Cumulative Impacts Not Considered: District Court Issues Ruling on Vacating Shellfish Farms

Coalition to Protect Puget Sound Habitat and the Center for Food Safety

succeed in proving the Army Corps did not consider 

cumulative impacts when issuing permits.

The Court found that it [the Army Corps] violated 

the CWA [Clean Water Act] and NEPA 

(National Environmental Policy Act)

by failing to take a hard look 

at the anticipated environmental 

impacts of NWP 48*

(US District Court, June 11, 2020)

Geoduck market collapses in China.

Court finds permits void.

Who will clean up the mess when growers

just walk away from their plastics?

*NWP 48 is a permit issued every 5 years to authorize common shellfish activities in the waters of the US. In Washington, it allowed permits to be issued on tidelands not used for aquaculture up to 100 years ago. Acreage numbers as high as 72,300 acres were presented. The Court stated: "its data regarding past uses of the permit was incorrect and its estimates of future uses are suspect"

Cumulative Impacts Matter

In the Court's October 2017 Order, the District Court ruled the Corps of Engineers had not considered cumulative impacts in approving their Nationwide Permit 48 in 2017 thereby voiding all permits issued. In its June 11, 2020 decision on whether to void all current permits, the Court found the logic presented by the Corps and shellfish growers lacking in evidence.

"...there is insufficient evidence in the administrative record to support the U.S. Army Corps of Engineers’ conclusion that the 2017 reissuance of Nationwide Permit (“NWP”) 48 would have minimal individual and cumulative impacts on the aquatic environment for purposes of the Clean Water Act (“CWA”) and (b) that the Corps’ environmental assessment related to NWP 48 did not satisfy the requirements of the National Environmental Policy Act (“NEPA”)."

Operators to go on vacation?
Following the decision, the Court was then faced with whether to force growers to vacate areas now found to be operating under an invalid permit, considering "(1) the seriousness of an agency’s errors and (2) the “disruptive consequences of an interim change that may itself be changed.” It was up to the Corps and growers (Taylor Shellfish and Nisbet Oyster) to provide the logic and evidence showing why they should be allowed to continue operating.

"...courts may decline to vacate agency decisions when vacatur would cause serious and irremediable harms that significantly outweigh the magnitude of the agency’s error. . . . Courts have considered remand without vacatur to be appropriate where serious irreparable environmental injury would result from vacatur. . . . In addition to environmental harm, it is appropriate to consider other practical concerns when weighing the consequences of vacatur"

Court to growers and the Corps: You made a serious error.
The Corps and growers argued the mistake was neither serious nor consequential because both the District and State were involved in oversight, minimizing the environmental impact. The Court did not agree, stating:

"The Corps/Intervenors have not shown that the District level verification process or state, local, and/or Tribal oversight of commercial shellfish aquaculture activities in Washington overcome the seriousness of the agency’s errors in this case."

Disruptive Consequences - Economics don't trump the environment. 
"environmental impacts of these activities are more than minimal, both individually and cumulatively"
In considering the disruptive consequences of finding all shellfish farms "unauthorized and in violation of federal law" the Court considered a number of things. Included was the Corps being "overwhelmed" by new permit applications; tribes may be unable to provide food for tribal members; growers would face devastating impacts on the continuing viability of their farms, their employees, their communities, the state and local economies of which they are a part, and the ability of Washington shellfish farmers to compete on a national or international basis; shellfish are "filter feeders" and their removal would harm the marine ecosystem; and, shellfish growers "retard" upland development activities. Growers argued they should just be allowed to continue on, harvesting and seeding. Even on tidelands which had no activities for 100 years.

"The problem is not that the Intervenors have failed to establish that the loss of their authorization to install shellfishing equipment and to discharge materials into the waters of the United States would have devastating impacts on their businesses, but rather that they have not shown that those impacts outweigh the environmental consequences of continuing their activities as currently permitted."

The Court's solution 
Because neither the growers nor the Corps could not support not vacating the permits, the Court stated:

"In the absence of meaningful assistance from the Corps and the Intervenors in helping to shape a compromise remedy, the Court will adopt a remedy based on the suggestions of plaintiffs, amici, and Swinomish."

That remedy crafted by the Court vacates all current permits but allows a pause of 60 days for an appeal; would allow currently planted shellfish to be harvested; seeding and planting within 6 months in areas without eel grass could occur; and, tribal rights would be respected. If growers intend ongoing activities (e.g., harvesting) they must, within 6 months, apply for a new permit. Planting new areas would not be allowed without a new permit. The Corps must process new individual permits but not without following CWA and NEPA steps outlined in the October 10, 2019 Order which concluded:

"The Corps’ issuance of a nationwide permit, at least with respect to activities in the waters of the State of Washington, was arbitrary and capricious and not in accordance with NEPA or the CWA. Pursuant to 5 U.S.C. § 706(2), the Court holds unlawful and sets aside NWP 48 insofar as it authorizes activities in Washington."

Get involved.
Make a difference in life and help protect Puget Sound's critical marine habitat. Whether from open net pens discharging plumes of untreated waste or plastics used in shellfish aquaculture, this habitat is under extreme pressure.