* Managing Editor, Boston College Environmental Affairs Law Review 2003–04.
1 Effluent Limitation Guidelines for CAAPFs, 67 Fed. Reg. 57,872, 57,872 (proposed Sept. 12, 2002) (to be codified at 40 C.F.R. pt. 451).
2 Id.
3 Natural Res. Def. Council, Inc. v. Costle, 568 F.2d 1369, 1373 (D.C. Cir. 1977) (citing 33 U.S.C. § 1311(b)(1)(A) (2000)).
4 Effluent Limitation Guidelines for CAAPFs, 67 Fed. Reg. at 57,875.
5 Id.
6 Id. EPA contends that the earlier work, which created a draft development document for the aquatic animal production industry, did help to guide National Pollution Discharge Elimination System (NPDES) permitting when confronted with a permit application from a CAAPF. Id.
7 See Rebecca Goldburg & Tracy Triplett, Envtl. Def. Fund, Murky Waters: Environmental Effects of Aquaculture in the US 108 (1997), http://www.environmentaldefense.org/documents/490_AQUA.pdf (last visited Apr. 20, 2004).
8 Id.
9 See id.
10 Id. at 96.
11 Effluent Limitation Guidelines for CAAPFs, 67 Fed. Reg. at 57,876 (citing to the 1998 U.S. Department of Agriculture’s Census of Aquaculture).
12 Goldburg & Triplett, supra note 7, at 21. “[D]omestic aquaculture production still makes up only 10–15% of the total U.S. seafood supply,” however; the rest comes from wild-caught fish from the United States and imports. Id. A more recent study states that the U.S. aquaculture industry is worth about $1 billion per year; it does not, however, state if it is taking into account as many related aspects of the industry as the above study did. Rebecca J. Goldburg et al., Pew Oceans Comm’n, Marine Aquaculture in the United States: Environmental Impacts and Policy Options, at ii (2001), http://www.pewoceans.org/reports/137PEWAquacultureF.pdf (last visited Apr. 20, 2004). Recent concerns with pollutant levels in farmed fish may be slowing this growth, at least with regard to salmon.
13 Effluent Limitation Guidelines for CAAPFs, 67 Fed. Reg. at 57,876.
14 Biological oxygen demand (BOD) is a measure of the concentration of organic material in the water that can be broken down by microorganisms. Goldburg & Triplett, supra note 7, at 36. A high BOD indicates that the microorganisms would consume most of the oxygen present in the water in breaking down the organic material. Id. That consumption of available oxygen then stresses or leads to the death of fish and other organisms that require oxygen. Id.
15 Effluent Limitation Guidelines for CAAPFs, 67 Fed. Reg. at 57,872.
16 Id. (“EPA estimates that compliance with this regulation, as proposed . . . would cost industry an estimated $1.5 million and Federal and State permitting authorities an estimated $3,337 on an annual basis.”).
17 Id. at 57,876. Illinois, Louisiana, New Hampshire, New Mexico, North Carolina, Ohio, and Virginia see the aquaculture industry as a “potential or contributing source of impairment to water bodies,” Id. Idaho, Michigan, and Maine are some of the states that “have set water quality based permit requirements for CAAPFs in addition to technology based limits based on” permit writers’ best professional judgment. Id. While this Note focuses on aquaculture in Maine, state regulation will not feature prominently in the discussion.
18 Id. at 57,878.
19 Id.
20 Id. at 57,878–79.
21 Effluent Limitation Guidelines for CAAPFs, 67 Fed. Reg. at 57,878.
22 Id.
23 Id. at 57,879.
24 Id. But, as “[f]eed is the most expensive production input for most CAAP facilities . . . operators have a financial incentive to minimize excess feed, independent of concerns about water quality.” Id.
25 Id. Only six drugs are currently approved by the FDA for CAAPF use. Id.
26 Id. There is national oversight of the introduction of non-native species, and some states conduct similar monitoring. Id.
27 50 C.F.R. § 17.11(2002); Final Endangered Status for Anadromous Atlantic Salmon, 65 Fed. Reg. 69,459, 69,464 (Nov. 17, 2000) (codified at 50 C.F.R. pt. 17.11(h)).
28 Final Endangered Status for Anadromous Atlantic Salmon, 65 Fed. Reg. at 69,464.
29 Other potentially applicable federal laws not discussed in this Note are the Rivers and Harbors Appropriation Act of 1899, the Ocean Dumping Act, the Magnuson Fishery Conservation and Management Act, and the Costal Zone Management Act, among others. See Goldburg et al., supra note 12, at 21; D. Douglas Hopkins et al., Open Ocean Aquaculture: An Environmental Critique of Government Regulations and Policies for Open Ocean Aquaculture, 2 Ocean & Coastal L.J. 235, 240–53 (1997); Melissa Schatzberg, Note, Salmon Aquaculture in Federal Waters: Shaping Offshore Aquaculture Through the Coastal Zone Management Act, 55 Stan. L. Rev. 249, 257–60 (2002).
30 U.S. Pub. Interest Research Group v. Atl. Salmon of Me., LLC, 215 F. Supp. 2d 239, 241 (D. Me. 2002) [Salmon I]; U.S. Pub. Interest Research Group v. Stolt Sea Farm, Inc., No. CIV.00-1490B0C, 2002 WL 1552165, at *1 (D. Me. June 17, 2002) (order affirming recommended decision of magistrate judge).
31 Salmon I, 215 F. Supp. 2d at 244–45; U.S. Pub. Interest Research Group v. Stolt Sea Farm, Inc., No. CIV.00-149-B-C, 2002 WL 240386, at *4 (D. Me. Feb. 19, 2002) (recommended decision of magistrate judge).
32 Salmon I, 215 F. Supp. 2d at 260; Stolt Sea Farm, 2002 WL 240386, at *16.
33 Salmon I, 215 F. Supp. 2d at 260; Stolt Sea Farm, 2002 WL 240386, at *16.
34 Salmon I, 215 F. Supp. 2d at 244 (quoting letter).
35 Id. at 244–45.
36 Salmon I, 215 F. Supp. 2d at 245; Stolt Sea Farm, 2002 WL 240386, at *4.
37 Salmon I, 215 F. Supp. 2d at 245; Stolt Sea Farm, 2002 WL 240386, at *4.
38 Atlantic contacted EPA in 1993 in this regard but received no response. Salmon I, 215 F. Supp. 2d at 245. Stolt and the Maine Department of Marine Resources had the following confused correspondence in 1992: Stolt complied with the Department of Marine Resources’s request and stated that they “‘intend[] to be covered by and will comply with the terms of the general NPDES permit for offshore net pen facilities in the State of Maine,’” but no such permit existed and, moreover Maine had no role in NPDES permit distribution until control was transferred from EPA in January 2001. Stolt Sea Farm, 2002 WL 240386, at *4 (quoting Stolt’s letter); see 33 U.S.C. § 1342(b) (2000) (detailing the procedure and requirements by which states may administer the NPDES permit program).
39 Salmon I, 215 F. Supp. 2d at 245 n.11; Stolt Sea Farm, 2002 WL 240386, at *10 n.10. The third facility was Heritage Salmon, which settled with USPIRG before trial. Consent Decree and Order, U.S. Pub. Interest Research Group v. Heritage Salmon, Inc., (D. Me. 2002) (No. 00-150B-C); U.S. Pub. Interest Research Group, Settlement of Environmental Lawsuit Points to New Direction for Salmon Farming (2002), http://uspirg.org/uspirgnewsroom.asp?id2=7087&id3=USPIRGnewsroom (last visited Apr. 20, 2004). The terms of the settlement included: (1) a ban on European and genetically modified salmon; (2) an agreement to take strong measures against fish escapes; (3) compliance with federal fish-marking requirements; (4) fallowing of net pen sites to reduce disease and cumulative pollution impacts; (5) a ban on experimental drug use without review; and (6) a moratorium on expansion into Penobscot Bay. U.S. Pub. Interest Research Group, Settlement of Environmental Lawsuit Points to New Direction for Salmon Farming (2002), http://uspirg.org/uspirgnewsroom.
asp?id2=7087&id3=USPIRGnewsroom& (last visited Apr. 20, 2004). Part of Heritage’s impetus to settle reportedly stemmed from the fact that they had not put the same effort into obtaining permits that Atlantic and Stolt had, albeit unsuccessfully, and thus did not view its chances at trial as good. Interview with David A. Nicholas, Senior Attorney, and Joseph J. Mann, Staff Attorney, National Environmental Law Center, in Boston, Mass. (Apr. 18, 2003) [hereinafter Interview]. Heritage may have been wiser than the other companies sued, however, as the magistrate judge’s recommended decision for Heritage tracked those submitted for Atlantic and Stolt almost word for word. Compare U.S. Pub. Interest Research Group v. Heritage Salmon, Inc., No. CIV.00-150-B-C, 2002 WL 240440 passim (D. Me. Feb. 19, 2002) (recommended decision of magistrate judge), with Salmon I, 215 F. Supp. 2d 239 passim, and Stolt Sea Farm, 2002 WL 240386 passim. The magistrate’s recommendation for Stolt was affirmed, while the recommendation for Atlantic appears to have been appended verbatim to the trial judge’s decision. Stolt Sea Farm, 2002 WL 1552165, at *1. Compare Salmon I, 215 F. Supp. 2d passim, with Stolt Sea Farm, 2002 WL 240386 passim. Whether Heritage chose the wiser option is an undercurrent in this Note.
40 Salmon I, 215 F. Supp. 2d at 242; Stolt Sea Farm, 2002 WL 240386, at *1.
41 Atl. Salmon of Me., Salmon Farming and the Environment: Environmental Impact Fact Sheet, at http://www.majesticsalmon.com/facts_ei.html (last visited Apr. 20, 2004).
42 Stolt Sea Farm, 2002 WL 240386, at *2.
43 33 U.S.C. § 1251(a) (2000).
44 Id. § 1251(b). Congress set out as its policy to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution.” Id.
45 33 U.S.C. § 1311(a).
46 Id. § 1342(a) (listing procedures and requirements for meeting NPDES requirements).
47 Id.; see Salmon I, 215 F. Supp. 2d 239, 246 (D. Me. 2002) (“Sections 1311(a) and 1342 are understood to mean that the discharge of a pollutant is prohibited unless an NPDES permit has been obtained.”).
48 See Salmon I, 215 F. Supp. 2d at 245; Stolt Sea Farm, 2002 WL 240386, at *4.
49 Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 559 (5th Cir. 1996).
50 33 U.S.C. §§ 1311(a), 1342(a).
51 Id. § 1362(12).
52 Nat’l Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 165 (D.C. Cir. 1982).
53 33 U.S.C. § 1362(6).
54 See id. (compare the terms “biological materials” and “cellar dirt”).
55 Compare Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 565–67 (5th Cir. 1996), with Gorsuch, 693 F.2d at 171–73.
56 Gorsuch, 693 F.2d at 171–72 (quoting Colautti v. Franklin, 439 U.S. 379, 392 n.10 (1979) (quoting C. Sands, Statutes and Statutory Construction § 47.07 (4th ed. Supp. 1978))).
57 Id. at 173.
58 Cedar Point Oil, 73 F.3d at 565.
59 Id. The Fifth Circuit intimates that the Gorsuch court recognized this conclusion; however, the footnote that it cites merely states the court’s difficulty in squaring the definition in the CWA with the legislative history. See id.; Gorsuch, 693 F.2d at 173 n.52.
60 Cedar Point Oil, 73 F.3d at 566–67. To be fair, the Fifth Circuit did point out a significant difference between Cedar Point Oil Co. and Gorsuch—in the latter, the D.C. Circuit was “reviewing a decision by EPA not to regulate” certain substances through a permit. Id. at 567 (emphasis added).
61 Salmon I, 215 F. Supp. 2d at 246–47 (“Courts have interpreted the definition of pollutant ‘to encompass substances not specifically enumerated but subsumed under the broad generic terms’ listed in § 1362(6).”).
62 Id. at 247; Stolt Sea Farm, 2002 WL 240386, at *6. Surprisingly, this holding is not unique; Atlantic salmon were also held to be a pollutant in a case involving escapes from net pens in the Puget Sound. See Marine Envtl. Consortium, Inc. v. Wash. Dep’t of Ecology, No. 26825-6-II, 2002 WL 1354244, at *1 (Wash. Ct. App. June 21, 2002). This case, however, was dismissed as moot based on permitting issues. Marine Envtl. Consortium, 2002 WL 1354244, at *2.
63 Salmon I, 215 F. Supp. 2d at 247; Stolt Sea Farm, 2002 WL 240386, at *6.
64 Salmon I, 215 F. Supp. 2d at 247; Stolt Sea Farm, 2002 WL 240386, at *6. The feed administered by Stolt could also possibly fit into the definition of pollutant as an agricultural waste, as it contains poultry. Stolt Sea Farm, 2002 WL 240386, at *7. The biological portion of Atlantic’s feed, on the other hand, is made up solely of fish, removing it from the third category of agricultural waste. See Salmon I, 215 F. Supp. 2d at 248. Another concern stemming from the excess feed and feces that can accumulate on the ocean floor is the build up of nutrients, which demand oxygen to break them down, leading to a loss of oxygen in the water and subsequent BOD problems, as mentioned above. Plaintiffs’ Motion for Summary Judgment and Memorandum of Law in Support of Motion for Summary Judgment at 10, Salmon I, 215 F. Supp. 2d 239 (D. Me. 2002) (No. 00-151B-C).
65 Salmon I, 215 F. Supp. 2d at 248; Stolt Sea Farm, 2002 WL 240386, at *7. Both Atlantic and Stolt used pigments or chemical dyes in their feed mixtures to give salmon flesh a pink hue; both also occasionally added an antibiotic, and Stolt would add an extra drug. Salmon I, 215 F. Supp. 2d at 248; Stolt Sea Farm, 2002 WL 240386, at *7. “Because farmed salmon do not eat the crustaceans that wild salmon normally eat, the farmed salmon’s flesh does not turn pink unless a pigment is added to their food.” Plaintiffs’ Motion for Summary Judgment and Memorandum of Law in Support of Motion for Summary Judgment at 6, Salmon I, 215 F. Supp. 2d 239 (D. Me. 2002) (No. 00-151B-C). The dyes, canthaxanthin and astaxanthin, are made from petrochemicals and salmon farmers are offered “the SalmoFan, a sort of paint wheel with assorted shades of pink, to help them create the color they think their customers will want.” Marian Burros, Issues of Purity and Pollution Leave Farmed Salmon Looking Less Rosy, N.Y. Times, May 28, 2003, at F1.
66 Salmon I, 215 F. Supp. 2d at 248; Stolt Sea Farm, 2002 WL 240386, at *7.
67 Catskill Mountains Chapter of Trout Unlimited v. City of New York, 273 F.3d 481, 491 (2d Cir. 2001) (quoting Nat’l Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 165, 175 (D.C. Cir. 1982), which held that EPA probably has the discretion to define the term “addition,” and following that definition, determined that low-oxygen, super-saturated, and cold water flowing from one side of a dam to another does not constitute an addition (citing Nat’l Wildlife Fed’n v. Consumers Power Co., 862 F.2d 580, 585 (6th Cir. 1988), which held that an electric generating plant on Lake Michigan did not add dead fish to the water, but merely changed live fish to “a mixture of live and dead fish in the process of generating electricity” and that under the CWA “live fish would be just as much a pollutant as a mixture of live and dead fish” as both are biological materials)).
68 Salmon I, 215 F. Supp. 2d at 248 (listing a possible exception for the feed used by Atlantic, as the court considered the possibility that if the fish material came from where the pens were located, it would not technically be an addition); Stolt Sea Farm, 2002 WL 240386, at *7.
69 33 U.S.C. § 1362(7) (2000).
70 Id. § 1362(8).
71 Salmon I, 215 F. Supp. 2d at 249; Stolt Sea Farm, 2002 WL 240386, at *8.
72 Salmon I, 215 F. Supp. 2d at 249; Stolt Sea Farm, 2002 WL 240386, at *8.
73 33 U.S.C. § 1362(14). This definition goes on to exempt “agricultural stormwater discharges and return flows from irrigated agriculture.” Id.
74 See id.
75 Natural Res. Def. Council, Inc. v. Costle, 568 F.2d 1369, 1382 (D.C. Cir. 1977).
76 See Revision of NPDES Regulations, 44 Fed. Reg. 32,854, 32,870 (June 7, 1979) (codified at 40 C.F.R. pt. 122.43). The distinction, however, is not so clear as the elision of the term “concentrated” makes it appear; AAPFs can be determined to be CAAPFs on a case-by-case basis, as will be explained below. See id.
77 40 C.F.R. § 122.24(a) (2002).
78 Id. § 122 app. C. A similar definition for warm water fish species has a much higher weight limit on the amount of fish allowed to be harvested, and does not include any information about the maximum amount of feed that may be given to avoid the CAAPF designation. Id. The regulation also defines cold water aquatic animals, which “include, but are not limited to, the Salmonidae family of fish; e.g., trout and salmon.” Id. Thus, Atlantic and Stolt fall into the cold water fish section. See id.
79 Id. § 122.24(c).
80 Id. § 122.24(c)(1)(i)–(iv). While a designation under § 122.24(c) could possibly be surprising for the facility on the receiving end, the regulation slightly softens the blow by stating that a NPDES permit application is not required under this section “until the Director has conducted on-site inspection of the facility and has determined that the facility should and could be regulated under the permit program.” Id. § 122.24(c)(2).
81 See id. § 122.3(e).
82 Salmon I, 215 F. Supp. 2d at 251; Stolt Sea Farm, 2002 WL 240386, at *10; see 40 C.F.R. § 122 app. C.
83 Salmon I, 215 F. Supp. 2d at 243 (excepting one of Atlantic’s sites); Stolt Sea Farm, 2002 WL 240386, at *2; see 40 C.F.R. § 122 app. C.
84 Salmon I, 215 F. Supp. 2d at 243 (excepting one of Atlantic’s sites); Stolt Sea Farm, 2002 WL 240386, at *2; see 40 C.F.R. § 122 app. C.
85 See Salmon I, 215 F. Supp. 2d at 244, 251; Stolt Sea Farm, 2002 WL 240386, at *3, 10; 40 C.F.R. § 122 app. C (setting the discharge rate to at least thirty days per year).
86 Salmon I, 215 F. Supp. 2d at 251; Stolt Sea Farm, 2002 WL 240386, at *10; see 40 C.F.R. § 122(a) app. C. They also incorporated an argument that contended that their facilities could not be point sources as they did not have a “‘discrete, confined and direct conveyance’” or “‘discrete discharge pipes.’” Salmon I, 215 F. Supp. 2d at 251; Stolt Sea Farm, 2002 WL 240386, at *10.
87 Salmon I, 215 F. Supp. 2d at 251; Stolt Sea Farm, 2002 WL 240386, at *10.
88 Salmon I, 215 F. Supp. 2d at 251; Stolt Sea Farm, 2002 WL 240386, at *10 (quoting another letter from EPA stating that “facilities operating in waters off the coast of Maine” which meet the definition of 40 C.F.R. § 122.24 are required to have NPDES permits).
89 See Salmon I, 215 F. Supp. 2d at 252; Stolt Sea Farm, 2002 WL 240386, at *10; 40 C.F.R. §§ 122.24, 122 app. C.
90 Salmon I, 215 F. Supp. 2d at 252–53; Stolt Sea Farm, 2002 WL 240386, at *11 (citing 44 Fed. Reg. 32,854, 32,870 (June 7, 1979) (codified at 40 C.F.R. pt. 122)); Revision of NPDES Regulations, 43 Fed. Reg. 37,078, 37,082, 37,100 (proposed Aug. 21, 1978) (codified at 40 C.F.R. pt. 122).
91 See Revision of NPDES Regulations, 43 Fed. Reg. at 37,100. The proposed rule stated:
(a) Aquatic animal production facilities, as defined in this section, are point sources subject to the NPDES permit program. Concentrated aquatic animal production facilities are subject to the individual permit program. Other animal production facilities are subject to the general permit program. (§ 122.48.)
(b) Definitions. “Aquatic animal production facility” means a hatchery, fish farm, or other facility which contains:
(1) Any species of fish or other aquatic animal [other than carp (Cyprinus carpio), goldfish (Carassius auratus), or brown trout (Salmo trutta)] nonnative of the United States and from which there is a discharge at any time; or
(2) Fish or other aquatic animals in ponds, raceways or other similar structures for purposes of production, which are not closed ponds discharging only during periods of excess runoff, and which discharge at least 30 days per year. . . .
(3) “Concentrated aquatic animal production facility” means any aquatic animal production facility, as defined in subparagraph (1) of this paragraph which:
(i) Produces more than 20,000 pounds of aquatic animals per year; or
(ii) Is designated by the Enforcement Division Director as a significant contributor of pollution to the waters of the United States in accordance with paragraph (c).
(c) Case-by-case designation of concentrated aquatic animal production facilities.
Id. (emphasis added).
92 Revisions to the NPDES Program, 65 Fed. Reg. 43,586, 43,649 (July 13, 2000) (codified at 40 C.F.R. pt. 122.24).
Most commercial fish husbandry that the layperson refers to as “aquaculture,” including fish farms located in waters of the U.S., is subject to NPDES regulation under the rubric “concentrated aquatic animal production facility.” As with feedlots, an “aquatic animal production facility” is subject to regulation under the NPDES permitting program only if the facility is “concentrated” according to the NPDES regulations.
Id.
93 Salmon I, 215 F. Supp. 2d at 253; Stolt Sea Farm, 2002 WL 240386, at *11 (repeating that “[t]he goal of the Clean Water Act is to restore and maintain the integrity of the nation’s waters”); see 33 U.S.C. § 1251(a) (2000).
94 Salmon I, 215 F. Supp. 2d at 253; Stolt Sea Farm, 2002 WL 240386, at *11. Just as Atlantic and Stolt had no judicial opinions to weigh in on their side that net pen facilities do not comport with the phrase “ponds, raceways, or other similar structures,” the District Court of Maine lacked any guidance in interpreting this definition and applying it to the defendants. Salmon I, 215 F. Supp. 2d at 253; Stolt Sea Farm, 2002 WL 240386, at *11. The most compelling evidence cited by the court is the 1990 NPDES application, which required the applicant to check a box indicating whether its facilities constitute ponds, raceways, or similar structures. Salmon I, 215 F. Supp. 2d at 253; Stolt Sea Farm, 2002 WL 240386, at *11. If the box denoting “other” was marked, the application asked for “a descriptive name of any structure which is not a pond or raceway but which results in discharge to waters of the United States.” Salmon I, 215 F. Supp. 2d at 253 n.12; Stolt Sea Farm, 2002 WL 240386, at *11 n.11. This fortifies the broad reading of the definition also evidenced in EPA’s letters to the defendants. See Salmon I, 215 F. Supp. 2d at 251; Stolt Sea Farm, 2002 WL 240386, at *10.
95 Salmon I, 215 F. Supp. 2d at 253–54; Stolt Sea Farm, 2002 WL 240386, at *11.
96 Salmon I, 215 F. Supp. 2d at 253–54; Stolt Sea Farm, 2002 WL 240386, at *11. The defendants also made use of affirmative defenses, which are not of much interest here, save for the impossibility excuse discussed later. Salmon I, 215 F. Supp. 2d at 257–60; Stolt Sea Farm, 2002 WL 240386, at *13–17; see discussion infra Part II.F.
97 33 U.S.C. § 1362(14); see supra text accompanying note 73.
98 Revisions to the NPDES Program, 65 Fed. Reg. 43,586, 43,649 (July 13, 2000) (“The CWA does not specifically address ‘concentrated aquatic animal production facilities.’ The latter [CAAPFs] are a type of ‘concentrated animal feeding operation,’ which the CWA explicitly identifies as a ‘point source.’”).
99 Salmon I, 215 F. Supp. 2d at 254–55; Stolt Sea Farm, 2002 WL 240386, at *12.
100 Hughey v. JMS Dev. Corp., 78 F.3d 1523, 1530 (11th Cir. 1996); Salmon I, 215 F. Supp. 2d at 257; Stolt Sea Farm, 2002 WL 240386, at *14.
101 Hughey, 78 F.3d at 1527.
102 Id. at 1524.
103 Id. at 1530.
104 Salmon I, 215 F. Supp. 2d at 257; Stolt Sea Farm, 2002 WL 240386, at *14 (citing 40 C.F.R. § 122.24; Revision of NPDES Regulations, 44 Fed. Reg. 32,854, 32,870 (June 7, 1979) (codified at 40 C.F.R. pt. 122.43) (“requiring permits for CAAPFs and allowing case-by-case determination for AAPFs”)).
105 Salmon I, 215 F. Supp. 2d at 257; Stolt Sea Farm, 2002 WL 240386, at *14. While not cited by the District Court of Maine, a NPDES permit was granted to a potential net pen facility in Acadia, Maine. Linda M. Murphy, Envtl. Prot. Agency, Permit No. ME0036234, Authorization to Discharge Under the National Pollutant Discharge Elimination System (2002) (on file with author).
106 Salmon I, 215 F. Supp. 2d at 257; Stolt Sea Farm, 2002 WL 240386, at *14; see Beartooth Alliance v. Crown Butte Mines, 904 F. Supp. 1168, 1174 (D. Mont. 1995) (“To be in compliance with the CWA, it is necessary to not only apply for, but also to have a permit.”).
107 Salmon I, 215 F. Supp. 2d at 258; Stolt Sea Farm, 2002 WL 240386, at *14. As Hughey dealt with storm water, the Eleventh Circuit stated: “[p]ractically speaking, rain water will run downhill, and not even a law passed by the Congress of the United States can stop that.” Hughey, 78 F.3d at 1530.
108 Salmon I, 215 F. Supp. 2d at 258; Stolt Sea Farm, 2002 WL 240386, at *14; see Hughey, 78 F.3d at 1530 (“This was not a case of a manufacturing facility that could abate the discharge of pollutants by ceasing operations.”).
109 Salmon I, 215 F. Supp. 2d at 241; U.S. Pub. Interest Research Group v. Stolt Sea Farm, Inc., No. CIV.00-1490B0C, 2002 WL 1552165, at *1 (D. Me. June 17, 2002).

110 U.S. Pub. Interest Research Group v. Atl. Salmon of Me., LLC, 257 F. Supp. 2d 407 (D. Me.) [Salmon III], aff’d, 339 F.3d 23 (1st Cir. 2003) [Salmon IV].
111 While the listing of the Atlantic salmon as endangered was quite controversial in Maine and could easily be examined in equal or greater depth than the CWA, those arguments will not be considered. This section gives a basic statutory background, and the history and reasons for the listing.
112 See Maine v. U.S. Dep’t of the Interior, 298 F.3d 60, 63 (1st Cir. 2002); Maine v. Norton, 203 F.R.D. 22, 24 (D. Me. 2001), aff’d, 262 F.3d 13 (1st Cir. 2001).
113 Final Endangered Status for Anadromous Atlantic Salmon, 65 Fed. Reg. 69,459, 69,464 (Nov. 17, 2000) (codified at 50 C.F.R. pt. 17.11(h)).
114 16 U.S.C. § 1531(b) (2000). “Endangered” is defined as “any species which is in danger of extinction throughout all or a significant portion of its range.” Id. § 1532(6). “Threatened” is defined as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id. § 1532(20).
115 Id. § 1533(a)(1)(C)–(E). The above listing is only those factors found to be important concerning the Atlantic salmon; the others include “the present or threatened destruction, modification, or curtailment of its habitat or range . . . [and] overutilization for commercial, recreational, scientific, or educational purposes.” Id. § 1533(a)(1)(A)–(B); Final Endangered Status for Anadromous Atlantic Salmon, 65 Fed. Reg. at 69,479. There is, however, no critical habitat designated for the Atlantic salmon. Final Endangered Status for Anadromous Atlantic Salmon, 65 Fed. Reg. at 69,475.
116 16 U.S.C. § 1533(b)(1)(A).
117 Id. § 1538(a)(1)(B) (listing many other prohibited acts, such as importing, possessing, selling, and delivering).
118 Id. § 1532(19). While the definition of “take” is broad, “harm” extends further, because it “means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” 50 C.F.R. § 17.3 (2002). This definition has been upheld as quite broad and a reasonable construction of congressional intent. Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 708 (1995).
119 16 U.S.C. § 1532(13) (defining “person” as “an individual, corporation, partnership, trust, association, or any other private entity,” and encompassing all levels of government in a similar manner).
120 Id. § 1535(a).
121 Maine v. U.S. Dep’t of the Interior, 298 F.3d 60, 63 (1st Cir. 2002); Maine v. Norton, 203 F.R.D. 22, 25 (D. Me. 2001), aff’d, 262 F.3d 13 (1st Cir. 2001); Final Endangered Status for Anadromous Atlantic Salmon, 65 Fed. Reg. 69,459, 69,462 (Nov. 17, 2000) (codified at 50 C.F.R. pt. 17.11(h)).
122 Maine, 298 F.3d at 63.
123 Id. The term species is defined in the Endangered Species Act (ESA) as including “any subspecies of fish or wildlife or plants, and any distinct population segment [DPS] of any species of vertebrate fish or wildlife which interbreeds when mature.” 16 U.S.C. § 1532(16). Thus, the entire species of Atlantic salmon need not be listed for those in designated areas of Maine to be protected. See id.; Final Endangered Status for Anadromous Atlantic Salmon, 65 Fed. Reg. at 69,459.
124 Maine, 298 F.3d at 63.
125 Id.; Norton, 203 F.R.D. at 25. It is interesting to note the parties in the Norton case, which began in 2000 as a challenge to the Fish and Wildlife Service’s (FWS) listing of Atlantic salmon as endangered. Id. at 24. The conservation groups Defenders of Wildlife, Biodiversity Legal Foundation, Conservation Action Project, Forest Ecology Network, Coastal Waters Project, along with four individuals, sought to intervene on behalf of Gale Norton and other defendants, on behalf of the listing of Atlantic salmon as endangered. Id. The plaintiffs in that case opposing the endangered listing were the State of Maine, Atlantic, Stolt, Maine Aquaculture Association, and paper and blueberry groups, both of which require the use of rivers, the breeding grounds of salmon. Id. at 22.
126 Maine, 298 F.3d at 63. In doing so, the FWS “redefined the species under analysis as the Gulf of Maine DPS to acknowledge the possibility that other populations of Atlantic salmon could be added to the DPS if they were found to be naturally reproducing and to have wild stock characteristics.” Final Endangered Status for Anadromous Atlantic Salmon, 65 Fed. Reg. at 69,462.
127 65 Fed. Reg. at 69,462.
128 Maine, 298 F.3d at 64. These groups, the former a wildlife and conservation advocate and the latter a sportsmen’s association, stated that the FWS’s retraction of the listing of Atlantic salmon violated the ESA and the Administrative Procedures Act (APA). Id.
129 Id. This action ended the efficacy of Maine’s conservation plan. Id.
130 Final Endangered Status for Anadromous Atlantic Salmon, 65 Fed. Reg. at 69,459.
131 Maine, 298 F.3d at 64 n.3. Maine also later challenged the decision to list Atlantic salmon as endangered under the APA. Maine v. Norton, 257 F. Supp. 2d 357, 361–62 (D. Me. 2003). The state’s challenge was heard despite procedural flaws in Maine’s suit, but summary judgment was granted to the Department of the Interior. Id. at 372–76, 407.
132 Final Endangered Status for Anadromous Atlantic Salmon, 65 Fed. Reg. at 69,464.
133 Id.
134 See id.
135 Id. at 69,464, 69,469. Another virus of concern for wild and farmed salmon is salmon swimbladder sarcoma virus (SSSV). Id. at 69,461.
136 Id. at 69,469.
137 Id. ISA has been found in wild fish in Canada, Norway, and Scotland. Id.; Goldburg et al., supra note 12, at 9.
138 Final Endangered Status for Anadromous Atlantic Salmon, 65 Fed. Reg. at 69,469.
139 Id. The ISA virus is known to be “transmissible laterally between fish pens within 5 kilometers (km) of each other, and by the discharge of slaughter wastes.” Id.
140 Id.
141 Id.
142 Id. at 69,477.
143 See id. at 69,469; Bridget M. Kuehn, Officials Fine-tune Salmon Virus Response, J. Am. Veterinary Med. Ass’n, July 1, 2002, http://www.avma.org/onlnews/javma/jul02/020701e.asp (last visited Apr. 20, 2004).
144 Kuehn, supra note 144.
145 Salmon I, 215 F. Supp. 2d 239, 243 (D. Me. 2002); U.S. Pub. Interest Research Group v. Stolt Sea Farm, Inc., No. CIV.00-149-B-C, 2002 WL 240386, at *3 (D. Me. Feb. 19, 2002).
146 Final Endangered Status for Anadromous Atlantic Salmon, 65 Fed. Reg. at 69,471.
147 Id. The genetic difference comes from “changes introduced through domestication. The industry selects fish best suited to grow in captivity, which would likely select for different traits and characteristics than those most suited for survival in the wild.” Id.
148 Goldburg & Triplett, supra note 7, at 53.
149 Final Endangered Status for Anadromous Atlantic Salmon, 65 Fed. Reg. at 69,471. Studies of interactions between escaped and wild salmon in Ireland have demonstrated the ability for the escaped salmon to survive and interbreed with the wild population. Id.
150 Id. at 69,471–72 (“Genetic studies . . . have shown the rare occurrence in wild . . . fish [Atlantic salmon] collected in Maine of alleles that are common in European stocks. This strongly suggests that some level of introgression of European alleles may have already occurred.”).
151 Id. at 69,472 (noting that this trend continues, despite wide compliance with voluntary containment procedures).
152 Id. at 69,477 (citing both a loophole in Me. Rev. Stat. Ann. tit. 12, § 6071 (West 2000), which “restricts importing fish and eggs, but fails to restrict importing European milt, thus enabling expansion of the use of hybrids,” and state permittees’ failure to abide by their commitment to not use European strains and the EPA’s failure to issue CWA permits). Milt is salmon sperm. Goldburg et al., supra note 12, at 7.
153 Final Endangered Status for Anadromous Atlantic Salmon, 65 Fed. Reg. at 69,477.
154 Redds are defined as “nests in the beds of rivers” where adult salmon deposit their eggs. Maine v. Norton, 257 F. Supp. 2d 357, 363 (D. Me. 2003).
155 Final Endangered Status for Anadromous Atlantic Salmon, 65 Fed. Reg. at 69,477. Benthic is defined as “bottom.” Goldburg & Triplett, supra note 7, at 35.
156 Final Endangered Status for Anadromous Atlantic Salmon, 65 Fed. Reg. at 69,478.
157 Id. (citing the lack of success in removing European salmon, including strains or hybrids thereof, from Maine aquaculture facilities).
158 Id. at 69,479.
159 Id.
160 U.S. Pub. Interest Research Group v. Atl. Salmon of Me., LLC, 243 F. Supp. 2d 2, 2 (D. Me. 2003).
161 Id. No corresponding decision was entered for Stolt, since it decided not to introduce a class of fish for the season. Interview, supra note 39.
162 Atl. Salmon of Me., 243 F. Supp. 2d at 2.
163 See Effluent Limitation Guidelines for CAAPFs, 67 Fed. Reg. 57,872, 57,887 (proposed Sept. 12, 2002) (to be codified at 40 C.F.R. pt. 451).
164 U.S. Pub. Interest Research Group v. Atl. Salmon of Me., LLC, 261 F. Supp. 2d 17, 24 (D. Me. 2003) [Salmon II]. Atlantic attempted to circumvent the district court’s order by stocking fish in the net pens of its wholly owned subsidiary, Island Aquaculture Company (IAC). Id. The court held that any transaction between IAC and Atlantic was a sham, and that the parent/subsidiary relationship was only maintained “to protect the integrity of IAC’s leases of aquaculture sites . . . .” Id. at 27. Atlantic was ordered to remove the fish it stocked. Id. at 34.
165 Effluent Limitation Guidelines for CAAPFs, 67 Fed. Reg. at 57,887–88.
166 Salmon I, 215 F. Supp. 2d 239, 246–48 (D. Me. 2002); U.S. Pub. Interest Research Group v. Stolt Sea Farm, Inc., No. CIV.00-149-B-C, 2002 WL 240386, at *6–7 (D. Me. Feb. 19, 2002).
167 See Effluent Limitation Guidelines for CAAPFs, 67 Fed. Reg. at 57,895.
168 Id. BMP stands for best management practices, while HACCP is shorthand for the hazard analysis critical control point approach. The HACCP aspect seems to translate, for net pen facilities, to “feed management and BMP plan development for solids control.” Id.
169 Id.
170 Id. This elimination was not for net pen aquaculture facilities only, but was also cost prohibitive for other types of aquaculture systems. See id.
171 Id. at 57,900.
172 Id.
173 Effluent Limitation Guidelines for CAAPFs, 67 Fed. Reg. at 57,900.
174 Id.
175 Id.
176 Id. EPA recognizes the mutual benefit present here, as it has acknowledged that “[f]eed is the most expensive production input for most CAAP facilities.” Id. at 57,879.
177 Atl. Salmon of Me., Salmon Farming and the Environment, http://www.majesticsalmon.com/facts_ei.html (last visited Apr. 20, 2004).
178 Effluent Limitation Guidelines for CAAPFs, 67 Fed. Reg. at 57,879 (“Open water facilities offer little, if any, opportunity for treatment and removal of pollutants, such as excess feed, prior to discharge, thus feed management is a very important component of pollution control at net pen facilities.”).
179 See id. at 57,900–01. When compared to ponds, flow-through systems, and recirculating systems, net pen facilities offer even less in terms of opportunities to filter or otherwise remove solids once they are released into the open waters. See id. at 57,896–902. Ponds, flow-through systems, and recirculating systems allow a greater range of possible treatments for receiving waters as those waters are contained or channeled through a conduit of some sort, unlike net pens. See id.
180 Id. at 57,900.
181 Id. at 57,901.
182 See id. at 57,900–01. The non-regulation option was not unique to net pen facilities; it was also considered as an option for flow through, recirculating, and pond system types of CAAPFs discussed in the proposed rule. Id. at 57,896–902. In relation to pond-based aquaculture production, however, the only option proposed was non-regulation, as no effluent guidelines were put forth. Id. at 57,902. This recommendation was “[b]ased on the information provided by the industry and permits issued to pond facilities” and the following factors: (1) very few pond systems meet the CAAPF definitions; (2) they “must have high water quality to produce aquatic animals;” and (3) surface runoff would then be of high quality. Id.
183 See id. at 57,901.
184 Effluent Limitation Guidelines for CAAPFs, 67 Fed. Reg. at 57,901.
185 Id. Again, these are proposed rules for which EPA is soliciting comments; they are also soliciting comments for the proposed best management practices (BMPs) relating to drug and chemical use, and the possible application of similar BMPs to pathogens and non-native species. Id.
186 Normandeau Assocs. & Battelle, Me. Dep’t of Marine Res., Maine Aquaculture Review 4 (2003), http://www.maine.gov/dmr/aquaculture/reports/MaineAquacultureReview.pdf (last visited Apr. 20, 2004).
187 Effluent Limitation Guidelines for CAAPFs, 67 Fed. Reg. at 57,875. “EPA does not propose to revise the NPDES regulation by today’s action.” Id. (citing 40 C.F.R. §§ 122.24, 122 app.C (2002)).
188 Id.
189 40 C.F.R. § 122.24(c) (2002).
190 Id. § 122 app. C. A similar definition for warm water fish species has higher weight limits. Id; see supra note 79.
191 See Effluent Limitation Guidelines for CAAPFs, 67 Fed. Reg. at 57,900.
192 See 40 C.F.R. § 122 app. C; Effluent Limitation Guidelines for CAAPFs, 67 Fed. Reg. at 57,900.
193 Effluent Limitation Guidelines for CAAPFs, 67 Fed. Reg. at 57,900. Of the eight net pen facilities identified by EPA that fall under the CAAPF definition, none produces fewer than 100,000 pounds of aquatic animals; in fact, none produces fewer than 475,000 pounds of aquatic animals per year. Id. at 57,905. This probably explains, in part, why the proposed effluent guidelines would only take effect when a facility produces over 100,000 pounds. See id. at 57,900, 57,905. Another explanation may be that the costs of following the new regulations may become prohibitive if a facility produces aquatic animals at a level below the proposed threshold. Interview, supra note 39.
194 See Effluent Limitation Guidelines for CAAPFs, 67 Fed. Reg. at 57,889, 57,900–01. The proposed text of the regulations is as follows:
Subpart C—Net Pen Systems
§ 451.30 Applicability.
This subpart applies to the discharge of pollutants from a concentrated aquatic animal production facility that produces 100,000 pounds or more per year in net pen systems, except for net pen facilities located in the State of Alaska producing native species of salmon.
§ 451.31 Effluent limitations attainable by the application of the best practicable control technology currently available (BPT).
Except as provided in 40 CFR 125.30 through 125.32, discharges from a net pen system subject to this subpart must achieve the following best management practice representing the application of BPT:
(a) The permittee must maintain a real-time monitoring system to monitor the rate of feed consumption. The system must be designed to allow detection or observation of uneaten feed passing through the bottom of the net pens and to prevent accumulation.
. . .
§ 451.35 Best Management Practices (BMPs).
Any net pen system subject to this subpart must develop and implement a Best Management Practices (BMP) plan to achieve the following specific requirements:
(a) The permittee must operate the facility so as to minimize the concentration of net-fouling organisms that are discharged, for example, changing and cleaning nets and screens onshore.
(b) The following discharges into waters of the United States should be avoided to the maximum extent feasible:
(1) Blood, viscera, fish carcasses, or transport water containing blood associated with the transport or harvesting of fish;
(2) Substances associated with in-place pressure washing nets. The use of air-drying, mechanical, and other non-chemical procedures to control net fouling are strongly encouraged.
(c) The permittee must develop and implement practices to minimize the potential escape of non-native species.
(d) The following discharges from a net pen system into waters of the United States are prohibited:
(1) Feed bags and other solid wastes;
(2) Chemicals used to clean nets, boats or gear; and
(3) Materials containing or treated with tributyltin compounds.
Id. at 57,928.
195 Id. at 57,889.
196 Id. at 57,900; see id. at 57,889.
197 Id. at 57,900.
198 See id.
199 Compare Salmon I, 215 F. Supp. 2d 239, 243–44, 246–49 (D. Me. 2002), and U.S. Pub. Interest Research Group v. Stolt Sea Farm, Inc., No. CIV.00-149-B-C, 2002 WL 240386, at *2–4, *6–7 (D. Me. Feb. 19, 2002), with Effluent Limitation Guidelines for CAAPFs, 67 Fed. Reg. at 57,900–01.
200 The first decisions against Atlantic and Stolt were issued on June 17, 2002. Salmon I, 215 F. Supp. 2d at 239; U.S. Pub. Interest Research Group v. Stolt Sea Farm, Inc., No. CIV.00-1490B0C, 2002 WL 1552165, at *1 (D. Me. June 17, 2002). The injunction was issued against Atlantic on February 13, 2003. U.S. Pub. Interest Research Group v. Atl. Salmon of Me., LLC, 243 F. Supp. 2d 2, 2 (D. Me. 2003). EPA’s proposed rules for net pen facilities were issued on September 12, 2002. Effluent Limitation Guidelines for CAAPFs, 67 Fed. Reg. at 57,872.
201 Salmon I, 215 F. Supp. 2d at 247–48; Stolt Sea Farm, 2002 WL 240386, at *6–7.
202 Effluent Limitation Guidelines for CAAPFs, 67 Fed. Reg. at 57,900.
203 Id. at 57,901.
204 Salmon I, 215 F. Supp. 2d at 245–46; Stolt Sea Farm, 2002 WL 240386, at *5.
205 33 U.S.C. §§ 1311(a), 1342(a)(1), (k) (2000); Salmon I, 215 F. Supp. 2d at 246; Stolt Sea Farm, 2002 WL 240386, at *5.
206 Salmon I, 215 F. Supp. 2d at 246–49; Stolt Sea Farm, 2002 WL 240386, at *5–7.
207 Natural Res. Def. Council, Inc. v. Costle, 568 F.2d 1369, 1379 (D.C. Cir. 1977) “In sum, we conclude that the existence of uniform national effluent limitations is not a necessary precondition for incorporating into the NPDES program pollution from agricultural, silvicultural, and storm water runoff point sources.” Id. In fact, a permit was issued for a salmon net pen facility to be cited in Maine’s coastal waters. Linda M. Murphy, Envtl. Prot. Agency, Permit No. ME0036234, Authorization to Discharge Under the National Pollutant Discharge Elimination System (2002) (on file with author). While the facility in Acadia was never operational, the federal permit set effluent limitations, monitoring requirements, feed and sediment requirements, requirements for notice regarding certain discharges, and other impact limitations. See id.
208 Costle, 568 F.2d at 1378–79.
209 See supra notes 193–200 and accompanying text.
210 Costle, 568 F.2d at 1378.
211 Salmon I, 215 F. Supp. 2d at 260 n.25 (“In January 2001, the EPA granted the State of Maine the authority to issue NPDES permits in the state.”); Final Approval of the Maine Pollutant Discharge Elimination System Under CWA, 66 Fed. Reg. 12,791, 12,792 (Feb. 28, 2001) (calling the Maine issued permits MEPDES permits).
212 Final Approval of the Maine Pollutant Discharge Elimination System Under CWA, 66 Fed. Reg. at 12,792.
213 See 33 U.S.C. §§ 1311(a), 1342(b) (2000).
214 Salmon III, 257 F. Supp. 2d 407 (D. Me.), aff’d, 339 F.3d 23 (1st Cir. 2003).
215 Salmon IV, 339 F.3d at 35; see discussion supra Part II.G. The First Circuit held that as “the companies have violated the statute . . . nothing in the shield provision’s language directly addresses the question whether and when in such a situation the district court’s authority gives way to the agency’s.” Salmon IV, 339 F.3d at 31. As the district court’s injunction was issued before the general permit, remedied harm for past violations, and did not reduce the environmental protection provided by the permit, the injunctive relief could stand despite the conflicts between the general permit and the injunctive relief. Id.
216 Effluent Limitation Guidelines for CAAPFs, 67 Fed. Reg. 57,872, 57,889, 57,900 (proposed Sept. 12, 2002) (to be codified at 40 C.F.R. pt. 451).
217 Atl. Salmon of Me., supra note 178. Stolt may also operate in a similar manner, however, information as to its feeding practices was limited to descriptions in the available caselaw.
218 Salmon I, 215 F. Supp. 2d 239, 260 n.24 (D. Me. 2002); U.S. Public Interest Research Group v. Stolt Sea Farm, Inc., No. CIV.00-149-B-C, 2002 WL 240386, at *16 n.23 (D. Me. Feb. 19, 2002).
219 Normandeau Assocs. & Battelle, supra note 187, at 3.
220 See 33 U.S.C. § 1251(a) (2000). This is assuming that the option of no regulation is not selected; the no regulation option would, obviously, follow the CWA’s intent to an even lesser degree. See id.
221 Ronald W. Hardy, Fish Feeds and Nutrition—Urban Legends and Fish Nutrition, Aquaculture Mag., Nov.–Dec. 2000, at 47, 47–50, http://www.aquaculturemag.com/siteenglish/printed/archives/issues00/00articles/ND2000Urban.pdf (last visited Apr. 20, 2004). This article was actually written to argue against the “urban legend” that a single salmon farm produces “the same amount of sewage, meaning nitrogen, phosphorus, and biological oxygen demand” as 1.5 million people. Id. (emphasis added). For the source of this “urban legend,” see Goldburg & Triplett, supra note 7, at 38. These authors actually state that “[d]ischarges from the many salmon farms along the coast of British Columbia are a significant pollution source, estimated to be equivalent to raw human sewage from a city of 500,000 people.” Id. (emphasis added).
222 Hardy, supra note 223, at 48–50. The amount of nitrogen was actually calculated to be equivalent to that produced by 19,800 people per day, but was rounded down to exclude other sources of nitrogen. Id.
223 Goldburg et al., supra note 12, at 13. The District Court of Maine termed fish, feces, urine, feed, and other matters leaving the net pens and entering the waters pollutants. Salmon I, 215 F. Supp. 2d at 247–48; Stolt Sea Farm, 2002 WL 240386, at *6–7.
224 Indemnity for Infectious Salmon Anemia, 67 Fed. Reg. 17,605, 17,608 (proposed Apr. 11, 2002) (interim rule). This was the most recent, and the highest, estimate for the number of salmon in Maine. See id.
225 See id.
226 See id.; Hardy, supra note 223, at 48–50. This calculation assumes that the sewage released by salmon increases at a consistent rate corresponding with the increasing number of salmon, e.g., a farm of 400,000 salmon would release double the amounts of nitrogen, phosphorus, and biological oxygen demand calculated by Dr. Hardy. See supra note 217 and accompanying text.
227 U.S. Census Bureau, State & County Quick Facts, Maine (2000), http://quickfacts.census.gov/qfd/states/23000.html (last visited Apr. 20, 2004).
228 Indemnity for Infectious Salmon Anemia, 67 Fed. Reg. at 17,608.
229 See U.S. Census Bureau, State & County Quick Facts, Maine (2000), http://quickfacts.census.gov/qfd/states/23/23029.html (last visited Apr. 20, 2004) (setting out 33,573 as the estimated 2001 population of Washington County); U.S. Census Bureau, State & County Quick Facts, Maine (2000), http://quickfacts.census.gov/qfd/states/23/23009.html (last visited Apr. 20, 2004) (setting out 52,336 as the estimated 2001 population of Hancock County).
230 See U.S. Census Bureau, State & County Quick Facts, Maine (2000), http://quickfacts.census.gov/qfd/states/23/23029.html (last visited Apr. 20, 2004); U.S. Census Bureau, State & County Quick Facts, Maine (2000), http://quickfacts.census.gov/qfd/states/23/23009.html (last visited Apr. 20, 2004); Hardy, supra note 223, at 48–50.
231 Final Endangered Status for Anadromous Atlantic Salmon, 65 Fed. Reg. 69,459, 69,479 (Nov. 17, 2000) (codified at 50 C.F.R. pt. 17).
232 Final Approval of the Maine Pollutant Discharge Elimination System Under CWA, 66 Fed. Reg. 12,791, 12,793 (Feb. 28, 2001).
233 Id. at 12,794 (noting, however, that “[n]o critical habitat has been designated for this species, therefore none will be affected”).
234 Final Endangered Status for Anadromous Atlantic Salmon, 65 Fed. Reg. at 69,471.
235 Id. at 69,477. These numbers lead to a total of 9.1 million salmon in Maine, higher than the six million figure given above, and were used in calculations earlier in this Note. See id; see supra text accompanying notes 217–224.
236 Declaration of Emergency Because of Infectious Salmon Anemia, 66 Fed. Reg. 65,679, 65,679 (Dec. 20, 2001). The total value of all Maine’s aquaculture production in 1998 was $66.6 million, with salmon supplying $64.1 million of the total; in 1997, it was second only to lobster in terms of value for marine harvests. Goldburg et al., supra note 12, at 3; Goldburg & Triplett, supra note 7, at 155. Unfortunately, EPA did not update these figures. See generally Declaration of Emergency Because of Infectious Salmon Anemia, 66 Fed. Reg. at 65,679 (failing to update the value of the salmon harvest as compared to that of lobsters).
237 Indemnity for Infectious Salmon Anemia, 67 Fed. Reg. 17,605, 17,608 (proposed Apr. 11, 2002) (interim rule).
238 Declaration of Emergency Because of Infectious Salmon Anemia, 66 Fed. Reg. at 65,679.
239 Indemnity for Infectious Salmon Anemia, 67 Fed. Reg. at 17,605. This was in response to the concern that net pen producers would be less likely to report the virus and destroy infected fish if the incentive of partial indemnification was not offered; and, if ISA went unreported, this would jeopardize the success of the control program, and net pen aquaculture in Maine. Id.; Declaration of Emergency Because of Infectious Salmon Anemia, 66 Fed. Reg. at 65,679. The number of fish destroyed or “depopulated” was 1.42 million, and the preliminary amount of the indemnity was nearly $4.5 million; “depopulation” is viewed as the “single most effective way to eliminate ISA.” Indemnity for Infectious Salmon Anemia, 67 Fed. Reg. at 17,608–09.
240 Declaration of Emergency Because of Infectious Salmon Anemia, 66 Fed. Reg. at 65,679.
241 Indemnity for Infectious Salmon Anemia, 67 Fed. Reg. at 17,607. There are actually two species of sea lice; both “infest Atlantic salmon and live in the mucus layer, where they attach and suck blood or cause sores.” Id. It is the larger species that is believed to transmit the ISA virus. Id.
242 See Goldburg & Triplett, supra note 7, at 163 (stating, however, that Atlantic salmon are generally quite healthy, and migrate past the net pens at times when it is likely that the sea lice problem is at a very low level).
243 Goldburg et al., supra note 12, at 9.
244 Id.
245 Final Endangered Status for Anadromous Atlantic Salmon, 65 Fed. Reg. 69,459, 69,479 (Nov. 17, 2000) (codified at 50 C.F.R. pt. 17).
246 See Final Approval of the Maine Pollutant Discharge Elimination System Under CWA, 66 Fed. Reg. 12,791, 12,793 (Feb. 28, 2001); Beth Daley, Escaped Farm Salmon Raise Alarm in Maine, Boston Globe, Feb. 23, 2001, at A1 (citing the escape of 100,000 salmon from Atlantic’s pens during a winter storm, along with other escapes). Both the FWS and EPA, however, are demanding the marking or tagging of net pen fish to allow tracing of escapees and the phasing out of European or European-hybrid salmon. Interview, supra note 39.
247 See Salmon IV, 339 F.3d 23, 34–35 (1st Cir. 2003); discussion supra Part II.G.
248 See Salmon IV, 339 F.3d at 30.
249 Id.
250 Id. at 29–30. The general permit covers all Maine salmon farming operations. Id. at 27. USPIRG has challenged this general permit, but it is unlikely that the trial will begin until the spring of 2004. Id.
251 Salmon II, 261 F. Supp. 2d 17, 23 (D. Me. 2003).
252 John Richardson, Impact of Ruling on Hybrid Fish Assessed, Portland Press Herald, May 30, 2003, at 1B.
253 Id.
254 U.S. Pub. Interest Research Group v. Atl. Salmon of Me., LLC, 262 F. Supp. 2d 1, 3 n.1 (D. Me. 2003).
255 Goldburg & Triplett, supra note 7, at 8. For salmon, from fifty to seventy percent of feed is made from fish meal and fish oil. Id. at 27.
256 Id. at 8.
257 Id. at 11.
258 Id. at 8. “Twenty-seven percent . . . of the world’s total wild fisheries production is now converted to animal feeds.” Fifteen percent of this is used for feeding fish. Id. As of 2002, pressure on worldwide wild fish stocks continued to increase: 25% of major marine fish stocks were under, or moderately, exploited; 47% were at maximum sustainable limits; 18% were overexploited; and 10% were significantly depleted. United Nations, Food and Agriculture Organization, The State of World Fisheries and Aquaculture 22–23 (2002), http://www.fao.org/docrep/005/y7300e/y7300e00.htm (last visited Apr. 20, 2004). “More than 70 percent of commercial fish stocks are now considered fully exploited, overfished or collapsed.” William J. Broad & Andrew C. Revkin, Has the Sea Given up its Bounty?, N.Y. Times, July 29, 2003, at F1. “Recent studies estimate that stocks of many fishes are now a tenth of what they were 50 years ago . . . . Industry calls it ‘biomass extraction’ and turns the harvest into everything from fish sticks to protein concentrates for livestock or pellets to feed cage-raised salmon.” Id.
259 Goldburg & Triplett, supra note 7, at 8.
260 Goldburg et al., supra note 12, at 2.
261 Indemnity for Infectious Salmon Anemia, 67 Fed. Reg. 17,605, 17,608–09 (proposed Apr. 11, 2002) (interim rule).
262 Goldburg et al., supra note 12, at 22. The U.S. Department of Agriculture has $50 million budgeted for aquaculture, while the National Oceanic and Atmospheric Administration has budgeted “roughly 12 million to 14 million dollars.” Id.
263 Id. at 2.
264 Stolt decided against introducing a new class of salmon and did not require the contempt proceedings that were initiated against Atlantic.