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Federal court rules expansion of Washington industrial shellfish aquaculture 'unlawful'

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Friday, October 18, 2019, 05:10 (GMT + 9)

A Federal Court for the Western District of Washington has ruled the Army Corps' commercial shellfish aquaculture general permit, which is used to permit the vast majority of the shellfish aquaculture in Washington, to be unlawful.

In response to a lawsuit brought by Center for Food Safety (CFS), the court found that Army Corps failed to adequately consider impacts of commercial shellfish aquaculture to Washington shorelines and wildlife habitat. The court also ruled that Army Corps' conclusory findings of minimal cumulative impact were not supported by the evidence before the agency, which shows harm to the environment, including damage to crucial fish habitat that support iconic species like salmon and orcas.

SALISH SEA VIDEO ON YOUTUBE | See how current practices of the shellfish industry have impacted the beaches of South Puget Sound.

Army Corps' permit, Nationwide Permit 48 (NWP 48) issued by the Trump administration in 2017, would have allowed an enormous expansion of an over USD 100 million-a-year industry without sufficient marine wildlife or water quality protections for these unique and sensitive ecosystems. After reviewing the information before the Corps, the court found that the evidence of environmental impacts from shellfish aquaculture (such as harm to eelgrass, a crucial seagrass, and all the species that rely on it) could not support the agency's conclusion that allowing thousands of these operations would only have minimal impact.   

"Army Corps has failed to protect public waters from the harmful environmental impacts of industrial shellfish aquaculture for years, but now the agency must finally accept that this type of aquaculture is not benign and follow federal law," said Amy van Saun, senior attorney at CFS, based out of its Pacific Northwest office. "We're relieved that the court did the right thing and prevented this unbridled expansion of industrial aquaculture at the expense of Washington's wildlife and residents."

CFS says  that industrial aquaculture already threatens Washington's iconic, invaluable shorelines and bays, which are home to numerous marine species including endangered salmon. The expansion would have allowed shellfish aquaculture acreage to double to an estimated 72,300 acres—or a third of all Washington shorelines—including critical spawning and feeding grounds for forage fish, birds, invertebrates like Dungeness crab, and finfish like salmon and green sturgeon.

As the evidence before the Army Corps showed, many of these species rely on eelgrass and other aquatic vegetation. Eelgrass also helps to mitigate the effects of climate change on oceans. Industrial shellfish aquaculture is known to reduce or eliminate eelgrass, including through the industry's intentional the use of pesticides. Yet the new permit did not place any restrictions on impacts to eelgrass, through pesticide use or otherwise.

The geoduck industry Photo: protectourshorelinenews.blogspot.com

CFS highights that the permit also failed to restrict the enormous use of plastics by the industry, like the 42,000 PVC tubes per acre that are covered in plastic netting and used to grow geoducks (a type of clam grown almost exclusively for the luxury export market). Netting can trap and entangle wildlife, and the plastics break down into microplastics that are hazardous to marine organisms, including the very shellfish being grown for human consumption.

The court found that "the Corps acknowledged that reissuance of NWP 48 would have foreseeable environmental impacts on the biotic and abiotic components of coastal waters, the intertidal and subtidal habitats of fish, eelgrass, and birds, the marine substrate, the balance between native and non-native species, pollution, and water quality, chemistry, and structure, but failed to describe, much less quantify, these consequences."

The consecuences of the geoduck industry Photo: protectourshorelinenews.blogspot.com

As a result of the Corps' refusal to evaluate these various impacts, and their cumulative impact, at the outset, as well as its reliance on cherry-picked data, its adoption of NWP 48 in Washington was unlawful under the National Environmental Policy Act and the Clean Water Act. The court set aside NWP 48 in Washington, but is allowing limited additional briefing on how to revoke the general permit.

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