By Andrew Hockenberry | Staff Editor

April 22, 2024

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For many, the problems created by net pen aquaculture are out-of-sight, out-of-mind. Below the surface waters, net-pens trap dense stocks of salmon in a slurry of waste and pathogens, endangering wild fish that swim past and suffocating life on the seabed.[1] Fish escape during transfers, extreme tides, and from holes in the nets.[2] Once in the wild, the escapees wreak havoc on wildlife for hundreds of miles up and down the coast.[3] On distant coasts, fish are harvested by the ton, ground up, and then fed to other fish—only to create less fish.[4] But, when affordable salmon appears on grocery store shelves, images of murky water, parasite-covered salmon, or depleted fisheries do not come to mind. Nor should they have to. Sustainable alternatives to net pen aquaculture exist. Several states have successfully banned net pen aquaculture and supported such alternatives.[5] In Washington, however, a loophole in the state statute phasing out net pen aquaculture creates an opportunity for industries to perpetuate the harms of this practice.

On August 19, 2017, moorings anchoring a net pen in Washington’s Puget Sound failed.[6] Over 250,000 Atlantic salmon were released into Puget Sound.[7] With “widespread public concern” following this catastrophe, the Washington legislature enacted a statute to “phase out nonnative fish farming in Washington waters.”[8] The statute calls on agencies to design statewide guidance to eliminate harms perpetuated by this practice.[9] Except for Section 1, the Governor signed the bill into law.[10]

Wildlife and environmental advocates saw the new law as a victory.[11] However, Cooke Aquaculture (“Cooke”), the collapsed net pen owners, saw an opportunity. In January 2019, Cooke submitted a proposal to transition its farming operations from nonnative Atlantic salmon to native steelhead trout.[12] The Washington Department of Fish and Wildlife (“the Agency”) approved the proposal and issued a mitigated determination of nonsignificance (MDNS) under the State Environmental Policy Act (SEPA). The Agency concluded that “the steelhead net-pens will not have a probable, significant adverse impact on the environment.”[13] The Wild Fish Conservancy brought suit, challenging the MDNS.[14] Ultimately, in January 2022, the Washington Supreme Court found that the Agency did not violate SEPA when they issued an MDNS allowing Cooke to transition to steelhead trout with specific conditions.[15]

Washington’s Commissioner of Public Lands, Hilary Franz, responded quickly. Remaining steadfast in her promise to phase out net pens in Washington, Commissioner Franz denied Cooke’s lease renewal.[16] And, on November 17, 2022, she issued Commissioner’s Order 202211 (“the Order”), which called for the development of “necessary changes to agency rules . . . to prohibit commercial finfish net pen aquaculture on state-owned aquatic lands.”[17]

Initially, the Order was viewed as a ban on net pen aquaculture.[18] However, both Cooke and their venture partner, Jamestown S’Klallam Tribe,[19] challenged the denial of their lease renewal and the Order itself.[20] A superior court “gutted” Cooke’s challenge by issuing a “summary judgment against most of its claims.”[21] Alternatively, the Jamestown S’Klallam Tribe—and net pen aquaculture proponents—were optimistic with their summary judgment hearing when Judge Indu Thomas concluded that the Order “has no legal effect.”[22] However, it remains to be seen how the Order will impact the aquaculture industry in Washington or what subsequent challenges will bring.

While the back-and-forth continues in Washington, all other states along the Pacific Coast—California, Oregon, and Alaska—have successfully banned net pen aquaculture.[23] In California, the state legislature mandates the California Department of Fish & Wildlife provide a “detailed environmental impact statement” for any project affecting salmon and steelhead resources.[24] Further, the California Department of Fish & Wildlife issues regulations restricting certain species to “closed-water systems.”[25] These closed-water systems “ensure against the release of live organisms, including parasites, pathogens, and viruses, into waters of the state.”[26] Through these statutes and regulations, California has successfully kept aquaculture companies from perpetuating the harms associated with net pen aquaculture.

The Washington State legislature should amend Sections 77 and 79 of the Washington Revised Code. Like Section 1015 of California’s Fish & Game Code, the amendment should require the Agency to conduct a detailed environmental impact statement, as SEPA requires, that considers reasonable alternatives, including no action. The amendment would apply to any action impacting the salmon and steelhead populations and resources in state waters. An amendment that mandated an environmental impact statement would eliminate the “threshold question” of whether the action has an adverse environmental impact.[27] Here, the legislature would answer that question affirmatively. Therefore, the only proper determination is that any action impacting salmon or steelhead resources requires the Agency to prepare a detailed environmental impact statement, not an MDNS.

 Additionally, the amendment should incorporate the language used by Commissioner Franz. In Commissioner’s Order 202211, Commissioner Franz used the language “commercial finfish.”[28] This amendment would close the loophole. By changing “nonnative” to “commercial” in the state statutes,[29] Cooke could not move forward with its proposal to transition its net pens from nonnative fish to native fish.[30]

Further, the amendment should authorize the Agency to restrict specific species to closed-water systems or recirculating aquatic systems (RAS). RAS do not adversely affect local fish populations because commercial finfish raised in RAS never interact with local fish. If finfish were confined to RAS, there would be both safer food products and a safer marine ecosystem. Importantly, this amendment would not ban aquaculture generally but would encourage sustainable alternatives. In the end, Washington benefits from a better domestic supply of fish, keeping prices low for this important food, and a healthier environment.

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[1] Douglas Frantz & Catherine Collins, Salmon Wars 98 (2022).

[2] Id.

[3] Id.

[4] Id. at 24

[5] Isabella Breda, WA Bans Commercial Net-Pen Fish Farming in State Waters, Seattle Times (Nov. 18, 2022), https://www.seattletimes.com/seattle-news/environment/wa-lands-commissioner-bans-net-pen-fish-farming-in-state-waters.

[6] Wild Fish Conservancy v. Cooke Aquaculture LLC, No. C17-1708-JCC, 2019 WL 6310660, at *1 (W.D. Wash. Nov. 25, 2019) (discussing the order denying defendant’s motion to exclude expert testimony and granting and denying in parts plaintiff’s motion for summary judgment).

[7] Wild Fish Conservancy v. Wash. Dep’t Fish & Wildlife, 502 P.3d 359, 363 (Wash. 2022).

[8] Id. (citing Wash. Rev. Code § 79.105.050 and Wash. Rev. Code § 77.125.050) (emphasis added).

[9] Id. (citing 2018 Wash. Sess. Laws 944–950) (emphasis added).

[10] 2018 Wash. Sess. Laws 950 (explaining that the Governor’s reasons for vetoing Section 1 were because he felt it was “unnecessary [for] implement[ing] the bill” and he did “not agree with all the assertations”); see generally 2018 Wash. Sess. Laws 944 (“[M]arine finfish aquaculture in general may pose unacceptable risks not only to Washington’s native salmon populations but also to the broader health of Washington’s marine environment.”).

[11] See Our Sound, Our Salmon, https://www.oursound-oursalmon.org/we-did-it (last visited Mar. 27, 2024); see also Linda V. Mapes, Washington State Senate OKs Phasing Out Atlantic Salmon Net-Pen Farming, Seattle Times (Feb. 8, 2018), https://www.seattletimes.com/seattle-news/environment/washington-state-senate-oks-phasing-out-atlantic-salmon-net-pen-farming.

[12] Wash. Dep’t Fish & Wildlife, 502 P.3d at 363 (emphasis added).

[13] Id. at 364; see also Wash. Dep’t Fish & Wildlife, Justification for the Mitigated Determination of Non-Significance (MDNS) for Wash. Dep’t Fish & Wildlife SEPA 19-056 and for the Approval of Cooke Aquaculture Pacific’s Marine Aquaculture Permit Application (Jan. 21, 2020) [hereinafter Permit Justification], https://wdfw.wa.gov/sites/default/files/2020-01/marine_aquaculture_permit_justification.pdf.

[14] Wash. Dep’t Fish & Wildlife, 502 P.3d at 365.

[15] Id. at 380.

[16] Wash. Dep’t Nat’l Res., Commissioner Franz Cancels Leases for Remaining Net Pen Salmon Farms in Puget Sound (2022), https://www.dnr.wa.gov/news/commissioner-franz-cancels-leases-remaining-net-pen-salmon-farms-puget-sound.

[17] Wash. Dep’t Nat’l Res., Commissioner Order 202211 (2022) [hereinafter Order 202211], https://www.dnr.wa.gov/publications/em_commissioners_order_net_pens.pdf.

[18] See Breda, supra note 5.

[19] Jamestown S’Klallam Tribe, https://salishfish.net/ (highlighting their partnership with Cooke Aquaculture).

[20] Bellamy Pailthorp, Cooke Aquaculture Files Suit Over Terminated Net Pen Leases in WA, KNKX Pub. Radio (Dec. 14, 2022), https://www.knkx.org/environment/2022-12-14/cooke-aquaculture-files-suit-over-terminated-net-pen-leases-in-wa.

[21] Cliff White, Divergent Outcomes for Cooke, Jamestown S’Klallam Lawsuits Against Washington DNR, SeafoodSource (Sept. 22, 2023), https://www.seafoodsource.com/news/premium/aquaculture/divergent-outcomes-for-cooke-jamestown-s-klallam-lawsuits-against-washington-dnr.

[22] See Northwest Aquaculture Alliance, Washington State’s Commercial Net Pen Ban “Has No Legal Effect,” Court Says; Commissioner’s Order Ruled as “An Internal Policy Directive”—Not a Ban, Perishable News, (Oct. 23, 2023), https://www.perishablenews.com/seafood/washington-states-commercial-net-pen-ban-has-no-legal-effect-court-says-commissioners-order-ruled-as-an-internal-policy-directive-not; see also Chris Chase, Judge Rules Net-Pen Ban in Washington State “Has No Legal Effect”, SeafoodSource (Oct. 23, 2023), https://www.seafoodsource.com/news/premium/aquaculture/judge-rules-net-pen-ban-in-washington-state-has-no-legal-effect.

[23] Breda, supra note 5 (“Net-pen fish farming has already been outlawed in California, Oregon, and Alaska.”).

[24] Cal. Fish & Game Code § 1015.

[25] Cal. Code Regs. tit. 14, § 671.7(b).

[26] Id. at § 671.7(a).

[27] See Wash. Dep’t Fish & Wildlife, 502 P.3d at 365 (explaining that SEPA allows for a third determination to the “threshold question,” which asks “whether the action will result in ‘probable significant adverse environmental’ impacts”).

[28] Order 202211, supra note 17.

[29] See Wash. Rev. Code § 79.105.050; see Wash. Rev. Code § 77.125.050.

[30] See generally Permit Justification, supra note 13 (approving Cooke’s proposal to transition from Atlantic salmon to steelhead trout).