Federal Court Vacates Nationwide Permit 48 for Local Commercial Shellfish Growers

In yet another setback for the Army Corps of Engineers’ Nationwide Permit program, a June 11, 2020 federal court ruling vacated NWP 48 for commercial shellfish aquaculture in Washington State. Center for Food Safety v. U.S. Army Corps of Engineers, No. 17-1209. This remedy ruling followed the court’s prior October 2019 decision that the Corps did not adequately consider the impacts of commercial shellfish aquaculture under Section 404 of the Clean Water Act and the National Environmental Policy Act.

The court’s opinion focused on two main issues: 1) the seriousness of the Corps’ errors in issuing NWP 48, and 2) the potential interim consequences of vacatur. According to the court, the Corps’ actions were serious enough to support vacatur because they resulted in the environmental impacts of commercial shellfish aquaculture, both individually and cumulatively, remaining mostly unknown. The court rejected arguments that individual projects’ “verification process or state, local, and/or Tribal oversight of commercial shellfish aquaculture activities in Washington overcome the seriousness of the agency’s errors[.]” The court also expressed skepticism over the Corps’ ability to reissue any revised NWP 48 that would pass muster for broad-scale coverage. The Court reasoned the breadth and diversity of environments and activities likely preclude a nationwide impact analysis and crafting of an appropriate permit.  Instead, the court pointed industry and the Corps to the time-consuming and expensive Section 404 individual permitting process. 

An equitable assessment of the consequences that could arise from the vacatur of NWP 48 was a closer call for vacatur. The court considered that the Corps may be unable to process individual permits before NWP 48 expired in 2022. The Court also considered arguments raised by tribal and industry parties that vacating NWP 48 would seriously threaten the economic viability of their shellfish operations. The Swinomish Indian Tribal Community argued that the time needed to acquire a new permit in order to commence operations would inhibit their ability to run their company and provide sustenance for its members. Similarly, industry argued that local commercial shellfish farmers would be unable to compete on a national or international basis while waiting to obtain a new permit. Nevertheless, the court concluded that the potential environmental consequences of continuing the status quo under current NWP 48 outweighed business harms.

The court’s ultimate remedy features both tailored and draconian elements. On one hand, the court’s vacatur of NWP 48 is limited to the State of Washington, in contrast to the growing trends of nationwide injunctions by district courts, including for NWP 12. Moreover, the court agreed to stay its vacatur for 60 days to allow time for an appeal. The Court also stayed vacatur as to specific activities, including:

  • maintenance and harvesting activities for shellfish that were already planted/seeded as of June 11, 2020;
  • seeding/planting activities occurring within six months of the date of the Order in areas that do not contain mature native eelgrass beds, as well as to maintenance and subsequent harvesting of beds seeded/planted under this subsection; and
  • shellfish activities in furtherance of certain adjudicated treaty rights.

On the other hand, the court found that the vacatur of NWP 48 applies retroactively to projects previously verified under that permit.  Additionally, as a condition of its partial stay of vacatur, ongoing operations must apply for an individual Section 404 permit within the next six months. On June 18th, industry submitted an appeal to the Ninth Circuit. Regardless, however, there will be much interim activity and uncertainty for both the Corps and Washington shellfish growers to fill the void left by the vacated NWP 48.

Beveridge & Diamond's Fisheries and Aquaculture industry group advises on the broad range of environmental, health, and safety issues impacting the fishing and aquaculture industries’ facilities, operations, and products. A number of our lawyers have biology or ecology backgrounds, personal experience working with fisheries, and unique perspectives from years of government service. B&D offers a physical presence in major fishing markets, as well as experience with fisheries off all U.S. coasts and in major fresh water bodies across the country.