NMFS Seeks to Streamline Aquaculture Permitting While a Washington Federal Court Interjects Caution

In October 2019, the National Marine Fisheries Service (NMFS) published its Draft Outline for a Work Plan for a Federal Aquaculture Regulatory Task Force (Draft Outline) in the Federal Register Notice. The Draft Outline identifies three goals that NMFS intends to use to improve regulatory efficiency for freshwater and marine aquaculture, as well as streamline regulations and management decisions. 

  1. “Improve the efficiency and predictability of aquaculture permitting in state and federal waters.” Some of the objectives identified to achieve this goal include expanding the categories of use for the Army Corps of Engineers (Army Corps) Nationwide Permit 48 (NWP 48), and NPDES general permits or developing new general permits, creating regional interagency groups and regional permit processes, and establishing federal processes for testing and certifying the human health requirements of aquaculture in federal waters. 
  2. “Implement a national approach to aquatic animal health management of aquaculture.” Identified objectives for attaining this goal include collaboration among partners and stakeholders to establish standards or guidelines for aquatic animal and aquaculture health, as well as further clarifying and defining federal agency roles in the import and export of aquatic animals. 
  3. “Refine and disseminate tools for aquaculture regulatory management.” Objectives for this goal include identifying and preparing work plans for additional scientific information needed for permit reviews, consultations, and policy decisions, as well as “identifying two marine waters where methods for improving efficiencies and the siting, permitting, and authorization of aquaculture operations can be tested and demonstrated.”

The public comment period closes on November 8, 2019.

Given the rise in freshwater and marine aquaculture, particularly in Washington, the goals and objectives contained within the Draft Outline could provide clarity for both growers and agencies. Implementation of some of the objectives in the Draft Outline, however, could face legal challenges—particularly those aimed at expanding categories of use for NWP 48.

Last week, a Washington federal court judge issued a ruling in two cases regarding NWP 48 and its application to commercial shellfish aquaculture. Plaintiffs challenged the Army Corps’ reissuance of NWP 48 “authorizing discharges, structures, and work in the waters of the United States related to commercial shellfish aquaculture activities.” They argued, among other things, that the Army Corps failed to comply with the Clean Water Act and the National Environmental Policy Act (NEPA) when it reissued the Permit in 2017. The court agreed, finding that the Army Corps “failed to adequately consider the impacts of commercial shellfish aquaculture activities authorized under NWP 48, that its conclusory findings of minimal individual and cumulative impacts are not supported by substantial evidence in the record, and that its [Environmental Assessment] does not satisfy NEPA requirements and the governing regulations.” 

Beveridge & Diamond advises commercial businesses in the aquaculture industry on all environmental issues impacting their facilities, operations, and products, including project development and permitting, auditing and due diligence, water quality, and protected wildlife. For more information, please contact the authors.