Seattle, WA — Today, the Ninth Circuit Court of Appeals denied shellfish growers' motion to stay the recent district court decision nullifying the defective Nationwide Permit 48 (NWP 48) covering tens of thousands of acres of shellfish aquaculture activities in Washington. On June 11, 2020, the District Court for the Western District of Washington set aside the U.S. Army Corps of Engineers' unlawful permit, in response to lawsuits brought by Center for Food Safety (CFS) and the Coalition to Protect Puget Sound Habitat (Coalition). The court also partially stayed that order to allow some harvest and planting activities to continue pending issuance of new, lawful permits. The Pacific Coast Shellfish Growers Association (PCSGA), an intervenor in the case, appealed that decision to the Ninth Circuit on June 18, 2020 and sought a stay to allow all activities on all acres in both 2020 and 2021.
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.
"The Court's decision ensures protection for Washington's iconic wildlife and special places from the largely ignored impacts of industrial shellfish aquaculture pending the growers' meritless appeal," said Amy van Saun, senior attorney at CFS, based out of its Pacific Northwest office. "The district court's partial vacatur was already a major compromise, allowing some shellfish aquaculture activities to go forward despite the Corps' serious errors of law when adopting the permit and failure to protect Washington's environment and the public interest, and we are pleased the permit will remain null and void."
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.
Coalition Executive Director Laura Hendricks said: "This is good news for Puget Sound and it's marine environment. We are pleased the Ninth Circuit saw fit to put an end to 'business as usual' for the destructive practices of the commercial shellfish industry during the industry's appeal of Judge Lasnik's extraordinarily thorough decision."
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.
After additional briefing and oral argument on the appropriate remedy, 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.
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.