Cooke Aquaculture pays 2.75 Million dollar fine for net pen collapse

The company responsible for the net pen collapse that released large numbers of Atlantic Salmon into Puget Sound has settled out of court in advance of a Monday court date.

Cooke Aquaculture has reached a settlement to pay $2.75 million in legal fees and to fund Puget Sound restoration projects, putting an end to a Clean Water Act lawsuit that followed the 2017 collapse of one of the fish-farming company’s net-pen structures. – Seattle Times. Read the full article here and consider subscribing to the Times and keeping local reporters working.

https://www.seattletimes.com/seattle-news/environment/cooke-aquaculture-settles-lawsuit-with-wild-fish-advocates-over-net-pen-collapse/

These funds will go to help pay legal expenses, and the rest of the funds will go to the Rose Foundation to fund environmental projects to protect wild salmon and killer whales in Puget Sound, as well as WFC’s litigation expenses. Cooke also agreed to change their practices and address additional dangers identified in the course of the lawsuit, according to Wild Fish Conservancy, who brought the lawsuit.

“This is truly a victory for the future of our sound,” said Kurt Beardslee, executive director of Wild Fish Conservancy. “Open water net pen aquaculture is a risky business, and thanks to this settlement we are one step closer to getting this dirty industry out of Puget Sound once and for all. This was long in coming. Last year, the public demanded an end to Atlantic salmon net pens. Just last week, thousands of people spoke out against switching these farms to different species. Now a federal judge ruled that Cooke broke the law. It’s time for this industry to leave Puget Sound.”

Cooke’s operations continue to put wild salmon and the health of Puget Sound at risk. Just weeks ago, one of the Bainbridge Island net pens began sinking due to a hole in a flotation pontoon; luckily, the damaged portion was not stocked with Atlantic salmon at the time but may have resulted in an escape were the pens occupied. Marine engineer Tobias Dewhurst, an independent expert testifying on behalf of Wild Fish Conservancy, reviewed conditions at each farm site and determined “conditions at each of its eight sites exceeded the maximum rated conditions specified by the net pen manufacturer,” and that as a result “pens and cages operated by Cooke were at risk of failure.” Even given subsequent changes, Dewhurst concluded, “certain remaining sites appear to be operating in conditions that exceed those specified by the net pen system manufacturers,” and therefore “may be at risk of partial or catastrophic failure.”

http://www.wildfishconservancy.org/cooke-aquaculture-to-pay-2.75-million-ending-wfc-lawsuit-over-net-pen-collapse-1

Recently, Cooke has partnered with the Jamestown S’Klallam to reopen the net pens in Port Angeles to raise native, but genetically modified steelhead. While the danger of these fish escaping and somehow altering native stocks is dramatically lessened, there is still the issue raised by Wild Fish Conservancy, of destruction of the environment in and around the feeding pens, along with possible affects of raising large quantities of fish in a small enclose. Virus and parasites are traditionally the concern, yet the Tribe has claimed that they are working on mitigation techniques. The Tribe has been researching raising these steelhead at the NOAA research facility at Manchester for the last few years. Their goal is to do this as environmentally responsibly as possible giving current scientific best practices. Many in the environmental community remain unconvinced that this won’t become another problem.

The Department of Fish and Wildlife has issued a mitigated determination of non-significance, which allowed only  a 21-day comment period. This requires neither a full environmental assessment nor environmental impact statement under the State Environmental Policy Act. Such an assessment would have considered the risks of diseases, pollution, further escapes and collapses, and the potential harm to federally-listed native steelhead. Kurt Beardsley of Wild Fish Conservancy said of the lack of EIS, “The 2017 collapse revealed that these pens are dramatically under-built for conditions in Puget Sound, and that Cooke’s recovery plan in the event of escapes was woefully inadequate. More escapes would directly threaten our wild salmon, steelhead trout, and endangered killer whales. Without a full EIS, the state cannot address the evidence from their investigations and WFC’s.

The Tribe at least brings a local group that has a a track record of being  concerned with long term viability of the resource, and is not going to be moving operations like many international corporations do.

Just to the north, on the Canadian Coast, a long running battle over farmed fish has pitted environmental scientist and activist Alexandra Morton against the fish farming industry. She has been working with the local tribes in documenting a horribly destructive virus that has appeared from Norway in both the local wild fish and the farm raised fish.

While Washington state passed legislation banning PRV-infected farm salmon, it is still an unknown as to whether the virus is affecting the ever decreasing numbers of wild chinook that are the primary food of the resident orcas. Reopening net pens here could provide a vector for fish carrying the disease that could be passing through the infected waters to the north on their way here.

(more on this story at The Georgia Straight News)

In October, Cooke paid another large fine in Maine for multiple violations of their laws for fish farming.  https://www.seafoodsource.com/news/aquaculture/cooke-to-pay-fine-for-overstocking-maine-salmon-farms-not-conducting-environmental-testing

In April, Cooke paid over $300,000 for water quality violations here in Washington.

Clallam County Planning Division Says No to Dungeness Spit Jamestown S’Klallam Oyster Farm

While a small victory for the opponents of the proposed oyster farm inside Dungeness Spit, it does not mean that the Hearing Examiner will actually follow their recommendation. The Planning Division stated that the farm is not consistent with the Natural Shoreline Designation, does not meat the CUP (Conditional Use Permit)  Criteria, and will negatively impact wildlife at Dungeness National Wildlife Refuge.

Oddly, though the current area is natural, because the location has been used in the past for oyster farming, the staff found that there would be no cumulative impacts. That flies in the face of the recent Army Corp of Engineers court loss, that discovered unpublished Army Corp scientific documents that clearly delineated the ongoing destruction of near shore from continuous use.

The staff also points out that “Based on the density of birds that visit the DNWR and their sensitivity for disturbance while migrating and foraging, even small impacts at this wildlife refuge could result in substantial detrimental effects (emphasis mine) to the public interest.”

The objective of the Natural designation are intended to preserve, maintain or restore such a shoreline as a natural resource relatively free of human influence; to discourage or prohibit those activities which might destroy or degrade the natural characteristics which make these shorelines unique and valuable. The applicant should address how the proposal with up to 80,000 on-bottom bags with year round gear maintenance of up to 6 people visiting the site for up to 6 hours 6 times a month within the migration and wintering periods for shorebirds and waterfowl is an appropriate use in the Natural Designation located off the Dungeness National Wildlife Refuge. (emphasis mine)

It seems it would be a good time for our state legislators and DNR  to step up, and work with the Tribe to swap this area for another spot. The risk of long term damage to our dwindling stocks of shorebirds, marine birds, herring, sand lance and the like at this critical location, close to the estuary and the preferred feeding area of nesting birds from Protection Island, poses the threat of irreversible  harm.

 

 

 

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.

 

 

 

 

 

 

Their back! Cooke Aquaculture that is.

Proposal made to raise steelhead at area fish farms
The company whose collapsed fish farm off Cypress Island in August 2017 allowed hundreds of thousands of Atlantic salmon to be released into the region’s waters may use its remaining net pens to raise steelhead trout.  That company, Cooke Aquaculture, has applied for permits to begin raising steelhead at its floating facilities in Puget Sound, where the state Legislature no longer allows the raising of Atlantic salmon. On Tuesday, the state Department of Fish & Wildlife announced plans to approve those permits. Fish & Wildlife also determined the proposal doesn’t warrant an environmental impact statement, or EIS, under the state Environmental Policy Act. “This proposal will likely not have a significant adverse impact on the environment,” Fish & Wildlife documents state. Kimberly Cauvel reports. (Skagit Valley Herald)

Jamestown S’Klallam proceeding with Dungeness Spit Aquaculture Permit

Clallam County Department of Community Development has published that the Jamestown S’Klallam have applied to restart their permit application for an aquaculture permit inside the Dungeness Spit Wildlife Refuge. This highly controversial application has drawn criticism from the Refuge manager, in a detailed response to the previous application. (See below) Critics of the application have stated that any non Tribal organization wishing to seek to establish this kind of operation within a refuge would run into serious opposition from conservation organizations, and likely Tribes as well,  but due to this being put forward by the Tribe, criticism has been muted.  It will  be interesting to see how this plays out. With shorebird populations in decline, especially those using Protection Island and feeding underwater in this very location, it’s hard to understand how this will be allowed.  Then there is the growing problems of ocean acidification and the European Green Crab invading not far to the west of this spot. Could the State perhaps offer a trade off of shoreline to protect the Refuge?

DCD have tentatively scheduled the Public Hearing before the Clallam County Hearing Examiner for this matter for Thursday November 21, 2019 at 1 p.m..

More can be found at

http://websrv2.clallam.net/tm_bin/tmw_cmd.pl?tmw_cmd=StatusViewCase&shl_caseno=SHR2017-00011&projectcasetag=Y

Also this web site has published the letter of concern from the Refuge Manager.

https://olyopen.com/2018/04/10/concerns-raised-over-dungeness-spit-oyster-farm-application/

As stated by the Department of Interior letter, “The shores and tidelands in this area provide some of the most important wildlife habitat and supports the highest density of waterfowl and shorebirds within the refuge….These shorelines also support one of the largest Brandt haul out sites in the state of Washington….Shorebird densities are highest within the action area and the adjacent lagoon on Graveyard Spit.”

“Human-caused wildlife disturbance and habitat loss are two of the most pervasive threats to shorebird and waterfowl use of the Salish Sea….very little information is available on entrapment resulting from aquaculture structures.”

The Jamestown S’Klallam Tribe (JST) wants to proceed with the application after the Government to Government meeting with U.S. Fish & Wildlife (USFW). In a letter dated August 6, 2019

U.S.F.W rescinded their previous letter dated May 22, 2019 (See item B1.83 & B2.1 below for more information).

DCD will be providing notice and a SEPA threshold determination in the next couple of weeks.

We have tentatively scheduled the Public Hearing before the Clallam County Hearing Examiner for this matter for Thursday November 21, 2019 at 1 p.m..

 

 

The Battle Over Fish Farming In The Open Ocean Heats Up, As EPA Permit Looms – OPB

The Feds look to open up aquaculture into the open ocean. While this project is in the Gulf of Mexico, the threat to us here is very real. After watching the incredibly incompetent way that our legislators allowed the industry in this state to function with virtually no over-site because they fashioned the laws back in the 70s/80s to split enforcement  between two different government agencies (Department of Ecology and DNR) ending in the disastrous blow out of the Cypress Island pens. This finally led to regulation and a shutting down of the industry in this state, and we will never know the true cost of what allowing these pens into our waters meant to our endangered salmon. Old timers I interviewed talked of how wild runs collapsed in the Agate Pass area after the pens went in to the south side of Bainbridge Island. They suspected the wild fish were somehow compromised by the pens. While many other issues were simultaneously showing-up, rampant development, over-fishing in the Strait, etc. the old timers thought the timing highly suspicious. Now this. Whatever could go wrong?

States control up to three miles offshore from their coastlines, but between three and 200 miles falls under federal control. Attempts to introduce aquaculture in federal waters have so far been stymied by concerns about aquaculture’s impact on ocean ecosystems and wild fisheries.

https://www.opb.org/news/article/npr-the-battle-over-fish-farming-in-the-open-ocean-heats-up-as-epa-permit-looms/

Proposed EPA Rules Could Limit State And Tribal Power To Block Infrastructure Projects -OPB

Over the last few years, since Trump came to power, I have been hearing about companies, some here in the NW engaged in shellfish farming, that have been quietly spending tens of thousands of dollars lobbying the Federal government to strip away the capability of local jurisdictions, such as county, state and tribal governments, to create local rules that could stymie the businesses operations or licensing by the federal government, under the Clean Water Act. A goal of theirs has been to take away the ability of local environmentally concerned organizations to sue, other than at the federal level.  Now, it appears the Trump administration is acting on their lobbying efforts. Think about fish farming, pulp mills, or any other activity covered under the Clean Water Act.

The rules specifically would restrict these non-federal governments’ authority to review the water quality impacts of projects that require a federal permit or license. These projects range from pipelines to hydropower facilities to dredging — any development that result in “discharge” into U.S. waters.

DATES: Comments must be received on or before October 21, 2019. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–HQ– OW–2019–0405, at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Lauren Kasparek, Oceans, Wetlands, and Communities Division, Office of Water (4504–T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: (202) 564–3351; email address: cwa401@epa.gov.

Read the whole legal document (very long, very difficult to follow if not a environmental lawyer) at

https://www.epa.gov/sites/production/files/2019-08/documents/cwa401certification_2060-af86_nprm_20190807_prepublication_version.pdf

https://www.opb.org/news/article/federal-water-quality-rules-energy-infrastructure/

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