Salmon Farm Impacts To Wild Juvenile Salmonids In The Puget Sound – ESA and Standing Implications

Wed Nov 11th, On Environmental Law, by

On November 4, 2015, the Wild Fish Conservancy on challenged the U.S. Environmental Protection Agency and National Marine Fisheries Service’s 2011 determination that Puget Sound commercial salmon farms are not likely to have any adverse effect on threatened fish including the Chinook salmon and steelhead trout under the Endangered Species Act.

In 2012, there was a severe outbreak of an infectious hematopoietic necrosis virus, or IHNV, at commercial salmon farms in Bainbridge Island, Washington, when wild juvenile salmonids were migrating through the nearshore environment. EPA and NMFS decided against formal consultation under Section 7 of the ESA. Typically Section 7 concludes with NMFS’ issuance of a biological opinion determining whether an action is likely to jeopardize ESA-protected species or result in adverse modification of critical habitat. In this case, no opinion was rendered.

The Puget Sound Chinook salmon was listed as a threatened species in 1999. The Chinook are predominantly ocean-type fish because they migrate to saltwater during their first year and spend little time in freshwater. Estuaries and nearshore environments are their habitat, particularly in the Puget Sound.

Commercial salmon farms house fish in net pens, which are floating facilities that contain young and mature salmon using in open water, contained in netting, until they are cultivated to a marketable size. At present, eight Atlantic salmon net pen facilities are operating in Puget Sound. They produce over 10 million pounds of salmon annually. The facilities are located near Deepwater Bay of Cypress Island north of Anacortes, south of Bainbridge Island, northeast of Port Angeles Harbor, and in Skagit Bay. The facilities are considered point sources of pollution under the Clean Water Act and have permits to operate.

The Wild Fish Conservancy lawsuit alleges that these farms amplify and transmit diseases and parasites to the wild Chinook in their habitat. In addition, the complaint alleges that the farms result in smothering of the sea floor by waste food, fish feces, and other pollutants, including chemicals from antibiotics and pesticides. Finally, the complaint alleges that the farms modify the Chinook habitat and that the farmed Atlantic salmon can escape and colonize as an exotic species, possibly taking over the Chinook habitat and drive out the native species. The ESA-listed salmonids that are threatened include the Puget Sound Chinook salmon, the Puget Sound steelhead, and the Hood Canal summer-run chum salmon.

An important question in this case is standing in the federal courts, which is limited to disputes determined to be “cases and controversies” arising under Article III of the U.S. Constitution. In order to have standing, a plaintiff must show an “injury in fact” that is concrete and particularized (personal to the plaintiff) and actual and imminent (not hypothetical or conjectural). The injury must be fairly traceable to the challenged conduct of the defendant and must be likely, rather than merely speculative, that the injury will be redressed by a favorable court decision. Associations, like the Wild Fish Conservancy, may have standing to represent their members’ interests when alleging at least one member would have standing in his own right. In addition to Article III, plaintiffs must satisfy certain prudential limitations, including the “zone of interests” test, which requires that a plaintiff’s grievance fall within the zone of interests protected by the statutory provision invoked in the suit.

Recently in WildEarth Guardians v. United States Dep’t of Agric., No. 13-16071, 2015 U.S. App. LEXIS 13485 (9th Cir. Aug. 3, 2015), in response to a standing challenge, the Ninth Circuit found that, when alleging a procedural injury, such as a NEPA violation, the plaintiff must show the procedures in question are designed to protect some threatened concrete interest specific to the plaintiff.  The court found WildEarth claimed a sufficient procedural injury when one of its members declared the USDA’s failure to supplement the programmatic EA with more recent information regarding the impacts of the management program, which lessened his ability to enjoy and view wildlife. The Ninth Circuit also found that plaintiffs sufficiently established a procedural injury, so they could then be held to a relaxed standard of causation and redressability — a plaintiff need only show that he has a procedural right that, if exercised, could protect his concrete interest.  WildEarth demonstrated that its members’ recreational and aesthetic interests to view wildlife could have been protected and that if the agency had followed the correct procedures it would have influenced the agency’s ultimate decision.

Similarly, in Ctr. for Biological Diversity v. United States DOI, No. 15-cv-00658-JCS, 2015 U.S. Dist. LEXIS 112974 (N.D. Cal. Aug. 24, 2015), the district court addressed whether the Center for Biological Diversity (CBD) had standing to challenge the United States Fish and Wildlife Service’s (USFWS) failure to consult under Section 7 of ESA. EPA was obliged to consult with the USFWS and obtain the USFWS’s biological opinion on whether the action would likely have impacts, and if so, whether there are reasonable and prudent alternatives to avoid such impacts.

The CBD filed suit against the USFWS alleging the agency failed to timely consult with EPA on the registration of certain pesticides in violation of ESA Section 7(b)(1), which requires consultations be completed in 90 days.  In response, the USFWS challenged CBD’s standing, arguing that CBD’s claim was not within the “zone of interests” protected by Section 7(b)(1).

The district court held CBD had sufficient standing to maintain its suit finding that the “zone of interests” test should only be a bar when the plaintiff’s interests are marginally related to or inconsistent with the purpose of the statutory provision.  The court found that CBD’s procedural claims are arguably within the zone of interests of the provision at issue because the 90-day deadline furthers the ESA’s substantive goals of species protection. The court also found that CBD satisfied the causation requirement because the failure to consult resulted in not studying the effects of the pesticides on the listed species and, in turn, failed to identify whether certain reasonable and prudent alternatives might be necessary to protect the species against jeopardy. The court also found that CBD met the “injury in fact” requirement for Article III standing because the complaint included sufficient allegations supporting its members’ interest in the listed species.

In the recently filed Wild Fish Conservancy case in Washington, the plaintiffs are seeking an injunction requiring the EPA and the NFWS to comply with the ESA and consider the impact of the outbreak of IVF from commercial salmon farms on the wild juvenile salmon migrating through the area. In light of the recent 9th Circuit rulings discussed above, it is likely the plaintiffs will survive a standings challenge.

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