Federal judge rules Army Corps aquaculture permit is unlawful in Washington State.

In a surprise ruling with wide ranging consequences, a federal judge has ruled that the Army Corp of Engineers issuance of Nationwide Permits in the lower 48 (NWP48) authorizing commercial shellfish aquaculture is illegal. The suit, brought by The Coalition to Protect Puget Sound Habitat, a group that has been fighting large-scale shellfish aquaculture for years, and joined by the Swinomish Tribe, was focused against the Army Corp and Taylor Shellfish, along with the industry group, The Pacific Coast Shellfish Growers Association.

The plaintiffs argued that the Corps failed to comply with the Clean Water Act (“CWA”), the National Environmental Policy Act (“NEPA”), and the Endangered Species Act (“ESA”) when it reissued NWP 48 in 2017. They requested that the decision to adopt NWP 48 in Washington be overturned and that the Corps be required to comply with the environmental statutes before issuing any new permits  for commercial shellfish aquaculture in this State.

The court found in it’s blistering conclusions, “…that the Corps has failed to adequately consider the impacts of commercial shellfish aquaculture activities authorized by NWP 48, that its conclusory findings of minimal individual and cumulative impacts are not supported by substantial evidence in the record, and that its EA does not satisfy the requirements of NEPA and the governing regulations…the Court holds unlawful and sets aside NWP 48 insofar as it authorizes activities in Washington.” (emphasis mine)

Going beyond just the issue of the environmental consequences the judge stated that “The federal defendants state that additional …remedy should be permitted once the seriousness of the agency’s error is determined. The intervenors (the Corps and Taylor Shellfish) assert that (throwing out the permits and the Corps previous rulings) would cause disruption in the Washington shellfish farms and industry, including significant impacts to employees and the communities in which they live.Neither tact is compelling. The substantive defects in the agency’s analysis when adopting the 2017 NWP are significant.” (emphasis mine)

The case centers around whether or not the large scale conversion of natural shorelines to commercial aquaculture, happening now all around lower Puget Sound and in the Strait of Juan de Fuca, is more than “minimal” damage to the environment. Siting case law in relevant lawsuits in the Yellowstone Park area, the environmental group managed to persuade the judge that the Army was allowing something much more than minimal damage.

As stated by the plaintiffs, “Federal agencies are required to do an environmental assessment (“EA”) of their proposed action, providing a brief discussion of the
anticipated environmental impacts and enough evidence and analysis to justify a no-significant impact determination.  If the agency, after conducting an EA, is unable to
state that the proposed action “will not have a significant effect on the human environment,” a more detailed and comprehensive environmental impact statement (“EIS”) must be prepared. They also argued that the case law stated that if the Corps’ ruling was found to be “arbitrary, capricious, an abuse of discretion” and lacking in a scientific basis, that it must be thrown out.

The court found that , “… there is insufficient evidence in the record to
support the agency’s conclusion that the re-issuance of NWP 48 in 2017 would have minimal individual and cumulative adverse impacts on the aquatic environment for purposes of the CWA and that the Corps’ environmental assessment does not satisfy NEPA’s requirements.”

They judge then went on to point out that “the Corps acknowledges that commercial shellfish aquaculture activities can have adverse environmental impacts…marine debris is a serious impact on the marine environment…and that commercial shellfish aquaculture activities can result in conversion of substrates (e.g. mudflats to gravel bars), impacts to submerged aquatic vegetation, alteration in aquatic communities from native to non-native shellfish species, and water quality impacts from harvest activities.”

Given those findings, the judge went on to say, “Ignoring or diluting site specific,
individual impacts by focusing solely on a cumulative, landscape-scale analysis is not
consistent with the governing regulations.”

The scientific documents that the Corps presented as justification for it’s actions came under blistering criticism from the judge. “According to the Corps’ own summary of the paper, the authors evaluated only the effects of oyster aquaculture activities on submerged aquatic vegetation. The paper itself shows that Dumbauld and McCoy (a supposed scientific study that the Corps and Taylor were using) were studying the effects of intertidal oyster aquaculture on the seagrass Zostera marina. There is no discussion of the impacts on other types of aquatic vegetation, on the benthic community, on fish, on birds, on water quality/chemistry/structures, or on substrate characteristics. There is no discussion of the subtidal zone. There is no discussion regarding the impacts of plastic use in shellfish aquaculture and only a passing reference to a possible side effect of pesticide use. The Corps itself does not remedy these deficiencies: although it identifies various resources that will be adversely impacted by issuance of the national permit (along with resources that may benefit from shellfish production), it makes virtually no effort to characterize the nature or degree of those impacts. The Decision Document’s “Impact Analysis” consists of little more than an assurance that district engineers will consider the direct and indirect effects caused by the permitted activity on a regional or case-by-case basis.”

The judge went on to say, “In this case, 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, eelgass, 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.  The Corps cites the two Dumbauld papers for general statements regarding the positive or negative effects of shellfish aquaculture on certain aquatic resources or characteristics (focusing on seagrass), but it makes no attempt to quantify the effects or to support its conclusion that the effects are no more than minimal.”(emphasis mine).

As reported on some months ago in this blog, a draft cumulative impact statement, which only surfaced due to a discovery in this case,  “…generated in February 2017 dedicated twenty-five pages to discussing the wide range of work and activities covered by NWP 48 and noting the species dependent variability in cultivation techniques, gear, and timing. These variations gave rise to a wide array of effects on the aquatic habitat, none of which is acknowledged or evaluated in the national Decision Document.” (emphasis is mine).

The judge goes on, in plain language, “A reasonable mind reviewing the record as a whole would not accept Dumbauld and McCoy’s limited findings regarding the
landscape-level impact of oyster cultivation on a species of seagrass in the intertidal zone as support for the conclusion that entire ecosystems are resilient to the disturbances caused by shellfish aquaculture or that the impacts of those operations were either individually or cumulatively minimal.” The judge sites decisions back in coal country where the cumulative impacts of mountain top removal are similar and long lasting. “The governing regulations expressly impose upon the Corps the obligation to consider the ongoing effects of past actions when conducting a cumulative impacts analysis.”

The “NEPA and the CWA were enacted because humans were adversely affecting the environment to a noticeable and detrimental extent…Noting that a particular environmental resource is degraded is not an excuse or justification for further degradation. The Corps must analyze the individual and cumulative impacts of the proposed activity against the environmental baseline, not as a percentage of the decades or centuries of degrading activities that came before.

As to the use of pesticides by the industry, the judge has additional harsh criticism,”The Corps makes a similarly untenable argument whenever the use of pesticides in a
shellfish operation permitted under NWP 48 is discussed. While acknowledging that these substances are used and released into the environment during permitted activities, the Corps declines to consider the environmental impacts of pesticides because they are regulated by some other entity… Even if the Corps does not have jurisdiction to permit or prohibit the use of pesticides, it is obligated to consider “other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” The Corps’ decision to ignore the
foreseeable uses and impacts of pesticides in the activities it permitted on a nationwide basis does not comport with the mandate of NEPA or with its obligations under the CWA. Having eschewed any attempt to describe the uses of pesticides in commercial shellfish aquaculture or to analyze their likely environmental impacts, the decision to permit such activities through NWP 48 cannot stand.” (emphasis mine)

“The record is devoid of any indication that the Corps considered regional data,
catalogued the species in and characteristics of the aquatic environments in which commercial shellfish aquaculture activities occur, considered the myriad techniques, equipment, and materials used in shellfish aquaculture, attempted to quantify the impacts the permitted activity would likely have on the identified species and characteristics, or evaluated the impacts of the as-yet-unknown regional conditions…Faced with incredible diversity in both the environment and the activities permitted under NWP 48, the Corps effectively threw up its hands and turned the impact analyses over to the district engineers.”

In looking at the problem of plastic pollution in aquaculture the judge was additionally critical.”The Corps’ analysis with regards to plastic debris discharged into the marine environment is even more problematic. The Corps acknowledges the many public comments raising concerns about the introduction of plastics into the marine food web, but relies on the fact that “[d]ivision engineers can impose regional conditions to address the use of plastics” in response to these concerns. The Seattle District, for its part, declined to quantify the impact of plastics, instead noting that “it would not be a practicable solution to regionally condition NWP 48 to not allow the use of PVC and HDPE gear as there are no current practicable alternatives to use of the materials…The CWA requires the Corps to make minimal adverse effect findings before issuing a general permit. If, as appears to be the case with regards to the discharge of plastics from the permitted operations, the Corps is unable to make such a finding, a general permit cannot (be) issue(d). The Corps has essentially acknowledged that it needs to individually evaluate the impacts of a particular operation, including the species grown,
the cultivation techniques/gear used, and the specific location, before it can determine the extent of the impacts the operation will have.”

The decision is not trivial. It rips apart industry arguments made over the last decade that eelgrass recovery in aquaculture farms is a minor issue. The aquaculture industry and Taylor Shellfish in particular has put itself at the head of county agencies supposedly in the business to protect the nearshore from harm and then used these faulty scientific studies to promote their position.  The Jefferson County Marine Resources Committee, which claims on it’s web page to have the mission, “to protect and restore the marine environments of East Jefferson County by raising community awareness of issues…” has been chaired by an aquaculture industry spokesperson who routinely has used these same discredited arguments to suppress any discussion of negative impacts on the nearshore the MRC claims to protect.  The Committee has meekly gone along with the bullying tactics of the Taylor representative at public meetings, unwilling to push back on what the spokesperson has claimed to be ‘scientific  studies’.  The Committee in fact sponsored a ‘aquaculture educational day” to promote these same, now discredited scientific studies, offering no substantial criticism to the statements of the industry. The lack of any counter balance to the industry’s PR blitz angered many in the environmental community on the Olympic Peninsula toward this committee that had a long history of standing to protect the nearshore. The decision to not include substantial criticism of the industry led the long time environmental representative on the committee to resign.

The outcome of this case is unclear at the time of this writing. However, it will likely have a substantial effect on future shellfish farm permits, and may force the closure of some larger farms that were recently permitted, until such time as adequate scientific study on their effects is done. The ruling ends with the judge throwing out the Army’s ability to issue permits in Washington. However, the judge does say to Taylor and others that they can apply for individual permits. The Court has the ability to allow a “period of time in which growers can avail themselves of the process before the existing permits would be invalidated or to fashion some other equitable remedy to minimize both the risks of environmental harm  and any disruptive consequences.” So there is some wiggle room for the growers to get some activities going to mitigate the effects of this ruling.

This case also fully vindicates the environmentalists’ concerns over the ever expanding industry, it’s conversion of pristine shorelines to monoculture farming and the allies of this industry in city, county and state government. The industry is not down and out yet. It’s worth noting that Taylor has apparently spent tens of thousands of dollars lobbying back in Washington D.C. and is likely to support Republican efforts to roll back the Clean Water Act to eliminate the local nature of permitting to favor national ones. Given this ruling, that likely is a losing tactic.

This blog will continue to follow this breaking story with further updates as we receive them.

 

 

 

 

 

 

Canadian First Nations, U.S. tribes form alliance to stop oil pipelines -Thomson Reuters

Tribes rising. It’s time to leave it in the ground and continue aggressive moves to a carbon free future. This decision by the Tribes to oppose any and all pipelines and tanker/rail projects is a huge step towards forcing this move. As painful as this is, the economic consequences are going to be bigger. As shortages of fossil fuels become greater, due to a lack of political will to fund the conversion to solar/wind/battery, the inevitable brown outs and lack of fossil fuels is likely to lead to a backlash against the environmental supporters. It’s already happening, funded by organizations backed by the oil consortiums.
First Nations communities from Canada and the northern United States signed a treaty on Thursday to jointly fight proposals to build more pipelines to carry crude from Alberta’s oil sands, saying further development would damage the environment. The treaty, signed in Montreal and Vancouver, came as the politics around pipelines have become increasingly sensitive in North America, with the U.S. Justice Department intervening last week to delay construction of a contentious pipeline in North Dakota. The Treaty Alliance Against Tar Sands Expansion was signed by 50 aboriginal groups in North America, who also plan to oppose tanker and rail projects in both countries, they said in a statement. Targets include projects proposed by Kinder Morgan Inc, TransCanada Corp and Enbridge Inc. (Thomson Reuters)

http://www.cbc.ca/beta/news/canada/montreal/montreal-vancouver-indigenous-oil-sands-1.3774444

Angry anglers protest closure of Skokomish River – Kitsap Sun

Fish wars continue long Skokomish river. Recent closure of fishing by the tribe based on federal lawsuit crates protest from nontribal sports fishermen. well the protesters were concerned that this may be the start of a trend by the tribes, it’s been my experience that other tribes in the area are not interested in taking this type of action. As the fisheries continue to decline from a variety of reasons, the unfortunate reality is that they may be forced to do so. And in interviews that I’ve done with oldtimers of all political stripes on the Olympic Peninsula, a common thread running through them,regardless of whether they are tribal or non-tribal people is that the fishery should be closed for an extended period,to help replenish the stocks. 

http://www.kitsapsun.com/news/angry-anglers-protest-closure-of-skokomish-river-38ce4140-5d01-643b-e053-0100007faefe–388763471.html

Facing Rising Waters, A Native Tribe Takes Its Plea To Paris Climate Talks – NPR

Washington State’s Olympic Peninsula has been in the news lately, as an unfortunate “poster child” of ocean rise and climate change. The Quinault Nation has been the first community in the lower 48 that has been forced to move their homes due to what is clearly being attributed to ocean rise. (certainly there are very good reasons to say that Hurricanes Sandy and Katrina also represented climate change created superstorms, this is the first example I’ve seen of a 1:1 relationship).

While the Republican dominated Congress fiddles while their constituents burn, and supposed leaders like Ted Cruz are about to hold a Congressional hearing on climate change that will only include testimony from scientists who oppose the findings of the 97% of scientists that believe in climate change, we only have to look west to the coast, and our neighbors under siege from rising waters. It’s clear that Cruz is not representing his constituents, but the economic forces aligned against taking action. But back to the coast and a report from superb regional journalist Ashley Ahearn.

International leaders gathering in Paris to address global warming face increasing pressure to tackle the issue of “climate refugees.” Some island nations are already looking to move their people to higher ground, even purchasing land elsewhere in preparation. In the U.S. Northwest, sea-level rise is forcing a Native American tribe to consider abandoning lands it has inhabited for thousands of years. The Quinault Indian Nation, whose small village lies at the mouth of the Quinault River on the outer coast of Washington’s Olympic Peninsula, now relies on a 2,000-foot-long sea wall to protect it from the encroaching Pacific Ocean. Ashley Ahearn report. (NPR)

http://www.npr.org/2015/12/01/455745765/facing-rising-waters-a-native-tribe-takes-its-plea-to-paris-climate-talks

Native leaders plan declaration banning pipelines, tankers and oilsands–Vancover Sun

Well, this is an interesting turn of events. Canadian native leaders decide that if the Federal Government won’t protect the waters, they will. Wonder if our tribes will follow suit.

First nations leaders are expected to sign a declaration of indigenous law banning pipelines, tankers and oilsands in British Columbia at a Vancouver press conference tomorrow. The Save the Fraser Declaration, signed by 130 first nations will be presented by National Chief of the Assembly of First Nations Shawn Atleo on behalf of the Yinka Dene Alliance, several B.C. groups who have banned the Enbridge Northern Gateway Pipeline from their territories. Mayor Gregor Robertson is also expected to attend and read a proclamation from the City of Vancouver. Mike Hager and Dene Moore report. B.C.

First Nations Ban Pipelines, Tankers and Oilsands

Billy Frank Jr. speaks on “Treaty Rights At Risk” at the NW Straits Annual Meeting

A moving speech, from one of the leading voices in North American tribal landscape.  Billy Frank Jr. has been there in the midst of the treaty rights battles since the late 50s, when he started demanding his treaty rights to fish next to his house on the Nisqually River. That solitary act eventually led to the Boldt Decision, the ruling that legally interpreted the tribal fishing rights and altered the landscape of the Pacific Northwest fishing industry permanently.

You can listen to the speech on your computer directly from the button above,  or download it to your smart phone, or MP3 music player.

Today, at 81, Billy Frank Jr. is still in the thick of things. Billy  is a member of the Nisqually Tribe in Washington State, along with being the Chairman of the Northwest Indian Fisheries Commission. He writes for numerous publications and does a number of speaking engagements.  He has a personal  blog at http://billyfrankjr.wordpress.com/

Mr. Frank has been the recipient of numerous recognition awards, including the 1991 Albert Schweitzer Prize for Humanitarianism and 2004 Indian Country Today Inaugural American Visionary Award

If you have never heard Mr. Frank speak, or if you do not have a good understanding of what drives the Tribes demands for their treaty rights, this is a must listen recording. In it, he clarifies the history behind the struggle for treaty rights and legal interpretation of them, and the personal battles that he has endured to attain them. He also talks directly to the group of Marine Resource Committee members that were attending this meeting, many of the volunteers, all working to protect Puget Sound, the Strait of Juan de Fuca and the Washington Pacific Coast.

More audio and eventually video presentations of the conference will be found at the 2012 Northwest Straits Marine Resource Committee Web site

http://www.nwstraits.org/Whats-New/Meetings-Events/2012-MRC-Conference.aspx

 

 

 

 

First Stewards Send Climate Change Resolution to Congress, President Obama

NW Tribes and those from Alaska, went to Washington D.C. in June to press for help in solving global warming issues. Here’s their resolution to Congress and the President.

Climate change is occurring rapidly, creating an urgent need for the world to make use of indigenous ways of adapting and maintaining the resiliency that has served ancient coastal cultures for thousands of years.

First Stewards Send Resolution to Congress, President Obama.

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