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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.” 

© 2020 Beveridge & Diamond PC National Law Review, Volume IX, Number 291


About this Author

Allyn L. Stern Environmental Attorney Beveridge & Diamond Seattle, WA
Of Counsel

Allyn brings over 30 years of insider understanding of government operations.

Her experience as former Region 10 Counsel at the Environmental Protection Agency (EPA) informs her deep policy, regulatory, and enforcement knowledge. Allyn draws on her breadth and depth of expertise to help clients comply with an array of environmental statutes and regulations applicable to their businesses, including Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) permit approvals, risk management under the Clean Air Act 112(r), civil and criminal enforcement, Superfund cleanup...

Erika H. Spanton Environmental Litigation Attorney Beveridge & Diamond Seattle, WA

Erika H. Spanton represents clients in environmental litigation matters, including climate change lawsuits, Clean Water Act citizen suits, and actions under state water quality laws, CERCLA, and state Superfund statutes. Her regulatory practice focuses on water matters, including stormwater regulation, SPCC compliance, and aquaculture.

Erika comes to Beveridge & Diamond with extensive civil litigation experience. As an Associate at Cole | Wathen | Lead | Hall, her practice focused on litigation defense for insurance carriers, businesses, and individuals in a broad range of state and federal matters at each stage of litigation, including settlement negotiations, mediations, arbitration, and trial. Prior to Cole | Wathen | Leid | Hall, Erika represented plaintiffs in diverse civil litigation matters.

Erika earned her B.A. from Middlebury College, graduating magna cum laude with a double major in Political Science and Environmental Studies (high honors in Environmental Studies). Her background includes extensive climate change, ecology, fisheries, and environmental science course and fieldwork. Erika received her law degree from Lewis & Clark law school, graduating with a Certificate in Environmental and Natural Resources Law. During law school, Erika was on the Lewis & Clark Law Review editorial board, competed in Moot Court, and received the Pro Bono Honors Award in recognition of her commitment to public interest volunteer work.

Kirstin K. Gruver Environmental Litigation Attorney Beveridge & Diamond Seattle, WA

Kirstin Gruver is efficient and responsive to clients' needs.

She maintains a diverse environmental litigation and regulatory practice, working with clients nationwide across industrial sectors with a focus on wetlands and water issues. She also has experience in product stewardship and sustainability matters.

Prior to joining Beveridge & Diamond, Kirstin worked as a deputy prosecuting attorney at the Clark County Prosecutor's office. She also worked as a legal intern with the Department of Transportation, Maritime Administration, and as a summer clerk at Earthjustice....