Fish farm lawsuit hearing

King County Superior Court Judge Johanna Bender heard testimony Thursday over Zoom in a lawsuit regarding Cooke Aquaculture’s proposal to raise steelhead at net pens in Puget Sound.

Whether Cooke Aquaculture’s plan to raise native steelhead at fish farms in Puget Sound is a simple business transition or a complex threat to the marine ecosystem is being debated in King County Superior Court.

Judge Johanna Bender heard testimony Thursday over Zoom in a lawsuit environment groups brought against the state Department of Fish & Wildlife for granting a permit to the seafood company to raise steelhead.

The environment groups — Wild Fish Conservancy, Center for Biological Diversity, Center for Food Safety and Friends of the Earth — contend Fish & Wildlife did not meet the requirements of SEPA, the State Environmental Policy Act, before issuing a mitigated determination of nonsignificance for Cooke Aquaculture’s proposal to move into the production of steelhead following a state-mandated phase-out of non-native Atlantic salmon.

The state Office of the Attorney General and Cooke Aquaculture disagree.

At issue is whether the proposal to raise steelhead constitutes a transition for existing fish farms or a new use in Puget Sound, and therefore which baseline the proposal should be compared to: The impacts of non-native salmon farms compared to native steelhead farms, or the impacts of native steelhead farms compared to the absence of fish farms altogether.

“A flawed baseline undermines the whole SEPA analysis,” said attorney Emma Bruden, who is representing the environment groups. “(Fish & Wildlife) assumed Atlantic salmon farming exists and will continue at the same level indefinitely, essentially sweeping the impacts under the rug, hiding them from the public and evading the SEPA requirement to address significant impacts.”

The environment groups are asking the court to remand the permit to Fish & Wildlife for further review and require an environmental impact statement, or EIS. Those representing Cooke Aquaculture and Fish & Wildlife say that type of review isn’t necessary.

“While the science may be complex ... this case actually involves a very simple decision,” Joe Panesko of the Office of the Attorney General said. “The decision to simply switch the kind of fish it raises at its facilities will not cause significant adverse impacts.”

Bender said she sees the question at the heart of the case being whether Fish & Wildlife made the right comparison in its SEPA review for the permit.

“Did the department make a mistake in comparing the impacts of one type of stock to another, as opposed to comparing it to Puget Sound without fish farming at all?” she said.

The five-year permit Fish & Wildlife approved Jan. 21 allows Cooke to replace Atlantic salmon with native steelhead at sites where the company is authorized to operate floating net pens, including one near Hope Island in Skagit County.

Cooke proposed making the switch from Atlantic salmon to Pacific steelhead in 2019 in order to remain in business in Washington waters following the collapse of one of its net pens — near Cypress Island in Skagit County — in August 2017. During that collapse, about 300,000 fish at the farm got out.

In response, the state Legislature passed a law that phases out Atlantic salmon net pen aquaculture by 2022 and the state Department of Natural Resources revoked some of Cooke Aquaculture’s net pen leases.

The state also fined Cooke Aquaculture $332,000 and an earlier Wild Fish Conservancy lawsuit resulted in a $2.75 million settlement.

The environment groups behind the current lawsuit say the earlier collapse shows the level of risk associated with marine net pens, while Cooke says the collapse is not relevant to the current case.

“This is not a trial of Cooke and the Cypress Island collapse. The consequences of that collapse have been paid by Cooke,” company lawyer Douglas Steding said.

The opposing parties also disagree on whether Fish & Wildlife considered the full range of potential environmental impacts, such as disease transmission from farmed to wild fish and the potential genetic effects from any escaped and fertile farmed fish reproducing with wild fish.

“This is a very complicated set of issues,” Bender said.

She said the case is challenging her to untangle whether Fish & Wildlife relied on the best available research regarding the health of Puget Sound and the intricacies of fish farming within it.

Bender said she aims to make a decision in the case within 30 days.

In addition to the permit from Fish & Wildlife, Cooke must obtain new leases from the state Department of Natural Resources in order to continue operating past the current leases. The lease at Hope Island ends in March 2022.

The company also needs to have its water quality permits from the state Department of Ecology modified.

Ecology is taking public comment on draft water quality permits for the proposal until Oct. 26. The agency has determined switching species would not change potential impacts on water quality, but is strengthening regulations in the draft permits to ensure water quality is protected.

— Reporter Kimberly Cauvel: 360-416-2199, kcauvel@skagitpublishing.com, Twitter: @Kimberly_SVH, Facebook.com/bykimberlycauvel

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