Judge nixes blanket approvals for fish farming operations in federal waters

(CN) — A federal judge vacated a government policy automatically authorizing the approval of fish farming equipment in federal waters on Monday, meaning that all future projects must seek individual approval.

Don’t Cage Our Oceans, an environmental group opposed to offshore finfish farming, sued the U.S. Army Corps of Engineers in 2022, challenging Nationwide Permit 56, which granted blanket approval to “industrial finfish aquaculture structures in federal waters.” The permit, the advocacy group said in its complaint, “create[d] significant short- and long-term risks to U.S. fisheries, ocean environments, and coastal communities.” The group argued that the government agency hadn’t properly assessed the environmental impacts of the policy by ignoring its cumulative effects.

In September, U.S. District Judge Kymberly K. Evanson, a Joe Biden appointee, found in favor of the plaintiffs, granting a motion for summary judgment and declaring the permit unlawful.

“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.

But the judge wasn’t exactly sure how best to remedy the situation, saying that she lacked enough information about how many projects were currently operating or planned.

“This void hampers the court’s ability to determine whether equity demands a departure from the ordinary vacatur remedy,” she wrote. “As such, the court cannot determine the appropriate remedy at this time.”

Since then, the Army Corps of Engineers reported back that six projects have already been approved under the policy, and no “pre-construction notices” were pending. The plaintiffs, meanwhile, said they were only seeking to prevent future projects from being automatically approved; the old projects, they said, could stay put.

The Army Corps argued that requiring all fish farms to apply for individual permits would be “needlessly disruptive” to potential projects. Judge Evanson, in her new ruling, said that the disruption was hardly “needless,” because the permit was already deemed illegal. Besides, she pointed out, the policy was already set to expire in 2026 anyway.

“No economic or environmental disruption to current facilities would result from a prospective vacatur,” the judge wrote, and “any disruption to future facilities is speculative and minimized by the upcoming expiration” of the permit.

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