Federal Permits for Shellfish Farms Missed the Mark, 9th Circuit Rules

A federal judge properly scrapped a federal plan to allow shellfish farms to proliferate while skirting environmental restrictions, according to the Ninth Circuit.

In this May 25, 2016, file photo, the work day begins early for oyster harvesters in the Florida panhandle’s Apalachicola Bay. (Taimy Alvarez/South Florida Sun-Sentinel via AP)

(CN) — The U.S. Army Corps of Engineers greenlighted a massive expansion of aquaculture farms across the country without evaluating the environmental effect of the plan, the Ninth Circuit ruled on Thursday.

Commercial aquaculture, such as oyster and geoduck farms, can decimate the native eelgrass beds many ocean species depend on for habitat and as a nursery for their young. Eelgrass beds offer a protective resting place for salmon and other migrating fish. And they are home to numerous smaller species that form the base of the oceanic food chain.

The U.S. Army Corps of Engineers released a nationwide plan in 2017 that allowed cultivation of non-indigenous shellfish species, and the dredging and installation of walls, nets and tubes necessary to farm them, without requiring farm operators to mitigate, or make up for, native habitat destroyed in the process. 

The Center for Food Safety sued, claiming the 900 aquaculture farms the Corps permitted under its plan would allow widescale destruction of eelgrass beds and would dump pesticides and plastics into the ocean.

Last June, U.S. District Judge Robert Lasnik found merit in the Center’s claims. Lasnik vacated the plan, finding that the Corps decided it didn’t have to plan any mitigation for previously wild ocean beds that it authorized as new aquaculture farms, because it found that such conversions caused no adverse impacts. 

And the judge found “no indication” that the Corps performed the analyses required under the Clean Water Act and the National Environmental Policy Act before deciding that the new farms wouldn’t harm the environment.

“The Corps failed to identify and evaluate the various impacts of commercial shellfish aquaculture before issuing the nationwide permit, despite acknowledging that those activities have environmental impacts,” Judge Lasnik wrote. “This failure goes to the heart of the CWA and NEPA. As a consequence of this failure, the environmental impacts of commercial shellfish aquaculture operations, individually and cumulatively, are largely unknown.”

In one case, the Corps approved a geoduck farm in a documented spawning area for surf smelt and sand lance — two important prey species. In another case, the Corps approved an oyster farm that it noted would “degrade” eelgrass beds through trampling, increased water turbidity and burying, as well as direct removal. But it found no need for mitigation because another oyster farmer had previously operated in the area.

“Those consequences are largely unknown precisely because the Corps — seemingly at the behest of the industry — failed to comply with its statutory obligations to identify and quantify impacts on aquatic resources,” Judge Lasnik wrote.

He cleared the deck, ordering the Corps’ plan and all aquaculture permits issued under it to be vacated.

Tribal nations including the Swinomish Indian Tribe and the Jamestown S’Klallam Tribe joined the case as amici, or friends of the court. They have treaty rights to grow and harvest shellfish, and said those rights are especially important now, in light of the job loss and economic hardship their citizens are facing due to the Covid-19 pandemic. 

The tribes argued that permittees like themselves, who voluntarily adopt best practices such as avoiding placing their farms in eelgrass beds and not using pesticides, should be allowed to continue operations under permits issued by the Corps.

Lasnik said the tribes’ arguments were compelling, but they didn’t outweigh the environmental harm caused by the many permits hastily issued by the Corps. As a compromise, he allowed maintenance and harvest of shellfish that were already planted or seeded under previous permits.

The Corps filed a fruitless appeal. On Thursday, a three-judge panel of the Ninth Circuit Court of Appeals affirmed Laskik’s ruling. The judges called the Corps’ reasoning “illogical” and found that the agency didn’t explain how it arrived at the conclusion that its plan would have “no significant impact” and “only minimal cumulative adverse effect on the environment.”

The unsigned order questioned the Corps’ justification of harm caused by the plan based on its assertion that other harmful activities represent an even greater danger to the aquatic environment than aquaculture does. The judges called “irrelevant” the Corps’ response to a question about the harm caused by pesticides — the Corps merely stated that it doesn’t regulate pesticides.

And the panel pointed out that the Corps used one scientific study that showed the effects of one type of shellfish on a single natural resource to conclude that its nationwide plan regulating at least five types of shellfish would have insignificant effects on the aquatic environment as a whole. The panel wrote that such reasoning “does not suffice.”

The panel consisted of Circuit Judges Susan Graber, M. Margaret McKeown and Richard Paez, all Clinton appointees.

As for the exception Judge Lasnik granted for farms already in operation, the panel found that he had “permissibly accepted the good-faith compromise reached by some parties.”

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