Appeals Court Upends State Shellfish Farming

We depend on shoreline management to balance multiple uses. We welcome regulation. Shellfish can’t grow everywhere, and the water quality has to be superb.”

After a years-long battle, a ruling by the federal district court of Western Washington was unanimously upheld by the U.S. Ninth Circuit Court of Appeals in February affirming that shellfish farmers must apply for new permits to plant or harvest this coming season.

For environmentalists, the decision represented a victory. For shellfish farmers, it spelled potential disaster.

“I am not against shellfish farms,” said Gig Harbor resident Laura Hendricks, the executive director of the nonprofit Coalition to Save Puget Sound Habitat. “I just don’t want them taking over every inlet and beach on the Sound.”

Hendricks said the shellfish industry’s identity as a sustainable and environmentally friendly industry is based on biased information and lobbying. When the coalition was unsuccessful blocking new shellfish farms through its public education and outreach efforts, it decided to pursue court action. She reached out to the Center for Food Safety, a larger nonprofit that traditionally focused more on agriculture than aquaculture.

The two organizations joined forces, each filing lawsuits that were argued simultaneously in the district court. The coalition’s suit centered on Puget Sound while the CFS suit was statewide, and included concerns about the use of pesticides on shellfish farms in Willapa Bay. The plaintiffs said that when the U.S. Army Corps of Engineers reissued Nationwide Permit 48 in 2017 to shellfish farmers in Washington they failed to comply with the Clean Water Act, the National Environmental Policy Act and the Endangered Species Act.

U.S. District Court Judge Robert Lasnik agreed with the plaintiffs and in October 2019 criticized the Corps of Engineers’ evaluation of the impact of the shellfish industry on eel grass and other marine vegetation, the use of pesticides, impact of marine debris and the lack of data on subtidal areas.

“The record is devoid of any indication that the Corps considered regional data, cataloged 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,” he wrote.

In June 2020, Lasnik vacated NWP 48, finding that the Corps’ errors went to the heart of the Clean Water Act and National Environmental Policy Act. He allowed planting through the remainder of the 2020 season and harvesting through March 2022, but required that any further activities be allowed only with a new permit, including individual permits or a new lawful nationwide permit.

Taylor Shellfish Co. and the Pacific Coast Shellfish Growers Association appealed the case; the Corps did not join. The appellate court heard the case Feb. 2 and nine days later issued its opinion with all three judges upholding the district court rulings.

“The implementation of the decision will be devastating to many growers,” said Margaret Pilaro, executive director of the growers association. Most of the farms employ fewer than 10 people. All are family-owned and most have been in business for three to five generations. Pre-Covid, the industry provided about 3,000 family-wage jobs, she said. With 85% of the shellfish going to restaurants, most farms had no market for their product last year.

If the companies can’t get new permits approved soon, they will not be able to plant this year, Pilaro said. Sixty percent anticipate layoffs. If they can’t plant next year, up to two-thirds may not have viable farms.

“We depend on shoreline management to balance multiple uses,” she said. “We welcome regulation. Shellfish can’t grow everywhere, and the water quality has to be superb.”

Kent Kingman, owner of Minterbrook Oyster Co., said that smaller companies are the most likely to be affected by the decision. He managed to keep all of his 25 employees working through the pandemic, and doesn’t think the court decision will impact his business. He applied for an individual permit before Lasnik issued his decision and expects to have it in time for planting this season.

With NWP 48 vacated, all shellfish farmers were required to apply for new permits by December 2020 to continue to harvest. There are nearly 900 permits in Washington, though in some cases contiguous parcels may be qualified to be lumped together. In mid-April, there were 750 permits pending, according to a spokesman from the Corps.

The Corps issued a 2021 NWP 48 and, according to Pilaro, some growers chose to apply as the only path to planting this year. But according to both the coalition and CFS, the 2021 NWP 48 is as problematic as the one vacated. CFS has already announced its intention to sue the Corps for violating environmental laws when it reissued the NWPs.

Each permit application also requires certification from the Washington State Department of Ecology, which adds to the concerns of shellfish farmers. According to a published communication in April, Ecology typically gets 400 requests a year, and the impact of the court decision triples its workload. Gov. Jay Inslee’s proposed 2021-23 budget includes one-time funding to add 2.5 staff to the current staff of 5 who review and issue Section 401 decisions.

Dave Risvold, environmental biologist with Pierce County Department of Land Services, said that the ruling will not affect the processes for permitting at the county level. But he noted that all applications have pointed to NWP 48 to document that their activities have minimal environmental impact. Applicants will have to bear the additional burden to provide that evidence themselves.

“What we need is for the Corps — along with other expert agencies — to conduct a real cumulative impact analysis for Washington, and for each bay-waterbody,” said Amy van Saun, senior attorney for CFS.

“CFS stands with the shellfish growers who are doing the right thing, who are actual stewards of the tidelands and grow their shellfish alongside healthy and biodiverse wildlife. The use of pesticides and massive amounts of plastics do not fit that bill. The Corps needs to act to limit these more harmful aspects of shellfish production,” van Saun said.