SEATTLE, WA — Center for Food Safety (CFS) is praising a "narrow victory for coastal marine life" today following the Federal District Court for the Western District of Washington's ruling allowing the U.S. Army Corps of Engineers ("the Corps") to revoke its general permit for industrial shellfish operations in Washington.

In 2021, CFS and the Coalition to Protect Puget Sound Habitat challenged the Corps' Nationwide Permit 48 (2021 NWP 48)—which would authorize commercial shellfish operations in Washington—for failure to follow key environmental laws and protect coastal wildlife, ecosystems, and recreation. The Corps communicated that it now intends to revoke the 2021 NWP 48. CFS and the Coalition applaud this partial victory, as the 2021 NWP 48 not only failed to comply with the law, but also deviated from clear instructions set by the same court when it vacated the previous iteration of the NWP 48 from 2017.

Although CFS and the Coalition now have another legal win under their belts, that problem persists in the water and tide flats. The Corps has shifted strategy from the nationwide permit to issuing so-called "Letters of Permission" (LOPs), which authorize nearly all the same industrial scale shellfish operations as NWP 48.

As alleged in the conservation groups' pending complaint, these LOPs are meant to be used sparingly, and only when there will be no negative cumulative impact or significant public opposition. Coastal communities affected by industrial shellfish aquaculture have for years asked the Corps to take its duty seriously and prevent destruction of tidal habitats for forage fish, salmon, Dungeness crabs, migratory birds, and orcas.  

"Today's decision is a small step in the right direction, but this fight is far from over," said Amy van Saun, senior attorney for CFS. "The Corps cannot shift its permitting to non-public permits meant for minimally impactful activities to authorize hundreds of harmful industrial shellfish operations in Washington's coastal waters. Instead, the Corps must fully analyze the potential adverse and cumulative effects and provide public notice and comment before authorizing industrial shellfish operations in priceless habitat for fish, birds, and whales."

Karl G. Anuta, a lawyer representing the Coalition, went on to note: "Although this is a great step forward, the Corps still hasn't addressed its decision to authorize hundreds of previously authorized shellfish operations over tens of thousands of acres under LOPs. And the Corps has done that without seeking any public participation or completing the cumulative impacts analysis required by the court in our last NWP 48 case. CFS and the Coalition will continue to challenge the Corps' unlawful and destructive actions, including its issuance of LOPs in Washington State, as part of our ongoing lawsuit against the Corps."

Background

Industrial shellfish operations adversely affect Washington's shorelines and estuaries by destroying critical habitat for numerous species, including endangered and threatened salmon and killer whales. These operations harm Washington's aquatic and nearshore areas by increasing plastic netting and debris, microplastics, pesticides, and disturbances in the environment. According to the National Oceanic and Atmospheric Administration, industrial aquaculture's environmental impacts can include "water quality degradation, changes in sediment chemistry and composition, habitat degradation, altered biodiversity and community structure, introduction of non-native species including predators, pests and disease, spread of harmful algal blooms, and the loss of genetic diversity in wild shellfish populations."

CFS and the Coalition previously sued the Corps over the NWP 48 of 2017. In 2019, they won a victory on the merits, when the Western District of Washington found the prior version of the NWP 48 was unlawful.[1] The Court later vacated the 2017 NWP 48 and remanded to the Corps,[2] requiring compliance with the CWA and NEPA. The Ninth Circuit Court of Appeals subsequently affirmed both decisions.[3]

 [1] Coal. to Protect Puget Sound Habitat v. U.S. Army Corps of Eng'rs, 417 F. Supp. 3d 1354 (W.D. Wash. 2019).

[2] Coal. to Protect Puget Sound Habitat v. U.S. Army Corps of Eng'rs, 466 F. Supp. 3d 1217 (W.D. Wash. 2020).

[3] Coal. to Protect Puget Sound Habitat v. U.S. Army Corps of Eng'rs, 843 F. App'x 77 (9th Cir. 2021).