Seattle, WA — Today, a federal court nullified the defective Nationwide Permit 48 (NWP 48), making the vast majority of shellfish aquaculture activities in Washington illegal. However, the court also partially stayed its order invalidating the permit to allow some activities to continue pending issuance of new, lawful permits. The decision comes in response to lawsuits brought by Center for Food Safety (CFS) and the Coalition to Protect Puget Sound Habitat (Coalition) in the Federal District Court for the Western District of Washington.
The initial ruling on the merits was in October 2019, when the court ruled that the U.S. Army Corps of Engineers' commercial shellfish aquaculture general permit was unlawful, based on the agency's failure to adequately consider the impacts—including cumulative—of commercial shellfish aquaculture to Washington shorelines and wildlife habitat when it issued the permit. Today the court issued a ruling on the remedy that was needed to address the unlawful actions by the Corps.
"In this unprecedented time of upheaval, it is incumbent on our government to act in the public's interest and protect our environment for generations to come by ensuring that our food production is truly sustainable," said Amy van Saun, senior attorney at CFS, based out of its Pacific Northwest office. "After years of the Army Corps failing to protect public waters from the harmful environmental impacts of industrial shellfish aquaculture, we are relieved that the court did the right thing and prevented the industry from unbridled operation under a defective permit at the expense of Washington's wildlife and residents."
After reviewing the evidence before the Corps and the additional evidence supplied regarding the impacts of shellfish aquaculture permitted under NWP 48 since 2017, the court found the Army Corps' legal errors went to the heart of the federal laws protecting our water and environment. The court further found the environmental impacts of commercial shellfish aquaculture outweigh any economic consequences from vacating the permit, given that the Corps cannot issue the same permit again. Rather than allow the industry to "conduct shellfish operations under a defective, unlawful permit regardless of the environmental impacts for an unspecified period of time," the court partially stayed the vacatur for limited harvesting and seeding activities according to suggestions from plaintiffs, including the Swinomish Indian Tribal Community, and Amici tribes.
"The Coalition is pleased that Judge Lasnik recognized that things needed to change," said Coalition executive director Laura Hendricks. "That is true for both how the Corps handles these industrial scale aquaculture projects, and how the industry 'does business' in these sorts of projects. We hope the restrictions put in place by the Court will at least be a good start on getting further protections in place for the Sound — so that the orcas, salmon, and the people who enjoy, who rely on, and love the Sound can continue to do so into the future."
Activities that may continue pending new permits include: harvest of shellfish planted before today's Order; limited seeding and planting of shellfish for the 2020 season but only in areas without mature native eelgrass; maintenance activities for the same; and shellfish activities conducted pursuant to and to provide treaty harvest in furtherance of treaty rights, all conducted in accordance with the conservation measures applicable under the NWP 48 and the 2016 Endangered Species Act programmatic consultation. These limited activities may only go forward if the growers apply for new permits within six months of the order.
The court further ordered the Army Corps to process new permits as expeditiously as possible, but made it clear the Corps could only do so in accordance with Clean Water Act and National Environmental Policy Act requirements that the court had outlined in its October 2019 Order finding NWP 48 unlawful.
Background on NWP 48 and the court decision ruling it unlawful:
For over two decades, Washington State agencies and most counties have ignored citizens' concerns, as shellfish aquaculture lobbying paved the way for the unlimited proliferation of this industrial conversion of Washington shorelines. NWP 48, issued by the Trump administration in 2017, would have allowed an enormous expansion of an over $100 million dollar-a-year industry without sufficient marine wildlife or water quality protections for these unique and sensitive ecosystems. Industrial aquaculture already threatens Washington's iconic, invaluable shorelines and bays, which are home to numerous marine species including endangered salmon. Without any proper cumulative impact analysis of the existing tens of thousands of acres of industrial shellfish aquaculture, the 2017 NWP 48 opened the door to doubling that acreage—to an estimated 72,300 acres or a third of all Washington shorelines—including critical spawning and feeding grounds for forage fish, birds, invertebrates like Dungeness crab, and finfish like salmon and green sturgeon.
As the evidence before the Army Corps showed, many of these species rely on eelgrass and other aquatic vegetation. Eelgrass also helps to mitigate the effects of climate change on oceans. Industrial shellfish aquaculture is known to reduce or eliminate eelgrass, including through the industry's intentional the use of pesticides. Yet the new permit did not place any restrictions on impacts to eelgrass, through pesticide use or otherwise. The permit also failed to restrict the enormous use of plastics by the industry, like the 42,000 PVC tubes per acre that are covered in plastic netting and used to grow geoducks (a type of clam grown almost exclusively for the luxury export market). Netting can trap and entangle wildlife, and the plastics break down into microplastics that are hazardous to marine organisms, including the very shellfish being grown for human consumption.
In its October 2019 Order granting summary judgment to CFS and the Coalition, the court found that "the Corps acknowledged that reissuance of NWP 48 would have foreseeable environmental impacts on the biotic and abiotic components of coastal waters, the intertidal and subtidal habitats of fish, eelgrass, and birds, the marine substrate, the balance between native and non-native species, pollution, and water quality, chemistry, and structure, but failed to describe, much less quantify, these consequences." But because the Corps refused to evaluate these various impacts—and their cumulative impact—at the outset, and relied on cherry-picked data to support its minimal impact determination, its adoption of NWP 48 in Washington was unlawful under the National Environmental Policy Act and the Clean Water Act. The court then requested additional briefing on the appropriate remedy and fate of the general permit and all operations growing oysters, clams, and mussels pursuant to NWP 48. A telephonic hearing on the remedy took place on May 18, 2020.
CFS was represented in the case by Amy van Saun and George Kimbrell. The Coalition was represented in the case by Karl G. Anuta and Thane Tienson.