USA - Army Corps Proposes New Nationwide Permits for Seaweed and FinFish Aquaculture and Updates Existing Nationwide Permit for Shellfish Aquaculture (With bonus ASPN Podcast)
The U.S. Army Corps of Engineers (USACE) recently circulated a draft proposal to renew its existing Nationwide Permits (NWPs) as well as create two new NWPs that would authorize seaweed and finfish aquaculture in coastal waters.1
Currently, the only NWP approved for aquaculture is NWP 48, associated with commercial shellfish aquaculture activities. USACE is proposing to revise NWP 48 to address concerns raised by a Washington federal district court in Coalition to Protect Puget Sound Habitat v. U.S. Army Corps of Engineers2, which recently invalidated NWP 48 in Washington State. If approved, the proposed NWPs for seaweed and finfish aquaculture activities could significantly reduce the barriers to entry for emerging seaweed and finfish industries and reduce the timeframe and cost associated with obtaining USACE authorization for such activities.
This alert describes the proposed changes to NWP 48, outlines the scope of the proposed NWPs for seaweed and finfish aquaculture, and summarizes the potential impacts of these developments on the aquaculture industry.
THE NATIONWIDE PERMIT PROGRAM
NWPs are issued by the USACE to permit a wide range of activities that, upon incorporation of identified conditions and mitigation measures, have been determined to result in minimal adverse effects to the environment. NWPs are useful for project applicants, as they reduce some of the permitting processes necessary for USACE approval, in many cases reducing the need for public notice, environmental review under the National Environmental Policy Act, state agency review under the Clean Water Act, and consideration of conditions and mitigation measures, as these issues can be dealt with programmatically as part of the NWP. While the current NWPs are authorized through 2022, USACE has taken the unusual step of seeking early reauthorization of the existing NWPs and approval of several new NWPs.
NATIONWIDE PERMIT 48
The most significant, and likely most controversial, change proposed by the new NWP 48 is removing the 1/2-acre limit for impacts to submerged aquatic vegetation in project areas that have not been used for commercial shellfish aquaculture activities in the past 100 years.3 The previous NWP 48 issued by the USACE in 2017 did not permit any commercial shellfish activities in new areas that would impact more than 1/2 acre of submerged aquatic vegetation. The new NWP 48 removes the limitation, citing a significant amount of scientific literature that the impacts of shellfish aquaculture on aquatic vegetation can be both positive and negative and are often temporary. The impact of shellfish aquaculture on aquatic vegetation has been a significant point of contention between regulatory agencies, environmental non-governmental organizations (NGOs), and the shellfish aquaculture industry in recent years, and this proposed rule change is likely to receive a significant amount of comment from all parties. If approved as part of the final rule, it would likely open up significant new areas for shellfish aquaculture in estuaries that have submerged aquatic vegetation. However, as further explained below, regional USACE offices could still implement regional conditions further regulating or restricting aquaculture in areas with submerged aquatic vegetation.
USACE has also made substantial revisions to the draft national decision document for NWP 48 in response to Coalition to Protect Puget Sound Habitat v. U.S. Army Corps of Engineers et al.4 The court in Coalition to Protect Puget Sound Habitat found that the USACE had not adequately evaluated the impacts of commercial shellfish aquaculture activities authorized by NWP 48 and that its findings of minimal individual and cumulative impacts were not supported by substantial evidence in the record. More specifically, the district court said the USACE national decision document should present a more detailed discussion of the potential impacts of commercial shellfish mariculture activities on aquatic vegetation, benthic communities, fish, birds, water quality, and substrate characteristics. The court vacated the 2017 NWP 48 in Washington State, requiring shellfish growers in that state to obtain individual permits until a new NWP 48 is approved. The new decision document addresses a number of the concerns raised by the court in Protect Puget Sound Habitat; however, it is anticipated that the USACE will receive a significant amount of comments as to whether the new decision document adequately addresses those concerns.
ASPN Podcast: Drinks with Aquaculture Lawyers | Friday Happy Hour
On this episode of Friday Happy Hour (May 28, 2020), Tyler Buckingham sits down with ASPNers, Peter Ravella and Thane Tienson, and two of Thane's aquaculture lawyer buds, Hallie Templeton and Amy van Saun. Thane is himself the co-council for the Coalition to Protect Puget Sound Habitat. Hallie is the Senior Ocean Campaigner at Friends of the Earth and Amy is the Senior Attorney at the Center for Food Safety. Collectively, they bring us up to speed on aquaculture, regulatory issues, and the many ways industrial methods are being used to produce shell and finfish on the American Shoreline. After a warmup beer (or two), we turn our attention to the aquaculture industry before and during the COVID era, the litigation over Nationwide Permit 48, and how important is it to manage aquaculture as it becomes an increasingly common fixture on the American Shoreline.