Don’t Cage Our Oceans v. U.S. Army Corps of Engineers

The court found that the Corps failed to adequately consider the cumulative and potentially adverse impacts that would result from the finfish structures and activities. While the Corps contended that because NWP 56 did not authorize the activities and operation of the structures, and thus only need focus on the impacts that the structures themselves would cause, the court held that the Corps should have considered activities that would inevitably follow completion of the structures. Moreover, the court found that the Corps' contention that a site-specific review of each aquaculture facility would be adequate was unpersuasive, instead finding that the Corps' inability to assess the finfish aquaculture activities ahead of time may indicate that "perhaps these activities are not amenable to authorization via a nationwide permit." The court dismissed plaintiff's allegation that the Corps acted outside the scope of its authority by issuing NWP 56. In reviewing the approved practice of the Corps and legislative history, the court found that NWP 56 fell within the Corps' OCSLA authority. Additionally, the court rejected the plaintiffs' claims that the Corps acted unconstitutionally be conveying property rights.

A lawsuit filed in the federal district court for the Western District of Washington challenged the U.S. Army Corps of Engineers’ issuance of Nationwide Permit 56 authorizing industrial finfish aquaculture structures in federal waters. The plaintiffs asserted that the Corps’ issuance of the permit exceeded its powers under the Constitution’s Property Clause, the Outer Continental Shelf Lands Act, and the Rivers and Harbors Act (RHA) and violated the RHA, the Administrative Procedure Act, the National Environmental Policy Act (NEPA), the Endangered Species Act, and the Magnuson-Stevens Act. The alleged violations under NEPA included that the decision document did not fully assess the incremental impact of permitting finfish aquaculture nationwide, combined with other existing and foreseeable impacts from other activities, including climate change.