A commercial net pen in Puget Sound, Washington State.
Photo: State of Washington Department of Ecology.
The U.S. Federal Court for the Western District of Washington has ruled that the U.S. Army Corps of Engineers' authorization of Nationwide Permit 56, which would allow the deployment of net pen finfish aquaculture facilities in federal ocean waters, is unlawful.
The ruling holds significant implications for the future of ocean fish farming in the United States, declaring that the permit did not comply with several federal environmental protection laws, including the National Environmental Policy Act, the Rivers and Harbors Act, and the Administrative Procedure Act.
The Nationwide Permit (NWP 56), which was issued by the U.S. Army Corps of Engineers in 2021, authorized the deployment of finfish aquaculture facilities in marine and estuarine waters in the states of Alaska, California, Florida, Georgia, Hawaii, New Jersey, New York, North Carolina, Oregon, Philadelphia, Texas, Virginia, and Washington.
However, the permit has been contested by a number of organizations since then. This latest lawsuit against the Army Corps of Engineers was brought by a coalition of plaintiffs, represented by the Center for Food Safety, including lobby groups and fishing organisations, including Don't Cage Our Oceans, Wild Fish Conservancy, and the Quinault Indian Nation, among others.
According to court documents seen by WeAreAquaculture, the plaintiffs argued "that the Corps narrowed the scope of its review to assessing impacts resulting from the aquaculture structures rather than the uses of the structures for aquaculture activities". In other words, the plaintiffs alleged that the nationwide permit only took account of the impact of the structures themselves but not the fish farming activities contained within them.
The plaintiffs also "allege[d] that the Corps claimed it was too difficult to predict the cumulative impacts of NWP 56 before its issuance, without knowing how and how often it would be invoked, and thus improperly instructed the district engineers to assess cumulative impacts and mitigation measures on a project-by-project basis in the future."
The court found that the Army Corps failed to sufficiently analyze or mitigate the potential environmental impacts of these aquaculture structures, and in doing so "did not fully comply" with the procedural safeguards imposed by the Rivers and Harbors Act of 1899 (RHA) and the National Environmental Policy Act (NEPA). The court also found that this violated the Administrative Procedure Act (APA).
In her written judgement, Judge Kymberly Evanson noted that since "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 [...] even 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."
The court said it will now deliberate on the appropriate remedies following the ruling, which may mean "vacating" or annulling the nationwide permit.
The Washington court decision has been hailed as a "vital victory in the battle for the future of our oceans" by lead plaintiff, the Center for Food Safety. George Kimbrell, its legal director, said in a press release that "We are gratified that the Court has commanded that federal regulators cannot unlawfully stick their heads in the sand about industrial aquaculture's significant adverse impacts and instead must rigorously analyze them before deciding whether to move forward."
The ruling is the latest legal setback for federal efforts to introduce aquaculture into U.S. ocean waters. In 2018, plainiffs including fishermen's associations and the Center for Food Safety successfully brought a case against NOAA stating the federal agency did not have the legal authority to regulate offshore aquaculture in the Gulf of Mexico, a ruling which was later upheld in 2020 by the U.S. 5th Circuit Court of Appeals in New Orleans.
The question of ocean fish farming in the U.S. is also under scrutiny by the country's politicians.
Most recently, a new bill, The Domestic Seafood Production Act (DSPA), has been put forward by Alaskan representative Mary Sattler Peltola, which "would not allow Federal agencies to permit, authorize, or facilitate offshore aquaculture in U.S. Federal waters" without congressional consent.
However, several other bills are also on the table seeking to develop U.S. aquaculture: the Advancing the Quality and Understanding of American Aquaculture (AQUAA) Act,the Science-based Equitable Aquaculture Food (SEAfood) Act, and the Coastal Seaweed Farm Act.
Meanwhile, federal agencies are continuing to work on developing aquaculture activities around the U.S., with the establishment of aquaculture opportunity areas, the long-overdue update of the National Aquaculture Development Plan, and this week's release of the National Seafood Strategy Implementation Plan.
In the United States, the U.S. National Army Corps is the federal body responsible for regulation of the nation's waters.
According to its website, the Department of the Army Regulatory Program is "one of the oldest in the Federal Government", whose role was initially "to protect and maintain the navigable capacity of the nation's waters".
As time went on, this remit expanded to a responsibility for evaluation of "essentially all construction activities that occur in the Nation's waters", balancing "reasonable development" with protection of aquatic resources and navigation.
Since 1977, the U.S. National Army Corps has been responsible for issuing 5-year permits for activities which “will result in no more than minimal individual and cumulative adverse environmental effects”.
The Nationwide Permit 56 - Finfish Mariculture Activities (PDF) was issued by the Corps on March 15, 2021, with an expiration date stated as March 14, 2026.
The original text of the permit stated that it pertained to "Structures in marine and estuarine waters, including structures anchored to the seabed in waters overlying the outer continental shelf, for finfish mariculture activities."