Food and Water Watch v. U.S. Army Corps of Engineers, 2008 U.S. Dist. LEXIS 60191 (D. Mass. Aug. 6, 2008).

Stephanie Showalter, J.D., M.S.E.L.

Imagine a world in which fishermen ring dinner bells to catch fish instead of towing nets. Sound like science fiction? It’s not as farfetched as one might think. In an intriguing twist on Pavlov’s experiments with his dogs, researchers at the Marine Biological Laboratory (MBL) at Woods Hole Oceanographic Institution are currently studying whether black sea bass can be acoustically conditioned to return to the net when called. If successful, this project has the potential to revolutionize the way we think about aquaculture.

Could fish be raised similar to free-range chickens, roaming freely while feeding naturally in the wild? Free-range aquaculture, in theory, could produce healthier animals, since animals raised in confinement are at a higher risk of disease and stress, and reduce the environmental impact by minimizing pollution. It could also reduce the costs of aquaculture since operators would not need to buy as much feed or closely monitor dozens of nets. There are a number of disadvantages to free-range aquaculture, of course, including a very good chance that natural predators will eat the farmed fish while they are living in the wild. But, all ranching comes with risks. Foxes eat chickens, coyotes eat sheep, and wolves eat calves. As long as enough livestock comes back to make the business profitable, maybe it is worth the risk. That is, if the released fish are not negatively impacting wild populations.

Most of these questions are a bit premature considering researchers do not even know if fish are amenable to training. A $270,000 grant from the National Oceanographic and Atmo­ spheric Administration through its National Marine Aquaculture Initiative has enabled researchers to prove that black sea bass will respond to sound. Last summer, researchers placed 6,500 black sea bass in a circular tank. The fish were fed by dropping food into an enclosed area within the tank that the fish could enter only through a small opening. Three times a day for two weeks a tone was sounded for twenty seconds before food was dropped into the enclosure. At the end of the two-week period, according to one graduate student, “you hit that button, and they go into that area, and they wait patiently.”1

So black sea bass will respond to sound, but can they remember? By feeding without the tone for a few days and then testing the fish’s response to the tone, the team at MBL observed that some fish seemed to remember to report to the feeding area at the sound of the tone for as long as ten days.2 The project was off to a promising start and researchers were ready to launch field experiments in May 2008.

MBL planned to release 5,000 black sea bass raised from local broodstock into an Aquadome, a half-dome structure 32 feet in diameter and 16 feet tall covered with wire mesh, attached to the seafloor in Buzzards Bay, Massachusetts.3 After the released fish are acclimatized to their new environment and reminded of their training, portions of the mesh will be removed to allow the fish to roam. Researchers will then sound the tone, which has a range of about 100 meters, after a few days and after several weeks and record how many fish come back. The Aquadome would be in the water for a total of six months.

Legal Challenge
Because the Aquadome could obstruct navigation, the MBL had to apply for a A7 10 (Rivers and Harbors Act) permit from the U.S. Army Corps of Engineers (Corps). On May 30, the Corps issued a permit for the project after concluding in its Environmental Assessment (EA) that there would be only minor negative impacts on water quality near the project site.4 MBL placed the Aquadome and released the fish in June. In early July, Food and Water Watch (FWW), a national environmental advocacy organization, filed suit against the Corps alleging violations of the National Environ­ mental Policy Act (NEPA) and seeking to halt the project until a full environmental review is conducted.

Preliminary Injunctions
A party seeking a preliminary injunction has the burden of proving that (1) they are likely to succeed on the merits of the case at trial; (2) they will suffer irreparable harm if the activity is not halted; (3) the balance of harms weighs in their favor, and (4) granting the injunction will serve the public interest. A party unable to demonstrate either likelihood of success on the merits or irreparable harm “must fail in his quest for preliminary injunctive relief.”5

FWW claimed that the Corps violated NEPA by issuing the permit without preparing an Environmental Impact Statement (EIS). NEPA requires federal agencies to prepare an EIS for “major federal actions significantly affecting the quality of the human environment.”6 An agency may first prepare an En­ vironmental Assessment (EA) to determine whether the action will have a significant impact. If the agency determines the action will not have a significant impact on the environment, it may issue a “finding of no significant impact” (FONSI) and proceed without preparing an EIS.

Adequacy of the EA
Courts review federal agencies’ EAs and FONSIs under a four-part analysis. Agencies must identify relevant environmental concerns and take a “hard look” at those concerns.7 An agency who decides to issue a FONSI after taking a “hard look” must “be able to make a convincing case for its finding.”8 Finally, if the action will have a significant impact, an agency can avoid preparing an EIS “only if the agency finds that changes or safeguards in the project sufficiently reduce the impact to a minimum.”9

FWW raised four environmental impacts during the public comment period which it claims the Corps failed to adequately address in its EA: the potential impact of the project on Essential Fish Habitat (EFH) and juvenile fish near the project site and the potential harm to the genetic health and natural behaviors of wild populations. Although the Corps identified each of these concerns in its EA, FWW claimed that the Corps failed to take a “hard look” at these issues primarily because some of the Corps’ responses to the FWW comments were copied verbatim from MBL’s responses to the public comments.

The district court disagreed. “The fact that the Corps sought and relied upon MBL’s comments [was] not, in itself, troubling” to the court.10 The Corps solicited input from the MBL researchers and state and federal agencies regarding the project’s potential impact. The Massachusetts Department of Marine Fisheries had “no recommendations” for the Corps.11 The National Marine Fisheries Service stated, “it does not appear that this project is likely to have more than a minimal and temporary impact on Essential Fish Habitat and that any associated adverse impacts have been minimized through project design.”12 The court found MBL’s analysis of the public comments and its explanation as to why the project would have a minimal impact to be compelling, especially in light of the management agencies’ agreement. The Corps, therefore, took the requisite hard look at the issues.

Significance of Impact
FWW challenged the Corps’ conclusion that the project would not have a significant impact. When evaluating the significance of actions, Federal agencies are required to consider, among other things, the “unique characteristics of the geographic area such as proximity to . . . ecologically critical area,” and the degree to which the effects are likely to be “highly controversial” or “highly uncertain.”13 FWW claims the Corps must prepare an EIS because this project implicates all three of these considerations.

The district court again disagreed. The project is expected to temporarily impact 80 square feet of EFH consisting primarily of subtidal sand. Except for the first three weeks of the project when the fish are confined to the Aquadome, wastes will be dispersed over a large area as the fish swim freely. Despite the project’s proximity to an “ecologically critical area” (the EFH), the temporary impacts “did not warrant a finding of NEPA significance.”14 Furthermore, the court found “little evidence” that the project is highly controversial. Although a few agencies and individuals expressed concerns during the comment period, FWW “seems to be a lone voice in its objections to the adequacy of the EA and FONSI.”15 Nor are the project’s impacts “highly uncertain.” Because of the Corps’ experience permitting large salmon farms in New England, the court accepted the agency’s conclusion that “the impacts of the proposed project are not uncertain, they are readily understood based on past experiences the Corps has had with similar projects.”16

Irreparable Harm
The district court concluded that FWW was unlikely to succeed on the merits of its NEPA claim because the Corps’ EA and FONSI were adequate. The court further found that, even if FWW could establish a likelihood of success, it would be unable to prove irreparable harm. The court stated that FWW “lacks any affidavits from scientists or experts proving that the Project presents a real threat of irreparable harm to the environment.”17 FWW failed to present any evidence that significant numbers of juvenile fish live in the project area or that native fish would become dependent on the food released at the site. Additionally, FWW relied exclusively on scientific studies on the environmental impacts of large-scale aquaculture, not small-scale temporary research projects.

Conclusion
Ultimately the court determined that the scales tipped in the Corps’ favor. Granting an injunction in this case would place a significant burden on MBL. By the time the court heard the case, the fish were already in the water. If the project were to be stopped, quite a bit of time and money would have been wasted. Fur­ thermore, the Court concluded that it was in the public interest to deny the injunction. This project had received taxpayer money through a federal grant program and the findings of the researchers could lead to improvements in both aquaculture and stock enhancement programs. For instance, acoustic conditioning could be used to wean hatchery fish from food pellets to natural food sources after release thereby increasing their chances of survival.18

While the court refused to halt the project, the court case has not ended. The parties are proceeding towards a trial on the merits, although the case could be dismissed on other pre-trial motions, such as a motion for summary judgment. The MBL project has proceeded as well. The re­ searchers recently opened portions of the Aqua­dome to allow the fish to swim in and out.19 The project is due to wrap up in late October before the native black sea bass migrate south for the winter.

Endnotes
1.   Jay Lindsay, Scientists Train Fish to “Catch” Themselves, USA Today, March 26, 2008.
2.   Id.
3.   Public Notice, U.S. Army Corps of Engineers New England District, Feb. 26, 2008.
4.   Food and Water Watch v. U.S. Army Corps of Engineers, 2008 U.S. Dist. LEXIS 60191 at *5 (D. Mass. Aug. 6, 2008).
5.   Id. at *10.
6.   42 U.S.C. A7 4332(2)(C).
7.   Food and Water Watch, 2008 U.S. Dist. LEXIS 60191 at *14-15.
8.   Id. at *15.
9.   Id.
10. Id. at *17.
11. Id. at *18-19.
12. Id. at *19.
13. 40 C.F.R. A7 1508.27(b).
14. Food and Water Watch, 2008 U.S. Dist. LEXIS 60191 at *22-23.
15. Id. at *24-25.
16. Id. at *26.
17. Id. at *34.
18. Interview with Scott Lindell, Project Lead, Woods Hole, Mass. (Sept. 23, 2008).
19. Id.