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The largest shellfish economy in the US could be shut down by a permitting issue

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A $150 million (€135 million) dollar shellfish industry in Washington state -- the largest in the United States -- could be shutdown due to a byzantine permit issue, members with the Pacific Coast Shellfish Growers Association (PCSGA) say.

In October, US District Judge Robert Lasnik ruled on a lawsuit involving the US Army Corps of Engineers' (USACE) Nationwide Permit 48 (NWP 48), which was issued by the Obama administration in January 2017, and is used by major shellfish growers in Washington state.

Lasnik found that there was not enough evidence in the USACE's record to support the agency’s conclusion that the 2017 NWP 48 complied with the requirements of the Clean Water Act, and that the USACE's environmental assessment did not satisfy the requirements of the National Environmental Policy Act.

"Shellfish growers, of course, are disappointed by the court’s decision," the PCSGA said in a statement. "Many growers in Washington state have operated under NWP 48 for over 12 years, providing a measure of regulatory stability that has been valuable for these businesses."

What this means exactly for major seafood businesses such as Taylor Shellfish in Washington remains unclear, Margaret Pilaro, executive director with the PCSGA told IntraFish.

She did not rule out the possibility of the shellfish industry in Washington state being shut down if NWP 48 is invalidated, explaining that companies need Army Corps' permitting to operate in federal waters under state law. Shellfish farmers are required to secure permits from the Corps in addition to permits or leases issued by an appropriate state or local government agency in US states where they operate.

"We're in this holding pattern," she told IntraFish, noting the judge is currently taking input from the association for how to implement the ruling. The PCSGA is working on a response to the court, she said, which is due October 30.

What's at stake

Washington state is the leading US producer of farmed bivalves, according to the Washington governor's office. The state's shellfish products are sold throughout the United States and exported worldwide, with primary markets in Canada and Hong Kong.

Taylor Shellfish Farm, the nation’s largest oyster producer based in Washington, sells around 36 million oysters per year, according to the company.

Allegations of 'inadequate protections' under the revised permit

In 2017 the Center for Food Safety (CFS) filed the lawsuit against the USACE for the permit, alleging it "green lights a massive expansion of shellfish aquaculture with entirely inadequate protections," according to court documents.

CFS, as well as plaintiffs from separate but similar lawsuits that include The Coalition to Protect Puget Sound Habitat and the Swinomish Indian Tribal Community, have all argued the operations cause substantial environmental harm through pesticide and plastic use in shellfish aquaculture.

The judge acknowledged in his ruling the 2017 updated permit could authorize 72,300 acres of Washington tidelands for commercial shellfish production, and that it increased the acreage that could be permitted in the state under the 2012 version of the permit by nearly 30 percent.

NWP 48 authorizes the installation of buoys, floats, racks, trays, nets, lines, tubes, containers, and other structures into navigable waters of the United States. It also authorizes discharges of dredged or fill material into waters of the United States necessary for shellfish seeding, rearing, cultivating, transplanting, and harvesting activities.

"Washington’s shellfish growers embrace regulations that protect the tidelands and marine wildlife while providing farmers a clear and predictable regulatory process based on science," the association said this month.

Proponents of the USACE's permit say it already requires shellfish growers to meet over 30 conditions jointly developed by the USACE, the National Marine Fisheries Service and the US Fish and Wildlife Service as part of the Endangered Species Act and Essential Fish Habitat consultation processes.

"These additional conditions include restrictions addressing eelgrass protection, plastic and debris maintenance, forage fish protection and a variety of other issues," PGSDA said.

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