thousand, not parts per million. Plaintiff shellfish farmers claimed that the sampling was inadequate to detect the level of pollution that would negatively affect oysters, but had no information as to how much or how little SSL waste it would take to negatively affect shellfish.

Recognizing this loss of oysters as a clean water issue, Governor Rosellini provided emergency funds to the Washington Water Pollution Control Commission to resolve this problem. The Commission hired consultants to study how oysters are affected by SSL waste and whether existing regulation was sufficient. The report, completed in 1960, recommended stricter regulation on allowable amounts of SSL waste in water, particularly over oyster beds. The Commission immediately adopted the recommendations in the report. For the full report, see: http://babel.hathitrust.org/cgi/pt?id=uc1.31822012567913;view=1up;seq=89. For more information on this issue, see: http://wsg.washington.edu/communications/online/immigrant.pdf.

Washington Clean Water and Shellfish Health and Safety Today

Washington State faces different pollution challenges with regards to shellfish today. While pulp mill waste is less of an issue, other forms of pollution considered injurious to public health and safety are more immediate. Failed septic systems, storm water runoff, oil spills, and some agricultural inputs are major contributors of bacteria that can cause illness. Shellfish growing areas are monitored year round for fecal coliform bacteria, and point sources of pollution are identified and fixed.

Today, the Water Pollution Control Commission has been replaced by the Washington Department of Ecology. The Clean Water Act gives regulatory authority over projects conducted in water to the Army Corps of Engineers. Washington Department of Health’s Shellfish Program monitors water quality in shellfish growing areas, and regulates shellfish from the farm to the processing and packaging plant. See: http://www.doh.wa.gov/AboutUs/ProgramsandServices/EnvironmentalPublicHealth/ShellfishandWaterProtection/ShellfishProgram; http://www.ecy.wa.gov/programs/sea/aquaculture/shellfish.html.

Despite additional pollution regulations and shellfish sanitation programs, water quality is still an issue in the State. People continue to report illnesses after eating raw oysters. Many bays are completely shut down to shellfish harvest for several months every year due to pollutants. Growing areas can be shut down in the summer when high temperatures facilitate bacteria growth, or in rainy winter months when water coming from uplands carries pollutants over shellfish beds and septic systems overflow. See: http://wwwnc.cdc.gov/eid/article/19/8/12-1824_article.

shellfish map

Figure 5: Washington Shellfish Harvest Area Classification Map, 2011, Washington Department of Health

However, many efforts are being made to clean up the water. Shellfish Protection Districts have been formed throughout the State where shellfish farmers have been inhibited from or completely barred from farming due to poor water quality. State initiatives like the Clean Samish Initiative (http://www.ecy.wa.gov/programs/wq/tmdl/samish/CleanSamishInitiative.html) and Washington Shellfish Initiative (http://pcsga.org/wprs/wp-content/uploads/2013/04/Washington-Shellfish-Initiative.pdf) seek to protect and restore water quality for shellfish. Recently, the Department of Health has been proud to upgrade and/or reopen important historically farmed bays like Oakland Bay and Dungeness Bay. See: http://www.doh.wa.gov/Newsroom/2012NewsReleases/12132OaklandBayShellfishUpgrade; http://www.clallam.net/hhs/EnvironmentalHealth/shellfish_downgrade.html.

Conclusion

Shellfish have been an important source of nutrition and part of Washington’s economy for thousands of years. Pioneers settling the area made oyster farming their way of life. Washington’s shellfish industry grew tremendously and with great success into statehood.

Pulp mills moving into the Puget Sound shoreline area in the 1920’s and 30’s were also successful. Their growth led to greater amounts of pulp mill waste being dumped into State waters, and the death and deterioration of shellfish. Oyster farmers unsuccessfully took legal action against the mills, but it was the State that eventually responded to the crisis.

Washington still faces pollution challenges to public health and safety with regards to shellfish. Despite additional resources and regulation, members of the public continue to report illnesses that stem from water pollution after eating raw or undercooked shellfish. However, new regulation and clean water initiatives give hope for better standards, water quality, and overall public health.

People will probably never stop eating shellfish as long as it is available to them. Oysters in particular have intrigued the locavore, excited the adventurist, and enticed the romantic. Your slurp of an oyster or devouring of a bowl of clams and mussels is filled with history. The geoduck sashimi that makes it to your lips has passed through multiple public health and safety screens. These experiences are colored by the rich history of shellfish sanitation and water quality regulations in Washington State and the battles fought for clean water here.

About the Student-Blogger:

Diani Taylor grew up on the South Puget Sound. She attended the University of Montana for environmental studies, and now works for her family business, Taylor Shellfish Farms. She currently attends Seattle University School of Law with hopes to better represent her family business, especially on water quality issues.