Legal Action Taken to Protect Threatened and Endangered Species from Industrial Finfish Aquaculture Operations

Press Release

Legal Action Taken to Protect Threatened and Endangered Species from Industrial Finfish Aquaculture Operations

For Immediate Release
June, 23, 2022

Contact: Meredith Stevenson, 574-309-5620, mstevenson@centerforfoodsafety.org

SAN FRANCISCO—Yesterday, Center for Food Safety (CFS) and a coalition of marine conservation organizations, including trade groups, and the Quinault Indian Nation filed a notice of intent to sue the U.S. Army Corps for its failure to consider impacts to threatened and endangered species when it authorized construction of offshore finfish aquaculture facilities around the country. Industrial finfish aquaculture poses threats to marine ecosystems and endangered whales, salmon, sea turtles, and many other imperiled species, as well as to traditional fishing economies, Tribal Nations’ food security, and the public.

“Offshore industrial aquaculture is essentially factory farming of the sea because it has so many of the same problems we see with land-based factory farms. Large-scale aquaculture facilities wreak havoc on communities and the environment with their massive amount of waste and through their use of antibiotics, pesticides, and other toxic chemicals,” said Jenny Loda, staff attorney at CFS. “Despite acknowledging these threats, the Army Corps ignored its duty to examine how these impacts may harm
threatened and endangered species and contribute to their extinction risk.”

Following a Trump-era Executive Order pressing for rapid advancement and expansion of marine aquaculture facilities, the Army Corps issued a nationwide permit for construction of finfish aquaculture facilities in state and federal waters during the last few days of the Trump administration. In so doing, the Corps skirted much of the required environmental review, including its requirement to ensure that authorization of these facilities does not jeopardize the existence of imperiled species protected under
the Endangered Species Act. The nationwide permit authorizing construction of finfish aquaculture facilities has so far been adopted by Army Corps districts in California, Oregon, Washington, Florida, Texas, Georgia, North Carolina, New York, New Jersey, Philadelphia, and Virginia.

“In granting this far-reaching permit, the Corps failed to comprehensively evaluate even the most obvious and well-established harms that open water commercial net pen pose,” said Emma Helverson, executive director of Wild Fish Conservancy. “This is a reckless and misguided approach to managing species at risk of extinction and directly undermines efforts by local governments, Tribal Nations, and communities throughout the U.S. working tirelessly to protect and restore threatened and endangered species and their habitats.”

“We are very concerned about the use of Corps’ nationwide permit to push forward rapid development of industrial offshore finfish farming,” said Marianne Cufone, executive director of Recirculating Farms. “Each area of the marine environment is unique, and every industrial facility should be reviewed in detail, not fast tracked through a streamlined permit process.”

In addition to the excess nutrients and toxic chemicals associated with industrial finfish aquaculture, the facilities themselves threaten endangered species and other wildlife who may become entangled in the nets or lines or may be disturbed by their lights and noise pollution. Wild fish like endangered salmon are particularly at risk when farmed fish inevitably escape from aquaculture facilities. Escaped fish may outcompete wild fish for food and mates, and transfer diseases, viruses, and parasites to wild populations.

“Open ocean finfish aquaculture so far on the West Coast has been a failure, resulting in massive pollution, disease and parasite problems,” said Mike Conroy, executive director for the Pacific Coast Federation of Fishermen’s Associations, a commercial fishing industry group. “The Corps’ current defective and open-ended permit process will only give us more of the same,” Conroy added.

Rather than thoroughly considering how these potential harms may impact threatened and endangered species, the Corps relied on future analyses of impacts at the project-level once a facility is proposed. However, this does not exempt the Corps from considering the potential impacts of its nationwide authorization as a whole and the cumulative impacts all the potential future facilities taken together will have on endangered species—especially considering the vast ranges of some of the wildlife at issue like endangered whales, sea birds, and sea turtles. Relying on individual evaluations for facilities later down the line creates impermissible piecemeal decision-making that threatens the future survival of endangered species.

“While LA Waterkeeper does not oppose all aquaculture or mariculture activities, we have significant concerns with the streamlined general permit, which we believe will lead to the authorization of finfish aquaculture facilities along the Los Angeles coast, including near several Marine Protected Areas,” said Barak Kamelgard, staff attorney at LA Waterkeeper. “With the Corps failing to consider the adverse impacts of such operations on our diverse marine ecosystems, the risk of biodiversity loss, habitat degradation, and other harms to marine life is too great.”

“California’s Marine Protected Areas (MPAs) were meticulously planned to bolster ecosystem health, improve the resilience of fisheries, and give marine life a chance to rebound from habitat degradation and overfishing,” said Patrick McDonough, senior attorney at San Diego Coastkeeper. “Placing disruptive offshore fish farms near existing MPAs in Southern California will undermine the impact of California’s carefully crafted MPA network.”

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The plaintiffs in this lawsuit are CFS, Don’t Cage Our Oceans Coalition, Wild Fish Conservancy, Quinault Indian Nation, Los Angeles Waterkeeper, San Diego Coastkeeper, Institute for Fisheries Resources / Pacific Coast Federation of Fishermen’s Associations, and Recirculating Farms Coalition. All plaintiffs are represented by counsel from Center for Food Safety.

Photo by Tavish Campabell, tavishcampbell.ca

New Federal Analysis Finds Puget Sound Commercial Net Pens Are Harming Salmon, Steelhead, and Other Protected Fish

A new analysis released by NOAA Fisheries confirms commercial marine net pens operating in Puget Sound are harming threatened and endangered salmon, steelhead, and other protected fish, as well as their critical habitats.

The comprehensive new analysis released in February, called a biological opinion, marks the first-time that federal agencies have ever conducted this type of rigorous formal consultation in the three decades that commercial net pens have operated in Washington waters. The findings represent an important and major shift from the federal agency’s former expert opinion that commercial net pens operating in Puget Sound are unlikely to harm any species protected under the Endangered Species Act.

Under the Endangered Species Act, a biological opinion evaluates the extent of harm a proposed action will have on threatened or endangered species and whether such harm could jeopardize the continued existence of the species. Biological opinions also include conditions for monitoring and reducing harmful impacts to protected species.

The Findings

In the new biological opinion, NOAA Fisheries concludes that while commercial net pen aquaculture is unlikely to cause jeopardy, or in other words, unlikely to be the single cause of extinction for any ESA-listed population, these operations are adversely affecting several of Puget Sound’s threatened and endangered wild fish species and harming their critical habitats. The imperiled species NOAA found are likely to be harmed by the impacts of commercial net pens, include Chinook salmon, steelhead, Hood canal summer-run chum salmon, yelloweye rockfish, and bocaccio rockfish.

The analysis found this harm (that the Endangered Species Act refers to as ‘take’) is reasonably and likely to occur through a variety of mechanisms, including but not limited to:

• degraded water quality from discharged fish waste and other pollutants

• reducing foraging production for juvenile and adult salmonids and other protected fish due to bio-deposits and contaminants

• bycatch of ESA-listed fish during harvest of farmed fish

• predation of ESA-listed fish by farmed fish in net pens

• competition and predation of ESA-listed fish in marine and freshwater ecosystems when farmed fish escape

• reduced reproductive success from interbreeding when farmed fish escape

• bycatch of wild fish during attempts to recover escaped farmed fish

• reduced fitness and survival from the transmission of pathogens to juvenile and adult salmonids from farmed fish

This acknowledgement of harm from the highest level of government is significant, particularly considering one of NOAA’s objectives is to work with the industry to promote and expand aquaculture nationwide. Even through this conservative lens, the agency’s analysis clearly acknowledges the various mechanisms in which Puget Sound’s commercial net pens risk and harm Chinook, steelhead, and other threatened and endangered species and the habitats they depend on.

The net pen aquaculture industry, including Cooke Aquaculture, has emphatically celebrated this report to members of the press and on industry news sites in an attempt to downplay the findings that their operations are harming the very species the public, local governments, and Tribal Nations are working tirelessly to protect and restore.

“The fact that this industry is celebrating that their operations won’t cause the immediate extinction of our threatened and endangered species, but rather will only continue to contribute to their decline is an unacceptably low bar.”

Emma Helverson, Executive Director, Wild Fish Conservancy

How We Got Here

The new biological opinion investigating Puget Sound net pens is the direct result of a decade of legal challenges by Our Sound, Our Salmon organizer Wild Fish Conservancy against NOAA Fisheries and the Environmental Protection Agency (EPA) for failing to comply with the Endangered Species Act in their assessment of the impacts commercial net pens pose to protected species and their ecosystems. Prior to these legal actions, NOAA and the EPA firmly held that net pens were unlikely to harm any ESA-listed species and therefore comprehensive review of the potential effects through a biological opinion had never occurred.

Under the Endangered Species Act, federal agencies are required to go back and ‘reinitiate consultation’ and prepare a new biological opinion in certain cases, such as when new information that previously had not been considered reveals effects of the action that may affect listed species or their critical habitat.

Between 2008 and 2018, Wild Fish Conservancy argued in two separate lawsuits that NOAA and the EPA were required to reinitiate formal consultation and conduct the first comprehensive biological opinion due to the growing scientific record of the potential harm net pens pose, and in response to major pathogen outbreak and escape events that occurred in Puget Sound net pen facilities over that time.

In 2010, a federal Court ruled that NOAA and the EPA had failed to use the best available science when making their decision and ordered the agencies to go back and reconsider whether a biological opinion is prudent. After a brief consultation, NOAA and EPA reported back to the Court that they had determined once again that this formal consultation was unnecessary.

Shortly after this decision, a massive viral outbreak occurred in Atlantic salmon net pens off the coast of Bainbridge Island in 2012 that spread to all three facilities in Rich Passage, persisting for over a month during a time when juvenile wild salmon were out-migrating through Puget Sound and killing over 1 million pounds of farmed Atlantic salmon.

Wild Fish Conservancy again challenged the agencies’ decision to avoid a biological opinion in 2015, a lawsuit that was ongoing when a net pen imploded in the Cypress Island Marine Reserve in August 2017. The collapse released over 260,000 nonnative farmed Atlantic salmon into Puget Sound, fish now known to be infected with an exotic virus imported by the industry and amplified in their net pens undetected by regulators.

Finally in 2018, on the eve of Court proceedings and after a federal Court rejected the agencies’ efforts to dismiss the 2015 lawsuit, NOAA and EPA announced they had entered into formal consultation under the Endangered Species Act. The result of that formal consultation is the new biological opinion released in February 2022.

What’s Next?

NOAA’s acknowledgement of the harm commercial net pens pose is a major step forward, however significant concerns remain over how federal regulators intend to minimize that harm or ‘take’ they report is reasonable and likely to occur. The biological opinion includes a section on ‘Reasonable and Prudent Measures’, however this mitigation relies entirely on NOAA and the EPA reviewing monitoring data and reports the commercial net pen industry is already required to submit to Washington state agencies as part of their existing permits.

In short, the primary strategy for minimizing or eliminating harm to our most threatened or endangered fish populations depends directly on the commercial net pen industry self-monitoring and self-reporting their own violations. This is particularly concerning given Puget Sound’s current and only commercial net pen operator Cooke Aquaculture has demonstrated a pattern and practice of violating state and federal law, both in Puget Sound and around the world. While leasing public waters in Washington, Cooke Aquaculture has violated the terms of their permits, leases, and was held accountable for $2.75 million in Clean Water Act violations (including failure to accurately report.)

It is imperative that federal and state agencies work together to address this failed regulatory approach that is unlikely to prevent catastrophic events before the occur and will only continue to put threatened and endangered wild salmon, steelhead, tribal treaty rights, and the public’s interest at risk.

Cooke Aquaculture Faces New Lawsuit

Cooke Aquaculture Faces New Lawsuit Over Puget Sound Net Pens Harm to Threatened and Endangered Orcas, Chinook, Steelhead, and Other Protected Wild Fish

Photo: WA Department of Natural Resources

This week, the group leading the Our Sound, Our Salmon campaign, Wild Fish Conservancy, issued notice of our intent to sue seafood corporation Cooke Aquaculture Pacific for harming threatened and endangered salmon, steelhead, orcas, and other protected species through operations at the company’s Puget Sound net pens. The notice letter delivered to Cooke earlier this week, describes Wild Fish Conservancy’s intent to file suit in 60-days unless these ongoing violations of the Endangered Species Act (ESA) are promptly addressed and corrected. Wild Fish Conservancy is represented in this matter by Kampmeier & Knutsen, PLLC, of Portland, Oregon and Seattle, Washington.

The notice letter explains that Cooke’s net pen facilities kill, capture, trap, harm and otherwise “take” federally-protected species without authorization violating section 9 of the ESA. According to the ESA, “take” means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."

This harm is impacting a variety of iconic, protected Puget Sound species including Chinook salmon, steelhead, bull trout, chum salmon, Boccaccio, Yelloweye Rockfish, and Southern Resident killer whale.

This take results from a variety of mechanisms that occur during Cooke’s regular operations, as well as catastrophic events all too well known here in Puget Sound, including:

• bycatch* or incidental harvest of ESA-listed fish during Cooke’s harvest operations

• the false attraction of ESA-listed fish and their predators to Cooke’s operations that causes disruption of essential behavior patterns and increased predation on protected fish species

• the spread and amplification of harmful viruses, parasites, and diseases like sea lice or Piscine Reovirus (PRV) from infected farmed fish to wild, ESA-listed populations

• bycatch of ESA-listed fish during efforts such as occurred following the Cypress Island collapse in 2017 to recover farmed fish that have escaped from Cooke’s net pens

• chronic and episodic escape events that result in Cooke’s farmed fish degrading the genetics of threatened steelhead populations, and competing with ESA-listed fish species for food, habitat, and mates

*(bycatch is a fish or other marine species that is caught unintentionally while catching certain target species and target sizes of fish. These unintentionally caught animals often suffer injuries or die.)

Wild Fish Conservancy director Kurt Beardslee stands over a tote of escaped Atlantic salmon recovered following the Cypress Island collapse. WFC’s research found and exposed that nearly 100% of the fish that escaped were infected with an exotic virus from Iceland where Cooke Aquaculture purchased their Atlantic salmon eggs. The escape of these infected fish and efforts to recover them likely resulted in the bycatch of threatened and endangered fish and the spread of this potentially lethal and exotic virus to protected populations of wild salmon and other fish.

“For over thirty years, and now under Cooke’s ownership, commercial net pens in Puget Sound have been harming the very species in which the public, Tribal Nations, and all levels of government have invested millions of dollars annually to recover and protect. We cannot allow this industry to continue profiting in our public waters while pushing imperiled salmon, steelhead, orcas and other iconic fish species closer to extinction.”

Kurt Beardslee, Executive Director of Wild Fish Conservancy

Photo: NOAA

Our notice letter to Cooke further explains that Cooke’s operations also harm ESA-listed Southern Resident killer whales by harming and killing Puget Sound Chinook and other salmon species which serve as a critical component of the whales’ diet. This orca population is considered severely endangered due primarily to inadequate prey availability and one the public has invested significant resources to recover and protect. Several populations of Puget Sound Chinook have already become extinct, and several others—including those within the Nooksack, Lake Washington, mid-Hood Canal, Puyallup, and Dungeness basins—have experienced critically low returns of less than 200 adult fish in recent years.

The claims in our notice letter are supported by a new analysis by the Environmental Protection Agency (EPA) which found Cooke’s net pens are “likely to adversely affect” several iconic fish populations listed under the ESA, including Chinook salmon, steelhead, chum salmon, Bocaccio, and Yelloweye Rockfish in the Puget Sound region.

As a result, NOAA Fisheries is currently conducting a comprehensive review, known as a biological opinion, under the ESA to further analyze and expand upon the EPA’s initial finding. A biological opinion is a document stating the opinion of the Fish and Wildlife Service or NOAA Fisheries on whether or not a federal action is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat. Once complete, this federal consultation is expected to subject Cooke to new requirements necessary to protect threatened and endangered species from further harm and may even require modifications of Cooke’s current permits from the Department of Ecology and Fish and Wildlife.

Even our federal agencies acknowledge net pens cannot operate in Puget Sound without causing harm to protected species. As long as Cooke continues to operate commercial net pens in our public waters, this harm to threatened and endangered species will continue to occur.

Our Sound, Our Salmon encourages Cooke to join with progressive companies throughout the industry working in good faith to be a part of the solution and embracing the global transition to land-based, closed containment facilities that are capable of operating without harming the environment.

This lawsuit would represent the second major case filed by Wild Fish Conservancy against Cooke Aquaculture since the company acquired all the commercial net pens in Puget Sound. In November 2019, Cooke was required to pay $2.75 million as a result of a Clean Water Act lawsuit brought by Wild Fish Conservancy following a massive net pen collapse that released over 250,000 nonnative Atlantic salmon infected with an exotic virus into Puget Sound. These funds are now contributing over one million dollars to the new ‘Orca’ fund, a rant program funding research and community outreach projects working to recover and protect endangered Southern Resident killer whales.

Read the full 60-day notice of intent to sue

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