Legal protections for marine shorelines, streams and wetlands could be revised just before President Trump leaves office, as the Army Corps of Engineers updates 52 “nationwide permits” that allow for a variety of water-related projects.

Of particular interest in Washington state is a nationwide permit proposed for shellfish farms that would, purportedly, help to resolve an ongoing court battle over the effects of aquaculture on the shoreline environment. In June, U.S. District Judge Robert Lasnik invalidated permits for an estimated 900 shellfish farms, saying the environmental impacts had not been adequately studied.

Legal challenge

Nationwide permits, issued by the Army Corps of Engineers under the federal Clean Water Act and/or Rivers and Harbors Act, spell out general conditions that allow various types of construction and aquaculture to move forward quickly with minimal review. Under the law, further conditions may be imposed by state agencies, such as the Washington Department of Ecology.

A lawsuit, brought by two environmental groups, challenged the existing nationwide aquaculture permit, which allows for a wide variety of shellfish operations under one set of general requirements. The groups — Coalition to Protect Puget Sound Habitat along with Center for Food Safety — insist that stricter and more site-specific requirements are needed, especially for what they consider intensive aquaculture techniques.

As an example, they point to geoduck farms, which use plastic tubes embedded in the beach to protect geoduck clams as they grow. During harvest, high-pressure jets of water are employed to remove the giant clams from the beach. Because such activities can disrupt shoreline habitat, shellfish growers should be required to describe the potential damage by writing individual applications for specific sites, the plaintiffs argue.

Meanwhile, small low-key shellfish farmers in Washington state are caught up in these permitting issues, even as they struggle to find new markets during the COVID-19 pandemic, which has resulted in massive closures of restaurants across the country.

“It’s the worst possible time for any of this,” said Margaret Pilaro, executive director of Pacific Coast Shellfish Growers Association. “Some growers don’t even know if they will still be around, and this comes on top of the normal challenges of farming.”

Warming waters, ocean acidification, harmful algal blooms and unexpected diseases are making shellfish farming increasingly difficult, she said.

Judge’s findings

In his October 2019 ruling, Judge Lasnik concluded that the Corps had failed to show that individual shellfish farms would have “no more than minimal adverse effects” on the environment, as required for a nationwide permit. He also concluded that the agency failed to undertake a review of the full “cumulative effects” that could result from the nationwide permit, as required by law.

“In this case, the Corps acknowledged that re-issuance of (the nationwide permit) 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,” Lasnik wrote.

In a June follow-up order, the judge declared the nationwide permit invalid but recognized the hardship of shutting down all shellfish operations in Washington state. He allowed shellfish growers to continue managing and harvesting existing shellfish beds, provided they apply for an individual permit in place of the nationwide permit by Dec. 11. In his order, he also gave growers until Dec. 11 to plant new shellfish.

The defendant in the case, the Army Corps of Engineers, along with interveners Pacific Coast Shellfish Growers Association and Taylor Shellfish Company appealed the matter to the Ninth Circuit Court of Appeals, where a full review is pending.

Meanwhile, the Corps has moved forward with its new set of 52 nationwide permits, covering not only shellfish farming (Nationwide Permit 48) but many other activities — from navigation buoys to pipelines to residential development. Some of the permits remain unchanged since their last update in 2017.

Andrew Muñoz, chief of public affairs for the Corps’ Seattle District, said he expects the nationwide permits to be issued “early next year.” Meanwhile, regional conditions for Washington state have been proposed by the Corps of Engineers as well as the Washington Department of Ecology (PDF 2.6 mb).

Answering with new permit

With respect to shellfish farming, the revised national permit and supporting documentation (PDF 1.1 mb) responds to the court order with a general discussion of the positive and negative effects of various growing techniques and equipment. Nationwide, the Corps estimates that 1,680 shellfish activities would be approved under the five-year permit, affecting 40,080 acres. None of the projects would trigger mitigation measures, according to Corps documents, because environmental damage would be “no more than minimal.”

In response, a letter from plaintiff Center for Food Safety says the proposed permit fails to provide necessary assurance about the level of environmental damage caused by various shellfish operations.

“The U.S. Army Corps of Engineers should not adopt NWP 48 for commercial shellfish aquaculture activities, as written, for the same reasons NWP 48 was found unlawful by the federal district court,” the letter states.

The proposed permit was clearly a “rush job,” says Amy van Saun, attorney for Center for Food Safety, and it fails to meet the basic standards of a nationwide permit. Since the current permit does not expire until 2022, there really is no need to push it through now, she said. In fact, the new nationwide permit was predicated upon an executive order — “Promoting American Seafood Competitiveness” — that may well be rescinded when Joe Biden becomes president, she added.

If anything, van Saun said, the proposed nationwide permit is even more objectionable that the existing one adopted in 2017, because it removes a one-half-acre limit for impacts to aquatic vegetation. In Washington state, those impacts may be remedied through regional conditions, but the proposed change has triggered objections from across the country where some coastal states have minimal environmental rules.

Van Saun said a nationwide permit with general requirements may be appropriate for some low-key shellfish farms, but not for more intensive operations, especially geoduck aquaculture . A critical question, so far unanswered by the Corps, is how much disturbance can occur before a shoreline ecosystem is pushed beyond its limits, she said.

Another growing concern is the effect of shellfish operations on spawning habitat for so-called forage fish, considered critical to salmon and other important species, said Laura Hendricks, executive director of the Coalition to Protect Puget Sound Habitat. Two key species, surf smelt and sand lance, spawn in the intertidal area where shellfish grow and where activities can affect their populations, she said.

“The overuse of NWP 48 to cover new and expanding operations has allowed for expansion of intense shellfish aquaculture operations into previously undisturbed areas of Puget Sound,” states the plaintiffs’ letter addressing the proposed permit.

Shellfish growers’ perspective

The Office of Advocacy within the federal Small Business Administration wrote a letter saying that small shellfish growers are generally supportive of the nationwide permit, although numerous changes need to be made.

“Advocacy spoke with small aquaculture farmers and their representatives in the Pacific Northwest, coastal regions throughout the Atlantic, and the Gulf of Mexico,” said the letter signed by the agency’s legal staff. “These small businesses are concerned that the Army Corps has once again not provided enough of an environmental analysis to overcome deficiencies raised in the litigation concerning the previous issuance of NWP 48.

“Businesses in Washington state are particularly concerned that the Army Corps be diligent in presenting sound environmental analysis and justification for NWP 48 so that they are not once again subject to an unfavorable outcome in litigation…” the letter states.

One concern of the growers is the possible interpretation that shellfish “seed” placed on the bottom could be considered a discharge of fill, thus triggering a full-scale individual permit, according to the letter. Another concern is that some harvest activities that “merely rake the bottom” could be considered a discharge of dredged material, triggering a full permit.

Pacific Coast Shellfish Growers Association and East Coast Shellfish Growers Association issued a joint letter containing 15 pages of suggestions and nine pages of scientific references to support the contention that “adverse effects related to shellfish culture are both minor and temporary.”

“Equally important” the letter says, “are the benefits of shellfish culture such as … improved water quality and sequestration of carbon and nutrients; creation of habitat via culturing equipment and materials; pseudofeces (mucus with particulate matter) as a nutrient enhancement that supports invertebrates, macroalgae and seagrasses; and benefits to animal and plant life of minor benthic disturbance that expose infauna to predation and increase the depth of oxygenated sediments.”

To comply with the Endangered Species Act, the Army Corps of Engineers has developed stringent standards for shellfish operations in consultation with the National Marine Fisheries Service and U.S. Fish and Wildlife Service. These standards (PDF 7.2 mb), outlined in a 180-page report, are attached as requirements to each permit verification under which shellfish farmers currently operate, said Pilaro of PCSGA.

In fact, PCSGA suggested in a recent letter to the Seattle District of the Corps that the ESA conditions be incorporated as regional conditions. That would add assurance that shellfish operations would have no more than a minimal effect on the environment, she said.

Moving forward?

Meanwhile, as shellfish growers wait for a new nationwide permit or further action by the courts, they have been required to apply for individual permits if they wish to keep operating. So far, roughly half of the previous 900 approvals have been converted to individual applications, according to Corps estimates. That does not account for two or more permits being combined together, nor does it include new permits.

The uncertainty and complications of the new permits have many shellfish farmers wondering what to do, as they struggle to deal with an unsettled market for their product. Typically, 85-90 percent of shellfish are purchased by restaurants or food-service programs, Pilaro said.

With most restaurants closed, the industry is trying to find ways to convince consumers to prepare oysters and clams in meals at home. Still, some farmers are growing tired of the adversity and have decided to get out of the shellfish business.

“You are talking about fourth- and fifth-generation growers who are thinking about closing down,” Pilaro said. “Most growers employ less than 10 people. They are applying for grants and loans to keep their businesses alive. But they are not really able to stop their lives and focus on this (permitting problem).”

The best advice, she said, may be for growers to apply for whatever permits are needed to keep the shellfish farms viable. That way if a grower decides to sell, his business would be able to keep going under new ownership.

As a result of the lawsuit over the nationwide permit, the Army Corps of Engineers has begun processing individual permits for each shellfish farm.

“This is a significant workload increase for the (Seattle) District,” which “received additional funds to address aquaculture permit workload,” according to documents from the Corps,

The Seattle District has been issuing “letters of permission” when a project does not involve placement of dredge or fill material into a waterway. Shellfish operators who regrade a beach or dump quantities of shell or gravel on the bottom to improve growing conditions may trigger a full-blown permit under Section 404 of the Clean Water Act, officials say.

State maintains authority

Washington Department of Ecology also reviews the individual applications and may impose additional conditions, especially when needed to protect sensitive areas such as eelgrass beds and forage fish habitat.

“We emphasize the need to avoid impacts to these sensitive areas through the use of buffer requirements and/or prohibitions against working in these habitat areas in the first place,” according to a statement from Ecology spokesman Curt Hart. “In addition, we received emergency permission to hire five positions to process … water quality certifications for shellfish farmers.”

Ecology is also struggling with new rules under the Clean Water Act which have reduced federal authority to regulate streams and wetlands by redefining “waters of the United States,” causing state officials to pick up the load. See “Our Water Ways,” June 24, 2020. New rules also reduced the time that states were given to review water-related projects. Both rule changes are being challenged in federal court by Washington and numerous other states. Check out Ecology’s brochure on the subject.

As for the proposed nationwide permit, Ecology Director Laura Watson responded in a letter to the Corps of Engineers, expressing “deep concern” that changes in the 2020 nationwide permit could “hamper our ability to fully exercise our authorities,” potentially reducing protections for streams and shorelines. The agency also provided details on how it would handle various permits under authorities granted by Section 401 (PDF 287 kb) of the Clean Water Act — assuming the permit were approved without changes.

In the end, the Seattle District of the Corps is under no obligation to adopt the nationwide permit. District officials could decide to stay with individual permits or else develop one or more general permits at the regional level.

Biden has hand to play

The fate of the national permit also depends on court rulings as well as decisions by the incoming administration of Joe Biden, now president-elect. The proposed national permit is listed among 21 major environmental regulations that have been proposed but not finalized, according to the environmental law firm Arnold & Porter. If not completed, the proposals could remain in “rule-making limbo,” according to the six attorneys who wrote the article for their website.

“The stakes are high, as a new administration can simply allow proposed rules, which are not yet finalized, to wither and die on the vine,” they said.

Their article also lists 25 regulations that have been finalized but are being challenged in court and moving through various stages of review. “In any event,” the attorneys note, “once the Biden-Harris Administration assumes office, it will have its hands full in sorting through many dozens of final rules in various stages of litigation across the government, deciding which cases they want to hold in abeyance and which cases they prefer to see play out…”