HomeMy WebLinkAbout012424 Status of NWP 48_ DefunctALERT: BE CAUTIOUS This email originated outside the organization. Do not open attachments or click on links if you are not expecting them.
At last week's SMP workshop, the BOCC wondered about the status of Nationwide Permit 48 (NWP 48), the "blanket" federal permit authorizing most shellfishing operations prior to 2020.
That was when it was invalidated, and all permits under it were voided by the U.S. District Court for Western Washington and upheld by the 9th Circuit Court of Appeals.
A new version, 2021 NWP 48, became defunct in October 2023, when the U.S. Army Corps of Engineers (Corps) voluntarily withdrew its defense of it in the latest lawsuit, also in the U.S
Federal District Court for Western Washington. The order is attached. Perhaps it will be revived, but it is currently dormant.
However, the Corps' permitting process had already shifted from using the blanket permit to issuing Individual Permits. A small minority of these Individual Permits are "Standard Permits,"
which are publicly noticed. The overwhelming majority are "Letters of Permission" (LOPs) which were rarely used in the past and are supposed to be used only when there is "no appreciable
opposition."
The Corps has issued some 700 LOPs for aquaculture in Washington. These are being challenged in court on the grounds that, in addition to having been strongly opposed, they suffer from
some of the same deficiencies that landed 2017 NWP 48 and 2021 NWP 48 in court: they are not accompanied by an adequate cumulative effects analysis and violate various federal laws.
They are also not publicly noticed. They are available to the public only through a FOIA, which typically takes many months or even a year to receive.
Thus, there is no operating NWP 48. There is no federally approved cumulative effects analysis. There is no publicly available repository of federal shellfish permits. Access is only
by FOIA. There is not even, as there used to be, an online map showing the locations of federally permitted shellfish operations. This has kept the public largely in the dark about
where, how many, how many acres, and under what conditions shellfishers are operating.
Hope this is the kind of information you were looking for--Marilyn
Marilyn Showalter
1596 Shine Rd
Port Ludlow, WA 98365
(360) 259-1700 (cell)
marilyn.showalter@gmail.com <mailto:marilyn.showalter@gmail.com>