Written by: Amie Alexander, JD/MPS Candidate, William H. Bowen School of Law

The Center for Food Safety filed suit on August 10 against the U.S. Army Corps of Engineers (Corps). The lawsuit was filed in United States District Court for the Western District of Washington, challenging the Corps’ issuance of a permit approving a massive expansion of shellfish aquaculture.

Background of this Suit

Washington State maintains a large-scale commercial shellfish aquaculture industry. According to the Center for Food Safety (CFS), production has significant impacts on marine environments which are home to several species including invertebrates, finfish, and birds. Major impacts the organization mentions from the industry are the removal of eelgrass and physical barriers imposed to wildlife which may pose danger to them or limit their use of their natural habitat.

The Corps issues Nationwide General Permits (NGP) under its authority from the Clean Water Act (CWA) (See § 404) and the Rivers and Harbors Act of 1899 (See § 10). These NGPs are issued upon determination the action will have minimal adverse impacts. The Corps originally issued the first nationwide permit for commercial shellfish aquaculture in 2007, which was reissued in 2012. These early permits maintained special protective conditions and were used much more than originally predicted. CFS alleges that despite “significant overuse” of the 2012 permit, the Corps did not complete supplemental impacts analysis as required by CWA and NEPA when considering the expansion of operations.

The Corps announced its proposal in June 2016 to renew NWP 48 for aquaculture (See 81 Fed. Reg. 35,186). NWP 48 authorizes “the installation of buoys, floats, racks, trays, nets, lines, tubes, containers, and other structures into navigable waters of the United States” and authorizes discharges of materials into waters of the United States which are “byproducts of shellfish seeding, rearing, cultivating, transplanting, and harvesting activities.” According to the complaint, some proposed changes to the 2017 permit resulted in more relaxed regulations for existing operations. Additionally, the 2017 permit allowed an increased acreage from 49,575 acres under 2012 NWP 48 to 72,300 acres under 2017 NWP 48.

The Center for Food Safety’s Claims

The Center for Food Safety claims that the Corps issuance of 2017 NGP 48 violates the CWA, the National Environmental Policy Act (NEPA), and the Administrative Procedure Act (APA).

CFS claims that the Corps violated NEPA and the APA in adopting the permit, as it did not complete an Environmental Impact Statement (EIS) for its adoption. NEPA requires an EIS for major actions “significantly affecting the quality of the human environment” (See 42 USC § 4332). CFS alleges an EIS was necessary because it raised potential environmental issues in its comments to the agency, the Corps admit that eelgrass is a valuable habitat for many species and may be adversely impacted by shellfish aquaculture, and there is uncertainty as to the impacts to and amounts of impacted acreage under 2017 NWP 48. Additionally, conducted biological opinions found that this expansion is likely to affect four endangered species.

The complaint further alleges violation of NEPA and the APA for failure to: (1) comply with alternative requirements, (2) identify a reasonable baseline, (3) take a hard look at direct, indirect, and cumulative impacts, and (4) provide public participation on the NEPA rulemaking process. CFS additionally claims the Corps improperly relied on future mitigation measures which were never publically discussed. By allegedly failing to document these measures, CFS claims that the Corps violated the CWA and APA.

CFS also claims that in issuance of the 2017 permit, the Corps failed to comply with the CWA and the APA. Under the CWA, the Corps are authorized to issue a nationwide general permit if the activities will cause only a minimal adverse cumulative environmental effect (See 33 U.S.C. § 1344). CFS alleges a violation of this standard because the Corps “failed to adequately document how those measures will work.”

CFS asked the Court to declare the Corps’ adoption of 2017 NWP 48 in violation of the CWA, NEPA, and the APA and to vacate the decision to adopt the permit. You can read the complaint in its entirety here.