Shellfish Aquaculture

In 2015 I was asked to assist the Coalition to Protect Puget Sound Habitat fight the massive proliferation of industrial scale shellfish aquaculture operations. These operations were being permitted by the US Army Corps of Engineers under Section 404 of the Clean Water Act (CWA), that the Rivers & Harbors Act (RHA) via NationWide Permit #48. The authorization under NWP 48 had gone from less than a hundred, to almost a 1,000 in a short period of time. The Corps was, however, regularly ignoring the input of concerned citizens and the cumulative impact of their authorizations under NWP 48.

I helped develop and implement a strategy to challenge the use of NWP 48 for these operations. After building a solid record with detailed well supported comments, we ultimately sued in 2016. Then when the Corps adopted a revised (worse) NWP 48 in 2017, we renewed out suit. A copy of that Complaint is below:

We briefed the matter and ultimately prevailed. A copy of the Opinion from October 2019 is below:

We tried hard to settle the case, but the Industry was basically unwilling to negotiate and the Corps wouldn't negotiate a resolution without the Industry. So we briefed and argued the Remedy. The court ultimately issued a Remedy decision adopting almost all of our proposed resolution. A copy of that Opinion is below:

The Industry filed an emergency appeal to the Ninth Circuit. We opposed. After expedited briefing and oral argument, the Ninth Circuit in very short order, issued a Memorandum Opinion affirming the District Court decisions on both the Merits and Remedy. A copy of that opinion is below: