A legal battle is being waged over a national permit’s use for shellfish farming operations in Washington and whether it adequately considers the environmental impacts of those farms.
Three cases brought against the U.S. Army Corps of Engineers for issuing Nationwide Permit 48 are now bound together in the U.S. District Court of Western Washington in Seattle.
A federal judge ruled in October that the Army Corps permit does not meet the requirements of the Clean Water Act and National Environmental Policy Act. Still up for discussion is whether to vacate that permit — which would shut down shellfish farms — or leave it in place while requiring the Army Corps to remedy its shortfalls.
Hanging in the balance is an industry that according to an Associated Press report generates about $150 million in revenue per year, as well as questions of environmental health in the region’s marine waters.
A shellfish farm that operates in Skagit County and the Swinomish Indian Tribal Community are on opposing sides of the litigation.
The Coalition to Protect Puget Sound Habitat, the Center for Food Safety and the Swinomish each filed lawsuits against the Army Corps over the five-year permit, which was originally issued in 2007 and re-issued in 2012 and 2017.
Taylor Shellfish Farms, which has operations in Samish Bay and other areas throughout Puget Sound, has sided with the Army Corps against vacating the permit, which would impact workers and come at an economic cost to the region.
The 900-employee company said in a court document it has “significant economic and business interests at stake.”
The Pacific Coast Shellfish Growers Association that represents companies such as Taylor Shellfish Farms joined the second lawsuit for similar reasons.
Those who filed the lawsuits argue the permit violates various federal protections for the environment. The Swinomish lawsuit focuses specifically on potential harm to eelgrass beds in the north Puget Sound region.
The permit “authorizes large-scale commercial shellfish aquaculture without mandatory avoidance or minimization measures” to protect eelgrass that supports an array of wildlife including salmon, crab and other marine resources the tribe depends on for its way of life, the April 24, 2018, court filing from the Swinomish states.
The Oct. 10 ruling from U.S. District Court Judge Robert Lasnik states the Army Corps did not provide sufficient information to support its finding that the nationwide permit would not harm the environment.
The permit was based on “selectively chosen statements from the scientific literature” and “the hope that regional Corps districts will impose additional conditions ... to ensure that the adverse impacts will be minimal,” the court document states.
The lawsuit brought by the Swinomish states the Seattle District of the Army Corps did not impose additional regulations to protect eelgrass at shellfish farms in north Puget Sound as requested by the tribe.
Lasnik also found fault in the permit for concluding that impacts from shellfish farms are minimal overall compared to other types of development and pollution in coastal areas.
“To the extent that the Corps’ minimal impacts determination is based on some sort of comparison between the environmental impacts of shellfish aquaculture and the environmental impacts of the rest of human activity, the analysis is inadequate,” Lasnik wrote. “Noting that a particular environmental resource is degraded is not an excuse or justification for further degradation.”
Swinomish Indian Tribal Community Chairman Brian Cladoosby said in a declaration filed Oct. 30 that the tribe’s ability to fish for salmon and harvest shellfish in its traditional waters relies on a healthy ecosystem rooted in eelgrass.
The tribe recently established its own shellfish company in Similk Bay that maintains a 16-foot buffer from eelgrass and uses other measures to protect the marine ecosystem, according to declarations from Cladoosby and Stuart Thomas, director of Swinomish Shellfish Company.
“The Tribe believes that other shellfish farms should be held to the same standard to avoid harming native eelgrass and the salmon and other species that rely on it,” Cladoosby wrote.
Also of concern to the Swinomish and the other groups fighting the permit is a clause that could allow shellfish farming to expand into any areas used by the industry within the past 100 years.
In Washington, that could mean growth from about 56,000 acres to about 72,000 acres, according to court documents.
Skagit River System Cooperative Environmental Services Manager Stan Walsh, who works for the Swinomish and Sauk-Suiattle Indian Tribe on issues including Nationwide Permit 48, said in a legal declaration that the 100-year clause could allow “virtually all of Samish Bay” to become active shellfish farming operations.
Lasnik plans to consider new information today provided by those involved in the three cases before determining whether to vacate the permit, according to court documents.