Decision a victory for nonprofit environmental organizations that had filed complaint
On March 17, a federal judge with the U.S. District Court for the Western District of Washington ruled that the U.S. Army Corps of Engineers’ Nationwide Permit 56 (NWP 56) was unlawful, the nonprofit plaintiffs announced.
The 2021 permit authorized industrial finfish aquaculture structures in federal ocean waters for the first time across the United States
As the Center for Food Safety, based on Washington, D.C., noted in a press release this week, Nationwide Permit 56 would have allowed industrial “fish farms” in U.S. waters off both the western and eastern coasts. The release explained that fish farming “involves placing net pens and cages in the open ocean to produce massive quantities of finfish such as salmon, trout, and bass, threatening marine ecosystems as well as endangered whales, salmon, sea turtles, and many other imperiled species”; along with “traditional fishing economies, Tribal Nations’ food security, and public health.”
U.S. District Judge Kymberly K. Evanson explained in her order that she earlier had granted in part the plaintiffs’ motion for summary judgment, finding that the Court needed more information “to determine the appropriate remedy” for what she agreed was the unlawful USACE creation of the nationwide permitting program.
Evanson had ordered the parties “to meet and confer and propose a briefing schedule” on that remedy. They complied, she continued, and completed the briefing.
During the parties’ meeting, Evanson wrote, the U.S. Army Corps of Engineers (USACE) representatives “disclosed that six projects had been approved under NWP 56, but that “no pre-construction notices are pending.”
As a result, Evanson continued, the plaintiffs asked the court to allow those six projects to remain in place but to agree that any future projects would have to undergo individual permitting instead of approval via NWP 56.
Conversely, the judge wrote, the USACE suggested that the “individual permitting would be ‘needlessly disruptive’ to potential ‘proponents of prospective projects to be located far away from where [the plaintiffs’] members reside, work, travel, or recreate, as such project proponents may need to apply for individual permits — even for activities that could not conceivably cause [the plaintiffs] harm.’ ”
Evanson disagreed with the USACE, she pointed out, finding instead that “any potential disruption of this sort is not ‘needless’; in fact, requiring future permits to be approved individually (rather than via NWP 56) would alleviate some of the Court’s concerns as described in the summary judgment order.”
(In her partial summary judgment ruling in September 2024 in the case, Evanson explained, “Summary judgment is appropriate only when ‘[a party in litigation] shows that there is no genuine dispute as to any material fact and [that party] is entitled to judgment as a matter of law,’ ” citing the Federal Rules of Civil Procedure.)
Moreover, Evanson wrote in her March 17 decision for the plaintiffs, “[B]ecause NWP 56 is scheduled to expire in 2026 in any event, ‘any economic reliance interests on the current nationwide permit would be short-lived …’ ”
Finally, she noted that she had found “that the prospective [setting aside of Nationwide Permit 56] as of the date of this order, as requested by the Plaintiffs, is the appropriate remedy” for the USACE’s “unlawful agency action.”
She then ordered that the case be closed.
(On a related note, The Sarasota News Leader sent an inquiry this week to the Atlanta-based Region 4 staff of the Environmental Protection Agency (EPA) in an effort to determine the status of a modified permit that the EPA issued in October 2024 for Ocean Era, which is based in Hawaii. That permit would allow Ocean Era to install a “fish farm” about 45 miles southwest of the Sarasota County coastline. On March 19, Patti Ghezzi, the Region 4 press officer, wrote the News Leader that she would “try to get that information soon.”)
Responding to Judge Evanson’s ruling, George Kimbrell, legal director for the Center for Food Safety and counsel for all of the plaintiffs in the federal case, said in the Center’s news release, “This is a crucial victory in the battle for the future of our oceans.” He added, “We are gratified that the Court has ordered that NWP 56 is null and void. Industrial aquaculture has an abysmal track record globally of damaging the environment and local communities. It has no place in U.S. ocean waters.”
James Mitchell, legislative director for a second plaintiff, Don’t Cage Our Oceans, said in the release, “Our coalition members are pleased to see the Court toss aside the ridiculous idea that the Army Corps, via just one nationwide permit, can seriously satisfy the many ecological and socio-economic concerns of all prospective aquaculture projects in our nation’s oceans. This decision reinforces that industrial aquaculture cannot be rubber-stamped without careful scrutiny, and it is a victory for coastal communities who want to design seafood systems that protect our oceans, fish, and the values of our fishing families.”
The Center for Food Safety news release also pointed out, “This victory is yet another major legal rebuke to the federal government’s continuing attempts to establish aquaculture in U.S. ocean waters. In 2018 and 2020, federal courts covering the Gulf of Mexico struck down an earlier effort that would have established the industry there for the first time. Despite intense lobbying efforts by proponents, Congress has never passed a law authorizing industrial aquaculture in the U.S. federal waters.”
Along with the Center for Food Safety and the Don’t Cage Our Oceans, the plaintiffs were the Pacific Coast Federation of Fishermen’s Associations, the Institute for Fisheries Resources, the Quinault Indian Nation, the Los Angeles Waterkeeper, the San Diego Coastkeeper, the Santa Barbara Channelkeeper, the Wild Fish Conservancy, and the Recirculating Farms Coalition.
A years-long process
On Nov. 14, 2022, the environmental organizations filed their 92-page complaint in the U.S. District Court for the Western District of Washington, in Seattle.
The USACE had issued Permit 56 eight months after then-President Donald Trump issued a May 2020 Executive Order that called for streamlining the permitting process for offshore aquaculture projects.
As the formal complaint pointed out, that permit would allow the installation of “cages, net pens, anchors, floats, buoys, and other similar structures in marine, estuarine, and waters overlaying the Outer Continental Shelf. … This decision marks the first time the Corps has issued a nationwide permit for industrial finfish aquaculture development in United States waters, on the Continental Shelf.”
Yet, the complaint continued, “Industrial aquaculture remains a controversial industry in the United States and abroad due to its plethora of well-known adverse environmental and intertwined socioeconomic consequences. These adverse impacts include but are not limited to: disease and parasite spread from aquaculture facilities to wild fish and other wildlife; fish escapes from aquaculture facilities into surrounding ecosystems; water quality degradation from aquaculture inputs (e.g., antibiotics, pesticides, fungicides) and outputs (fish feed and feces); the privatization of public ocean resources; threats to marine life and marine ecosystems; market displacement and price competition from cheaply produced farmed fish; adverse economic effects on fishing businesses; and trickle-down effects to communities and families that depend on healthy wild fish stocks and ocean ecosystems for their livelihoods.”
The complaint noted that 233 fish escapes were documented worldwide from 1995 to 2014, with severe weather and storms causing 24% of those incidents. “And of all escapes,” the lawsuit said, “those caused by severe weather averaged 36 times as many fish lost compared to other common causes, such as net holes, predator attacks, human error, and undefined equipment failure.”
Moreover, the complaint pointed out, climate change is fueling “extreme weather events,” including more severe hurricanes over the past decade.
Additionally, the lawsuit explained, the aquaculture facilities “could close off and essentially privatize large swaths of the ocean that are currently available for numerous other commercial purposes, including fishing, tourism, shipping, and navigation.”
In her September 2024 partial summary judgment for the plaintiffs, Judge Evanson wrote that her review of Nationwide Permit 56 indicated that the USACE issued it “without fully complying with the procedural safeguards imposed by the Rivers and Harbors Act of 1899 and the National Environmental Policy Act (NEPA).”
In its February 2024 motion for summary judgment in the case, the USACE explained, “Section 10 of the Rivers and Harbors Act of 1899 requires that a party obtain a [permit] from the Secretary of the Army, through the Army Corps of Engineers, for any activity that affects the navigable capacity of navigable waters.”
Evanson did point out in that February 2024 decision that the USACE “narrowed the scope of the proposed [nationwide permit] to authorize only the structures to be used in finfish aquaculture activities rather than the activities themselves …” With that action, she continued, the USACE “found that the permit would cause no more than ‘minimal’ environmental impacts and was therefore suitable to be issued as a general permit.”
Yet, Evanson wrote, “[T]o determine which projects are suitable for authorization on a general level via a nationwide permit, the Corps’ chief of engineers must conduct a predictive environmental analysis at the national level to determine whether the category of activities authorized by a proposed permit will be ‘substantially similar in nature and cause only minimal individual or cumulative environmental impacts’ over the permit’s five-year duration.” She cited the Code of Federal Regulations as her source for that information.
Evanson further noted, “A determination that a proposed project will have ‘minimal impacts’ must comply with the Corps’ regulations, which require the Corps to consider certain public interest factors.” Again, she cited the Code of Federal Regulations. “The public interest review process also addresses mitigation measures needed to avoid, minimize, rectify, reduce, or compensate for resource losses resulting from authorized projects,” she continued.
Moreover, she wrote, NEPA “requires federal agencies, including the Corps, ‘to analyze the environmental impacts of their proposals and actions.’ ” She was quoting a 2019 decision in another case in the U.S. District Court for the Western District of Washington, Coal. To Protect Puget Sound Habitat v. U.S. Army Corps of Engineers.
“Federal agencies must first complete an EA [environmental assessment] of their proposed actions,” Evanson added. “If they cannot state in an EA that their proposed action will not have significant effects then they must go on to prepare a more detailed, comprehensive EIS [environmental impact statement].”
In a “decision document” that provided details of its “Impact Analysis” for NWP 56, Evanson continued, the Corps acknowledged that “ ‘there will be environmental impacts’ ” caused by the operations of the finfish mariculture facilities authorized under the permit. Among those, she wrote, would be “the cultivation of non-native species at these facilities; the application of antibiotics, therapeutics, pesticides, and other chemicals; the release of unconsumed finfish food into the surrounding waters; and the release of waste products, such as finfish feces and urine, into the surrounding waters.”
She added, “The Corps explains that although it does not dispute that these impacts have a ‘but for’ causal relationship with the activities authorized by NWP 56 (i.e., the installation of aquaculture facilities), because the Corps ‘does not have the authority to prevent or control’ these operational activities, the Corps does not conduct a ‘detailed analysis’ of the operational activities in its impact analysis.” Evanson was quoting information from the decision document, which included the EA.
Then Evanson detailed other information from that document, continuing to note that the Corps acknowledged that a number of events could result from the use of the nationwide permit, but —again — the Corps had no control or authority over them.
Yet, Evanson pointed out, “Here, the effects of the aquaculture activities are not remote in time, geographically remote, or the product of a lengthy causal chain: they will result from essentially any of the intended uses of structures authorized by NWP 56, as the EA itself acknowledges.”
“Moreover,” she continued, “the effects are not outside the Corps’ ability to prevent, because the Corps is the agency authorizing the installation of the aquaculture facilities in the first place.”
Evanson added, “Because, as acknowledged in the Corps’ EA, environmental impacts will occur as direct and immediate results of the intended use of facilities permitted under NWP 56, the Corps may not distance itself from those impacts because the aquaculture activities themselves are not authorized by NWP 56.”
Again referencing the 2019 decision in the Coalition case, Evanson wrote, “[E]ven where the Corps lacks the authority or jurisdiction to authorize or prohibit operational activities, the Corps cannot ignore the foreseeable uses of the facilities it permits.”
“Although in this case, the Corps contends that it did not ignore the impact of aquaculture operations when conducting its environmental review because it referenced those impacts throughout the EA,” Evanson pointed out, “the Court is not convinced that simply disclosing the impacts is sufficient. A list of potential adverse impacts does not necessarily support the Corps’ conclusion that those impacts are nonetheless minimal.”