U.S. Army Corps Failed to Adequately Assess Fish Farms’ Risks to Marine Life, Fishing and Indigenous Communities

SEATTLE, WA — Yesterday afternoon the U.S. Federal Court for the Western District of Washington ruled that the U.S. Army Corps of Engineers'(Corps) approval of Nationwide Permit 56 (NWP 56)—which authorizes industrial finfish aquaculture structures in federal ocean waters around the country—was unlawful. The court held that NWP 56 violated several core environmental laws, including the National Environmental Policy Act, the Rivers and Harbors Act, and the Administrative Procedure Act. 

“This is a vital victory in the battle for the future of our oceans,” said George Kimbrell, legal director for Center for Food Safety and counsel for the plaintiffs. “We are gratified that the Court has commanded that federal regulators cannot unlawfully stick their heads in the sand about industrial aquaculture’s significant adverse impacts and instead must rigorously analyze them before deciding whether to move forward.”

The defendant agency acknowledged numerous adverse impacts of the large fish farm structures it was authorizing in the permit, but nonetheless unlawfully failed to actually assess them. As the court explained, the Corps lacked the “logical bridge between the multiple acknowledged adverse impacts”—including those described by the agency itself as “high risk”—and the agency’s “conclusion that the impacts of NWP 56 would be no more than minimal or would be insignificant.” The court concluded: “Because the Corps narrowed its [environmental assessment] to disclose but not account for many foreseeable effects of NWP 56, its findings of minimal effects and no significant impacts are insufficiently supported and explained.” 

“We applaud the Court for ruling that this nationwide permit is unlawful, and for blocking a federal agency’s misguided attempts to fast-track offshore aquaculture operations. This is a loss for corporate interests pushing to rapidly industrialize the open ocean; it is a victory for our members and all Americans who believe we should exercise precaution with a resource as precious as our shared ocean commons. Instead of dirty factory fish farms funded by venture capital firms, our coalition envisions and builds toward seafood systems centered on shared values and led by local communities,” said James Mitchell, legislative director of the Don’t Cage Our Oceans Coalition, a coalition of more than 50 fishing, farming, culinary, and environmental groups working to stop the development of offshore finfish farming in the U.S. while uplifting values-based aquaculture and seafood systems.

The legal victory is yet another major legal rebuke to the federal government’s continuing attempts establish aquaculture in U.S. ocean waters. In 2018 and 2020, federal courts covering the Gulf of Mexico struck down an earlier effort that would have established the industry there for the first time. Despite intense lobbying efforts by proponents, Congress has never passed a law authorizing industrial aquaculture in the U.S. federal waters.

Background

Nationwide permit 56 allows construction of industrial aquaculture facilities in federal ocean waters off the coasts of Alaska, California, Oregon, Washington, Florida, Texas, Georgia, North Carolina, New York, New Jersey, Philadelphia, Hawaii, and Virginia. Industrial aquaculture, also known as fish farming, involves placing net pens and cages in the open ocean to produce massive quantities of finfish such as salmon, trout, and bass, threatening marine ecosystems as well as endangered whales, salmon, sea turtles, and many other imperiled species; and traditional fishing economies, Tribal Nations’ food security, and public health. 

In 2022, Center for Food Safety and a coalition of conservation, tribal, and fishing organizations challenged the 2021 permitting scheme, arguing that the Corps approved the permit without any analysis of threat to water quality and marine life, including imperiled species protected under the Endangered Species Act. Instead the Corps either punted any analysis to future reviews of potential individual permits, without guaranteeing a process for such reviews; or claimed that it need not analyze these harms because the agency lacked regulatory authority. Yesterday’s decision finding the permitting scheme unlawful decided the case’s merits; next the court will decide the remedy. 

The full list of the plaintiffs in the case are Center for Food Safety, Don’t Cage Our Oceans, Wild Fish Conservancy, Quinault Indian Nation, Los Angeles Waterkeeper, San Diego Coastkeeper, Santa Barbara Channelkeeper, Institute for Fisheries Resources, Pacific Coast Federation of Fishermen’s Associations, and Recirculating Farms Coalition. All parties are represented by counsel from Center for Food Safety. 

Statements from Other Plaintiffs on the Decision

Emma Helverson, Executive Director of plaintiff Wild Fish Conservancy: “This decision represents a significant achievement for wild fish and marine ecosystems across the United States. The entire U.S. Pacific Coast has already taken steps to exclude or ban net pens from all state marine waters. The Court’s ruling not only aligns with scientific evidence and legal standards, but it supports the public’s ongoing efforts to safeguard our nation’s vital ecosystems from this outdated and dangerous industry.”

Tyler Lobdell, attorney with plaintiff Food and Water Watch: “Issuing a permit to greenlight aquaculture facilities – essentially factory farms at sea – without critical environmental review or oversight is irresponsible and dangerous for the health of our oceans. Thankfully, the court saw the Army Corps’ sham environmental review for what it was – totally deficient and unlawful. We look forward to continuing our fight to protect our oceans, wildlife, and natural fisheries.”

Patrick McDonough, Senior Attorney of plaintiff San Diego Coastkeeper: “We are thrilled with this legal victory, which underscores what we have been arguing for years – the Army Corps’ issuance of NWP 56 to authorize industrial offshore finfish farms not only violated multiple laws, but would also likely result in devastating ecological consequences for our fragile marine ecosystems.”  

Marianne Cufone, Counsel and Executive Director for plaintiff Recirculating Farms: “The Court recognized the Army Corp of Engineers did not sufficiently safeguard our marine environment when finalizing this nationwide permit for offshore aquaculture. This decision is an important step in protecting our wildlife, habitat, and the many people who are connected to our oceans from the dangers associated with open water fish farming.”