[*PG683]MAINE AQUACULTURE, ATLANTIC SALMON, AND INERTIA: WHAT IS
THE FUTURE FOR MAINE’S NET
PEN SALMON INDUSTRY?
Abstract: The Environmental Protection Agency (EPA) has for years failed to create regulations that would govern discharges from aquaculture facilities under the Clean Water Act (CWA). As recent cases from Maine have shown, this failure caused salmon producing aquaculture companies to do very little to reduce the effluent they released directly into the Atlantic. Under the Clean Water Act, however, such polluting is prohibited. Furthermore, under the Endangered Species Act (ESA), additional regulations probably would be imposed on these companies to protect the endangered wild Atlantic salmon that inhabit the rivers and ocean near these facilities. Recent regulations proposed by EPA, however, are probably not stringent enough to meet the statutory requirements of either the CWA or the ESA. While the cleanliness of our waters and the diversity of species should be maintained at the least, these goals can hopefully be reconciled with the growth of an important part of the local and national economy.
On September 12, 2002, the U.S. Environmental Protection Agency (EPA) proposed “effluent limitations guidelines and standards for wastewater discharges from the concentrated aquatic animal production [facility (CAAPF)] industrial point source category.”1 These guidelines would cover both new and existing facilities and would be the first actual technology-based standards promulgated for such facilities.2
While “all point sources other than publicly owned treatment works were to have achieved effluent limitations that require applica[*PG684]tion of the ‘best practicable control technology’” by July 1, 1977,3 no standards regulating effluent from the aquatic animal production industry had even been proposed before the summer of 2002.4 EPA contends that in the early 1970s it completed some background work on the issue, but that progress was halted with the 1977 Clean Water Act Amendments and EPA’s decision to concentrate on controlling industries where toxic metals and organic chemical compounds were more prevalent.5 As EPA’s early work with aquatic animal production did not show heavy concentrations of these pollutants, it fell by the wayside.6
The absence of effluent guidelines for CAAPFs created problems for aquatic animal production facilities.7 EPA’s Region One office received requests for National Pollutant Discharge Elimination System (NPDES) permits—which should have been based on the nonexistent guidelines—but issued very few permits due to the lack of standards on which to base them.8 A further problem caused by the lack of effluent guidelines is the lack of any national minimum standards with which permit issuers must comply.9
Despite this uncertainty in federal regulation, the aquatic animal production industry has grown rapidly: a 1992 study found that $5.6 billion of the U.S. gross domestic product, along with 181,000 jobs, stemmed from aquaculture.10 Currently, “there are approximately 4,200 commercial aquatic animal production . . . facilities in the United States.”11 These are located in all fifty states, and aquaculture is growing faster than any other form of agriculture in the United States.12
[*PG685] EPA believes that many of these facilities already have pollution reduction technology in place even without minimum federal effluent guidelines.13 The new restrictions proposed by EPA are intended to go further and would reduce suspended solids released by all types of CAAPFs “by at least 4.1 million pounds per year,” leading to a reduction in the “discharge of biochemical oxygen demand (BOD)14 and nutrients by at least 8.7 million pounds per year.”15 This reduction comes at a relatively low cost.16 Furthermore, six states have already cited the aquatic animal production industry as a possible cause of poor water quality, and other states have moved to regulate the facilities.17
In its proposed rule, EPA listed multiple aquaculture production systems, including the net pen and open water systems, which produce salmon in the coastal waters of Maine.18 Net pen systems generally consist of two nets, one on the interior to keep fish in, while the exterior net serves to keep predators at bay.19 They are anchored to the sea floor and suspended from the surface with a floatation struc[*PG686]ture; the netting continues above the water to a degree to stop fish from jumping out.20
Because of their location in open water, net pens contribute to pollution.21 They
take advantage of an existing water body’s circulation to wash away wastes and bring fresh water to the animals. Presently, the most common species raised in open water systems are molluscan shellfish . . . and salmon that are grown to market size in net pens. . . . There is considerable interest and research being conducted to raise additional species of fish in net pen systems.22
EPA’s concerns of feed, diseases, and non-native species arising from net pen aquaculture tend to fall outside of what would be considered traditional pollutants.23 The amount of feed administered is a substantial issue, as open water facilities do not have a chance to treat or remove it before discharge.24 Diseases are a concern due to the possibility of infecting local populations, drug treatment and its possible effects through eventual human consumption, and the difficulty of controlling drugs once they are placed in the receiving waters.25 Finally, non-native species pose the threat of becoming an invasive species that could out-compete local species or introduce new diseases with which native species are unable to contend.26
In 2000, the above concerns were magnified when the wild species of Atlantic salmon that inhabited eight of Maine’s rivers and other waters was listed as endangered.27 A dramatic reduction in the numbers of wild Atlantic salmon in Maine’s waters led to the listing; diseases spread from farmed salmon, combined with increased competition and genetic dilution from net pen escapees, could harm the remaining, endangered Atlantic salmon.28
[*PG687] This Note contends that as currently operating, net pen facilities in Maine are in violation of both the Federal Water Pollution Control Act (Clean Water Act or CWA) and the Endangered Species Act (ESA).29 Furthermore, this Note argues that the recent, proposed CWA federal effluent guidelines briefly set forth above would serve not only as an extremely low baseline for state regulation, but would also contravene the purposes of the CWA while stifling implementation of the ESA as applied to the endangered, wild Atlantic salmon.
Part I examines the background of this problem and the cases that inspired this Note. Part II deals with the application of the CWA to the current situation in Maine. Part III expands the CWA analysis on which the cases were based and examines the extra layer of regulation and protection of endangered Atlantic salmon that should be added through the application of the ESA. Part IV argues that the proposed standards do not accomplish the purposes of either the CWA or the ESA. The conclusion argues that in order to accomplish the relevant statutory purposes, Maine’s permitting procedures must be more stringent than the proposed federal guidelines.
On June 17, 2002, the U.S. District Court of Maine entered orders holding that two salmon net pen facilities were point sources and were required to obtain NPDES permits under the CWA.30 This decision was preceded by more than a decade of uncertainty and agency inaction.31
[*PG688] In 1987, Atlantic Salmon of Maine (Atlantic) and Stolt Sea Farm (Stolt) began their salmon net pen facilities off the coast of Maine.32 Both operations claim that at that point, EPA did not require them to have permits for their activities.33 In a July 19, 1989 letter from EPA Region One to the Army Corps of Engineers, however, William Lawless, Director of Water Management Division, stated that “‘[u]pon re-evaluating the regulations, we have determined that some of these concentrated aquatic animal production facilities may require a permit under the National Pollutant Discharge Elimination System (NPDES) program.’”34 EPA reiterated this position in an August 1989 response to a letter of intent to sue EPA for not requiring the salmon farming facilities to have NPDES permits.35
It was not until over a year later, in October 1990, that EPA notified Atlantic and Stolt that they were required to have NPDES permits.36 Both companies responded relatively quickly and submitted NPDES permit applications, but EPA never replied or issued permits.37 In the intervening years, both Atlantic and Stolt contacted federal and state bodies for assurances that their business operations could continue without NPDES permits, but both were rebuffed.38 In the fall of 2000, the United States Public Interest Research Group (USPIRG) sued to enjoin production at Atlantic, Stolt, and a third facility for violations of the Clean Water Act—specifically, for discharges from a point source without a NPDES permit.39
[*PG689] The number of operations developed by Atlantic and Stolt since 1987 is significant: Atlantic owns and operates five salmon net pen facilities in Maine’s Machias Bay, two in Pleasant Bay, and it owns others; Stolt owns five net pen facilities in Cobscook Bay, two of which operate under a different name.40 To give some idea of the scale of production involved, Atlantic states that “[o]n any given day, there are 2.3 million salmon in ASM [Atlantic Salmon of Maine]’s pens.”41 Each of Stolt’s net pen facilities can have up to twenty-eight pens, with 5000 to 16,000 salmon in each, allowing for a stock potentially equal to Atlantic’s.42
In passing the CWA, Congress set out as its goal “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,”43 and recognized that states play a large role in this.44 To achieve this goal, the CWA states that “the discharge of [*PG690]any pollutant by any person shall be unlawful.”45 The exemption from the above rule is found in § 1342.46 Under this section “the Administrator may, after opportunity for public hearing, issue a permit for the discharge of any pollutant, or combination of pollutants, notwithstanding section 1311(a) of this title,” and on condition that certain requirements are met.47 As explained above, however, neither Atlantic nor Stolt ever received a permit to discharge pollutants.48
Simply put, “the discharge of any pollutant without an NPDES permit is an unlawful act under § 1311(a).”49 Without a NPDES permit, liability under the CWA is determined by “the discharge of any pollutant by any person.”50 Discharge of a pollutant is defined in the CWA as “(A) any addition of any pollutant to navigable waters from any point source,” or “(B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.”51 This definition has been refined to a simple program requiring that “five elements must be present: (1) a pollutant must be (2) added (3) to navigable waters (4) from (5) a point source.”52
In the CWA, a “pollutant” is defined as “dredged soil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.”53 While certain terms in this definition suggest a broad reading of the term pollutant, others do not.54 The courts appear to disagree as to the [*PG691]breadth of the definition.55 In National Wildlife Federation v. Gorsuch, the District of Columbia Circuit stated that:
the wording of § [1362(6)] makes us cautious in adding new terms to the definition. Congress used restrictive phrasing— “[t]he term ‘pollutant’ means dredged soil, [etc.]”—rather than the looser phrase “includes,” used elsewhere in the Act. As a general rule, “‘[a] definition which declares what a term “means” . . . excludes any meaning that is not stated.’”56
Furthermore, the court looked to the legislative history of the CWA and determined that while drafting the definition of pollutant, both the House and the Senate ultimately left out more encompassing language that they had contemplated.57
A slightly different result was reached in Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., where the Fifth Circuit stated that “[w]e do not disagree with the D.C. Circuit’s assessment that the use of the word ‘means’ manifests an intent to restrict the definition of pollutant to the terms listed.”58 By way of contrast, however, the Fifth Circuit determined that “the breadth of many of the items in the list of ‘pollutants’ tends to eviscerate any restrictive effect.”59 After offering a different perspective on the relevant legislative history, the Fifth Circuit determined that a substance can be covered by the definition of pollutant even if not specifically listed, and that the courts have the power to decide whether a discharged substance is a pollutant.60
In determining what materials from Atlantic and Stolt fall under the CWA’s definition of pollutant, the District Court of Maine relied on Cedar Point Oil Co. and similar cases and did not discuss Gorsuch in [*PG692]this context.61 The court held that fish raised by Atlantic and Stolt that are not native to North American waters and that escape from the pens constitute biological material, and thus a pollutant.62 Feces and urine from the salmon were also deemed biological materials or agricultural wastes, and thus also pollutants.63 The feed given to the salmon fell under the rubric of biological materials or solid wastes,64 while the antibiotic, drug, or other pharmaceutical components found in the feed were chemical wastes.65 The chemicals used to treat the salmon for various diseases, and released to the water, were also found to be chemical wastes, while the copper used as a coating on the net pens is considered a toxic pollutant by EPA, and thus a pollutant as defined by the CWA.66
As stated by the Second Circuit, “[t]he EPA’s position, upheld by the Gorsuch and Consumers Power courts, is that for there to be an ‘addition,’ a ‘point source must introduce the pollutant into navigable water from the outside world.’”67 All of the materials listed above as pollutants were considered to be added as they do not naturally occur in the bays where the net pens are located.68
Under the CWA, navigable waters are defined as “the waters of the United States, including the territorial seas.”69 A territorial sea is “the belt of the seas measured from the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters, and extending seaward a distance of three miles.”70 As Atlantic’s and Stolt’s net pen farms are in Maine’s Cobscook, Machias, and Pleasant Bays, they fall well within the definition of navigable waters.71
Neither Atlantic nor Stolt disputed that any of the material determined to be a pollutant above came from its farms.72
The CWA defines point source as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”73 On the face of this definition there is no clear fit for the net pen facilities of Atlantic and Stolt.74
It has been held, however, that EPA has the power to define point and nonpoint sources.75 For net pen facilities, the line between point and nonpoint sources is found with the distinction between a concentrated aquatic animal production facility (CAAPF) and an aquatic animal production facility (AAPF).76 CAAPFs, as defined by regulations, are point sources for NPDES permit purposes.77 A facility can become a CAAPF by meeting the following criteria:
A hatchery, fish farm, or other facility is a concentrated aquatic animal production facility for purposes of § 122.24 if it contains, grows, or holds aquatic animals in either of the following categories:
(a) Cold water fish species or other cold water aquatic animals in ponds, raceways, or other similar structures which discharge at least 30 days per year but does not include:
(1) Facilities which produce less than 9,090 harvest weight kilograms (approximately 20,000 pounds) of aquatic animals per year; and
(2) Facilities which feed less than 2,272 kilograms (approximately 5,000 pounds) of food during the calendar month of maximum feeding . . . .78
[*PG695] Even if a facility would be considered only an AAPF under the definition above, the EPA Director could still designate it as a CAAPF “upon determining that it is a significant contributor of pollution to the waters of the United States.”79 Factors for the Director to consider before making such a determination are the “location and quality of the receiving waters . . . [t]he holding, feeding, and production capabilities of the facility; [t]he quantity and nature of the pollutants . . . and [o]ther relevant factors.”80 Nonpoint sources, such as AAPFs, do not require NPDES permits.81
While neither Atlantic nor Stolt were designated as CAAPFs under the Director’s discretionary power, USPIRG alleged that they were CAAPFs as defined in the regulations.82 Atlantic and Stolt admitted that each of its net pen facilities produces at least 9090 harvest weight kilograms per year.83 Both also admitted that they fed the salmon at each site at least 2272 kilograms of food during the calendar month of maximum feeding.84 Neither company disputed that it raised cold water fish, or that it was discharging at the rate defined in the regulations.85
Atlantic and Stolt did contest the applicability of the definition of point source to their net pen facilities, based on the argument that they did not use “ponds, raceways, or other similar structures.”86 They construed the above terms to imply that the facilities had to be in [*PG696]some way connected to land.87 These arguments were not successful, as the court found that EPA’s communications in 1989 indicated that EPA did not regard the use of such language as prohibiting the application of the CAAPF definition to the defendants’ net pen facilities.88
Reasoning that EPA’s letters addressed Atlantic and Stolt as CAAPFs, and the Director did not conduct an on-site inspection, the court found that EPA could not have been then referring to the facilities as CAAPFs under anything other than the definition including the terms “ponds, raceways, or other similar structures.”89 Delving further into the regulations, the court also offered that “[t]here is no indication in the proposed rule or the final rule for § 122.24 that suggests that the EPA was intending to narrowly focus on land based fish farms.”90
Neither the proposed nor the final rule contains a detailed discussion of the phrase in question. Under the proposed rule, however, a facility could be a CAAPF without the presence of “ponds, raceways, or other similar structures,” a phrase that was added to the final rule.91 A later final regulation promulgated by EPA clarified the possi[*PG697]ble confusion and clearly indicated that EPA considers net pens to be CAAPFs.92
The court further reasoned that it would be against the purposes of the CWA if land-based fish farms were required to have permits while those located in bays were not.93 Finally, the District Court of Maine stated that EPA’s definition was applicable to Atlantic and Stolt because of “the lack of judicial support to indicate otherwise,” allowing net pen facilities to fall within the realm of similar structures.94
In a similar attempt to avoid the determination that their net pen facilities were point sources, Atlantic and Stolt argued that as ponds, [*PG698]raceways, and similar structures are all land based structures, they require some sort of conduit or pipe to gather and channel water.95 Thus, Atlantic and Stolt contended that as net pens do not function in a similar manner, due to their location in the sea and the flow of water through their entirety, and not a conduit, they could not be point sources.96 Citing the definition of a point source97 and EPA’s interpretation of that definition,98 the court listed a range of examples to show that point sources have been found to exist in many situations lacking the characteristics suggested by Atlantic and Stolt.99
Finally, the court refused to apply an exception recognized by the Eleventh Circuit to the requirement that a discharger have a NPDES permit.100 In Hughey v. JMS Development Corp., the district court enjoined a developer from construction, due to stormwater runoff from the property under development that muddied a stream and a downstream river.101 The injunction was granted even though no permit existed for the discharge.102
In overturning the district court’s injunction, the Eleventh Circuit created an exception, stating:
Congress did not intend (surely could not have intended) for the zero discharge standard to apply when: (1) compliance with such a standard is factually impossible; (2) no NPDES permit covering such discharge exists; (3) the discharger was in good-faith compliance with local pollution control requirements that substantially mirrored the pro[*PG699]posed NPDES discharge standards; and (4) the discharges were minimal.103
In holding the exception inapplicable to Atlantic and Stolt, the court covered old ground, stating that “[s]ince 1979, the EPA has had a permit procedure for CAAPFs in place.”104 The court was unconcerned that both defendants apparently followed the permitting procedures and applied for NPDES permits, and that EPA did not react.105 The court found nothing to demonstrate that EPA could not have issued a permit, and held that EPA’s administrative failure to issue a permit does not allow the defendants to violate the zero-discharge standard.106 Also, unlike in Hughey, a zero-discharge level could be achieved.107 Here, Atlantic and Stolt could simply cease operations and end the discharges.108
Thus, because Atlantic and Stolt were discharging pollutants without a NPDES permit, they were in violation of the CWA.109 Based on this violation, both Atlantic and Stolt were instructed to: (1) each pay $50,000; (2) “scrupulously follow and strictly comply with all existing regulatory requirements” regarding net pens currently stocked with fish; (3) finish harvesting fish currently in the water as soon as [*PG700]possible, and fallow all net pen sites for at least twenty-four months; (4) not restock any pens until a Maine or NPDES permit is issued; (5) only stock a one year class of fish at a time; and (6) only stock native, North American fish, despite what any permit later issued may allow.110
Concurrent with concern stemming from pollutants and the CWA was contentious litigation over whether Atlantic salmon should be listed as an endangered species.112 Listing would possibly result in profound effects on the system of net pen aquaculture as it would increase concerns regarding escapees from, and general aquatic health in, CAAPFs.113
The basic purpose of the listing of species and the Endangered Species Act (ESA) is to conserve endangered and threatened species along with the ecosystems on which they depend.114 To do this, the Secretary of the Interior can promulgate a regulation determining a species is endangered or threatened because of: “disease or predation; . . . the inadequacy of existing regulatory mechanisms; or . . . other natural or manmade factors affecting its continued existence.”115 Such a decision can be made only on the basis of “the best [*PG701]scientific and commercial data available,” following a review of the species’s status, and an inquiry into conservation efforts undertaken by local, state, or foreign governments.116
Once a species is listed as endangered, it is “unlawful for any person . . . to . . . take any such species.”117 “Take” is broadly defined under the ESA, as “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”118 To ensure the broad application of the ESA, “person” is defined in breadth equal to “take.”119 The ESA also requires cooperation with the states to the extent practicable in conserving species.120
The background of the debate over the listing of Atlantic salmon as an endangered species has been widely covered.121 In 1991, the U.S. Fish and Wildlife Service (FWS) named the Atlantic salmon in Maine rivers as a candidate species under the ESA.122 While deciding that Atlantic salmon throughout the United States did not require listing as an endangered species, by 1995 the FWS determined that those in Maine were “‘a distinct population segment,’123 eligible for protection under the ESA and in danger of extinction.”124
Maine, in order to keep greater control at the state level, responded to an option in the proposed listing and put forth a conser[*PG702]vation plan of its own.125 The FWS approved Maine’s plan and in 1997 removed the proposal to list Atlantic salmon as endangered.126 The conservation plan allowed Maine “to define the manner in which certain activities could be conducted without violating the ESA,” but the FWS maintained Atlantic salmon as a candidate species for listing.127
In 1999, Defenders of Wildlife and Trout Unlimited filed separate suits in the District Court of the District of Columbia to force the FWS to reinstate its listing of Atlantic salmon as endangered; Maine threatened to sue the FWS if any such listing was made.128 At this time, the FWS was conducting a status review of the Atlantic salmon, and, based on the results, decided to list the Atlantic salmon as endangered in eight rivers in Maine.129 The final rule was issued in November of 2000, becoming effective a month later.130 Maine sued, challenging the final rule in December of 2000.131
The FWS decided to list Atlantic salmon as endangered in part because of the net pen aquaculture facilities in Maine and those a very short distance away in Canada.132 The following seven major factors were stated as reasons for the listing: “new disease and genetic threats, continuing concerns about threats posed by aquaculture es[*PG703]capees, lack of progress in resolving concerns over existing aquaculture practices, low juvenile in-river survival levels, continuing decline in adult returns, and the lack of sufficient progress in dealing with sport fishing (at that time) and water withdrawals.”133 The first three factors relate directly to the CAAPFs in Maine.134
The primary disease that is a potential threat to Atlantic salmon is known as the infectious salmon anemia (ISA) virus.135 The ISA virus is presently without a cure and is “extremely destructive to maturing salmon.”136 Previously, the virus was only “known to cause disease in situations where fish were artificially confined.” Recently, however, it has been found in wild salmon and other wild fish.137
At the time of the writing of the final rule, the ISA virus had infected salmon in Canadian net pen facilities.138 The Canadian facilities were deemed “close enough to U.S. aquaculture sites in Cobscook Bay, the location of Maine’s greatest concentration of salmon aquaculture pens, to create a significant risk of the introduction of the virus to U.S. aquaculture stocks.”139 At this point, the only wild fish that had been infected were those exposed to the infected Canadian facilities.140 Despite that, the potential magnifying effect of high concentrations of fish—such as those in net pens—on the virus was viewed as a serious risk to the Atlantic salmon located nearby.141 The FWS felt that Maine’s regulations “may not fully ensure testing, reporting, and depopulation of diseased fish,” making possible the spread of the ISA virus from salmon in net pen facilities to Atlantic salmon.142
[*PG704] The fears expressed in the Federal Register were justified.143 In 2001, an outbreak of the ISA virus in Cobscook Bay forced operators of net pen facilities to destroy approximately 2.6 million fish, costing the industry around $24 million.144 Prior to the outbreak, USPIRG included claims in its complaints that the ISA virus had infected fish at one of Atlantic’s net pen facilities, as well as salmon at one of Stolt’s Canadian sites in close proximity to Stolt’s Cobscook Bay facilities.145
The endangered Atlantic salmon in Maine are subject to genetic threats as a large percentage of the salmon raised in net pen facilities are of European origin and genetically different from Atlantic salmon.146 Even when the aquaculture facilities do use domestic Atlantic salmon in their net pens, the fish are still genetically separate from the wild, endangered Atlantic salmon.147 Unlike the Atlantic salmon native to Maine’s rivers that have adapted to those habitats and are genetically distinct, domesticated Atlantic salmon used in net pen aquaculture have been bred to maximize traits beneficial to production: fast growth, docility, and disease resistance.148
Studies in Maine have shown that these genetically separate, captive salmon have managed to not only escape net pen facilities, but survive in the wild.149 The escaped salmon are present in some of the rivers populated by Atlantic salmon.150 As the CAAPFs in Maine mul[*PG705]tiply, so do the escapees.151 Based on available data, the FWS determined that the use of non-North American salmon in CAAPFs was actually increasing.152
The main fear arising from the continued use, escape, and survival of captive salmon, North American or European, is the dilution of the genetic material, or the out-competition, of wild Atlantic salmon.153 “There is substantial documentation that escaped farmed salmon disrupt the redds154 of wild salmon, compete with wild salmon for food and habitat, interbreed with wild salmon, transfer disease or parasites to wild salmon, []or degrade benthic habitat.”155 Because of the relatively small number of Atlantic salmon left in the wild, even small numbers of escaped farmed salmon in Maine’s rivers are a concern as they can become a significant percentage of the fish overall.156 This leads to the threat of loss of genetic integrity of the endangered Atlantic salmon.157
While listing the Atlantic salmon as endangered, the Fish and Wildlife Service (FWS) determined that net pen aquaculture could continue under the regulation.158 The FWS, however, believed that the following could constitute a “take” under the ESA: the escape of non-North American salmon from net pen facilities that can reproduce; the escape of domesticated salmon from net pen facilities if they are found within the eight river range of the Atlantic salmon; failure to adopt proper anti-disease fish health standards; the dis[*PG706]charge of pollutants into waters that support the Atlantic salmon; and locating net pen facilities in a way that harms water quality.159
While the potential violations above appeared quite restrictive on CAAPFs, Atlantic received a greater setback. In January of 2003, Atlantic returned to the District Court of Maine and set out its intention to continue its aquaculture business with the introduction of new fish to its facility.160 The court put a damper on any such plans, stating that:
Having found that Atlantic Salmon of Maine is in violation of the Clean Water Act, the Court ORDERS that Defendant Atlantic Salmon of Maine, LLC not introduce any new class of fish into its net pens until further order of this Court in order to afford the Court the opportunity to adjudicate the remedial issues that remain outstanding for decision before further action is taken by Defendant.161
The court found Atlantic’s violations of the CWA to be serious enough to warrant injunctive relief;162 however, this finding appears to be in direct opposition to regulatory options currently under consideration by EPA.163 Moreover, this holding did not stop Atlantic from trying to stock another class of salmon.164
In the proposed effluent guidelines for CAAPFs, EPA’s main concerns were listed as feed management, health management, control of non-native species escapes, drug and chemical use, production unit [*PG707]water quality monitoring, primary solids control, disinfection, and additional solids removal.165 Most of these concerns were also raised in the Atlantic and Stolt hearings on CWA violations.166
Under the “options evaluated and selected for proposal” section of the proposed rule, however, EPA’s concerns seem rather limited.167 EPA tested and selected two options for net pen systems: “Option 1 considered feed management and the BMP [best management practices] plan based on the HACCP [hazard analysis critical control point] approach. Option 2 considered reducing pollutant loads associated with feeding through the use of an active feed monitoring system.”168 EPA considered other technologies, but determined they were too expensive or impractical.169 One approach, disinfection, was eliminated because “to be applied nationally would be cost prohibitive and would have imposed a severe adverse economic impact on this industry.”170
From the options above, the effluent guidelines for net pens proposed by EPA were “BPT [best practicable control technology, currently available] limits on the basis of active feed monitoring (i.e., additional solids removal) and the development of a BMP plan, and general reporting requirements for use of certain drugs and chemicals.”171 These standards would apply for “facilities that produce more than 100,000 pounds per year as the technology basis for the effluent limitations guidelines for existing sources in the proposed rule.”172
EPA put forth this option as it believed that the cost of such measures is reasonable and it “represents the best performance that is economically achievable” for net pen operations in this category.173 EPA limited the application of the rule to facilities producing over 100,000 pounds of aquatic animals per year because it found no net [*PG708]pen operations that produce less than that amount per year.174 “If any facilities exist between the 20,000 and 100,000 pounds per year threshold, the facilities would be subject to existing NPDES regulations, and would be subject to permit limits based on the permit writer’s ‘best professional judgment’ if the facility is a [CAAPF] under the regulations.”175
Another benefit of the proposed rule not relating to water quality is that monitoring feed use can be used to reduce feed costs.176 Indeed, “[s]almon feed is one of the most expensive elements in operating a salmon farm so aquaculturists continually search for ways to reduce the amount of feed used.”177 Thus, the combined goals of increased water quality and lower production costs can work to reduce the amount of excess feed present in the receiving waters.178
Due to the nature of the receiving waters of net pen facilities, EPA could find no better option for solids control than active feed monitoring,179 leading to EPA’s proposal of active feed monitoring as the most effective and cost reasonable technology for solids control.180 EPA is, however, also considering the option of non-regulation for net pen facilities nationwide.181 Even when considering that net pens are generally located in tidal areas that tend to flush out the system, non-regulation does not seem like an adequate solution because tides flow in as well as out.182
[*PG709] The option of non-regulation for net pen facilities may have been offered primarily to keep EPA’s avenues for regulation open.183 Due to possible “significant regional and facility-specific variations,” EPA may decide it is best to continue to rely on the best professional judgment of permit writers.184 Also, further study may reveal that the proposed measures are either too expensive or not effective enough, leading to the selection of the no national regulation option.185 For these reasons, this option is preferred by the Joint Subcommittee on Aquaculture.186
These newly proposed rules are separate from the former definitions of what constitutes a CAAPF.187 The proposed rules are intended to function as the effluent limitations guidelines and standards that were never proposed for CAAPFs, but only for those over a threshold of production higher than that originally established for the CAAPF point source category.188 Currently, a CAAPF, as defined by regulation, is designated either at the discretion of the Administrator,189 or based on its status of holding cold water species and producing over approximately 20,000 pounds of aquatic animals per year and feeding over approximately 5000 pounds of food during the month of maximum feeding.190 The proposed rule, by way of contrast, takes effect only when the facility produces over 100,000 pounds of aquatic animals a year.191 Thus, a significant gap exists between 20,000 and 100,000 pounds of aquatic animals per year where a facility could [*PG710]be a CAAPF/point source and not be covered by the proposed effluent limitations.192 While the proposed rule would act as guidance for permit writers regarding facilities below the new limits, this concern may be academic, because no known facilities currently exist in that range.193
Accordingly, the proposed rules for net pen facilities seem to call for very little to actually be done.194 As “[e]xcess feed is the primary [*PG711]source of solids accumulation beneath net pens, which can have an adverse effect on the benthic community,”195 the bottom line of the proposed rule of “active feed monitoring (i.e., additional solids removal)” is that net pen facilities install underwater cameras or video monitoring devices to determine when uneaten food is falling to the sea floor.196 This would be coupled with reporting requirements for certain drugs and chemicals used.197 None of these options does anything to regulate the massive quantities of waste produced directly by the salmon.198
On examination, a great disparity exists between the violations of the CWA identified by the District Court of Maine and EPA’s proposed rules.199 The proposed rules were issued after the primary decisions against Atlantic and Stolt and before the injunction preventing Atlantic from introducing a new class of fish to its net pen facilities.200 Atlantic and Stolt were determined to have violated the CWA because of the release of the following pollutants: (1) escaped fish; (2) salmon feces and urine; (3) feed and the chemicals added to it; (4) chemicals used to kill parasites; and (5) copper from the nets.201
The primary concern indicated in EPA’s proposed rules, however, was excess feed, to be regulated by increased monitoring, and certain drugs and chemicals, covered by best management practices [*PG712]and reporting requirements.202 In outlining the other possible option for net pen systems, namely no regulation, EPA mentioned best management practices for non-native or escaped fish and pathogens.203
The apparent differences between these two approaches can be easily reconciled. The District Court of Maine was operating in a system where no NPDES or Maine Pollutant Discharge Elimination System (MEPDES) permits were distributed, and where no effluent limitations existed on which to base those permits.204 Without any permits or applicable effluent limitations, Atlantic and Stolt could not discharge a pollutant while in compliance with the CWA.205 Thus, under the CWA, the court had to determine what aspects of the facilities' discharges would be a pollutant.206 This is not to say that EPA could not have drafted NPDES permits for Atlantic, Stolt, and other net pen facilities before effluent limitations were in place.207 National effluent limitations would simply act as uniform guidelines for permit writers to follow.208
The effluent limitations proposed under the CWA seem rather easy to meet, if they have not been met already by CAAPFs in Maine.209 Federal effluent limitations would simply serve as a floor to be respected by state permit programs.210 Even so, these guidelines are only proposed, and permitting under the CWA is no longer administered by the federal government in Maine, but has been taken over [*PG713]by the state.211 But, even in the absence of minimum federal effluent guidelines, Maine’s permitting authority is not supreme, as EPA can object to permits issued and, if the problem is not fixed, reassume its role as the issuer of permits.212
It would seem that if the Maine Department of Environmental Protection (DEP) issued a permit for Atlantic’s discharges, and EPA did not object, an injunction against Atlantic would likely be moot.213 The District Court of Maine and the First Circuit did not agree with this assessment.214 Surprisingly, the First Circuit upheld the injunctive relief granted by the district court, despite the fact that it was more stringent than the permit issued by the DEP.215
If enforcement of the CWA in Maine was still under federal authority, and the proposed regulations were final, it is very likely that Atlantic would be in compliance.216 Atlantic already monitors feeding by video cameras, and stops or adjusts feeding when uneaten pellets are viewed.217 Also, Stolt and Atlantic were both part of a monitoring program headed by the Maine Department of Marine Resources, with which EPA was involved.218
The DEP has developed a “general permit that could cover many of the State’s existing and new aquaculture facilities to bring them into compliance with federal statutes.”219 This permit, even if it followed proposed regulations described above, would not be in line with the intent of the CWA, because the large disposal of pollutants by net pen facilities allowed by this permit is contrary to the vision of restoring and maintaining the integrity of waters of the U.S.220
A study conducted to demonstrate the amount of nitrogen, phosphorus, and biological oxygen demand (or sewage) created by a salmon net pen facility proves this point.221 In this study, the director of the University of Idaho’s Hagerman Fish Culture Experiment Station determined that a fish farm of 200,000 salmon would produce an amount of nitrogen, phosphorus, and biological oxygen demand (or fecal matter) equal to that produced by 15,000, 26,667, and 62,505 people, respectively, per day.222 This “nutrient loading” stems from organic wastes that “may include uneaten food, feces, urine, mucus, and dead fish.”223
“[C]urrently there are 26 active pen sites and 45 permitted pen sites, and on average, the number of fish per site is 350,000.”224 Judging by those numbers, Maine had approximately 9.1 million salmon in its marine net pen sites.225 Based on the above calculation for salmon waste, 9.1 million fish would yield a release of: nitrogen equal to the untreated sewage of 682,500 people; phosphorus equal to the un[*PG715][*PG714]treated sewage of more than 1.2 million people; and fecal matter equal to the untreated sewage of over 2.8 million people.226
These numbers are quite staggering, especially when compared to Maine’s 2001 population of less than 1.3 million people.227 The numbers are also deceiving, because nearly all of Maine’s salmon farms are nestled in Washington and Hancock counties at the eastern end of the state.228 The total population of these two counties was estimated to be 85,909 in 2001.229 Based on these statistics, Washington and Hancock counties could dispose all of their human waste directly into the sea and it would be a small addition to the waste currently being disposed in these counties by net pen facilities without any treatment.230 Monitoring excess feed alone, even “actively,” does not seem to be enough.
While the FWS seemed to set out more strict regulations concerning escaped fish and pollutants under the ESA,231 in delegating NPDES permitting authority to Maine, EPA did not see its action as “likely to jeopardize the continued existence of the wild Atlantic salmon.”232 Whether that is the case, EPA has a duty to ensure that Maine will maintain conditions that protect Atlantic salmon in its permitting under the CWA, and must object if Maine fails to meet that requirement in distributing permits.233
At this point the issues become difficult to reconcile. The U.S. aquaculture industry has experienced rapid growth:
Maine production increased from less than 500,000 smolt stocked and 2,000 metric tons produced annually before 1990 to over four million smolt stocked and up to 15,000 metric tons . . . produced annually by 1998. There is a standing crop of about six million sub-adult salmon in pens in eastern Maine.234
This production takes place through “12 companies . . . with 773 cages covering 800 leased acres of water.”235 As of 2001, Maine’s production of salmon was valued at $101 million, and in excess of 32.6 million pounds per year.236 Nearly 1000 people are directly employed by this industry, with 2500 others in employment that directly depend on it.237
To help preserve this aspect of Maine’s, and the U.S., economy, and because Maine did not have sufficient funding or staff, the federal government stepped in to help maintain net pen aquaculture against the ISA virus which struck in 2001.238 The primary reason for the federal intervention was to encourage salmon producers to follow an ISA control program by indemnifying salmon producers for destroyed fish.239 The following additional reasons for intervention cited [*PG717][*PG716]by the Department of Agriculture were related to competition: Canada indemnified its salmon farmers and greatly reduced incidents of the ISA virus over a three-year period through a “comprehensive program”; and Chile and the European Union had banned the import of salmon eggs from anywhere in the United States.240
The control program required disease surveillance, site-specific action plans, a provision of fish inventory, and a control program for sea lice—a type of parasite which is “generally regarded as capable of transmitting ISA.”241 When fish are crowded together in high densities, with net pen conditions being a prime example, it is an ideal situation for rapid transmission of parasites such as sea lice.242 Studies in Norway have demonstrated that wild salmon become infected with sea lice during migration, “with the highest infection levels occurring in salmon-farming areas.”243 Even though sea lice are common, epidemics have developed in wild salmon in every country that produces significant amounts of farmed salmon.244
Harm to the endangered Atlantic salmon, illegal under the ESA, is likely to occur under current conditions in net pen aquaculture. Combined with the potential for salmon in net pen facilities to spread the ISA virus to endangered Atlantic salmon through sea lice is the constant, but more subtle, danger posed by escaped salmon.245 Limitations set by the ESA to protect Atlantic salmon become relatively worthless—and lead to competition with and dilution of the endan[*PG718]gered Atlantic salmon—if they are: (1) unable to be enforced, as demonstrated by the continued escapes of farmed salmon and outbreaks of disease, both harmful to endangered Atlantic salmon; and (2) subsumed by the current Maine permitting process that could easily result in weak effluent guidelines, as evinced by the possibility of meaningless federal effluent guidelines, leading to the more indirect harm through a polluted habitat.246
By enforcing the district court’s injunctive relief and denying Atlantic and Stolt’s claim that they should only be governed by the MPDES general permit, the First Circuit’s actions were in harmony with the purpose of the ESA.247 The general permit issued by the DEP does very little to protect the endangered Atlantic salmon.248 According to the DEP’s general permit, “non-native salmon can be re-stocked until July 31, 2004; thereafter the stocking must be of native salmon unless the permit holder proves that native stock is not available in sufficient quantities to match the farm’s prior stocking level based on historical data.”249 The injunctive relief, clearly more protective of the endangered Atlantic salmon, bans the stocking of non-native salmon, bans any future stocking immediately, requires a greater period of fallowing for net pens, and allows only a single year class of salmon to be in a pen at a time.250 Because of the weakness of the DEP’s permit regarding non-native species, the ESA would likely forbid it.
Atlantic argued that a rule as stringent as that of the district court would put it out of business.251 Because of its reliance on European salmon, “[i]t would take four years for [Atlantic] to grow a new brood stock of North American salmon to replace” its current stock.252 If Atlantic was lost as an employer, the local community would feel the effects: “[s]almon farms make up 15 percent of the city’s property-tax base, and many of the industry’s 1,200 jobs belong to Eastport citizens.”253 Despite considering Atlantic’s financial woes and the pendency of the general permit, the district court had no sympathy for Atlantic, stating that “[i]t is the Court’s perception that [Atlantic]’s leadership has single-mindedly pursued a policy, in the interests of the company’s economic well being and future profitability, of frustrating the fruition of all efforts by the regulatory authorities, such as they have been, and by this Court to secure its compliance.”254
Combined with concerns stemming from excess feed given to net pen salmon are the concerns associated with the source of that food. Because salmon are carnivorous fish, current feeding patterns rely heavily on protein from fish meal and fish oil.255 The fish meal and fish oil comes from small, wild-caught fish.256 Producing one pound of salmon requires 2.44 pounds of fish meal and fish oil.257 Thus, the production of farmed salmon does not reduce the pressure on wild fisheries, which is a significant problem.258
Due to the shrinking resources of wild fisheries and despite the rapid expansion of aquaculture, the United States still does not produce all of the seafood that it consumes.259 Between 1989 and 1998, the production of Atlantic salmon by facilities in the United States [*PG720][*PG719]increased 468%.260 The federal government has invested heavily in aquaculture, both through indemnifying CAAPFs for the salmon that had to be destroyed due to ISA,261 and funding aquaculture through the U.S. Department of Agriculture and the National Oceanic and Atmospheric Administration.262 Despite this, the trade deficit for United States in seafood is $6.2 billion.263
The proposed national effluent guidelines and the DEP’s general permit are too weak to accomplish the purposes of the CWA or the ESA. While the national guidelines could serve as a baseline, allowing the real regulation of Maine’s net pen aquaculture facilities to be determined by Maine, effective regulation needs to take more into account than EPA has considered. While Atlantic and Stolt have been enjoined from introducing a new class of salmon264 and Heritage can farm salmon in accordance with a settlement, the DEP’s general permit will allow other salmon facilities to operate under ineffectual standards. While these practices do not conform with the purposes of the CWA, discharges in accordance with a MEPDES permit are allowed. Since these net pen facilities are arguably worth the environmental costs, the focus should be on aspects of production that can be beneficially altered.
The massive quantity of waste produced by the salmon in Maine’s waters is the least likely aspect of salmon production to be changeable. If this untreated effluent is determined to be a minor harm, regulation should instead focus on practices that would be worthwhile to change. In order to better protect the endangered Atlantic salmon, only Atlantic salmon should be raised in net pens, and greater care should be placed on ensuring that escapes are minimized. To increase water quality and reduce harm to the ocean floor under the net pens, sites should be fallowed more often and excess nutrient loading, such as excess feed and dead fish, should be removed. For overall benefits to water quality and endangered Atlantic salmon, the densities of stocked net pens should be reduced. This could reduce the spread and occurrence of disease, minimize the need for the addition of antibiotics and drugs to the receiving waters, and diminish the harm to the benthos through a decreased concentration of the wastes it absorbs.
A complete halt to the net pen industry would be an undesirable outcome to this situation. If the facilities are simply permitted as they now exist, however, and continue the same aquaculture practices, a successful suit under the ESA is possible. Such a suit could lead to a complete shut down of net pen aquaculture in Maine, especially when considering that the ESA explicitly does not contemplate a balancing of the equities for injunctions, which the District Court of Maine contemplated before granting the injunction under the CWA. Thus, not surprisingly, Maine, along with Atlantic, Stolt, and others, fought the listing of Atlantic salmon as an endangered species.
The growing demand for farmed fish, along with increased employment opportunities and revenue produced by aquaculture in Maine should be encouraged and developed in the United States without dismissing environmental concerns. Otherwise, the United States will continue to import the majority of farmed fish from other nations that lack environmental regulation. That would be an unwanted outcome, environmentally and economically.