Wild Fish Conservancy v. Dep't of Fish & Wildlife

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE JANUARY 13, 2022
SUPREME COURT, STATE OF WASHINGTON
JANUARY 13, 2022
ERIN L. LENNON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
WILD FISH CONSERVANCY; CENTER )
FOR FOOD SAFETY; CENTER FOR ) No. 99263-1
BIOLOGICAL DIVERSITY; and FRIENDS )
OF THE EARTH, ) En Banc
)
Appellants, )
)
v. )
)
WASHINGTON DEPARTMENT OF FISH )
AND WILDLIFE, )
)
Respondent, )
)
and )
)
COOKE AQUACULTURE PACIFIC, LLC, )
)
Intervenor-Respondent. )
) Filed : January 13, 2022
JOHNSON, J.—This case involves a challenge brought under chapter 34.05
RCW, the Washington Administrative Procedure Act (APA), to a marine finfish
aquaculture permit issued by the Washington Department of Fish and Wildlife
(WDFW), allowing Cooke Aquaculture Pacific LLC to change fish species to
Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
commercially farm steelhead trout in Puget Sound. 1 The Wild Fish Conservancy
(WFC) 2 filed an appeal with King County Superior Court, challenging WDFW’s
approval of the permit that allows Cooke to transition from farming Atlantic
salmon to steelhead trout. The WFC alleges (1) WDFW’s conclusion that an
environmental impact statement (EIS) was not required was clearly erroneous and
(2) WDFW violated the State Environmental Policy Act (SEPA), ch. 43.21C
RCW, by failing to consider and disclose appropriate alternatives to the proposal
under RCW 43.21C.030(2)(e). The WFC urges this court to reverse the permit
approval and order WDFW to complete an EIS. 3
The King County Superior Court found WDFW’s SEPA analysis was not
clearly erroneous and the steelhead permit application did not trigger RCW
43.21C.030(2)(e). We affirm.
1
The Swinomish Indian Tribal Community submitted briefing as amicus curiae on behalf
of the appellants, as did the Washington State Department of Ecology and the Jamestown
S’Klallam Tribe on behalf of the respondents.
2
The WFC is joined by the Center for Food Safety, Center for Biological Diversity, and
Friends of the Earth as appellants in this action.
3
The WFC filed a motion for judicial notice, requesting this court take judicial notice of
the Washington State Department of Ecology’s State Environmental Policy Act Handbook (2018
Updates) and Ecology’s SEPA Environmental Checklist (WAC 197-11-960) (July 2016).
Ecology is required by statute to adopt rules interpreting and implementing SEPA. RCW
43.21C.110(1); ch. 197-11 WAC. As a part of its statutory obligation to provide guidance on
compliance with SEPA, Ecology is further required to “publish an annual state environmental
policy act handbook or supplement.” RCW 43.21C.300. Though the WFC’s motion for a judicial
notice is not necessary for the court to consider these materials issued as part of Ecology’s
statutory duty to promulgate rules and guidance to implement SEPA, we nonetheless grant the
motion.
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FACTS AND PROCEDURAL HISTORY
This case is a challenge to a specific permit: an approval to cultivate all-
female, sterile steelhead trout in existing marine aquaculture net-pen facilities.
WDFW’s decision to approve this permit was based on an environmental
assessment of the specific and limited proposal to rear steelhead in existing net-pen
facilities where Atlantic salmon were previously reared. This action does not
challenge the siting of the net pens nor does this action challenge lawful fish
farming operations in existing marine-based facilities.
Our limited role in this case is to determine whether WDFW’s
environmental assessment of steelhead fish farming in existing net-pen facilities
was clearly erroneous. We are also asked to interpret subsection RCW
43.21C.030(2)(e) of SEPA and determine whether WDFW was required to
perform an alternatives analysis under subsection (2)(e).
I. General Overview
Cooke owns several commercial salmonid farming operations that have
operated in Puget Sound for over 30 years. Most recently, Cooke has reared
nonnative finfish Atlantic salmon in its various marine-based net-pen facilities.
On August 19, 2017, one of Cooke’s Cypress Island net pens collapsed,
releasing an estimated 263,000 nonnative Atlantic salmon into Puget Sound.
Understandably, this net pen failure generated widespread public concern.
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Community stakeholders pushed the legislature to reassess marine-based finfish
aquacultures in Washington.
In response, the legislature enacted a new statute prohibiting the Washington
Department of Natural Resources (DNR) from further issuing aquatic-land leases
where the use includes nonnative marine finfish aquaculture. One of the intended
aims of this law was to phase out nonnative fish farming in Washington waters.
RCW 79.105.170; RCW 77.125.050. The statutory changes do not ban marine
finfish farms altogether but do ban the rearing of nonnative finfish and impose an
additional requirement on the relevant administrative agencies to design statewide
guidance to eliminate fish escapes from marine net pens and eliminate any
negative impacts to water quality and native fish, shellfish, and wildlife.
ENGROSSED H.B. (EHB) 2957, 65th Leg., Reg. Sess. (Wash. 2018).
II. Cooke’s Permit Application
In January 2019, Cooke submitted two marine finfish aquaculture permit
applications to WDFW: one application requested renewal of an existing permit to
farm nonnative Atlantic salmon and the other application was a proposal to
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transition its finfish aquaculture operations from farming Atlantic salmon to
farming native steelhead trout. 4
The new permit application to farm steelhead presented a change in Cooke’s
operations and required an environmental assessment under SEPA. Between
March and September 2019, Cooke worked with WDFW to develop the required
documentation, including a SEPA environmental checklist. See WAC 197-11-960.
After evaluating Cooke’s initial submission, WDFW required Cooke submit an
updated environmental checklist with additional requested information and data.
The agency also required Cooke hire independent experts to review and update the
1990 programmatic environmental impact statement (PEIS)—the most recent EIS
on marine net-pen aquaculture in Puget Sound. The agency spent approximately 10
months reviewing the materials and information submitted by Cooke, the 1990
PEIS and its update, and additional scientific reports.
On October 1, 2019, WDFW announced its decision to issue a mitigated
determination of nonsignificance (MDNS) and a five-year marine aquaculture
permit to Cooke to farm all-female, sterile steelhead trout in Cooke’s existing
4
WDFW approved Cooke’s renewal application to continue its Atlantic salmon farming
operations for the duration of its valid DNR leases. The agency determined it was not required to
perform an environmental assessment under SEPA because the renewal request did not establish
a material change from Cooke’s current activities. WAC 197-11-800(13)(i) (“The renewal or
reissuance of a [business] license regulating any present activity or structure [requires no SEPA
action] so long as no material changes are involved.”). It is unclear, based on the record, whether
Cooke continues to farm Atlantic salmon in any of its net pens.
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marine net pens. The MDNS included a 12-page summary of the key issues that
WDFW considered in its decision-making process. It also included 22 mitigating
provisions that the agency imposed on Cooke’s steelhead permit. WDFW then
invited the public, affected tribes, and other agencies to comment on the MDNS.
Generally, an agency that issues an MDNS is required to open the comment period
for 14 days. WDFW, however, initially opened the comment period for 21 days
and extended it twice for a total of 53 days, closing it on November 22, 2019. 5
After the close of the comment period, the agency held a government-to-
government meeting with representatives of the Swinomish Indian Tribal
Community to discuss the MDNS.
The final MDNS included a 19-page summary of the submitted comments, a
34-page document explaining the scientific basis for its determination and
providing substantive responses to the comments, and modifications to the
mitigating provisions in response to some of the public’s voiced concerns. The
agency imposed an additional seven mitigating provisions to the final steelhead
permit.
The WFC prepared and submitted a report during the comment period in
which it raised concerns that it continues to advance in this action. The
5
WDFW reported they received 3,578 comments, 884 of which were unique comments.
The remaining comments were identical or nearly identical or submitted more than once by the
same author.
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organization argued that WDFW erroneously arrived at the conclusion that the
steelhead net pens will not have a probable, significant adverse impact on the
environment, and therefore, WDFW should have prepared an EIS under SEPA.
Appellants’ Opening Br. at 36-49. The WFC critiqued WDFW’s analysis, stating
that the agency relied on an “insufficient [] update [to] an entirely stale EIS,”
thereby ignoring the best available science developed over the last 30 years.
Administrative Record (AR) at 3701. It also raised several “reasonable, safer
alternatives” to raising steelhead trout that in its opinion, WDFW should have
considered. AR at 3701. Its comment called for an EIS that includes a “no-action
alternative” based on the “cessation of operation of the pens (and cessation of any
environmental risk) after the legislative non-native aquaculture phaseout takes
effect in 2022.” AR at 3703. The WFC argues that WDFW was required to
evaluate and disclose alternatives to the steelhead permit but failed to do so.
WDFW imposed 29 mitigating provisions on the final steelhead aquaculture
permit. A comparison of the Atlantic salmon renewal permit and the steelhead
trout permit reveals the relative extent to which WDFW imposed conditions on
Cooke’s steelhead permit aimed at mitigating any potential environmental impacts.
Both permits require Cooke adhere to the requirements set out in its (1) plan of
operation, (2) fish escape prevention, response, and reporting plan, and (3)
regulated finfish pathogen reporting plan. Similar to the Atlantic salmon permit,
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the steelhead permit requires Cooke update these three plans annually in
consultation with, and to be approved by, WDFW. Also, the steelhead permit,
unlike the Atlantic salmon permit, requires Cooke draft its fish escape prevention,
response, and reporting plan in consultation with DNR, Department of Ecology,
and “[a]ffected treaty tribes.” AR at 4534.
ANALYSIS
I. Statutory Background
The Washington Legislature enacted SEPA in 1971 as the State’s analog to
the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321. It
passed SEPA with the express purpose
(1) To declare a state policy which will encourage productive and
enjoyable harmony between humankind and the environment; (2) to
promote efforts which will prevent or eliminate damage to the
environment and biosphere; (3) and [to] stimulate the health and
welfare of human beings; and (4) to enrich the understanding of the
ecological systems and natural resources important to the state and
nation.
RCW 43.21C.010 (alteration in original). In passing SEPA, the legislature
expressed “the clear aim of injecting environmental awareness into all levels of
governmental decision-making.” Columbia Riverkeeper v. Port of Vancouver USA,
188 Wn.2d 80, 104, 392 P.3d 1025 (2017) (Stephens, J., dissenting).
The legislature delegated to Ecology the responsibility of adopting and
amending rules of interpretation and implementation of SEPA for the purpose of
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providing statewide uniform rules and guidelines to all branches of government.
RCW 43.21C.110(1); ch. 197-11 WAC. Accordingly, Ecology promulgated the
SEPA regulations in accordance with the APA rule making procedures. Ch. 34.05
RCW; ch. 197-11 WAC. Under SEPA, Ecology is also required to “publish an
annual state environmental policy act handbook or supplement” to assist others in
complying with the statute. RCW 43.21C.300. WDFW adopted Ecology’s
regulations and relies on Ecology’s SEPA handbook to guide its own SEPA
procedures and analyses. See WASH. STATE DEP’T OF ECOLOGY, STATE
ENVIRONMENTAL POLICY ACT HANDBOOK (2018) (SEPA Handbook).
When a proposed agency action requires SEPA environmental review, the
relevant agencies will identify the “lead agency” responsible for the environmental
analysis and procedural steps under SEPA. The lead agency must evaluate the
proposal’s likely environmental impacts through a series of specified procedures
created by Ecology. SEPA Handbook at 8. Part of this process includes the
“threshold determination” of whether the action will result in “probable significant
adverse environmental” impacts. WAC 197-11-330(1)(b); RCW 43.21C.031. If the
agency determines the proposal is not likely to have significant adverse impacts on
the environment, it will issue a determination of nonsignificance (DNS), and no
further environmental review is required. WAC 197-11-340. If the agency finds the
proposal will likely have significant adverse impacts on the environment, it will
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issue a determination of significance (DS) and the process of preparing an EIS
begins. RCW 43.21C.031. An EIS is an impartial discussion and analysis of the
proposal’s probable, significant adverse environmental impacts and the reasonable
alternatives that would avoid or minimize adverse impacts or enhance
environmental quality. WAC 197-11-400, -402; RCW 43.21C.031.
Washington regulations allow for a third threshold determination. An agency
may issue an MDNS when the proposal can be conditioned to have no probable,
significant adverse impacts by imposing specific mitigation measures. WAC 197-
11-350. When an agency makes an MDNS threshold determination, it is not
finding that the proposal will not have probable, significant adverse environmental
effects. Rather, the agency determines that by requiring certain specific
mitigations, 6 it can reduce the environmental impacts to a level acceptable under
SEPA. An MDNS does not function to evade environmental review or undermine
SEPA’s purpose. The requirement of an EIS may be “superseded by the MDNS”;
6
Ecology’s SEPA regulations define “mitigation” as
“(1) Avoiding the impact altogether by not taking a certain action or parts of an action;
“(2) Minimizing impacts by limiting the degree or magnitude of the action and its
implementation, by using appropriate technology, or by taking affirmative steps to avoid or
reduce impacts;
“(3) Rectifying the impact by repairing, rehabilitating, or restoring the affected
environment;
“(4) Reducing or eliminating the impact over time by preservation and maintenance
operations during the life of the action;
“(5) Compensating for the impact by replacing, enhancing, or providing substitute
resources or environments; and/or
“(6) Monitoring the impact and taking appropriate corrective measures.” WAC 197-11-
768.
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and the imposition of numerous mitigation measures that specifically target a
proposal’s potential adverse impacts “may provide more effective environmental
protection than promulgation of an EIS, since an EIS does not automatically result
in substantive mitigation.” Anderson v. Pierce County, 86 Wn. App. 290, 305, 936
P.2d 432 (1997).
II. Whether WDFW violated RCW 43.21C.030(2)(e) by failing to study,
develop, and describe appropriate alternatives to the proposal
Both parties request this court interpret RCW 43.21C.030(2)(e). First, the
WFC requests we “give effect” to the subsection (2)(e) requirement to study
alternatives by concluding the subsection applies to proposals with any adverse
environmental impact. Appellants’ Opening Br. at 22. WDFW agrees that
subsection (2)(e)’s alternatives analysis “potentially” applies to proposals that do
not require an EIS but disagrees that a proposal with any amount of adverse impact
triggers the subsection. WDFW’s Corrected Resp. Br. at 35.
Second, the WFC requests that we conclude the permit here presented the
types of unresolved conflicts that trigger subsection (2)(e) and that we hold that
WDFW violated SEPA by failing to study and disclose appropriate alternatives to
the permit. Appellants’ Opening Br. at 20-22. WDFW contends the permit did not
trigger subsection (2)(e) and asks this court adopt and apply the Washington
Pollution Control Hearings Board’s interpretation of the subsection. See Marine
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Envtl. Consortium v. State (Marine Envtl. Consortium II), Nos. 96-257 through 96-
266 & 97-110, 1998 WL 933353, at *21 (Wash. Pollution Control Hr’gs Bd. Nov.
30, 1998); WDFW’s Corrected Resp. Br. at 35-42.
Third, WDFW reasons that even if the permit did trigger subsection (2)(e),
the imposed mitigation measures should be treated as appropriate alternatives to
satisfy SEPA. WDFW’s Corrected Resp. Br. at 35-42. The WFC disagrees with
this interpretation of subsection (2)(e) and suggests we hold the subsection (2)(e)
alternatives analysis requires that an agency consider a “no action” alternative to
the proposal. Appellants’ Reply Br. at 9; Appellants’ Answer to Ecology’s Amicus
Curiae Br. at 17-18.
Before addressing the merits of the subsection (2)(e) issue, we consider
Cooke’s argument that the WFC’s subsection (2)(e) argument contains a
procedural issue fatal to its argument. Cooke argues the WFC’s allegation that
WDFW violated subsection (2)(e) is actually a challenge to the SEPA regulations
promulgated by Ecology, and therefore, the WFC was required to join Ecology as a
party in this action. Cooke’s Resp. Br. at 2-3. In response, the WFC argues it is not
challenging the validity of a rule; rather, it challenges “[W]DFW’s failure to
comply with a statutory mandate.” Appellants’ Reply Br. at 11.
The APA requires the agency who promulgated the rule “be made a party to
the proceeding” in an “action challenging the validity of a rule.” RCW
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34.05.570(2)(a). Here, Ecology promulgated the rules that implement SEPA;
however, Ecology is not a party to this action. Therefore, if the WFC’s subsection
(2)(e) argument is a challenge to the validity of the regulations, its action must be
dismissed for failing to comply with the APA requirements.
The WFC’s initial argument, both at the trial court level and in its opening
brief, asserts a statutory violation. At the trial court level, WDFW argued that
Ecology’s rules do not require an evaluation of alternatives outside of a DS that
leads to an EIS. The WFC noted this same fact in its opening brief before this court
by highlighting that “agencies throughout the [s]tate do not conduct alternatives
analyses where a DNS is made, but instead only study alternatives for proposals
that require an EIS.” Appellants’ Opening Br. at 22. The WFC therefore argues it
is merely pointing out the absence of any Ecology regulation interpreting when
subsection (2)(e) requires alternatives independent of an EIS.
But by emphasizing that Ecology has not issued guidance on subsection
(2)(e), the WFC’s argument could be viewed as challenging the insufficiency of
Ecology’s regulations with respect to subsection (2)(e). The WFC is effectively
arguing that Ecology has failed to exercise its “authority and responsibility for full
and appropriate independent adoption of rules, assuring consistency with [SEPA].”
RCW 43.21C.110(1). Pointing out that Ecology has not issued a regulation or
guidance on how to interpret subsection (2)(e) shows the importance of having the
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agency joined below. Because of Ecology’s expertise in interpreting SEPA, to
which we accord substantial deference, Cooke’s argument that Ecology should
have been joined has some force. Whether subsection (2)(e) applies to Cooke’s
permit and, if it does, whether WDFW complied with (2)(e) are questions that
implicate the extent to which Ecology’s existing regulations sufficiently address
subsection (2)(e)’s alternatives requirement. See, e.g., Appellants’ Opening Br. at
22, 26 (noting that WAC 197-11-960, providing a checklist for making the
threshold determination of whether EIS is required, does not contain an
alternatives consideration requirement); WDFW’s Corrected Resp. Br. at 35-42
(arguing that Ecology’s rules requiring mitigation measures for an MDNS satisfy
subsection (2)(e)’s alternatives consideration requirement); Br. of Amicus Curiae
Ecology at 10 (same). Nonetheless, it is not necessary to resolve the procedural
issue in this case where the WFC’s challenge under subsection (2)(e) clearly fails
under a statutory analysis.
We review questions of law, such as the interpretation of a statute, de novo.
Generally, where the statute is ambiguous and within the agency’s specialized
expertise, we accord great weight to the agency’s interpretation. Postema v.
Pollution Control Hr’gs Bd., 142 Wn.2d 68, 77, 11 P.3d 726 (2000). However, this
deference is accorded to the agency charged with the administration and
enforcement of the relevant, ambiguous statute. Cowiche Canyon Conservancy v.
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Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
Bosley, 118 Wn.2d 801, 813-14, 828 P.2d 549 (1992). Ecology, not WDFW, was
designated by the legislature to interpret and implement SEPA. SEPA mandates we
give substantial deference to rules adopted under RCW 43.21C.110, which outlines
the required content of the SEPA rules. The legislature expressly authorized
Ecology to adopt and amend the rules of interpretation of SEPA to provide
statewide guidance on how to comply with the statute’s requirements. RCW
43.21C.095, .110. WDFW, like many other state entities, adopted the rules
promulgated by Ecology and relies on Ecology’s interpretation of SEPA to ensure
its own compliance. While the legislature directs us to accord substantial deference
to Ecology’s interpretation of SEPA, the agency’s regulations are silent regarding
subsection (2)(e). The regulations do not expressly require an alternatives analysis
for proposals that involve the types of “unresolved conflicts” that fall under
subsection (2)(e) nor do the regulations provide specific guidance on how to
interpret or apply subsection (2)(e). See generally ch. 197-11 WAC. Therefore, we
conduct our statutory interpretation de novo without special deference to WDFW’s
proposed interpretation of subsection (2)(e).
WDFW proposes we adopt the Washington Pollution Control Hearings
Board’s (PCHB) interpretation of subsection (2)(e). The PCHB is a quasi-judicial
administrative agency created by the legislature to hear and decide appeals from
certain enumerated decisions of various departments and government entities,
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Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
including WDFW and Ecology. RCW 43.21B.110. We have consistently noted
that the “apparent and desirable goal of [ch. 43.21B RCW]” was to achieve
“[u]niformity in administering the vast powers granted under our strong
environmental and pollution control laws.” State ex rel. Martin Marietta Alum.,
Inc. v. Woodward, 84 Wn.2d 329, 333, 525 P.2d 247 (1974). Therefore, while we
do not provide deference to WDFW’s proposed interpretation, we do consider
PCHB’s interpretation of subsection (2)(e) helpful in our own interpretation.
When engaging in statutory interpretation, our primary objective is to
ascertain the intent of the legislature. Absent a statutory definition, we give effect
to the statute’s plain and ordinary meaning as an expression of the legislature’s
intent unless a contrary intent appears. Cowiche Canyon Conservancy, 118 Wn.2d
at 814.
The legislature, through SEPA, “authorize[d] and direct[ed] . . . to the fullest
extent possible . . . [that] all branches of government . . . shall . . . [s]tudy, develop,
and describe appropriate alternatives to recommended courses of action in any
proposal which involves unresolved conflicts concerning alternative uses of
available resources.” RCW 43.21C.030(2)(e). In addition to the subsection (2)(e)
provision, SEPA requires every EIS include a “detailed statement” on “alternatives
to the proposed action.” RCW 43.21C.030(2)(c)(iii).
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While Washington’s appellate courts have not weighed in on the proper
interpretation of SEPA’s subsection (2)(e) provision, the PCHB has considered the
meaning of the subsection. The PCHB held RCW 43.21C.030(2)(e) “may,
depending on the circumstances, mandate an alternatives analysis outside of the
EIS process.” Marine Envtl. Consortium v. State (Marine Envtl. Consortium I),
Nos. 96-257 through 96-266, 1997 WL 394651, at *8 (Wash. Pollution Control
Hr’gs Bd. May 27, 1997). The PCHB reasoned:
If subsection (2)(e) is co-extensive with subsection (2)(c)(iii), then the
qualifying language of subsection (2)(e) is superfluous. The
qualifying clause only has meaning if the alternatives analysis
mandated by subsection (2)(e) exists independent of the alternatives
analysis required for EIS preparation by subsection (2)(c)(iii).
“Statutes should be construed as a whole, all language used should be
given effect, and related statutes should be considered in relation to
each other and whenever possible harmonized.” The qualifying
language of subsection (2)(e) evinces a legislative intent to require
alternatives analysis outside of the EIS process under special
circumstances involving resource conflicts.
Marine Envtl. Consortium I, 1997 WL 394651, at *8 (citation omitted) (quoting
State v. Walter, 66 Wn. App. 862, 870, 833 P.2d 440 (1992)).
The PCHB seems correct that the subsection (2)(e) alternatives analysis is
independent of the alternatives requirement under an EIS. Therefore, an agency
may be required to assess alternatives to a proposal that is not likely to result in
significant adverse environmental impacts.
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If subsection (2)(e) applies to proposals that do not require an EIS, the
relevant inquiry asks, When does a situation involve “unresolved conflicts
concerning alternative uses of available resources”? The WFC maintains the
permit proposal here triggered the subsection (2)(e) alternatives analysis as
demonstrated by the submitted comments that raised concerns regarding the
adverse impacts fish farming has on the environment. Appellants’ Opening Br. at
29. It also argues we should follow NEPA’s interpretation of the identical
subsection under 42 U.S.C. § 4332(e)(2)(E). The NEPA regulations, unlike
SEPA’s regulations, expressly require every environmental assessment to discuss
alternatives as required by § 4332(e)(2)(E). 40 C.F.R. § 1508.9(b) (2020).
Alternatively, WDFW argues the steelhead permit did not involve the type
of unresolved conflicts that would require a subsection (2)(e) analysis under SEPA.
WDFW’s Corrected Resp. Br. at 38. WDFW instead directs us to the PCHB
decision in Marine Environmental Consortium I. In that case, the PCHB noted the
subsection (2)(e) alternatives analysis “may never have been performed to date
during SEPA’s twenty-six year history.” Marine Envtl. Consortium I, 1997 WL
394651, at *8. Nevertheless, the PCHB engaged in its own interpretation of the
subsection in a case that mirrors the present action.
In Marine Environmental Consortium II, the appellants challenged the
approval of a water permit for the same net-pen facilities involved in the present
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action. The PCHB was asked to determine whether the water permit for existing
net-pen facilities triggered the subsection (2)(e) alternatives analysis. PCHB held it
did not. It considered whether the activities authorized under the permit created
“unresolved conflicts concerning alternative uses of available resources.” Marine
Envtl. Consortium II, 1998 WL 933353, at *21. It based its analysis on the
question of whether the existence of the net-pen facilities “have impacts which
effectively exclude other beneficial uses of available resources of Puget Sound.”
Marine Envtl. Consortium II, 1998 WL 933353, at *21. It further inquired whether
the facilities “present an ‘either/or’ choice between salmon farming and other uses
or resources.” Marine Envtl. Consortium II, 1998 WL 933353, at *21.
The PCHB considered whether the farmed salmon posed an unacceptable
risk to native salmonids, thereby threatening them with extinction. It reasoned that
if the farmed salmon threatened wild salmonid with extinction, then that would
constitute an “unresolved conflict” because it would create an “either/or” scenario
between farmed salmon and wild salmonid. The PCHB concluded the measures
undertaken by Ecology and WDFW were “reasonably calculated” to prevent or
reduce these risks to an acceptable degree under SEPA. Marine Envtl. Consortium
II, 1998 WL 933353, at *22. Therefore, the net-pen facilities did not involve the
type of unresolved conflicts that would trigger subsection (2)(e). The PCHB
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performed a similar analysis on the impacts to water quality, shellfish harvesting,
recreational activities, and sport fishing. It held that
[t]he existence of commercial salmon farms as permitted uses does not
preclude other beneficial uses in Puget Sound, such as shellfish
harvesting, commercial or sport fishing, navigation or recreational
boating. Likewise, the existence of the salmon farms does not operate
to the exclusion of available resources, such as native salmon runs,
sediment and water quality, or marine mammals. In short, salmon
farming in Puget Sound does not present the citizens of the State of
Washington with an “either/or” choice with respect to other beneficial
uses and important resources.
Marine Envtl. Consortium II, 1998 WL 933353, at *22.
Focusing on the words in RCW 43.21C.030(2)(e), the PCHB’s interpretation
of the provision is sensible. The plain and ordinary meaning of the statute’s
language supports the PCHB’s interpretation. A situation is “unresolved” when it
is left “undecided” or “unsolved.” WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 2508 (2002). A “conflict” is a type of “competition” or “clash”
between “opposing or incompatible forces.” WEBSTER’S, supra, at 476. And an
“alternative” is the “offering [of] a choice between two things wherein if one thing
is chosen the other is rejected.” WEBSTER’S, supra, at 63. In other words, either
option may be chosen but not both. An alternative use necessarily entails rejecting
the other available use. Finally, a resource is “available” when it is “capable of use
for the accomplishment of a purpose.” WEBSTER’S, supra, at 150.
20
Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
Therefore, an alternatives analysis is appropriate when a proposal involves a
competition over the use of a resource whereby selecting one manner of using the
resource will preclude all other uses. These competing uses cannot be theoretical.
The choice is between different uses of available resources. The competing options
for how to use the resource must concern a resource that is actually capable of
being used to accomplish its relative purpose. Finally, this competition must be
unsolved, unsettled, or, in other words, actively in dispute. The steelhead permit
did not involve this type of conflict.
During the comment period for the steelhead permit, the majority of
submissions that proposed some type of alternative suggested alternatives related
to siting, i.e., the location of the net pens. But the WDFW permit does not
implicate the siting of the already existing net-pen infrastructure. Similarly, the
other alleged conflicts the WFC raises are beyond the scope of the steelhead permit
proposal. Because the permit authorizes Cooke only to transition its current fish
farming activities from Atlantic salmon to steelhead trout, it does not present a
situation involving a choice between uses where the selection of one option would
preclude the other.
This interpretation does not foreclose the possibility that a proposal with a
DNS or MDNS might trigger subsection (2)(e). For instance, subsection (2)(e) may
conceivably be triggered by a permit to expand an applicant’s existing net-pen
21
Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
facilities because an expansion of infrastructure might result in the exclusion of
other uses of the available resources, such as the use of the physical location of the
new net pens. This hypothetical proposal may require a subsection (2)(e)
alternatives analysis even if the agency determined that as mitigated, the permit
would not have probable, significant environmental impacts. Similarly, subsection
(2)(e) may be triggered by an application that is one of multiple proposals,
competing to use the same available resource, regardless of whether the proposal
results in a DNS, MDNS, or DS. Nevertheless, the challenged steelhead permit,
regardless of its MDNS classification, does not involve the type of unresolved
conflicts concerning alternative uses of available resources that triggers a
subsection (2)(e) analysis.
The trial court declined to find WDFW erroneously interpreted RCW
43.21.C.030(2)(e). For reasons stated above, we affirm and conclude the steelhead
permit did not trigger subsection (2)(e).
III. Whether WDFW’s finding that the permit to farm steelhead would not
have probable, significant adverse environmental impacts was clearly
erroneous
This court’s review of the steelhead permit is governed by the APA, RCW
34.05.570, and SEPA, RCW 43.21C.090. “The burden of demonstrating the
invalidity of agency action” rests with the WFC. See RCW 34.05.570(1)(a).
Additionally, we review the agency action at the time the action was taken. RCW
22
Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
34.05.570(1)(b). Thus, we “stand[] in the same position as the superior court”
during our review. Wenatchee Sportsmen Ass’n v. Chelan County, 141 Wn.2d 169,
176, 4 P.3d 123 (2000).
In any action challenging a governmental agency’s determination, SEPA
requires the court give substantial weight to the agency’s decision. RCW
43.21C.090. We also recognize and defer to the administrative agency’s
environmental expertise. Pease Hill Cmty. Grp. v. County of Spokane, 62 Wn.
App. 800, 809, 816 P.2d 37 (1991).
We apply the “clearly erroneous” standard of review when reviewing an
agency’s decision to issue an MDNS and not require an EIS. We look beyond
whether substantial evidence exists to support the agency’s decision. Rather, we
review the entire record and determine whether, based on the entirety of the
evidence, we are “‘left with the definite and firm conviction that a mistake has
been committed.’” PT Air Watchers v. Dep’t of Ecology, 179 Wn.2d 919, 926, 319
P.3d 23 (2014) (internal quotation marks omitted) (quoting Ancheta v. Daly, 77
Wn.2d 255, 259-60, 461 P.2d 531 (1969)). When reviewing a SEPA action, “the
court is required to consider the public policy and environmental values of SEPA
as well.” Sisley v. San Juan County, 89 Wn.2d 78, 84, 569 P.2d 712 (1977). A
review of the record must show that “‘environmental factors were considered in a
manner sufficient to amount to prima facie compliance with the procedural
23
Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
requirements of SEPA.’” Chuckanut Conservancy v. Dep’t of Nat. Res., 156 Wn.
App. 274, 286-87, 232 P.3d 1154 (2010) (quoting Juanita Bay Valley Cmty. Ass’n
v. City of Kirkland, 9 Wn. App. 59, 73, 510 P.2d 1140 (1973)).
In enacting EHB 2957, Washington made it unlawful to farm nonnative
finfish in Washington waters. The act outlined a phase-out process, prohibiting the
issuance of nonnative finfish aquaculture permits after existing DNR leases expire.
RCW 77.125.050. Cooke’s DNR leases expire in November 2022, at which point
the company will not be able to farm Atlantic salmon.
The WFC argues that WDFW’s MDNS determination was clearly erroneous
because it failed to account for the reality that absent agency action, Cooke must
cease all fish farming operations in Puget Sound. WDFW contends it properly
conducted its analysis by assessing the environmental impacts of both Atlantic
salmon and steelhead farming.
The WFC asserts that WDFW’s MDNS determination was clearly
erroneous, in part, because it measured the impacts of steelhead farming against
the impacts of continuing Atlantic salmon farming, and therefore, it relied on a
“fictitious” environmental baseline. Appellants’ Opening Br. at 29. And as a result,
the agency erroneously limited its analysis and public disclosure of impacts to the
differences between rearing Atlantic salmon and rearing steelhead trout.
Appellants’ Opening Br. at 30. The WFC raises three main arguments in support of
24
Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
its position. First, the baseline is inconsistent with legally authorized uses because
Cooke is permitted to rear Atlantic salmon in only four of its net-pen facilities;
Cooke does not hold valid leases from the DNR for its other facilities. Appellants’
Opening Br. at 35. Second, the WFC argues that the baseline fails to account for
the enactment of EHB 2957, which effectively makes it unlawful for Cooke to
farm Atlantic salmon in Puget Sound after its final DNR lease expires in 2022.
Appellants’ Opening Br. at 35. Finally, the WFC argues the baseline fails to
account for the fact that Cooke, as a practical matter, cannot continue farming
Atlantic salmon past its 2020 harvest. Appellants’ Opening Br. at 35. The WFC
concludes that this “fictional environmental baseline” resulted in the erroneous
finding that steelhead farming is not likely to have a significant adverse impact
because the baseline assumes continued risks posed by Atlantic salmon farming.
Appellants’ Reply Br. at 11-12.
In response, WDFW denies that it compared the impacts of farming Atlantic
salmon with those of farming steelhead in order to overlook, hide, or otherwise
minimize the potential adverse impacts of steelhead farming on the environment.
WDFW’s Corrected Resp. Br. at 13-15. The agency argues it relied on 30-plus
years of scientific data to find that farming Atlantic salmon has not been shown to
cause significant adverse environmental impacts. WDFW’s Corrected Resp. Br. at
15. The agency also contends that it did not need to pretend that the baseline for
25
Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
Cooke’s steelhead application is a “‘no-operations’” scenario nor must it ignore the
fact that these net-pen facilities already exist and are in operation. WDFW’s
Corrected Resp. Br. at 16. The agency concludes that it properly analyzed all
reasonable potential impacts of the proposal and carefully designed mitigating
conditions to minimize or avoid adverse environmental impacts. WDFW’s
Corrected Resp. Br. at 16. It further concluded that with the imposed mitigation
provisions, neither Atlantic salmon farming nor steelhead farming will have
probable, significant adverse effects on the environment.
The WFC relies on Chuckanut Conservancy, 156 Wn. App. 274, and NEPA
case law to assert that WDFW should have compared the impacts of steelhead
farming with the impacts of no fish farming. It does so by first invoking the term
“baseline,” which comes from NEPA jurisprudence. A “baseline” is a practical tool
used in environmental analysis to identify the possible consequences of a proposed
agency action. The basic idea is that establishing baseline environmental
conditions is necessary to determine the effect a proposal will have on the
environment. Chuckanut Conservancy, 156 Wn. App. at 284 n.8 (citing Am. Rivers
v. Fed. Energy Regulatory Comm’n, 201 F.3d 1186, 1195 n.15 (9th Cir. 1999)).
The WFC asks us to find that WDFW clearly erred by not establishing a “no
action” or “no operations” scenario as its environmental baseline. We find no case
authority that this type of baseline is required in an agency’s analysis prior to
26
Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
making a threshold determination. To the extent that SEPA and its regulations
require a “no action” analysis, it is required only after the agency has made its
threshold determination that an EIS is required. WAC 197-11-440(5) (requiring a
“no action” analysis during preparation of an EIS). However, under the heightened
scrutiny of an EIS, an agency needs only to establish “baseline environmental data
on the ‘existing environment’” in order to “identify and describe the extent of a
proposal’s environmental impacts.” RICHARD L. SETTLE, THE WASHINGTON STATE
ENVIRONMENTAL POLICY ACT: A LEGAL AND POLICY ANALYSIS § 14.01[2][a] at
14-57 (2021).
In arriving at its conclusion that a “no action” baseline is appropriate, the
WFC states that an agency must “‘analyze the proposal’s impacts against existing
uses, not theoretical uses.’” Appellants’ Opening Br. at 30 (quoting Chuckanut
Conservancy, 156 Wn. App. at 290). And, according to the WFC, the continuation
of Atlantic salmon farming is a “theoretical use” because it will soon be unlawful
for Cooke to continue its Atlantic salmon operations. The organization further
supports its position by explaining that an action will not significantly affect the
environment when a proposal “‘change[s] neither the actual current uses to which
the land was put nor the impact of continued use on the surrounding
environment.’” Chuckanut Conservancy, 156 Wn. App. at 285 (alteration in
original) (quoting ASARCO Inc. v. Air Quality Coal., 92 Wn.2d 685, 706, 601 P.2d
27Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
501 (1979)); Appellants’ Opening Br. at 30. This logic flows from the judicially
created definition of “significantly” within the context of SEPA:
“[T]he term ‘significantly’ has been defined to include the
examination of at least two relevant factors: (1) the extent to which
the action will cause adverse environmental effects in excess of those
created by existing uses in the area, and (2) the absolute quantitative
adverse environmental effects of the action itself, including the
cumulative harm that results from its contribution to existing adverse
conditions or uses in the affected area.”
ASARCO, 92 Wn.2d at 705 (some emphasis added and omitted) (quoting
Narrowsview Pres. Ass’n v. City of Tacoma, 84 Wn.2d 416, 423, 526 P.2d 897(1974)).
In Chuckanut Conservancy, the Court of Appeals reviewed a lead agency’s
SEPA determination of nonsignificance involving a proposal to continue logging
within a specific forest. The court anchored its analysis on the definition of
“significantly” within the SEPA context to assist in its assessment of the proposal’s
environmental impacts. It borrowed from the definition in ASARCO to reason that
an agency must analyze a proposal’s impacts against the impact of existing uses of
the affected area. See Chuckanut Conservancy, 156 Wn. App. 274.
However, in relying on this definition from case law, Chuckanut
Conservancy did not seem to consider that after the decision in ASARCO and the
cases that it relied on, Ecology issued a regulation outlining the various factors that
an agency must use in determining whether a proposal’s impacts will be
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Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
“significant.” See WAC 197-11-330(3). 7 Here, the factor most relevant to this case
states that “[t]he absolute quantitative effects of a proposal are also important [in
determining a proposal’s significance], and may result in a significant adverse
impact regardless of the nature of the existing environment.” WAC 197-11-
330(3)(b) (emphasis added). It follows that an assessment of the “nature of the
existing environment” is relevant to a threshold determination analysis. Similarly,
Professor Richard L. Settle, author of The Washington State Environmental Policy
Act: A Legal and Policy Analysis, reasons that “a proposal must degrade the
existing condition of the environment to have significant adverse impact. Mere
failure to restore or improve environmental quality is not a significant adverse
impact under SEPA.” SETTLE, supra, § 13.01[1], at 13-22 (citing Thornton Creek
7
“In determining an impact’s significance (WAC 197-11-794), the responsible official
shall take into account the following, that:
“(a) The same proposal may have a significant adverse impact in one location but not in
another location;
“(b) The absolute quantitative effects of a proposal are also important, and may result in a
significant adverse impact regardless of the nature of the existing environment;
“(c) Several marginal impacts when considered together may result in a significant
adverse impact;
“(d) For some proposals, it may be impossible to forecast the environmental impacts with
precision, often because some variables cannot be predicted or values cannot be quantified.
“(e) A proposal may to a significant degree:
“(i) Adversely affect environmentally sensitive or special areas, such as loss or
destruction of historic, scientific, and cultural resources, parks, prime farmlands, wetlands, wild
and scenic rivers, or wilderness;
“(ii) Adversely affect endangered or threatened species or their habitat;
“(iii) Conflict with local, state, or federal laws or requirements for the protection of the
environment; and
“(iv) Establish a precedent for future actions with significant effects, involves unique and
unknown risks to the environment, or may affect public health or safety.” WAC 197-11-330(3).
29
Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
Legal Def. Fund v. City of Seattle, 113 Wn. App. 34, 59, 52 P.3d 522 (2002)
(assessing whether a proposal would “adversely impact existing environmental
conditions”)).
While it is undeniably useful to establish a baseline environmental condition
with which to compare a proposal’s impact, nothing in SEPA’s statute, regulations,
or cases requires a “no action” baseline analysis in arriving at a threshold
determination. Rather than establishing the baseline on the current uses of the land
(as the WFC suggests), the appropriate baseline to compare the proposal’s
environmental impacts is the condition of the existing environment. To the extent
that WDFW compared the impacts of Atlantic salmon farming to steelhead
farming, WDFW’s assessment of the potential impact of the steelhead permit on
the quality of the Puget Sound environment, as it exists now after decades of
finfish farming, was appropriate. Therefore, we hold WDFW’s threshold
determination was not clearly erroneous when it compared the impacts of steelhead
farming to the current, existing condition of the environment of Puget Sound,
which has been subject to commercial salmonid farming for over three decades.
The WFC, again relying on NEPA jurisprudence, asserts WDFW failed to
take a “hard look” at the adverse impacts of rearing steelhead trout in Puget Sound.
Appellants’ Opening Br. at 36-49. The “hard look” doctrine was first introduced by
the District of Columbia Court of Appeals in 1972 and recognized by the United
30
Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
States Supreme Court in 1976. Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 96
S. Ct. 2718, 49 L. Ed. 2d 576 (1976) (“The only role for a court is to insure that the
agency has taken a ‘hard look’ at environmental consequences; it cannot ‘interject
itself within the area of discretion of the executive as to the choice of the action to
be taken.’” (quoting Nat. Res. Def. Council, Inc. v. Morton, 458 F.2d 827, 838
(D.C. Cir. 1972))). Generally, in taking a “‘hard look’” at an agency’s decision, the
Ninth Circuit Court of Appeals has considered whether the decision was “‘fully
informed and well-considered.’” Blue Mountains Biodiversity Project v.
Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998) (quoting Or. Nat. Res. Council v.
Lowe, 109 F.3d 521, 526 (9th Cir. 1997); Save the Yaak Comm. v. Block, 840 F.2d
714, 717 (9th Cir. 1988)).
Similar to NEPA, “SEPA does not demand any particular substantive result
in governmental decision making.” Stempel v. Dep’t of Water Res., 82 Wn.2d 109,
118, 508 P.2d 166 (1973). Instead, SEPA “‘is an attempt by the people to shape
their future environment by deliberation, not default.’” Sisley, 89 Wn.2d at 89(quoting Stempel, 82 Wn.2d at 118). SEPA demands a “thoughtful decision-
making process” where government agencies “conscientiously and systematically
consider environmental values and consequences.” ASARCO, 92 Wn.2d at 700;
SETTLE, supra, § 3.01[2], at 3-4.
31
Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
We assess the validity of an agency’s threshold determination by
determining whether the environmental factors were “evaluated to such an extent
as to constitute prima facie compliance with SEPA procedural requirements.”
Hayden v. City of Port Townsend, 93 Wn.2d 870, 880, 613 P.2d 1164 (1980),
overruled on other grounds by Save a Neighborhood Env’t (SANE) v. City of
Seattle, 101 Wn.2d 280, 676 P.2d 1006 (1984). We also consider whether the
decision to issue an MDNS was “based on information sufficient to evaluate the
proposal’s environmental impact.” Anderson, 86 Wn. App. at 302. However, “[a]n
agency does not have to consider every conceivable environmental impact when
making its threshold SEPA determination.” PT Air Watchers, 179 Wn.2d at 932;
WAC 197-11-060(4)(a) (SEPA requires consideration of environmental impacts,
“with attention to impacts that are likely, not merely speculative.”).
To make a threshold determination, an agency must determine whether the
proposal will have a probable, significant adverse impact on the environment. A
“significant” impact means a “reasonable likelihood” exists that the proposal will
have “more than a moderate adverse impact on environmental quality.” WAC 197-
11-794. The regulations also direct decision-makers to consider a variety of factors
in determining an impact’s significance. WAC 197-11-330(3). “Still, a precise and
workable definition is elusive because judgments in this area are particularly
subjective—what to one person may constitute a significant or adverse effect on
32
Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
the quality of the environment may be of little or no consequence to another.”
Norway Hill Pres. & Prot. Ass’n v. King County Council, 87 Wn.2d 267, 277, 552
P.2d 674 (1976).
WDFW considers an action to have a significant adverse environmental
impact, thereby requiring an EIS, “if a review of the scientific literature, including
any existing regulatory documents, including prior EISs, supplemented by data
analysis and consultation with experts,” suggests that the proposal will “produce a
more than moderate adverse effect.” AR at 4505. In considering the environmental
impacts of approving the steelhead permit, WDFW (1) evaluated the results from
and the update to the 1990 PEIS on Washington fish farms in marine net pens, (2)
considered over 460 relevant scientific studies and reports from as recent as 2020,
and (3) assessed the information and data provided during the public comment
period and the information it acquired from consultations with experts within and
outside of WDFW, including unpublished data and analyses. AR at 4507, 4707-40
(full bibliography), 4741-13140.
The WFC argues WDFW did not sufficiently assess the adverse impacts that
farmed fish pose to wild salmonid in Puget Sound. Specifically, the WFC states
that WDFW’s analysis is faulty regarding genetic and disease risks to wild
salmonid and the bycatch of wild fish.
33
Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
WDFW published a justification report, 8 detailing how it arrived at its
determination to issue an MDNS. This 34-page report details the possible adverse
environmental impacts of farming steelhead in net pens by comparing available
data on steelhead trout with the substantial amount of scientific data available on
Atlantic salmon and other salmonids. WDFW considered both the likelihood and
significance of potential adverse effects on the environment. In its report, the
agency explained how the mitigating provision requirements function to lessen the
probability and to reduce the impact of potential consequences steelhead farming
poses to the environment. The report also includes the agency’s response to
concerns raised during the public comment period and its assessment of the
scientific studies cited to in some comments. We find this justification report to be
more than sufficient.
The WFC argues WDFW failed to adequately assess the genetic risk that
farmed steelhead pose to wild salmonid in Puget Sound. It raises a few specific
concerns, including the impact of low-level fish escapes, the consequences of a
tsunami, and the inadequacy of the sterilization procedure in reducing these risks.
WDFW addressed these concerns in its justification report.
First, WDFW acknowledged that “gradual, low-level leakage” can have a
greater genetic impact on wild native fish than the rarer, large-scale escape events.
8
The full justification report can be found in the AR at 4501-46.
34
Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
AR at 4574. Despite the WFC’s claim that WDFW “fail[ed] to evaluate the risks to
wild Puget Sound steelhead from [gradual escape],” WDFW’s report addresses the
impacts of escapes generally and explains how the proposal is crafted to reduce
these risks to an acceptable level, i.e., below “significant” level. Appellants’
Opening Br. at 38; see AR at 4522-31. To reduce the risk of escapes generally,
WDFW conditioned the permit on specific mitigating provisions. It required the
continuation of the video monitoring protocol of net pens with the DNR. It also
requires Cooke conduct a load analysis of the mooring and cage systems using
environmental condition data that is consistent with the Norwegian aquaculture
standard NS 9415. The Norwegian standard has proved effective in reducing the
number of escaped Atlantic salmon from Norwegian fish farms. AR at 4524-25.
WDFW also addressed how using sterilized, all-female steelhead will reduce
genetic risks to wild salmonid in the event that an escape does occur. Citing eight
scientific studies from 1999 to 2019, WDFW concluded that “[t]he use of triploid
fish is recognized as normal aquaculture procedure that mitigates for the potential
risks to the genetic structure and viability of wild populations from escaped farmed
fish.” AR at 4526. Furthermore, the agency explained that available data suggests
that triploid, i.e., sterilized, finfish have lower survival rates compared to their
diploid, i.e., fertile, siblings, thereby reducing genetic risk to the wild population.
AR at 4524.
35
Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
The WFC argues that the use of all-female, sterile fish insufficiently reduces
genetic risk to wild salmonid because the sterilization process is less than 100
percent effective, which is compounded by the possibility that Cooke could rear up
to 3.5 million steelhead. AR at 82. In addition to using sterilized fish, WDFW
highlights that the steelhead permit is for all-female, triploid trout. Multiple studies
from 1992 to 2017 support WDFW’s conclusion that the most effective strategy to
mitigate the risk of large- or small-scale escapes is to use sterile, all-female fish.
AR at 4526.
Also, Cooke will receive its steelhead from Troutlodge, a Washington
company based out of Bonney Lake, which has a 99.83 percent success rate in
sterilizing its fish. AR at 4527. Additionally, WDFW imposed a mitigating
provision to address the triploidy error rate in Cooke’s steelhead trout. Cooke is
required to employ a sampling method and statistical design, as approved by
WDFW, to better estimate the triploidy error rate of the steelhead Cooke will
receive. Cooke must sample and test every lot that is to be transported to its marine
net-pen facilities. AR at 4436.
Despite WDFW’s conclusion that all-female, triploid steelhead, with the
various mitigating conditions, would not have a probable, significant adverse
impact on the environment, the WFC argues that WDFW’s analysis is inadequate
because it failed to identify levels of genetic introgression that would be
36
Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
unacceptable. Appellants’ Opening Br. at 39. However, the agency estimated the
genetic risk to native steelhead based on a worst-case scenario escape and
concluded that the genetic risks did not raise a probable, significant adverse impact
on wild salmonid.
The WFC also raises concerns regarding the risks that earthquake-induced
tsunamis pose to the integrity of net pens. Appellants’ Opening Br. at 39-40; AR at
3212-13. The WFC cited to the DNR and National Oceanic and Atmospheric
Administration to show that these agencies have examined the general possible
impacts of an earthquake-induced tsunami in Washington. Appellants’ Opening Br.
at 39-40. However, the WFC does not cite to any evidence supporting its
conclusion that “[a] substantial tsunami is likely to occur during the life of these
pens.” AR at 3212. WDFW claims it adequately addressed the impacts of a
tsunami-caused escape by analyzing the impacts of a worst-case scenario escape,
regardless of the cause of that escape. WDFW’s Corrected Resp. Br. at 24.
According to WDFW, the estimation of the risk of introgression was “worst case
scenario” because it considered a scenario where all 1,000,000 fish in Cooke’s
largest facility escape. AR at 4527. The WFC points out that in the event of a
tsunami, the worst-case scenario is that all the net pens would fail and 3.5 million
steelhead would escape. Appellants’ Reply Br. at 17. In its report, WDFW explains
its analysis is based on the highly unlikely scenario that all 1,000,000 fish survive
37
Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
the net pen failure. It also reemphasizes the various mitigation measures
specifically designed to eliminate the negative impacts of a potential fish escape.
WDFW further considered the various risks that different pathogens,
diseases, and infections pose to farmed salmonid and wild salmonid. The WFC
raised four major critiques of WDFW’s disease risk assessment.
First, it raised the concern that high density net pens allow for rapid
transmission of disease and the amplification of pathogen levels, which can impact
nearby wild fish populations. The WFC also highlighted that disease transmission
is more likely for fish within the same species. Appellants’ Opening Br. at 40-41.
In its risk assessment, outlined in its report, WDFW acknowledged and factored
the disease risks that net-pen aquaculture presents to wild populations. It detailed
the specific factors that lead to high risk of infection and disease outbreak in net-
pen aquacultures, and it made no claim that net pens pose no risk to wild fish.
However, it noted that these disease risks may have a negative effect on wild
populations when “[l]eft unmitigated.” AR at 4510. As WDFW noted, Norway saw
successful results in reducing its net-pen aquaculture disease risk by implementing
a variety of mitigating measures, including vaccinations, early pathogen detection
programs, and veterinarian prescribed treatments. AR at 4510. Based on this,
WDFW imposed numerous mitigating provisions on Cooke’s permit that
implement similar preventative and responsive disease-management procedures.
38
Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
WDFW noted that its disease management procedures are focused primarily
on prevention; it starts at “the source material.” AR at 4508. These procedures
focus on the health of the broodstocks (parents), embryos, and fish. The WDFW
permit requires Cooke to sample and test its embryos and fish at various stages of
the fish life. AR at 4508, 4436-37. Specifically, Cooke must receive a finfish
transport permit from WDFW before it can transport its embryos from a spawning
facility (Troutlodge) to its freshwater facilities. The same permit is required to
transfer its fish from freshwater hatcheries to marine net pens and to transport fish
between farm sites. AR at 4514, 4435-36. WDFW will deny a permit, and thereby
prevent transport, if any samples test positive for pathogens on the Washington
regulated pathogens list. Ch. 220-370 WAC; AR at 4437. Cooke’s permit is
conditioned on their compliance with WDFW finfish transport permit
requirements. AR at 4435.
WDFW imposed additional testing requirements on Cooke as a condition of
its steelhead permit to account for piscine orthoreovirus (PRV) testing. The permit
requires pre-marine smolts be tested, prior to transfer from Cooke’s freshwater
facilities to its marine net pens, for both regulated and reportable pathogens. The
various PRV variations are listed as reportable pathogens. AR at 4436. This
accounts for the lack of PRV testing under the finfish transport permit for any
transport from freshwater to marine net pens. Additionally, WDFW imposed an
39
Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
annual testing requirement of Cooke’s broodstock of embryos or fish that are
transported from the spawning facility to Cooke’s freshwater facility within three
months of transfer. Finally, for both of these additional testing requirements,
WDFW modified the proposed permit’s mitigating provisions by increasing the
sample size that must be tested for pathogens.
In addition to complying with the various pathogen testing procedures,
Cooke will use a locally derived steelhead trout broodline to stock its marine net
pens. Troutlodge will supply Cooke with a steelhead broodline derived from the
Puyallup River. WDFW reasoned that using this native broodline will reduce the
risk of introduction of nonnative pathogens to net pens and in turn reduce the risk
to wild salmonid.
Furthermore, Cooke is required to annually review and update its regulated
finfish pathogen reporting plan in consultation with, and to be approved by,
WDFW. WDFW also reserved the right to conduct facility inspections at its
discretion. WDFW committed to conducting facility inspections at least once a
year and to sampling the fish for both regulated pathogens and PRV, in addition to
the standard sampling and testing.
WDFW noted that it has seen success in the reduction of disease risk with
Cooke’s Atlantic salmon operations via the implementation of single generation
net pens, 30-day fallow periods, and use of vaccinations and antibiotic treatments
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Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
as prescribed and recommended by a veterinarian. As part of the steelhead permit,
Cooke must continue to maintain single generation stocking of net pens to reduce
risk of pathogen transmission by breaking pathogen transmission chain. It also
must fallow its net pens for at least 42 days after harvest to allow for net pen
cleaning and repair and to break any potential pathogen chain.
In comments, the WFC raised a concern that novel viruses were found in
endangered salmon in British Columbia, and one study appeared to find evidence
that these novel viral infections “may originate from farmed salmonids.” AR at
3711 (citing Gideon J. Mordecai et al., Endangered Wild Salmon Infected by Newly
Discovered Viruses, ELIFE (Sept. 3, 2019), https://elifesciences.org/articles/47615).
WDFW considered the Mordecai study, assessed its relevance and weight, and
reached the conclusion that the study “provide[d] no evidence for either pathogen
amplification within farmed fish and disease transmission from farm fish to wild
fish, or viral evolution (virulence or new species) associated with net-pen
aquaculture.” AR at 4513. Based on studies from 2011, 2015, and 2017, WDFW
reasoned that the incidence of disease in wild fish was “either extremely low or
non-existent in the wild populations.” AR at 4511. And even for transmissions that
are associated with disease outbreaks in net pens, there is limited evidence that
these transmissions result in disease in the wild population. WDFW thoroughly
considered a study raised by the WFC in its comment.
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The second major complaint by the WFC is the prevalence and risk of
transmission of the infectious hematopoietic necrosis virus (IHNV). The WFC
reasons that IHNV presents a risk to steelhead to a higher degree than WDFW
determined. IHNV presents in three different genogroups in North America (U, M,
and L). The WFC, and WDFW, note that the M-genogroup is associated with high
mortality and infects primarily steelhead. The WFC acknowledged the accuracy of
WDFW’s assertion that the M-group is not currently present in Puget Sound.
However, the WFC argued that “no reason [exists] to assume” that this M-group
will not return to Puget Sound waters. Appellants’ Opening Br. at 41. We disagree.
WDFW found the M-group is dominant only in the lower Columbia River
and appeared on Washington’s outer coast between 2007 and 2013. No evidence in
the record suggests, nor does the WFC assert, the M-group has been found in
Sound waters. AR at 4514, 13770-72 (e-mails between Kenneth Warheit of
WDFW and Hugh Mitchell of AquaTactics Fish Health discussing M-group
prevalence in Sound). Nevertheless, Cooke vaccinates its Atlantic salmon, and will
use the same vaccines for its steelhead, for multiple variations of the IHNV,
including the M-group.
The WFC implied that WDFW did not provide sufficient information
regarding the effectiveness of the IHNV vaccine. To support its argument, the
WFC cites to a 2006 study that found a mortality rate of 20 to 35 percent in fish
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that were exposed to IHNV 6 months and 13 months after vaccination. Appellants’
Opening Br. at 41-42. While it does not appear that WDFW addressed that specific
data point in its justification report, WDFW did detail the specific DNA-vaccine
used by Cooke to protect against IHNV. Citing to five different studies, WDFW
reasoned this specific vaccine is “highly efficacious” in steelhead trout, and it
“appears efficacious in Atlantic salmon where Cooke’s Puget Sound net-pens have
tested negative” for IHNV since 2012 when there was an outbreak among
unvaccinated Atlantic salmon. AR at 4515. WDFW also states that no evidence
exists that the IHNV was transmitted from the unvaccinated farmed Atlantic
salmon to the wild fish. AR at 4515.
Finally, IHVN is a regulated pathogen under WAC 220-370-050(20)(a)(i),
and as noted above, WDFW will not issue a finfish transport permit for any lot that
tests positive for a regulated pathogen, and WDFW imposed additional testing
requirements with a higher sample size. AR at 4508, 4513, 4435-36 (mitigating
provisions imposing requirements to sample and test broodstock and smolts prior
to transfer to freshwater facilities and marine net pens).
The WFC’s third major concern regarding disease risk is PRV. The WFC
points to the 2017 Morton study to support its assertion that salmon fish farms
increase PRV infection rates for wild Pacific salmon. Appellants’ Opening Br. at
43 (citing Alexandra Morton et al., The Effect of Exposure to Farmed Salmon on
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Piscine Orthoreovirus Infection and Fitness in Wild Pacific Salmon in British
Columbia, Canada, PLOS ONE (Dec. 13, 2017),
https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0188793); AR at
9984-10001. Relying on this study, the WFC asserts that PRV-1 infections in
Cooke’s steelhead farms could have significant adverse impacts on the wild
salmonid populations by reducing the wild salmon’s fitness for survival and
reproduction, “even though the PRV infection does not progress to a disease.”
Appellants’ Opening Br. at 43. The WFC claims the 2017 Morton findings
“remain[] the best available science” on this issue, and therefore, WDFW should
have given its findings deeper consideration. 9 Appellants’ Opening Br. at 43.
The record shows WDFW considered the 2017 Morton article in detail and
compared its findings to those of several other recent studies. AR at 4518-19.
WDFW summarized the 2017 Morton findings regarding the possibility that a PRV
infection may lower the fitness of wild fish by negatively impacting their ability to
complete a migration. It also cited to the 2019 Zhang study, which found that a
9
The authors of the Morton study “stress[ed] the correlational nature of the present
findings, but believe, in keeping with the Precautionary Principle, that they warrant further
research attention.” AR at 9992. Based on the existence of various other scientific articles and
studies within the record and the 2017 Morton authors’ own concession, we do not agree that the
2017 Morton article is the “best available science” on the issue of how PRV affects wild
salmonid populations. “The evidence, based solely on molecular screening tests from this
observational study, and constrained by limited access to farmed Atlantic salmon samples of
known provenance, cannot be definitive. Nonetheless, we view it as providing an early warning
sign of a potentially serious problem that warrants immediate and ongoing research.” AR at
9997.
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Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
high PRV viral load “had no effect on the oxygen affinity and carrying capacity of
the red blood cells even for individuals with minor heart pathology.” AR at 4519
(citing Yangfan Zhang et al., High-Load Reovirus Infections Do Not Imply
Physiological Impairment in Salmon, FRONTIERS IN PHYSIOLOGY (Mar. 13 2019),
https://www.frontiersin.org/articles/10.3389/fphys.2019.00114/full). The WFC
alleges that WDFW uses the 2019 Zhang study to “summarily discount[]” the 2017
Morton article. Appellants’ Opening Br. at 43. The WFC essentially argues that the
reliance on the Zhang finding is misplaced in WDFW’s analysis because that study
focused solely on PRV impacts to Atlantic salmon, not Pacific salmon. The WFC
states that the Zhang finding is “inapposite to the [2017 Morton] finding that PRV-
1 reduces fitness in wild Pacific salmon” because anemia and jaundice, both PRV-
associated diseases, impact only Pacific salmon. Appellants’ Opening Br. at 43.
The WFC also reasons that because anemia and jaundice impact only Pacific
salmon, it follows that the Zhang study found PRV-1 did not adversely impact
Atlantic salmon’s blood oxygen levels. Appellants’ Opening Br. at 43. While it is
true that the 2019 Zhang study conducted its testing only on Atlantic salmon,
WDFW did not base its conclusion on the Zhang article nor does the record show it
failed to assess the impact of jaundice and anemia on Pacific salmon. WDFW
explained that “neither jaundice/anemia (Atlantic, sockeye, and Chinook salmon)
nor HSMI [heart and skeletal muscle inflammation] (Atlantic and sockeye salmon)
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Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
developed” in fish that were infected with PRV-1 from the eastern North Pacific.
AR at 4518 (citing to four different studies that conducted these laboratory
experiments). WDFW further noted that in British Columbia, only 0.05 percent of
farmed Pacific salmon deaths are associated with jaundice. AR at 4518.
The WFC asserted that the 2018 Di Cicco study is consistent with the
findings of the 2017 Morton article. The WFC quotes the Di Cicco article’s
abstract, alleging that the study “conclud[es] that ‘migratory [Pacific] chinook
salmon may be at more than a minimal risk of disease from exposure to the high
levels of [PRV-1] occurring in salmon farms.’” Appellants’ Opening Br. at 43-44
(alterations in original) (quoting Emiliano Di Cicco et al., The Same Strain of
Piscine Orthoreovirus (PRV-1) Is Involved in the Development of Different, but
Related, Diseases in Atlantic and Pacific Salmon in British Columbia, 3 FACETS
1 (June 18, 2018), https://www.facetsjournal.com/doi/10.1139/facets-2018-0008);
AR at 6431. The authors of the Di Cicco study suggest that Chinook salmon may
face this risk, but a deeper reading of the study reveals that it sought to “resolve
whether Strain PRV-1 is likely to play a causative role in the development of
jaundice/anemia in [British Columbia] [C]hinook salmon.” AR at 6433. It
concluded that its findings in British Columbia “suggest[] that PRV1, the only
PRV strain detected in [British Columbia] salmon, likely causes both diseases,
HSMI and jaundice/anemia, in Atlantic and Pacific salmon respectively.” AR at
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Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
6464. WDFW thoroughly considered the possible risks that PRV-1 and associated
diseases, like jaundice and anemia, pose to both Atlantic salmon and Pacific
salmonids.
Based on its comparison and assessment of over a dozen studies on the
prevalence of PRV-1, WDFW concluded the “disease is rare and the pathogenicity
of the virus is low or non-existent in net-pen aquaculture in the eastern North
Pacific.” AR at 4519. In addition to relying on numerous recent scientific studies
of PRV, WDFW included its own relevant data derived from its PRV-1
surveillance program at selected hatcheries in Washington. This surveillance
program was establish in 2018 after Cooke’s predecessor’s net pen failure in 2017.
It was established that a high likelihood exists that more or all of the farmed
Atlantic salmon were positive with a PRV-1 strain from Iceland. (WDFW
concluded that the PRV-1 was most likely from the broodstock the company
received from Iceland.) Since 2018, WDFW has analyzed 648 samples from
various salmonids, including steelhead trout; 87 percent tested negative for PRV-1.
WDFW found no evidence existed to establish that the 2017 net pen failure
resulted in the transmission of the Icelandic PRV-1 to wild salmonid populations in
Washington. AR at 4520.
The WFC argues that at minimum, there exists scientific uncertainty
regarding PRV-1 related impacts to Pacific salmon, requiring WDFW to describe a
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worst-case scenario per WAC 197-11-080(3)(b), which provides that an agency
shall “generally indicate . . . its worst case analysis and the likelihood of
occurrence, to the extent this information can reasonably be developed.” But the
“worst-case scenario” analysis is required only when “there [is] . . . scientific
uncertainty concerning significant impacts” and “information relevant to adverse
impacts is important to the decision and the means to obtain it are speculative or
not known.” WAC 197-11-080(2), (3)(b). WDFW, supported by the scientific
studies in the record, explained in its justification report that PRV-1 impacts both
Atlantic salmon and Pacific salmon, but it is rare that the fish contract the disease.
While the associated diseases and infections may pose a risk to salmonids, Pacific
salmon are known to be susceptible only to PRV-1-related jaundice or anemia, and
available data shows that jaundice/anemia in Pacific salmon is exceptionally rare.
Finally, WDFW highlighted that the prevalence of PRV in wild steelhead
trout is low (1 out of 375 samples); however, it did not rely on the low prevalence
within wild steelhead to reach its conclusion that there is a low risk of PRV-1
transmission from farmed Atlantic salmon and steelhead to wild salmonid
populations. Rather, WDFW explained that it anticipates that PRV-1 prevalence
among all-female, triploid steelhead trout in Cooke’s net pens will be more similar
to that of farmed Atlantic salmon in Puget Sound. Based on its analysis of PRV-1
prevalence and transmission among varying salmonid populations, including
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Atlantic and Pacific salmon and steelhead, WDFW concluded that the transmission
from farmed Atlantic salmon to wild salmonid populations presents a low risk and
the transmission from farmed steelhead presents the same or even lower risk.
The WFC’s fourth and final major disease concern is the impact of sea lice
on wild salmonid. WDFW concluded that sea lice in Puget Sound net-pen facilities
are monitored and do not reach a level of concern. The WFC argues that WDFW’s
assessment of the prevalence of sea lice is clearly erroneous because it relied on
2006 data rather than “more current information” that allegedly undermines the
2006 data. Appellants’ Opening Br. at 44. However, the WFC does not point us in
the direction of this new data. In its assessment, WDFW pointed to multiple
studies, including two published in 2011, showing that surface water salinity in
Puget Sound remained at or below a specified level, which results in the high
mortality of sea lice. The WFC, claiming that more current information exists, cites
to a DNR comment explaining that low summer stream flows may temporarily
increase the salinity in Puget Sound, thereby making it more favorable for sea lice.
To support its assertion, the DNR cited a study published in 2003. Whereas,
WDFW relied on two studies published in 2011 that examined 2006 data. Compare
AR at 2926, with AR at 4521. The WFC’s argument that WDFW relied on
outdated reports in the face of more current information is without merit. The other
evidence the WFC cites is a comment from an individual who found a wild
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Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
salmonid with sea lice near Cooke’s Hope Island facility. The discovery of one fish
with sea lice does not refute WDFW’s findings based on scientific data nor does it
establish the agency’s conclusion was clearly erroneous.
Finally, the WFC argues WDFW’s threshold determination was clearly
erroneous because the record does not show the agency adequately considered the
harm posed by bycatch and other ecological interactions. “Bycatch” refers to the
inadvertent “catching” of wild fish during harvest. The WFC alleges WDFW
“failed to require Cooke to monitor or report this bycatch” during harvest
operations. Appellants’ Opening Br. at 45. This allegation is unsupported in the
record. As a condition of the permit, Cooke must report the number and species of
bycatch caught during harvesting every time it harvests. Also, WDFW, the DNR,
and Ecology retained the right to monitor Cooke’s harvesting activities at the
agencies’ request. The WFC also revisits the ecological impacts of escaped
steelhead on wild salmonid. As noted before, WDFW imposed numerous
mitigation measures to reduce the likelihood of an escape and to reduce the
environmental impact in the event of an escape.
After careful review of the record, WDFW’s justification report, mitigating
provision requirements, and concerns raised by the WFC, we conclude WDFW
evaluated the relevant environmental factors sufficiently to constitute prima facie
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Wild Fish Conservancy v. Dep’t of Fish & Wildlife, No. 99263-1
compliance with SEPA. Therefore, WDFW’s threshold determination was not
clearly erroneous.
We affirm the trial court’s order and uphold the steelhead permit.
:(&21&85
51