Federal court declares finfish enclosure permit unlawful

SEATTLE (CN) — A federal court Monday deemed a nationwide permit authorizing the installation of fish farming structures unlawful, but questioned how to proceed with a remedy due to a lack of information in the record.

U.S. District Judge Kymberly K. Evanson, a Joe Biden appointee, agreed with an environmental advocacy group that the Army Corps of Engineers neglected to fulfill its obligations under environmental laws when it developed Nationwide Permit 56 in 2021, in response to an executive order from then-President Donald Trump.

“If finfish aquaculture activities are so varied and difficult to assess ahead of time and in the abstract, perhaps these activities are not amenable to authorization via a nationwide permit,” Evanson wrote.

Don’t Cage Our Oceans, an environmental advocacy group that is against offshore finfish farming in the U.S., filed a complaint challenging the nationwide permit in late 2022, asking the court to vacate it and accusing the Corps of violating the National Environmental Policy Act and the Rivers and Harbors Act of 1899, both of which require agencies to assess the impact of their actions and proposals.

The advocacy group argued the Corps violated its duty to assess environmental impacts by narrowing its focus to the structures themselves, rather than the uses of the structures in aquaculture, ignoring the cumulative effects of the nationwide permits. Those types of permits are intended to help the Corps, which is a largely decentralized organization, manage its regulatory docket.

Evanson sided with the environmental group, pointing to the caveats and limitations included in the Corps’ analysis of the nationwide permit’s impact, which she described as “inconsistent with applicable regulations and with cases from this district and others in the Ninth Circuit, as well as the purpose of environmental review.”

At multiple points in its decision document addressing the nationwide permit, the Corps emphasized it lacked the authority to regulate the issues with the use of aquaculture structures it raised, such as the potential escape of non-native cultivated finfish or discharges of animal waste.

While the Corps acknowledged its obligation to assess the impacts, Evanson wrote, it improperly distanced itself from the “direct and immediate results of the intended use of facilities” allowed by the nationwide permit simply because the permit itself does not authorize those aquaculture activities.

The Corps limited the scope of the nationwide permit to authorize the physical structures, like cages or net pens, used in finfish aquaculture activities, rather than the activities themselves, and determined the permit would cause only minimal environmental impacts. The Corps argued that it referenced the impacts of aquaculture operations throughout its environmental assessment, but Evanson pushed back.

“The court is not convinced that simply disclosing the impacts is sufficient,” she wrote. “A list of potential adverse impacts does not necessarily support the Corps’ conclusion that those impacts are nonetheless minimal.”

Specifically, Evanson said the Corps emphasized its lack of authority to control the use of the structures it permitted in an effort to “avoid the brunt” of the impacts it acknowledged, including one it identified as high risk.

“And although, as the Corps cautioned, ‘it is difficult to predict all of the direct and indirect impacts that may be associated with each activity authorized by an NWP’ here, the Corps did not need to resort to divination to identify and detail a variety of potential adverse impacts resulting from the ultimate use of the structures,” Evanson wrote.

Evanson noted that the Corps failed to connect the dots between the multiple adverse effects it acknowledged and its conclusion that the nationwide permit would have only insignificant or minimal impacts.

“The lack of explanation undermines the Corps’ claim that it took a ‘hard look’ at the effects of NWP 56, and renders the Corps’ EA insufficient,” Evanson wrote.

Although Evanson determined that the nationwide permit was unlawful, the federal judge said the lack of information on the number of projects currently in operation or planned for the future makes it difficult for the court to determine the disruption that would ensue if the permit is vacated.

“This void hampers the court’s ability to determine whether equity demands a departure from the ordinary vacatur remedy,” Evanson wrote. “As such, the court cannot determine the appropriate remedy at this time.” The federal judge directed the parties to confer and come back to the court with a plan for how the remedy should be decided by Oct. 18.