On February 11, 2021, the Ninth Circuit Court of Appeals affirmed a lower court opinion finding that a nationwide Clean Water Act (“CWA”) permit issued by the United States Army Corps of Engineers (“Corps”) was invalid. The Ninth Circuit also upheld the vacatur of the permit within the state of Washington, meaning that the permit will not be in effect in Washington while the Corps addresses the problems identified by the court. Nationwide Permit 48 (“NWP 48”) was approved by the Corps in 2017 to allow certain activities related to shellfish aquaculture. Vacatur NWP 48 has meant that several aquaculture operations which were operating under the permit have had to suspend activity.

Corps Authority Under the CWA

Implementation of the CWA is split between two federal agencies, the Environmental Protection Agency (“EPA”) and the Corps. While EPA issues permits for almost all discharges of pollutants into protected waterways, the Corps is responsible for issuing permits allowing the discharge of dredge or fill material into waters protected by the CWA. Generally, any discharge which would raise the bed of a waterbody is considered a discharge of dredged or fill material.

The Corps can issue dredge or fill permits on either an individual, or a general basis. Typically, general permits are issued once the Corps determines that certain activities involving discharges of dredged or fill material “are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effects on the environment.” 33 U.S.C. § 1344(e). In other words, the Corps can issue general permits for a collection of similar activities that will only have a small impact on the environment when performed at the same time. General permits usually have requirements and standards that activities conducted according to the permit must meet. Additionally, a general permit can relieve operators from the need to obtain an individual, project-based dredge or fill permit.

Along with meeting CWA requirements, the Corps must comply with other federal statutes before issuing a general permit. The National Environmental Policy Act (“NEPA”) requires federal agencies to analyze the environmental impact of their proposals and actions. To comply with NEPA, agencies must complete an environmental assessment (“EA”) of their proposed action discussing the expected environmental impacts. The EA can result in either a finding of no significant impact (“FONSI”) or a conclusion that more analysis is needed, in which case the agency will go on to prepare an environmental impact statement (“EIS”). Before issuing a general permit, the Corps must complete a NEPA review.

NWP 48

NWP 48 was approved by the Corps in 2017 and covers a variety of activities related to shellfish aquaculture. Specific activities approved by NWP 48 include the installation of certain objects such as buoys, nets and tubes, and discharges of dredge and fill or materials “necessary for shellfish seeding, rearing, cultivating, transplanting, and harvesting activities.” Any operation permitted under NWP 48 is required to comply with a series of conditions. Under NWP 48, permittees must refrain from any activity that may disrupt the lifecycle of any aquatic life indigenous to the waterbody; avoid waters that serve as breeding grounds for migratory birds; avoid waters where fish are spawning; use appropriate soil and sediment erosion controls; and remove all temporary fills. Additionally, NWP 48 states that it does not authorize any activity that would violate the Endangered Species Act (“EPA”). In the EA conducted by the Corps before issuing NWP 48, the agency concluded that issuing the permit would not have a significant impact on the environment.

Lower Court Decision

A non-profit environmental organization filed a lawsuit in the Western District of Washington, challenging NWP 48. The plaintiff argued that the permit violated both the CWA and NEPA. According to the plaintiff, the Corps had failed to show that issuing NWP 48 would have minimal adverse environmental effects, and the EA did not meet necessary NEPA requirements. Ultimately, the court agreed with the plaintiffs, and vacated NWP 48.

When granting a general permit, the Corps is required to consider the individual and cumulative environmental impacts of issuing the permit. When making that determination, CWA regulations direct the Corps to consider “the effect at the proposed disposal site of potential changes in substrate characteristics and elevation, water or substrate chemistry, nutrients, currents, circulation, fluctuation, and salinity, on the recolonization and existence of indigenous aquatic organisms or communities.” 40 C.F.R. § 230.11(e). In other words, the Corps must consider a variety of factors when issuing a general permit including how the permit will affect the elevation of waterbody beds, the overall chemistry of waterbodies, and the impacts to native aquatic ecosystems. According to the court, the Corps failed to make these necessarily factual findings before it issued NWP 48. In concluding that the permit would have only a minimal environmental effect, the Corps relied heavily on a 2015 paper published by the United States Department of Agriculture (“USDA”) which examined the effects of oyster aquaculture on seagrass. Because NWP 48 permitted various forms of aquaculture on various types of vegetation, the court held that the Corps failed to show that the permit would only have minimal impacts on the environment.

The court also found that the Corps had failed to meet NEPA requirements. Under NEPA, the Corps is required to “[b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.” 40 C.F.R. § 1508.9(a)(1). When the Corps conducted its NEPA analysis for NWP 48, it issued an EA concluding that issuing the permit would have no significant impact on the environment. Again, the Corps relied on the 2015 paper from USDA. The court concluded that relying on the 2015 paper did not satisfy the requirement that the Corps provide sufficient evidence to support its FONSI conclusion.

Because the court concluded that the Corps had failed to meet its requirements under the CWA and NEPA in issuing NWP 48, the court vacated the permit within the state of Washington. Accordingly, no new aquaculture operations in the state of Washington could be authorized under NWP 48. Existing aquaculture operations which had been authorized by NWP 48 at the time of the court’s decision were allowed to continue maintenance and harvest activities for shellfish that were already planted/seeded at the time of the court order, but would have to seek individual dredge or fill permits to carry out additional activities.

Ninth Circuit Decision

The Washington District Court’s decision vacating NWP 48 in the state of Washington was appealed to the Ninth Circuit Court of Appeals. In a brief decision, the Ninth Circuit upheld the lower court’s decision, agreeing that the Corps had failed to meet statutory requirements that it support its decision with sufficient evidence. The Ninth Circuit agreed that the 2015 paper discussing the impacts of oyster aquaculture on seagrass was too limited to support the Corps’ broader conclusion that various types of shellfish aquaculture would have minimal effects to the overall environment. The Ninth Circuit upheld the lower court’s finding, and its decision to vacate NWP 48 within the state of Washington.

Going Forward

On January 13, 2021, the Corps reissued a modified version of NWP 48. The new version aims to address the concerns of the Washington District Court. Specifically, the new permit includes “a more thorough discussion of the direct and indirect impacts caused by commercial shellfish mariculture activities.” The modified version of NWP 48 will go into effect in March, at which time shellfish operations affected by the vacatur of the old permit should be able to see reauthorization under the updated permit. However, some feel that the modified version of NWP 48 is inadequate and fails to address the concerns highlighted by the court decision.

Currently, it is unclear whether NWP 48 will face new challenges going forward. It is also unclear whether the court’s decision will have any broader impacts. It is possible that other nationwide general permits issued by the Corps could be challenged for lacking necessary evidence to support a finding of minimal environmental impact.

To read the decision from the Washington District Court, click here.

To read the decision from the Ninth Circuit, click here.

To read the modified version of NWP 48, click here.

To read the text of the CWA, click here.

For additional National Agricultural Law Center resources on aquaculture, click here.