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Roger Fleming

Document Type

Article

Abstract

There are many reasons that all of us, from expert angler to casual philosopher, should be concerned that the long-term impact of human activities, unmitigated by over a century of failed fishery management policies, have pushed the wild Atlantic salmon (Salmo salar) to the brink of extinction. Among these reasons is that wild Atlantic salmon need high quality riverine habitats to thrive and, thus, their presence is considered an indicator of the health of our own human environment. Some scientists suggest that because the wild Atlantic salmon are so inexorably linked to our overall quality of life, they serve as a "barometer of health" for Maine ecosystems. Given that there are millions of Atlantic salmon currently living in hatcheries and aquaculture facilities (fish farms) that could be used to stock and restock our rivers, one might ask, "why do we have to save the wild Atlantic salmon?" The answer is that wild Atlantic salmon have the best chance of long-term survival in the natural environment. Wild Atlantic salmon spawn without human intervention and their offspring spend four to six years developing in riverine and marine habitats subjected to the rigors of the natural environment and the process of natural selection. This leads to genetic diversity and results in important physiological, morphological, and behavioral differences. Conversely, the controlled environment of cultured salmon stocks circumvents the natural mortality factors that produce healthy, wild salmon stocks that are adapted to survive in nature. In fact, the escape of cultured salmon from fish farms and the risk of subsequent interaction with wild Atlantic salmon is cited by the U.S. Fish and Wildlife Service (FWS) and the National Marine Fishery Service (NMFS)(the Services) as one of the threats to the wild Atlantic salmon pushing it to the brink of extinction. Finally, Maine is home to the last remaining wild Atlantic salmon population in the United States, and if they are lost, they can never be replaced. For this reason alone, Maine's wild Atlantic salmon populations are a resource of national importance. Assuming, then that preventing the extinction of the wild Atlantic salmon is a worthwhile goal, the question arises as to whether our laws provide the tools necessary to protect this remarkable species. Two federal statutes, the Endangered Species Act (ESA) and the Clean Water Act (CWA), share complementary goals directed at the protection of aquatic ecosystems and the species they support. In recent years, the Environmental Protection Agency (EPA) and the Services have increased efforts to better integrate their respective CWA and ESA programs in order to meet the goals of both statutes. The EPA's and Services' integration efforts included entering into ESA consultations on a case-by-case basis during the EPA's approval of state and tribal water quality standards and state National Pollution Discharge Elimination System (NPDES) programs. Discovering, however, that certain issues arise repeatedly during such consultations, the EPA and Services undertook an effort to develop a coordinated national approach that would help ensure an appropriate level of protection for Listed Species and greater regulatory predictability for states, tribes and the public. This effort culminated in January 2001 when the Agencies signed a memorandum of agreement (MOA) regarding enhanced coordination under the CWA and the ESA (Final Coordination MOA). One specific concern the Agencies sought to address in the Final Coordination MOA was the Services' inability to consult with states or tribes under the ESA on permits issued by states or tribes under approved NPDES programs. Thus, the Final Coordination MOA establishes a framework for the EPA and the Services to coordinate during the EPA's review and oversight of such permits to more effectively ensure that effects from pollutants on Listed Species are addressed under existing CWA authority. On January 12, 2001, the EPA approved the state of Maine's application to administer the NPDES program in Maine, testing the ability of the Final Coordination MOA to protect the wild Atlantic salmon from the threats posed by fish farms. Approvals of state NPDES programs are typically more ministerial than noteworthy, being contingent upon a state demonstrating it has adequate authority to meet nine enumerated requirements listed in § 402(b) of the CWA. The EPA's approval of Maine's NPDES program was neither typical nor a simple ministerial task. Fish farms are considered point sources under the CWA and are required to have NPDES permits because they discharge pollutants into U.S. waters. Under the EPA's stewardship of the NPDES program in Maine, however, fish farms operated for years without NPDES permits. The Services cited the EPA's failure to issue NPDES permits with conditions designed to prevent and mitigate the impacts from escapes of farm-raised fish as one factor contributing to the threat of extinction to the Atlantic salmon. The question arises as to whether the CWA provides the authority to include or require such conditions in NPDES permits, regardless of whether the permit is issued by the EPA or by a state or tribe after NPDES program approval, because such conditions are directed at regulating the discharge of farm-raised fish, and EPA had never before determined that the escape or release of live fish constituted the discharge of a pollutant. Against this backdrop, the EPA's approval of Maine's NPDES program introduced a fascinating legal question that caused a protracted ESA consultation between the EPA and the Services, and took regulators deep into the fabric of the CWA's and the ESA's interwoven parts. This Article examines whether the CWA provides the EPA with the necessary legal authority to require that NPDES permits issued to fish farms in Maine include conditions regulating the discharge of farm-raised fish; that is whether EPA can require inclusion of conditions necessary to prevent or mitigate impacts from the escape or release of farm-raised fish thereby protecting wild Atlantic salmon. Part HI provides the statutory background of the ESA and CWA, explaining how the broad goals and statutory requirements of these Acts promote aquatic species protection via water quality standards. Part II analyzes how the Final Coordination MOA entered into by the EPA and the Services seeks to protect aquatic species in state NPDES permit programs. Part IV of this Article describes the unique threats to wild Atlantic salmon that led to its listing as an endangered species, emphasizing the threats posed by salmon fish farms. Part V of this Article reviews the Services' ESA § 4(A)(1) determination to list the wild Atlantic salmon. Part VI analyzes the specific procedural safeguards to which the EPA and the Services agreed as a means to protect wild Atlantic salmon under the NPDES program in the State of Maine (MEPDES Program). These safeguards rely upon assurances provided by the EPA to the Services that the EPA will coordinate its review of state-issued NPDES permits (MEPDES Permits) with the Services and exercise its CWA oversight authority to object to any state-issued NPDES permit that does not contain conditions necessary to protect the wild Atlantic salmon. This section argues that the CWA does provide the legal authority to EPA to require that MEPDES permits for salmon fish farms include conditions regulating the discharge of farm-raised fish because: 1) such regulation is necessary to protect water quality through the maintenance of existing uses of Maine waters, and wild Atlantic salmon are an existing use of Maine's waters, and 2) either farm-raised fish may be regulated directly because their discharge constitutes the addition of a pollutant under the Act, or the conditions are reasonably related to the discharge of other pollutants, thereby providing EPA with the legal authority to regulate the activity of salmon farming to include such conditions. This part also briefly considers the conditions included in the NPDES permit recently issued by the EPA to Acadia Aquaculture, a fish farm located in Blue Hill Bay, Maine. This is the only NPDES permit issued by the EPA to a salmon fish farm. This Article concludes that the EPA's establishment of procedural safeguards applicable during Maine's administration of the MEPDES Program is an important effort to protect the wild Atlantic salmon and a valid exercise of the EPA' s authority under the CWA. Moreover, because this approach relies upon water quality standards established to meet minimum CWA requirements, this approach could be applied in other states' NPDES programs to protect aquatic species.

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