This week, the U.S. District Court for the Western District of Washington sided with the Center for Food Safety and the Coalition to Protect Puget Sound Habitat in a suit against the U.S. Army Corps of Engineers. The ruling means that nine industrial shellfish operations that were approved by the Army Corps of Engineers off of Washington’s coast are unlawful. The plaintiffs argue that the USACE violated the law when relying on streamlined permitting procedures for the shellfish operations.
Kristina Sinclair is the staff attorney for the Center for Food Safety. She joins us to share more.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Nine industrial shellfish operations up and down the Washington coast could be forced to shut down. That’s because of initial adjudication released this week by a federal judge in the Western District of Washington. The case was brought by two groups, the Center for Food Safety and the Coalition to Protect Puget Sound Habitat. They sued the Army Corps of Engineers, saying that the Corps violated the law when it relied on streamlined permitting procedures for the shellfish operations and did not do full environmental reviews. The judge agreed. The Corps declined our request to weigh in on this case, but the Center for Food Safety said yes. Kristina Sinclair is a staff attorney for the nonprofit, and she joins us now. It’s great to have you on the show.
Kristina Sinclair: Thank you for having me.
Miller: I want to start with the big picture here and what’s at stake in this. What are the potential environmental effects of a shellfish farming operation?
Sinclair: Yeah, so, the nine large-scale industrial operations that we challenged have significant adverse effects on the environment. They span anywhere from 5 acres to 300 acres, and they often involve hundreds of thousands, if not millions of PVC tubes, plastic gear, netting that spans hundreds of acres in Washington’s most sensitive coastal habitat. So the risks to Washington’s aquatic ecosystems and species are severe, and that’s why we’re really pleased with the court’s decision.
Miller: It seems like you’re focusing there on plastic, on PVC and tubing. So is the idea that the water would degrade all of this built infrastructure, releasing plastic into the ocean, what exactly are the environmental concerns?
Sinclair: Yeah, so the operations themselves require a lot of plastic gear just to produce the shellfish. So, we’re talking a 6-inch – like a small dinner plate – by 13-inch PVC tubes, millions of them that are placed into the substrate, and that’s where they farm geoduck. And then they also cover these operations with plastic area netting, so this plastic gear is in intertidal zones. They get loose, which then pollute beaches and entangle whales and other aquatic animals and just cause significant harm to the ecosystem.
So that’s just plastic pollution, these operations generate a ton of plastic pollution. Then there’s also concerns about microplastics and other smaller forms of plastic that is generated, which can harm birds and fish. Some more of the foundational species that exist in Washington’s coastal waters. So this is not great.
Miller: This is not the first time that your organizations have sued the Army Corps over shellfish farming operations. You secured a big win in 2019. Can you explain what that earlier case was about?
Sinclair: Unfortunately, the Corps has a long history of trying to avoid its legal obligations when it comes to industrial shellfish aquaculture. Back in 2017, the court issued a general permit known as Nationwide Permit 48, and that was an attempt to authorize hundreds of industrial shellfish operations without any individual assessment of the potential risks to the environment. We sued and won that case. That was the 2019 decision that you just mentioned.
The court held that the U.S. Army Corps’ nationwide permit was unlawful and said that the Corps needed to issue individual permits instead. So, instead of issuing standard individual permits, which require public notice and comment, and a full cumulative and individual environmental assessment of each operation, the Corps started converting these large-scale industrial operations to something known as a letter of permission or LOP, so that’s the abbreviated permitting process that’s intended only for extremely minor operations with minimal environmental impacts.
We see it again, and that’s the present case that we’re talking about. We only challenged nine large-scale industrial operations that we thought really exemplified the types of harm that these operations are doing to the environment and the court ultimately agreed with us, holding that these operations don’t fit the minimum criteria for an LOP, specifically the definition for a minor project.
Miller: Is there then a very clear statutory definition? I mean, if one of the big issues here is about scale, is there a physical footprint above which a full environmental review has to be conducted?
Sinclair: No, so, the Rivers and Harbors Act is the relevant statute here, and it says that the Corps can only issue an LOP if a project is minor, would have no more than minimal environmental impacts, and would face no appreciable opposition. It doesn’t define minor, but the U.S. Army Corps has to have some sort of reasoning to support its conclusion that an operation is minor. And here the court said these large-scale industrial aquaculture operations that span acres of Washington’s most sensitive coastal habitat just don’t meet that definition, and they don’t qualify for an LOP.
Miller: LOP again, a letter of permission, which can lead to this very quick streamlined review. What’s the difference between the full environmental review that you argued and this magistrate judge agreed needs to happen? What’s the difference between that and what the Army Corps did when it offered these letters of permission?
Sinclair: The standard individual permit process requires public notice and comment, and it requires the U.S. Army Corps to really evaluate the individual and cumulative impacts of each operation before authorizing them. And here, instead of doing the public notice and comment and full evaluation, because they relied on the LOP process, the letter of permission, in contrast a letter of permission doesn’t require public notice and comment, and it doesn’t require any in-depth review of the potential individual and cumulative impacts, which is why the court was so quickly able to convert all of these operations to this abbreviated permitting process.
Miller: We’ve heard of environmental reviews being skipped or expedited by the Trump administration. When did these nine operations get their approval?
Sinclair: Yeah, so the court started converting them right after the 2019 court decision, so it was from 2021 to 2023.
Miller: In other words, under the Biden administration.
Sinclair: Yeah.
Miller: We did reach out to the Army Corps for comment. They declined, saying the district judge has yet to make a final determination and that the U.S. Army Corps of Engineers does not comment on matters of litigation. And my understanding is there are still more steps that have to happen. The plaintiffs, the Army Corps, could object in the next couple of weeks. They also could appeal if a district judge agrees with what the magistrate judge released this week. But are you assuming that on some level, at some point, the Corps will appeal?
Sinclair: We don’t know what the Corps is gonna do. What we think [is] this is a really strong decision, and hopefully the Corps will reevaluate its existing LOPs that have been issued to these industrial shellfish aquaculture operations and start processing them under the standard individual permitting process with public notice and comment and a full review of their environmental effects.
Miller: Let’s assume either that the court doesn’t appeal or that you end up being victorious when all this is said and done, and then the Corps has to do these full environmental reviews. In the immediate term, what does that mean for these currently operating shellfish farms?
Sinclair: Yeah, so they’ll have 60 days to get everything in order, once the final decision is made and the LOPs are set aside. During that time or even before then, the Corps could start converting these operations to standard individual permits in compliance with its legal obligations, as it should have done from the beginning, and we hope that that is the path that the court’s going to take.
Miller: But in that path you’re describing, would the operations have to completely shut down, stop growing oysters or geoducks or whatever in the interim and only continue to operate once they get approval, if they get approval?
Sinclair: That is a really good question. The court’s decision does lay out some specifics, but I think it’ll just come down to what the final decision is and the timing and where they’re at in the production cycle.
Miller: OK, so in other words, and I did try my best to understand the magistrate judge’s ruling. And if I understood correctly, and what you’re saying here is that they’d have 60 days, two months to harvest the stuff that they’ve already planted, in terms of these shellfish. But after that, then they’d have to stop operating until they got permission to go forward in the future?
Sinclair: Right. And hopefully the Corps will start the standard individual permit process now. Like there’s no reason why they couldn’t, and that will hopefully speed things along,
Miller: Speed things along, but how long can these full processes take? There’s the environmental review, there’s the ability or requirement for public comment. In general, how long might this take?
Sinclair: I can’t predict. It really just comes down to what the agency prioritizes and the amount of resources that they put into this decision making, but it does require a full evaluation of the environmental impacts as well as the cumulative impacts of these operations which are often grouped closely together and have long-term impacts on the surrounding environment, and a full public notice and comment opportunity to give the public a chance to voice their concerns. And yeah, share their thoughts with the agency.
Miller: Is your ultimate intent to shut these down? In other words, are you not just saying that the Corps erred in not doing a full environmental review, but if they do a full environmental review, then they will conclude that these operations should not be allowed to continue?
Sinclair: CFS is not against aquaculture in all its forms. We have members that are oyster growers and farmers, and we see a future where sustainable and responsible aquaculture can exist. What we don’t support, however, is these large-scale industrial operations that are polluting the environment, generating a bunch of plastic pollution, that the Corps is just authorizing without any consideration of their long-term environmental or cumulative impacts. There has to be some sort of consideration of these effects before just broadly authorizing them across Washington’s most sensitive coastal habitats. Yeah, so definitely not against all of these operations. We just want more thoughtful review and consideration of their effects.
Miller: Could this initial ruling affect other shellfish operations in Washington or in Oregon? I mean, you started by saying that you ended up targeting just nine, but the sense I got is that – maybe I was reading between the lines too much – but that you could have included even more operations in your suit.
Sinclair: Yeah, absolutely. The Corps from our last calculation has authorized over 500 of these LOPs. We need to review all of them, but our hope is that the Corps, given this decision, given the outcome of this case, will go back and review some of the operations that they authorized under this abbreviated permitting process and reconsider that and hopefully the court on its own initiative will start converting these LOPs to the standard individual permit, which they should have done in the first place.
Miller: Kristina Sinclair, thanks very much.
Sinclair: Thank you.
Miller: Kristina Sinclair is a staff attorney for the Center for Food Safety.
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