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.

A Second Court Rejects Cooke Aquaculture’s Challenge Over Termination of Port Angeles Net Pen Lease

This week, Cooke Aquaculture faced yet another legal defeat when a second Washington court rejected their efforts to sue Washington state over the termination of the company’s lease for their Port Angeles net pen operation.

On Tuesday, Washington’s Court of Appeals issued an opinion affirming a lower court ruling upholding the Department of Natural Resources’ (DNR) decision to terminate the lease.

The Court’s decision represents another major step forward in the public’s hard-fought efforts to remove this dirty industry from Puget Sound waters. Our Sound, Our Salmon applauds the Courts for putting our natural resources and the interest of the public ahead of this powerful corporate interest.

Cooke Aquaculture’s net pens in Port Angeles Harbor prior to being removed after the termination of the lease in December 2017.

This week’s decision concludes a nearly four-year appeal process that began in early 2018 when Cooke filed suit against DNR, arguing the agency had wrongfully terminated the lease ahead of the 2025 expiration date. In 2020, a Thurston County Superior Court Judge rejected Cooke’s challenge and the company appealed the decision to the Court of Appeals which issued the opinion this week.

DNR terminated the lease in December 2017 after an investigation revealed various violations at the Port Angeles facility, including operating outside of its boundaries, failure to pay rent timely, and not operating the facility in a safe condition. Shortly following the termination, the net pens were completely removed from Port Angeles Harbor. 

“My duty to the people of Washington is to protect our state lands and waters, while also generating revenue for schools, essential services, and restoration of natural areas like Puget Sound. After the collapse of Cooke’s Cypress Island net pen in August, which released 160,000 non-native salmon into our waters, I directed my staff to inspect every net pen site in the state to ensure that Cooke was meeting its contractual obligations and that our waters are safe.

 “It is now clear that Cooke has been violating the lease terms for its Port Angeles net pens. In light of this violation, and in fulfillment of my commitment to protect our lands and waters, I am terminating the lease.”

Hilary Franz, Commissioner of Public Lands, December 17, 2017

This week the Court overwhelming rejected Cooke’s opinion that the decision to terminate the lease was arbitrary and capricious, finding DNR’s decision “was based on facts supported by substantial evidence, pursuant to plain terms of the contract, was well reasoned and made with due regard to the facts and circumstances.” 

Cooke Aquaculture was found at fault for the August 2017 collapse of their Cypress Island net pen within the Cypress Island Marine Reserver and Conservation Area. The collapse released over 260,000 nonnative fish into Puget Sound that were infected with an exotic, debilitating virus. Photo: Wild Fish Conservancy

Cooke is also suing DNR in a separate ongoing lawsuit over the early termination of the company’s Cypress Island lease.  The lease was terminated following the 2017 catastrophic collapse of a Cooke net pen that released over 260,000 nonnative Atlantic salmon infected with an exotic virus into Puget Sound.

FURTHER READING: Washington state cancels lease for Cooke Aquaculture Atlantic salmon farm near Cypress Island | The Seattle Times

A comprehensive investigation by DNR and other Washington agencies found Cooke at fault for the collapse and Cooke was also required to pay $2.75 million in Clean Water Act violations in a lawsuit brought by Wild Fish Conservancy. The collapse also resulted in Washington passing a landmark and widely celebrated law banning all nonnative Atlantic salmon finfish aquaculture, Cooke’s only enterprise at the time.

“I hope the public will join me in thanking Commissioner of Public Lands Hilary Franz and her department for their unwavering commitment to protecting Puget Sound in the face of Cooke’s meritless, costly, and time-consuming lawsuits. Under Commissioner Franz’s leadership, DNR has a proven record as the only regulatory agency in Washington willing to take bold action to hold this dangerous industry accountable.”

Kurt Beardslee, Executive Director of Wild Fish Conservancy & Founder of Our Sound, Our Salmon

In a controversial decision, the Washington Department of Fish and Wildlife permitted Cooke in 2020 to begin rearing steelhead in their Puget Sound net pens where the company holds valid leases. With the Cypress Island and Port Angeles leases terminated by DNR, Cooke only holds valid leases for two net pen sites in Puget Sound. Both leases will expire next year, and Cooke will need to apply and secure new leases from DNR to continue operating in Washington. In a letter to Cooke earlier this year, DNR warned the company that the agency has not yet decided if they will issue Cooke new leases.

This week’s Court decision could not have come at a more important time. With Cooke’s only existing leases set to expire next year, DNR is in a critical decision-making period that will determine the future of this industry in Puget Sound. The Court’s decision removes any opportunity for Cooke to try and recover millions in lost revenue from DNR, which would have provided Cooke important leverage to potentially negotiate their future and new leases in our public waters.

In July 2020, Wild Fish Conservancy submitted official applications to DNR requesting to lease all of the sites used by Cooke for commercial net pen aquaculture. This alternative proposal, the Taking Back Our Sound Restoration Project, seeks to hold these waters in public trust for the sole purposes of restoring these polluted sites to their natural state and restoring the public’s access to over 130 acres of Puget Sound that have been restricted for private profit for over three decades.

Through the Our Sound, Our Salmon campaign — Taking Back Our Sound — this proposal is now supported by a broad-based coalition of over 100 businesses and organizations and over 6,000 individuals who have signed onto the petition to Commissioner Franz calling on DNR to not extend, renew, or reissue leases for commercial net pen aquaculture in Puget Sound and to instead lease these waters for this unprecedented restoration project.

The expiration of these leases comes only once in a decade and offers the public a rare opportunity to work together to take back our sound from the net pen industry. Cooke’s first lease will expire in March 2022, therefore it’s critical at this time that we continue to work together to call on DNR to make the right decision for wild fish and the health of Puget Sound.

Add your name to the petition to Commissioner Franz!

Sign on your business, organization, or group!

Despite Pending Court Decision, Cooke Aquaculture Gets Greenlight to Stock Hope Island Net Pen

Yesterday, despite ongoing litigation and prior to finalizing updates to emergency response plans critical to protecting wild salmon, the Washington Department of Fish and Wildlife (WDFW) granted fish farm giant Cooke Aquaculture a transport permit to begin planting steelhead/ rainbow trout in their Hope Island net pen facility.

Hope Island net pen near the mouth of the Skagit River, Puget Sound’s most important salmon bearing river. Photo by Steve Ringman, Seattle Times

The timing of this decision has perplexed many throughout Puget Sound given next month the Washington Supreme Court will hold trial to determine whether WDFW violated state law by approving Cooke Aquaculture’s project proposal to transition their Puget Sound net pens to steelhead/ rainbow trout without adequately considering the environmental risks.

If the Court rules against WDFW, all of Cooke’s existing permits and the underlying environmental review will be invalidated until WDFW conducts the comprehensive environmental impact statement requested by salmon and orca advocates, six Tribal Nations, elected officials, and thousands of members of the public.

As a result, Cooke’s permits could be revoked while they have farmed fish rearing in their net pens, a less than ideal situation that could result in a lengthy and expensive legal battle and has the potential to place an unnecessary financial burden on the public. Just as concerning, if not more, is the potential harm and impact to threatened and endangered wild fish populations and the health of Puget Sound that could occur during the time these fish are in the water. By revoking the permits the Court would be agreeing that the environmental review did not adequately consider or address the environmental impacts of this project, further highlighting the recklessness of this rushed decision to allow Cooke to stock their pens before challenges of the permitting process are complete.

“Right now, Washington’s highest court is deciding whether Cooke Aquaculture’s new project should have ever been approved. This decision to approve the transport of fish into Puget Sound net pens while the court's decision is pending is reckless and further demonstrates an alarming pattern of state agencies putting the wishes of a billion-dollar industry ahead of wild salmon recovery, tribal treaty rights, and the public’s best interest.”

Kurt Beardslee, Executive Director, Wild Fish Conservancy

During the August 6th Fish and Wildlife Commission meeting a day after the transport permit was granted, WDFW Director Kelly Susewind defended the decision pointing out that currently, Cooke has a valid lease and valid permits to operate at its Hope Island site despite pending litigation, and that the agency can find no legal basis to deny the transport permit. This explanation suggests WDFW either does not have authority to delay issuing a permit even when there is a financial and ecological risk, or they have the authority but choose to take an action that directly benefits Cooke at the expense of threatened and endangered species and the public’s best interest. Even if Cooke can legally be granted a transport permit, meeting bare minimum legal requirements is not an appropriate or precautionary approach to managing species threatened or endangered with extinction.

The new permit, signed August 5th by the department, will allow for 365,000 steelhead to be transported and placed in Cooke’s facility off Hope Island located at the mouth of the Skagit River— one of Washington’s most important salmon bearing rivers.

Much like Cooke Aquaculture’s permits, the future of the company's leases also face uncertainty. The existing lease for the Hope Island facility expires in March 2022 and Cooke will need to secure a new lease in order to continue operating. Based on Cooke’s own timeline, this lease expiration will occur long before the 365,000 steelhead at this facility would reach a harvestable size. Without a valid lease for this farm beyond that deadline, Cooke would be required to remove these fish, as well as all of their net pen infrastructure.

In July 2020, through the new initiative Taking Back Our Sound, Our Sound, Our Salmon founder Wild Fish Conservancy submitted applications to lease all public waters currently and historically used for commercial net pen aquaculture in Puget Sound. In contrast to Cooke’s proposal to continue restricting and degrading these waters for private profit, the Taking Back Our Sound Restoration Project seeks to hold these waters in public trust for the sole purposes of restoring them to their natural state and restoring the public’s access to over 130 acres of Puget Sound. Right now, the Department of Natural Resources (DNR) is deciding between these two starkly different proposals. Help call on DNR to make the right choice by signing the petition below!

Another key concern is that WDFW is allowing Cooke to begin planting fish in their Hope Island net pen before the agency has finalized updates to two emergency response plans for responding to escape events like the Cypress Island collapse. According to Cooke’s permits, these plans— the ‘Fish Escape Response and Reporting Plan’ and ‘Fish Escape Prevention Plan’— only need to be updated annually and are not a legal requirement of the transport permits themselves. These updated plans have been submitted by Cooke to WDFW and are currently being evaluated. While the decision to allow Cooke to begin planting their Hope Island site prior to these plans being updated may be legal as defined by Cooke’s operational permits, it certainly does not demonstrate precautionary natural resource management.

Most concerning, Cooke is required to consult with local Tribal Nations in drafting these plans, and as far as we understand has never occurred. This is particularly concerning given Tribal Nations were forced to shoulder the burden of recovering Cooke’s escaped fish during and following the Cypress Island collapse. We are entirely grateful to the Lummi Nation and other Tribal Nations who sacrificed their own fishing seasons in order to lead an emergency response effort after industry and government failed to implement a sufficient response plan.

Regardless of the minimum legal requirements, stocking these net pens should not occur when the future of Cooke’s leases and permits are uncertain, before Tribal Nations have been adequately consulted, and when updates to emergency procedures are pending.

Washington Supreme Court agrees to hear case that could reverse approval of Cooke's steelhead proposal

The ongoing legal challenge seeking to reverse the State’s approval of Cooke Aquaculture’s proposal to rear steelhead in their banned Atlantic salmon net pens will be decided in Washington’s highest court.

We are excited to report that in March, we were notified by the Chief Justice of the Supreme Court that the department reviewing our request unanimously agreed to enter the case for hearing and decision, denying requests from Cooke and the Washington Department of Fish and Wildlife (WDFW) to reject the case.

On March 19, we officially filed our opening brief in the case asking the Washington Supreme Court to reverse the lower Court decision, find that WDFW violated SEPA with their insufficient review, invalidate Cooke’s permit and the underlying SEPA determination, and to begin preparing an EIS.

Background

In February of 2020, Wild Fish Conservancy and our partners at the Center for Biological Diversity, Center for Food Safety, and Friends of the Earth, filed a lawsuit against the Washingotn Department of Fish and Wildlife (WDFW) for violating state law by permitting Cooke's new proposal without requiring a comprehensive environmental impact statement (EIS). This type of review would have fully analyzed the risks posed to wild fish, water quality, and the overall health of Puget Sound.

In November 2020, a lower Court made an unfortunate ruling to uphold WDFW’s approval of Cooke’s steelhead proposal stating the Court did not have the scientific expertise necessary to overrule the agency’s opinion. As a result, the Judge was unable to consider the merits of the lawsuit and deferred to WDFW on the very decision and underlying scientific review being challenged.

Appealing to Washington’s Highest court

With the merits of the case unresolved, Wild Fish Conservancy and our partners promptly and without hesitation filed an appeal of the lower Court’s decision. Given the urgent need for a timely ruling in the case and the overwhelming public interest in the outcome, we made the decision to file our appeal straight to the Washington Supreme Court, skipping over the Appeals Court all together.

We knew the decision involved risk, but with its increased capabilities and resources, Washington’s highest Court would be far more capable and prepared to address the technical merits of this case moving forward.

WDFW and Cooke both submitted documents to the Court requesting that the Supreme Court deny our request and reject the case. The argued “WDFW’s SEPA review is not an issue of broad public import warranting direct review by this Court.”

An ironic statement considering the agency acknowledged the public’s participation in the public comment period of WDFW’s SEPA review was unprecedented, needing to be extended twice to accommodate the thousands of individuals, Tribal Nations, state agencies, public officials, businesses, and organizations overwhelming opposing WDFW’s decision and calling for an EIS.

We are excited to report that in March, we were notified by the Chief Justice of the Supreme Court that the department reviewing our request unanimously agreed to enter the case for hearing and decision.

On March 19, we officially filed our opening brief in the case asking the Washington Supreme Court to reverse the lower Court decision, find that WDFW violated SEPA with their insufficient review, invalidate Cooke’s permit and the underlying SEPA determination, and to begin preparing an EIS.

We will be sure to keep you updated as the case moves forward in 2021.

Over $1 million in commercial fish farm profits are finding new life in ‘Orca Fund’

Over $1 million in Clean Water Act violation settlement funds— profits earned by the net pen industry at the expense of Puget Sound’s wild salmon, orcas, and ecosystems— turned into a power for good to help recover endangered Southern Resident orcas.

In 2017, shortly after the Cypress Island net pen collapse that spilled over 300,000 nonnative Atlantic salmon infected with an exotic virus into Puget Sound, Our Sound, Our Salmon founder Wild Fish Conservancy filed a citizen suit to hold Cooke Aquaculture accountable for multiple violations of the Clean Water Act (CWA).

Throughout the two year case two federal Judge’s upheld nearly all of Wild Fish Conservancy’s summary judgments and claims, and days before having to defend themselves in court, Cooke agreed to Wild Fish Conservancy’s settlement terms. Learn more about the Court’s findings.

In addition to agreeing to stricter regulations and reporting requirements, the agreement required Cooke to cover WFC’s litigation expenses and contribute over $1 million to create the Orca Fund, a new mitigation fund and grant program at the Rose Foundation for Communities and the Environment designed to protect endangered Southern Resident killer whales and to improve the water quality they depend on.

This winter, the Orca Fund distributed its first round of grants, awarding nearly $300,000 to support a docket of five inspiring research, education, and advocacy projects.

Southern Resident killer whales, NOAA

These projects are being led by nonprofits and research institutions throughout the Salish Sea region and address a diverse array of aspects of Southern Resident killer whale health and recovery, including:

• developing tools, materials, and campaigns to educate and engage the public on this important issue

• conducting research to monitor and assess the health of the Southern Resident population and their prey

• improving our knowledge and understanding of the factors contributing to the population’s alarming decline

• evaluating the success of recovery actions

• helping to guide policy makers and elected officials in developing management actions that reflect best available science

We are excited to see these Clean Water Act violation settlement funds— profits earned by Cooke at the expense of Puget Sound’s wild salmon, orcas, and ecosystems— turned into a power for good to help recover our region’s beloved and critically endangered Southern Resident orca population.

Our congratulations and appreciation to all of the Orca Fund grant recipients and the Rose Foundation for Communities and the Environment!

Learn more about these inspiring projects and the organizations behind them on the Rose Foundatin’s website.

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Further Reading

Check out our previous news stories describing two ongoing legal actions to hold the net pen industry and government responsible for protecting Puget Sound from the environmental impacts of commercial net pen aquaculture:

Cooke Aquaculture Faces a New Lawsuit | February 12, 2021

Environmental Groups Appeal Approval Of Cooke's New Net Pen Project To Washington’s Supreme Court | November 23, 2021

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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