Summary of a Recent
Judicial Development in
Environmental Law

Court Explains Which Aquatic Animal Production Facilities Are Required
to Obtain Pollution Discharge Permits

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In United States Public Interest Research Group v. Atlantic Salmon of Maine, LLC., 215 F. Supp. 2d 239 (D. Me. 2002), the United States District Court for the District of Maine granted the plaintiff's motion for summary judgment against a salmon farm operator for discharging pollutants in violation of the Clean Water Act (CWA). Because the operator's salmon pens were point sources that discharged pollutants into area bays, the operator failed to obtain a pollution discharge permit, and the plaintiff's suit was not barred by laches or equitable estoppel, the court granted the plaintiff's motion for summary judgment.

Background

The defendant owned seven salmon farms located off Maine's coast. Id. at 242. Until the salmon become smolts, the defendant would grow them in freshwater hatcheries and then transfer them into net pens to grow them out to market weight. Id. at 243. The nets were sprayed with Flexguard II, a copper-rich antifoulant "designed to reduce marine growth," and cleaned by dropping them to the sea floor for long periods of time. Id. To feed the salmon, the defendant sprayed a combination of herring and anchovetta into the fish nets, which contained canthaxanthin and astaxanthin, "pharmaceutical manufactured pigments that color the fish's flesh pink." Id. The defendant's salmon regularly contracted diseases that were "transmitted through the water, through fish-to-fish contact." Id. To treat diseases and other bacterial infections, the defendant mixed oxytetracyline, an antibiotic, into their feed. Id. Additionally, the defendant used other chemicals, some classified as toxic, to treat sea lice. Id. at 243-44. Salmon feces and urine were typically discharged thirty days each year. Id. at 244.

On July 18, 1989, the United States Environmental Protection Agency (EPA) sent a letter to the Army Corps of Engineers suggesting that some "concentrated aquatic animal production facilities [located off of Maine's coast] may require a permit under the National Pollutant Discharge Elimination System (NPDES) program." Id. In October 1990, the EPA sent a letter to the defendant "stating that [his] facilities [were] required to obtain [NPDES] permits and instructed [d]efendant to submit an NPDES application." Id. at 245. Shortly thereafter, the defendant began submitting permit applications for his salmon operations; however, the EPA never responded. Id. In 1993, the defendant wrote to the EPA requesting a letter of assurance "that the farms could operate without an NPDES permit." Id. Once again, the EPA failed to respond. Id.

The plaintiff filed the instant citizen suit seeking a declaratory judgment that the defendant's salmon operations were not being operated in compliance with the CWA, and an injunction requiring the defendant to cease its Maine salmon operations. Id. It sought civil penalties, attorney's fees and costs. Id.

Arguments

The plaintiff filed a motion for summary judgment alleging that the defendant's salmon operations were point sources that discharged pollutants into Maine's waters without an NPDES permit, and therefore violated the CWA. Id.

The defendant "filed a cross motion for summary judgment on the grounds that it [was] not required to obtain an NPDES permit and that it [was] not prohibited under the [CWA] from discharging pollutants." Id.

Analysis and Holdings

The CWA makes it unlawful for a person to discharge pollutants unless exempted from the CWA's general prohibition. Id. at 245-46 (citing 33 U.S.C. § 1311(a)). One such exemption is contained in § 1342, "which authorizes the [EPA] to issue NPDES permits allowing individuals or entities to discharge pollutants, thereby exempting them from the prohibition in § 1311(a)." Id. To be liable for discharging a pollutant, a person must add a pollutant into navigable waters from a point source. Id. The plaintiff carried the burden of establishing that each of the prohibition's elements was satisfied. Id.

To establish the addition of a pollutant, the plaintiff alleged that the defendant's fish farms released pollutants including "salmon, salmon feces, salmon urine, fish feed, cypermethrin, copper, pathogens, parasites, and antibiotics" and "that these substances [fell] under the [CWA's] definition of 'pollutants' because they [were] solid waste, chemical wastes, biological materials, or agricultural waste." Id. at 247. The court agreed with the plaintiff, finding support in the record for the plaintiff's claim that the defendant introduced "various substances into the water at its net pens and these substances flow[ed] out of [the defendant's] net pens and into either Machias Bay or Pleasant Bay." Id.

The plaintiff was easily able to satisfy the "navigable waters" element; the defendant's salmon farms were located in Machias Bay and Pleasant Bay, "thus they [were] clearly within the definition of 'navigable waters.'" Id. at 249. The plaintiff also had to show that the defendant's farms were point sources. Id. The EPA has the authority "to define point sources and nonpoint sources." Id. Pursuant to its authority, the EPA has identified aquatic animal production facilities as nonpoint sources, and concentrated aquatic animal production facilities as point sources. Id. Although the plaintiff conceded that the EPA had not designated the defendant's operations as concentrated, it argued that the defendant's facilities were required to obtain a permit under Appendix C. Id. at 251. The defendant argued that the phrase "ponds, raceways, and similar structures," as used in Appendix C, "exclude[d] its net pen operations due to their offshore location." Id. However, the court held that this argument was contrary to multiple communications from the EPA. Id. The communications "clearly demonstrate[d] that the EPA interpret[ed] the Appendix C phrase 'ponds, raceways, or similar structures' as encompassing net pen sea farms." Id. at 252. For these reasons, the court held that the plaintiff had met its burden for summary judgment, showing that the defendant was "'discharging pollutants' without a NPDES permit in violation of the Clean Water Act." Id. at 256.

The case was decided on June 17, 2002.