Nine nonprofit groups argue that industrial aquaculture remains controversial, citing concerns about how it could degrade the environment
In late June, eight environmental organizations announced their intent to file suit against the U.S. Army Corps of Engineers (USACE) over its issuance of a national permit that would facilitate the establishment of what the nonprofits call “fish farms” in federal offshore waters.
On Nov. 14, they followed through with that plan, filing a 92-page complaint in the U.S. District Court for the Western District of Washington, in Seattle.
The USACE issued what is known as “Permit 56” eight months after then-President Donald Trump released a May 2020 Executive Order that called for streamlining the permitting process for offshore aquaculture projects.
As the nonprofits’ formal complaint points 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 continues, “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 [on] communities and families that depend on healthy wild fish stocks and ocean ecosystems for their livelihoods.”
The complaint notes 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 says, “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.”
Yet, the complaint points out, climate change has been fueling “extreme weather events,” including more severe hurricanes over the past decade.
Additionally, the lawsuit explains, 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.”
Along with the Center for Food Safety, which is based in Sacramento, Calif., the plaintiffs are the Don’t Cage Our Oceans Coalition, 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.
Counsel with the Center for Food Safety is representing all of the plaintiffs, a news release notes.
The Center for Food Safety, the Don’t Cage Our Oceans Coalition and the Recirculating Farms Coalition also are seeing a federal court review of the decision of the Environmental Protection Agency (EPA) to issue the necessary permit to a Hawaii-based company called Ocean Era, which plans a net-pen operation with about 20,000 almaco jack tethered to the floor of the Gulf of Mexico about 45 miles off Longboat Pass and the Sarasota County coast.
Called Velella Epsilon, that project has been planned as a 12-month pilot program.
In late September, the new complaint points out, “Hurricane Ian brushed right by the location of Velella Epsilon …”
The Suncoast Waterkeeper, based in Sarasota, is party to that court petition involving the EPA, as The Sarasota News Leader has reported. That challenge was filed on Sept. 27 in the U.S. District Court of Appeals for the District of Columbia Circuit.
The EPA Environmental Assessment of the project explained that Ocean Era would use juvenile fish “sourced from brood stock that are located at Mote Aquaculture Research Park and were caught in the Gulf near Madeira Beach, Florida. … Following harvest, cultured fish would be landed in Florida and sold to federally-licensed dealers in accordance with state and federal laws.”
USACE lacks ‘statutory authority’ to issue the permit
The new complaint alleges that the USACE violated a number of federal laws in issuing Permit 56. Among those are the Endangered Species Act, the National Environmental Policy Act and the Administrative Procedure Act.
“First and foremost,” the lawsuit emphasizes, the USACE “decision is unlawful because the Corps does not have statutory authority to undertake it. Namely, Congress has not granted authority to the Corps — or to any agency — to authorize the construction and operation of offshore aquaculture facilities on the federally-controlled Outer
Continental Shelf. The Constitution vests Congress with [complete power, with no limitations] over federal lands. Although Congress has enacted statutes authorizing the issuance of leases, easements, rights-of-way, and other grants to use, extract, and/or exploit various resources on the Outer Continental Shelf — e.g., oil, gas, and mineral extraction, deepwater ports, and renewable energy facilities — Congress has never authorized the issuance of permits, grants, or other instruments to allow the use of the Outer Continental Shelf or its resources for the purpose of industrial aquaculture,” the groups contend.
In a news release it issued about the lawsuit, the Center for Food Safety characterized the USACE action as “the federal government’s latest attempt to do an end-run around the U.S. Congress.”
The complaint also points out that, “on at least five separate occasions,” legislation has been introduced in Congress “with the support and at the behest of the Department of Commerce that would have established a permitting regime for offshore aquaculture operations in federal waters. … None of these bills have succeeded.”
The USACE’s “authorization of the use of federal property absent Congressional authorization is arbitrary, capricious, and not in accordance with law, contrary to constitutional right, power, or privilege,” the lawsuit says.
Further, the groups contend, the USACE “is well aware [that] there exists no mechanism by which private entities can obtain a permit or license to construct or operate an industrial aquaculture facility on the federally-controlled Outer Continental Shelf.”
Additionally, the complaint says, the USACE violated its own regulations in using Permit 56 “for facilities that will cause more than ‘minimal individual and cumulative environmental impacts.’ ” The complaint points out that the agency “punted the duty to assess aquaculture impacts to district engineers, stating they can add mitigation measures to address physical, chemical, and biological changes to marine and estuarine waters from the aquaculture facilities’ operation.
“Yet,” the lawsuit continues, “although the Corps’ regional districts must attach regional conditions to keep adverse impacts in a particular region under the minimal threshold, or forgo these nationwide permits altogether, the majority of the sixteen districts that adopted [Permit 56] did so without any regional conditions beyond those established at the federal level.”
Those districts are in Florida, Alaska, California, Oregon, Washington, Texas, Georgia, North Carolina, New York, New Jersey, Philadelphia, Hawaii and Virginia, the Center for Food Safety notes.
In the nonprofit’s news release, its staff attorney, Jenny Loda said, “Offshore industrial aquaculture is factory farming of the sea, replicating all the mistakes of land-based factory farms.”
James Mitchell of Don’t Cage Our Oceans added in the news release, “Our members include commercial fishermen, family farmers, small-scale aquaculture companies, and conservation groups who all care deeply about protecting our oceans and coastal communities from the massive environmental and economic harms of industrial-scale fish farming.
Mitchell continued, with emphasis, “This nationwide permit reeks of cronyism, as the federal government bypasses due diligence and plays favorites. The time is now for our government to value the livelihoods of millions of affected Americans and our marine ecosystems over the profit interests of industrial-scale fish farms and their big agriculture lobbyists.”
Yet another plaintiff’s representative, Quinault Indian Nation President Guy Capoeman, pointed out, “Salmon are at the center of our diet, culture and provide employment for our people in fishing, guiding and processing.” He added, “With salmon runs declining throughout our ancestral homeland due to climate change and other impacts, we can’t afford the well-known dangers of fish farming.”
Further, the Center for Food Safety says in the press release, “Contrary to claims that farmed fish production will alleviate pressure on wild fish stocks, industrial aquaculture has exacerbated population declines of wild fish. This will be especially true in offshore aquaculture facilities that farm carnivorous fish, which require a diet often derived from wild-caught fish such as mackerel, herring, menhaden, and anchovies. The industry’s ever-growing demand for fish in feed jeopardizes the survival of wild fish and disrupts the balance of the marine ecosystem.”
A representative of yet another one of the plaintiffs, Patrick McDonough of San Diego Coastkeeper pointed out, “Offshore industrial finfish farms stand to be lucrative for their corporate owners and investors at the devastating expense of our oceans and ecosystems. These densely confined fish populations disrupt the natural behaviors of marine wildlife — attracting predators like our beloved dolphins, sea lions, seals, and sea birds only to maim or kill them with predator deterrent methods when they approach.”
The mission of the Center for Food Safety’s “is to empower people, support farmers, and protect the earth from the harmful impacts of industrial agriculture,” the news release explains. “Through groundbreaking legal, scientific, and grassroots action, we protect and promote your right to safe food and the environment.”
For more information about the nonprofit, visit at www.centerforfoodsafety.org.