FROM: US Public Research Interest Group monthly newspaper October 24, 2001.

Submitted to: Maine Department of Environmental Protection Submitted by: National Environmental Law Center, U.S. Public Interest Research Group

Date: October 24, 2001

The purpose of this presentation is not to set forth the comprehensive legal framework underlying regulation of salmon net pen operations under the Clean Water Act, nor is it to present a detailed proposed NPDES permit for salmon farms. Rather, this presentation focuses on the most important areas in which NPDES permit conditions and limitations are needed, and sets forth a legal and factual basis for proposed effluent limits, monitoring requirements, and best management practices in those areas.

. EPA'S DRAFT PERMIT FOR ACADIA AQUACULTURE IS THE STARTING POINT.

In the absence of federal effluent guidelines for salmon farms, EPA Region I has used its "best professional judgment" in arriving at best management practices and effluent limits designed to achieve the Clean Water Act's technology-based requirements, see 33 U.S.C. §~ 301(b) and 402, 40 C.F.R. § 125, and has incorporated these into a draft permit for the proposed Acadia Aquaculture site off Dunham's Cove in Blue Hill Bay ("the Acadia permit"). EPA has also included conditions in the Acadia permit designed to ensure compliance with State water quality standards, including Maine's Antidegradation Policy, 38 M.R.S.A. § 464.4(F).

The Maine Department of Environmental Protection ("DEP") should regard the conditions in EPA's Acadia permit as a floor: these are the minimum requirements for salmon farm permits below which DEP cannot and should not go in issuing permits for existing salmon farms in Maine.

There is no evidence to suggest EPA has gone too far in the Acadia permit. There is, however, evidence that in a number of respects the EPA draft permit is inadequate. The following sections will provide evidence — obtained primarily from the salmon farm companies themselves — that justifies many of the conditions in the Acadia permit (and therefore their inclusion in DEP's salmon farm permits), and that demonstrates that in a number of areas EPA's and DEP's salmon farm permits need to go further.

NOTE: evidence presented here includes testimony from the depositions of Heritage Salmon ("Heritage"), Stolt Sea Farm ("Stolt"), and Atlantic Salmon of Maine ("ASM") taken in U.S. PIRG's ongoing Clean Water Act enforcement suits against those three companies. This testimony is binding on the companies: it was given under oath,

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by witnesses each company designated to speak authoritatively on its behalf. Thus, for example, "Heritage" followed by page numbers refers to pages of the Heritage deposition transcript. The Heritage deposition pages are attached as Exhibit 1; the Stolt deposition pages are Exhibit 2; and the ASM deposition pages are Exhibit 3. None of the deposition testimony or other documents provided here has been designated confidential in any of the U.S. P1IRG lawsuits.

II. DEP'S SALMON FARM PERMITS MUST MINIMIZE THE SPREAD OF DISEASE AND PARASITES.

Unlike other agricultural operations, salmon farming is conducted directly in waters of the United States. Thus, the introduction or magnification of diseases, which may be purely agricultural issues elsewhere, become Clean Water Act discharge issues that need to be regulated by NPDES permits in the case of salmon farming.

A. Salmon Farms Spread Disease and Parasites.

Salmon in Maine net pens have been infected with the following diseases: bacterial kidney disease (BKD), furunculosis, vibrio (hitra, angularium or ordalli), cold water disease (also known as flexibacter) and, of course, infectious salmon anemia (ISA). Heritage 119, 124, 128-29; ASM 150-51; Stolt 213-14, 228-30, 237-38, 247-48, 258, 271-74; Deposition of Peter Merrill' (attached as Exhibit 4)117-19. These diseases can kill fish and can cause sublethal effects such as reduced growth, lesions and sores, reduced feeding, and sluggishness. Heritage 120-21; ASM 156-57. There is no vaccine for BKD, Heritage 119, and no treatment for ISA. Moreover, new forms of bacterial disease are "highly likely" to occur at salmon farms in the future. Heritage 153; Stolt 249.

Diseases spread in a number of ways: through the water; by contact with contaminated feces, fish carcasses and bloodwater; by parasites (ISA); by fish to fish contact; through open lesions and sores; by humans and mobile equipment; and through contact with marine growth on the net pens. Heritage 123-24, 137-3 8; ASM 179-85; Merrill Dep. 23, 26, 114. The net pen environment makes disease outbreaks and transmission more likely: First, fish in net pens are likely to become diseased. By rubbing against the nets and being mishandled, the fish get sores, which are sources of opportunistic infection. ASM 16 1-62; Heritage 135. Low oxygen conditions in the pens (due to marine growth on the nets) causes stress, which increases vulnerability to disease. ASM 149-150; Stolt 85, 338-39; Heritage 111-12, 135. And, perhaps most significantly, the higher the stocking density in each pen the greater the stress and the greater the susceptibility to disease. ASM 234-35; Stolt 256, 338-39.

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(1) Dr. Merrill, of MicroTechnologies, Inc. is the State of Maine contractor who performs biosecurity audits of the Maine salmon farming industry.

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Second, pathogens are likely to spread once they appear in a net pen. Diseases at salmon farms can be spread "horizontally" through the water from cage to cage, and "vertically" from generation to generation. Stolt 23 5-36, 238-39. And pathogens are not contained in the pens: they can be dispersed outside the pens by tidal currents, and thus can spread to wild fish swimming by the pens. Stolt 254; Merrill Dep. 115.

The net pen environment makes parasite infestations and transmission more likely:

First, the "intensive culture" of salmon farms is a breeding ground for parasites, including sea lice, trematodes and gill flukes. Heritage 133; Stolt 213, 227, 24 1-42; ASM 235-37, 159. Sea lice can kill salmon, as well as cause secondary infections and other problems. Heritage 311-12; Stolt 240-41; ASM 237.

Second, salmon farms increase the likelihood that parasites will infest wild salmon. If there were no fish farms in Maine, there would be fewer sea lice in the bays that host the wild salmon. Heritage 156. Sea lice larvae are carried by water currents, and thus are discharged from the net pens. Heritage 3 18; Stolt 254.

B. Salmon Farm Permits Must Minimize the Spread of Disease and Parasites.

The enhancement, magnification or introduction of parasites and diseases (including ISA) by fish farms constitutes a threat to the wild Atlantic salmon and thus violates Maine's water quality standards.

Pathogens and parasites discharged from salmon farms, and escaped farm salmon carrying pathogens and parasites, can adversely affect wild salmon.See ç.g~ Merrill Dep. 115; June 6, 2000 Memorandum by EPA biologist Eric Nelson (Exhibit 5); 65 Fed. Reg. 69,459, 69,469 (Nov. 17, 2000) (ISA is significant threat to wild salmon).

Discharges which threaten the wild salmon violate Maine water quality standards. Maine water quality standards for the Class SB coastal waters in which salmon farms are located prohibit discharges that would cause adverse impact to estuarine and marine life, and require that water quality be maintained to support all estuarine and marine species indigenous to the receiving water without detrimental changes in the resident biological community. 38 M.R.S.A. § 465-B(2)(C). Although the placement of Atlantic salmon on the Endangered Species List makes the harm of salmon farm discharges all the more serious, whether or not the wild salmon constitute a "distinct population segment" for Endangered Species Act purposes is irrelevant in evaluating whether harm to salmon constitutes a violation of water quality standards. The Maine Atlantic Salmon Commission has documented that "wild" salmon do live in and return to Downeast Maine rivers (~ Expert Witness Statement of former Maine Atlantic Salmon Commission biologist Gregg Horton; Exhibit 6), though in diminishing

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numbers. And Atlantic salmon are indigenous to these waters. Therefore they must be protected from salmon farm operations by NPDES permits.

Moreover, Maine's Antidegradation Policy prohibits the issuance of a waste discharge permit that would have a significant impact on existing uses. 38 M.R.S.A. §464(4)cF)(1),(1-A). See also Maine Attorney General's Supplemental Statement of Legal Authority for Maine's National Pollutant Discharge Elimination System, June 2, 2000, pp. 9-12 (Exhibit 7).

C. Proposed Permit Conditions Relating to Disease and Parasites.
1. Permits should limit each salmon farm to growing a single year-class and require that the farm site be fallowed between year-classes. The industry knows that single year-class farming and fallowing, with no overlap between year-classes on a site, reduces the chance that disease and parasites will spread to different generations of fish, can reduce parasite infestations by breaking the parasite life cycle, and have the additional benefit therefore of reducing antibiotic and pesticide use. ASM 5 1-52, 185-86, 210, 239-40 (company goal is single class farming and fallowing); Heritage 106-07, 167- 71 (company moved from multiple year-class system to system where there is 4-month overlap between classes, to cut down on disease, but rarely fallows sites); Stolt 125-26, 132, 209-11, 235 (company moving toward single classes and fallowing, but not planning to do it on regular basis); Deposition of ASM farm production manager Robert Hukki (Exhibit 8) 69 (purpose of fallowing is to break pathogen and predator cycles). Stolt, for example, practices single year-class farming and fallowing in Norway, but it does not do it in Maine — for economic reasons, not because fish husbandry conditions are different here. Stolt 129-3 1.

2. Permits should limit stocking density.Because of the impact of stocking density on fish health, the Canadian government limits stocking density at New Brunswick salmon farms to a maximum of 1 8 kg/rn3, and Stolt has adopted that limit for all its East Coast salmon farms. Stolt 105-07. However, there is evidence the industry itself has come up with an even stricter standard of 15 kg/ni3, measured at the time of year of lowest dissolved oxygen, that should not be exceeded. Heritage 147-52. ASM's stocking densities, on the other hand, are in "the low thirties," and the company goal is only to achieve 25 kg/rn3 by 2002. ASM 36, 58-60, 23 8-40. Maine's NPDES permits should prohibit such excessive densities.

3. Permits should require salmon farms to perform daily mort retrieval.Daily mort retrieval is an important component of disease prevention and control, especially in light of ISA, but is not done daily primarily because the companies don't want to pay for daily dives. Merrill Dep. 81, 91-92. The salmon farms' Army Corps permits require daily mort retrieval, but that condition is obviously not enforced since none of the farms do it. Heritage 204 (rnort dives only twice per week); ASM 194-95 (company did not follow consultant recommendation to do daily mort collection); Stolt 69, 101 (weekly mort dives, but more frequently during smolt introduction). At least one

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company has successfully tried out a technology known as the "Lift-Up" system that allows for daily mort retrieval even under weather conditions that preclude diving. Deposition of ASM Site Manager Dennis Wood (Exhibit 9) 37-42 (lift-up system used successfully in 1998). DEP's permits should require daily mort retrieval.

4. Permits should require adherence to biosecurity measures. Biosecurity is defined as identifying, and then minimizing or eliminating, exposure to risk factors that would contribute to the spread of pathogens or disease. Merrill Dep. 5. There are currently no state regulations regarding biosecurity at salmon farms. Merrill Dep. 6. Salmon farm permits should mandate that the farms institute and adhere to biosecurity protocols. Specific permit terms should cover, at a minimum: use of site-specific equipment and personnel; guidelines for proper mortality collection and disposal; net cleaning (should be done off-site); prohibition of on-site slaughter of harvested fish; regular removal and disposal of rockweed; and disinfection procedures for harvest and dive equipment, pick-off nets and other equipment, and personnel. Merrill Dep. 23, 34-35, 70-7 1, 73, 75, 80-8 1, 84; see generally MicroTechnologies, Inc., summary Biosecurity Audit Report, April 2001.

5. Permits should require mandatory public reporting of diseases, particularly ISA.Under the industry's current voluntary policy on reporting ISA, a company does not have to report that the virus is present, evetz fnniltiple laboratory tests have confirmed the presence of the virus on at least two fish per cage, unless there are also clinical signs of the disease evident on the site. Merrill Dep. 47-49. ISA, and other diseases, are problems of greater significance than simply fish farm husbandry and the industry obviously cannot be relied upon to voluntarily disclose the information necessary to get control over the problem of disease. Salmon farm permits should mandate public reporting of disease outbreaks as soon as they are detected.

6. Permits should prohibit fish escapes to reduce the spread of disease and parasites. See Section III, below.

7. Permits should prohibit any discharge of bloodwater. Most farms have discontinued the practice of discharging bloodwater directly into the ocean, because of the high risk of infection to their own fish. Heritage 30-31; Stolt 136-38, 147-49, 345-46; ASM 40-44, 3 62-63. Permits should nonetheless prohibit any discharge of bloodwater, both to ensure this practice does not recur and to eliminate even unintentional spillage of bloodwater from harvest boats (consistent with requiring slaughter to be performed off-site).

III. DEP'S SALMON FARM PERMITS MUST PROHIBIT FISH ESCAPES AND
MINIMIZE THE ADVERSE CONSEOUENCES OF FISH ESCAPES.

A. Fish Escapes Are A Significant Problem. Mass fish escapes are a frequent occurrence. Approximately 100,000 fish escaped from ASM's Stone Island farm in December 2000 during a storm. ASM 33 1-32.

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These included European strains. ASM 333-34. The month before, approximately 13,000 fish escaped from Heritage's Deep Cove farm when a company-hired boat plowed into a sea cage. Heritage 249-50. In September 1999, approximately ,30,000 fish escaped through a hole in a net pen at one of Stolt's Canadian sites. Stolt 30 1-02. These are not isolated incidents: companies are insured against "catastrophic" fish escapes, and from 1994-98 Heritage alone made 11 claims involving the loss of 90,359 fish (some of which may have been "smothered" by damaged equipment) caused by storms, containment equipment failures, and seal attacks. Heritage 258, 273-74, 278-79, 28 1-82; Exhibit 10.

Smaller fish escapes are also common. Fish can and do escape from fish farms in a number of ways; when they swim through holes in the nets; when they are accidentally dropped overboard during transfer into the cages; and when they are harvested or transferred to other cages. Heritage 243, 246-47, 252; Stolt 86-87, 289-9 1, 293-94, 311; ASM 285-87, 307. Holes are created by storms, boats, floating logs, seals, wearing and chafing, feed pipes and vandalism. Heritage 246-47; Stolt 310; ASM 308- 09. It is not unusual for salmon farms to find holes in their nets large enough for fish to swim through. Wood Dep. 24-34. The fish farms account for escaped fish in their inventory tracking systems. Heritage 258-59, 263-66; Stolt 296-301.

Escaped aquaculture salmon are routinely found in Maine's salmon rivers, often in numbers exceeding the numbers of wild salmon. Farmed salmon are physically, behaviorally and genetically distinguishable from wild salmon. It is beyond dispute that significant numbers of farm escapees in Maine rivers has been well documented by Maine's own Atlantic Salmon Commission. See Horton Statement (Exhibit 6); pictures of wild and farmed salmon (Exhibit 11, p. 10). The most current data for 2001 shows that farm escapees continue to enter Maine rivers.
See www.state.me.us/asa/catchstats.html Aquaculture escapees are likely to have adverse impacts on the wild salmon in Maine's rivers, through interbreeding, competition for forage and habitat, disruption of"redds" (egg nests), and the spread of diseases and parasites. See Endangered Species Listing Decision, 65 Fed. Reg. at 69,477-78; E. Nelson Memorandum (Exhibit 5); Expert Witness Statement of Dr. Jeffrey Hutchings (Exhibit 12). The threat of outbreeding depression — the reduced survival ability of hybrid offspring from matings between parents from different populations — is increased by the presence of non-North American or transgenic strains of farmed salmon. Hutchings Statement, pp. 8-9.

B. Proposed Permit Conditions Relating to Fish Escapes.

1. Permits should prohibit fish escapes. NPDES permits for salmon farms can, and must, regulate fish escapes. Fish escapes violate Maine water quality standards. See ~enerallv Fact Sheet for Acadia Aquaculture draft permit. Maine water quality standards for the Class SB coastal waters in which salmon farms are located prohibit discharges that would cause adverse impact to estuarine and marine life and water quality must be maintained to support a/I estzarine and marine species indigenous to the

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receiving water without detrimental changes in the resident biological community. 38

Moreover, Maine's Antidegradation Policy, 38 M.R.S.A. § 464(4)(F), protects such existing uses. Section 464(4)(F)(l-A) provides that DE7P

"may only issue a waste discharge license ... when the department finds that (a) The existing in-stream use involves use of the water body by a population of marine life, or as ... habitat, and the applicant has demonstrated that the proposed activity would not have a significant impact on the existing use. ... [S]ignificant impact means ... impairing the viability of the existing population, including significant impairment to growth and reproduction or an alteration of the habitat which impairs viability of the existing population"

Further, EPA Region I, in justifying its decision to delegate responsibility for Clean Water Act permitting to the State of Maine, determined that

"the fish stock itself presents a threat to the wild salmon. This needs to be addressed under the Clean Water Act.... [I]n the unusual circumstances presented, the fish farm stock itself is within what is federally required to be regulated under the NPDES program to protect the water quality standards. The fish stock itself is harmful to water quality when fish escape from fish farms"

"[T]he DEP also has committed in the [Memorandum of Agreement], section III.A.10 to fully comply with CWA requirements when issuing these permits. [T]he EPA intends to oversee DEP's issuance of these permits (and to object to permits and take over permit issuance if necessary) to ensure that all of the measures required by the CWA are included."

Further Response to Comments Opposing Approval of Maine to Administer the NPDES Program, January 12, 2001 (Exhibit 13), pp. 9-10.

It is clear that EPA premised its delegation of NPDES permitting authority on the understanding that DEP would prohibit fish escapes in its salmon farm permits. See also E. Nelson Memorandum (Exhibit 5) (fish escapes contribute to risk of extinction of wild salmon). Any fish escape should be considered a violation of the permit.

2. Permits should require measures to minimize the possibility of fish escapes. In addition to the containment terms in the Acadia draft permit: Permits should require salmon farms to conduct net inspections more frequently. See ASM 310 (divers inspect nets once per week); Stolt 85-87 (nets inspected once per week). Permits should require predator nets around all net pens. Permits should require propeller guards on salmon farm boats. Permits should require fish transfer protocols designed to eliminate escapes during movement of fish into and out of net pens.

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3. Permits should require marking or tagging of fish. Fish can escape without being seen. Salmon farmers may not report all fish escapes. And the escapees that turn up in Maine rivers cannot currently be traced to any particular fish farm, making it impossible to determine which farms are not practicing good containment. The only way to address all of these problems is to require farms to mark or tag their fish. At least one tagging technology, the coded wire tag, has been proven to be safe, technically feasible, and economical. See Expert Witness Statement of H. Lee Blankenship (Exhibit 14).

4. Permits should prohibit the growing of non-North American and transgenic strains of fish. For the reasons stated in Section III-A, above, we strongly agree with the provisions in the Acadia draft permit on this issue.

NOTE: the DEP permit should not allow for any phase-in period, or compliance schedule, for permit tennis relating to marking and tagging and prohibitions on non-North Americai strains.

First, a compliance schedule is not justified. The industry has known since December 2000, at the latest, that NPDES permits would prohibit growing non-North American strains see December 4, 2000 letter from EPA Region I Administrator Mindy S. Lubber to U.S. FWS and NMFS, p. 2 (Exhibit 15). In delegating the NPDES permitting authority to Maine, EPA expressly built time into DEP's permitting process to allow for Endangered Species Act issues to be taken into account. EPA Further Response to Comments, p. 10. Those companies growing European strains could have switched to North American strains, but simply chose not to. Stolt 124 (Stolt is capable of growing exclusively North American strains); ASM 99-103 (ASM grows two North American strains in addition to Landcatch).

Second, a compliance schedule is illegal. Neither EPA nor a state has the authority to grant dischargers extensions in permits beyond the statutory deadlines created by Congress in the Clean Water Act. This includes the July 1, 1977 deadline in 33 U.S.C. ~ 131 l(b)(l)(C) for achieving compliance with water quality-based effluent limits. Bethlehem Steel Corp. v. Train, 544 F.2d 657, 66 1-63 (3d Cir. 1976), cert. denied, 430 U.S. 975 (1977); Save Our Bays & Beaches v. City and County of Honolulu, 904 F. Supp. 1098, 1122-23 (D. Hawaii 1994). Maine law is consistent with the federal law on this point: "'reasonable schedules' of compliance under § 464(6) should not be construed as requiring, or authorizing, corn pliance schedules in permits to meet existing narrative requirements, unless there is a new or more stringent interpretation of those requirements." Attorney General's Supplemental Statement (Exhibit 7), p. 3 (emphasis added).

Here, the restrictions on non-North American strains are designed to meet existing water quality standards. A phase-in or compliance schedule in the permit would therefore violate both state and federal law.

5. Permits should mandate public reporting of all fish escapes within 24 hours.

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IV. DEP'S SALMON FARM PERMITS MUST RESTRICT THE USE OF TOXIC
CHEMICALS AND ANTIBIOTICS, AND THEIR IMPACTS

A. Salmon Farms Discharge A Broad Range of Toxic Chemicals and Drugs That May Have Adverse Environmental and Health Impacts.

To kill sea lice, salmon farms apply pesticides or drugs which are then discharged into the environment. For five years, the industry used a formulation with the brand name Excis, whose active ingredient is cyperniethrin, a toxic chemical commonly used in pesticides. Heritage 3 18-19, 324; Stolt 245-46; ASM 240, 25 1-52. The farms would place a tarp around each pen, pour in Excis, and after an hour remove the tarp, releasing cypermethrin directly into ocean. Heritage 330-33; Stolt 240, 245, 285-86; ASM 247-48. The cypermethrin leaves the net pens in a toxic plume that can extend over square kilometers and reach the benthos, posing risks to marine life. See Expert Witness Statement of William Ernst (Exhibit 16); Stolt 246-47 (can kill larval lobster). Canada bans cypermethrin for use at salmon farms. Ernst Statement p. 2; Heritage 324.

Although the farms had been using Excis on an experimental basis under a U.S. FDA trial which has now expired, the issue of regulating sea lice treatments remains. First, the companies admit that they want to continue to use toxic chemicals in the future to control sea lice infestations. Heritage 327; Stolt 3 57-58; ASM 264-65. Second, the industry is already using a new formulation, under the brand name Slice, as part of a new FDA drug trial. Hukki Dep. 83-87; Deposition of Stolt site manager Austin Dinsmore (Exhibit 17) 61, 69-70. The active ingredient in Slice is emamectin benzoate. Unlike Excis, Slice is mixed directly into the salmon feed. Hukki Dep. 87; Dinsmore Dep. 71. Slice is thus discharged from the pens in any uneaten feed and in the salmon excrement. The withdrawal period for Slice — the amount of time a salmon farm must wait before a fish treated with Slice can be harvested, to allow for residues to dissipate — is 60 days. Dinsmore Dep. 106.

Some salmon farms discharge formaldehyde directly into the ocean. Stolt, for example, pours formaldehyde into its pens, using the same tarpaulin technique used for Excis, to kill gill parasites. The formaldehyde, a toxic chemical subject to reporting requirements under federal hazardous waste regulations see 40 C.F.R. § 372.65(a), then washes out of Stolt's cages into the surrounding water. Stolt 231-32,286.

Some salmon farms may use other chemicals to control parasites. ASM, for example, puts a treatment called "Parasite-S" into the water at its farms. Exhibit 18, p. 3 (ASM's Answers to Interrogatory # 5).

Salmon farms discharge other chemicals. Some salmon farms use anesthetics, such as "Finquel," to immobilize the fish to make them easier to handle during harvesting and'at other times. ASM Answer to Interrogatory #5. This chemical can be released into the water. The farms also use disinfectants on their personnel and equipment, such as the

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iodine-based "Germ Kill," which also washes into the water. Exhibit 19, P. 3 (Stolt's Amended Response to Interrogatories #5).

Salmon farms discharge copper. Because copper is highly toxic, it is used in a coating (brand name Flexguard II) applied to the nets to prevent marine growth, or fouling. The coating gradually wears off and copper is discharged into the environment. Heritage 238-39; Stolt 80-8 1, 85, 336; ASM 57. Neither the fish, the sediments, nor local marine organisms are currently monitored for the presence of copper. Stolt 8 1-82.

Salmon farms discharge zinc. Zinc, a heavy metal that is toxic at elevated concentrations, is present in salmon feed. The salmon farms' own hired expert, Jack Rensell, testified that elevated levels of zinc have been found in sediments beneath salmon net pens in British Columbia. He testified that elevated zinc levels create an environmental concern because of toxic effects on lobsters and other organisms. He does not believe that zinc levels have been studied near salmon farms in Maine. Deposition of Jack Rensell (Exhibit 20) 54-5 8.

Salmon farms discharge antibiotics. Salmon farms mix antibiotics into the feed to treat disease. Heritage 130, 177-78, 180 (oxytetracycline, Romet 30, oxolinic acid); Stolt 232-33, 287 (oxytetracycline, Romet); ASM 206-07, 260-61 (oxytetracycline, Romet, enrofloxacin). Although the FDA has set a 21-day withdrawal period for Terramycin (oxytetracycline), Heritage decided to use a 180-day withdrawal period because the company was finding antibiotic residues in its fish. Heritage 178-79, 190-91. Antibiotics are discharged from the net pens in uneaten feed and in salmon excrement, which can be consumed by local fish and shellfish — and by the recreational fishermen who catch them. Heritage 20-21, 208-13, 230; Stolt 154-56; ASM 85. The salmon farms do not notify' the general public when they are using medicated feed. Heritage 299. State law requires them to do so. 12 M.R.S.A. § 6079.

B. Proposed Permit Conditions Relating to Chemicals and Antibiotics.

Quite simply, there has been little research and virtually no monitoring in Maine of the presence, concentrations and impacts of the various chemicals, metals and drugs described above.

1. Salmon farms must be required to disclose in their NPDES permit applications ALL pollutants discharged from their operations.Every salmon farm seeking an NPDES permit should be required to submit Form 2D for New Sources and New Dischargers, or the appropriate equivalent. Neither DEP, EPA nor the public can assess the adequacy of proposed effluent limits and management practices unless the salmon farms disclose the concentration and mass of a//pollutants they discharge.

2. Permits should prohibit the prophylactic use of antibiotics. Despite such a prohibition in the Army Corps permits, which are unenforceable by citizens, at least one company, Stolt, has used antibiotics prophylactically and may do so again in the future. Stolt 23 2-35.

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3. Permits should prohibit the use of substances containing medicines, animal drugs or pesticide ingredients, and should prohibit the discharge of any pollutant not listed in the permit (particularly toxic chemicals), without prior approval by DEP or EPA through the permitting process. FDA approval alone is not sufficient; EPA and DEP have an independent duty to set effluent limitations for FDA-approved drugs. See generally, Center For Veterinary Medicine ("CVM") of the FDA, Program Policy and Procedures Manual. Supplemental Policies. Dru~z Use in Aquaculture Enforcement Priorities, Guide 1240.4200 (October 29, 1997), PP. 7-9 (even facilities using "low regulatory priority aquaculture drugs" - which does not include cypermethrin, which is a higher priority drug - are "required to comply with National Pollutant Discharge Elimination System (NPDES) requirements").

Moreover, permit provisions that allow for unspecified future discharges of pollutants not described in the permit — as some sections of the Acadia draft permit seem to allow — are illegal because they subvert the Clean Water Act's permit modification procedures, which require an opportunity for public participation in the permitting process. See Pennsylvania PIRG v. P.H. Glatfelter Co., 128 F. Supp. 2d 747, 760-6 1 (M.D. Penn. 2001).

4. Permits should allow salmon farms to use only antibiotics specifically approved by the FDA for use on fish. "Off-label" use of antibiotics approved for other uses should be prohibited.

5. Permits should require salmon farms to notify the public when it is using feed medicated with antibiotics, parasite treatments, or any other substance for which there is a withdrawal period. The public needs to know whether fish or shellfish caught in bays where treatment is occurring may contain antibiotic or other residues. Notice should specify, at a minimum, the name of the substance, the dosage, the time and duration of treatment, and the date on which the applicable withdrawal period ends.

6. Permits should require periodic monitoring and toxicity testing of the water column, sediments and/or biota for toxic pollutants. Sediments should be tested for copper, zinc, toxic chemicals and antibiotics; sensitive indicator organisms should be tested for toxicity; hardier organisms, such as mussels, should be tested for bioaccumulation of metals and toxic substances; and the water column should be tested to ensure that concentrations of any toxic discharges are at safe levels.

V. DEP'S SALMON FARM PERMITS MUST RESTRICT THE IMPACT OF
SALMON FARMING ON THE BENTHOS.

A. Salmon Farms Can Have a Significant Adverse Impact on the Benthos.

Excessive deposition of feces and uneaten salmon feed can harm the sea bottoni by creating growth of bacterial mats (beggiatou) and anoxic and azoic conditions. There is extensively documented evidence of such conditions in Maine.

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See. e.g. Deposition of Christopher Heinig (Exhibit 21) 74-75, 78-82 (creation of anoxic conditions beneath net pens, characterized by growth of beggiatoa bacteria and spontaneous gassing, is "unacceptable" environmental impact); 8 8-89 (unacceptable conditions at Heritage's Broad Cove site); 9 1-92 (unacceptable conditions at ASM's Cross Island sites); 95 (Flint Island); 96-98 (unacceptable conditions found at Stolt's Johnsons Bay site); 176:15-178:4 ("unacceptable" conditions -- including beggiatoa, anoxia, excess feed, dropped feed bags, and mooring balls -- found at Stolt's Johnson Bay site); 187:17-189:5 (it can take up to 30 months of fallowing to return the benthic environment to its natural state at Stolt sites). See also Heritage 208-09, 219-21 (adverse impacts of excessive feed); Stolt 145-46, 159-63, 169-71, 173, 181, 190 (adverse impacts at Stolt sites); ASM 379-8 1 (adverse impacts). No disciplinary actions have ever been taken against salmon farms for their failures to address these situations.

Salmon farms also routinely drop nets and discard equipment and other refuse at their sites. See. e.g.. Heinig Dep. 99 (large number of nets on bottom at Stolt's Rodgers Island site); 112:8-23 (dropping nets is harmful to the environment); 167:17- 168:25 (debris from salmon farms does not belong on the ocean floor); ASM 3 82-83 (company intentionally drops nets for up to 5 months at a time). See Qenerallv Maine DMR FAMP reports.

Salmon feed can contain waste products from the chicken processing industry, including ground up chicken carcasses, chicken feathers, and chicken blood. Heritage 46-47, 388.

B. Proposed Permit Conditions Relating to Benthic Impacts.

1. Permits should contain objective criteria regulating benthic impacts, as EPA has done in the Acadia permit. Without objective criteria, permits will be essentially unenforceable, either by regulators or the public. In addition, it is not clear that "sediment impact zones," in which higher levels of degradation are allowed, are legal.

2. Permits should require regular fallowing of salmon farm sites. Fallowing is essential to allow the sea bottom to recover from the impact of salmon farming. Heinig Dep. 84-85, 187-92; see testimony of companies in section II.C.1, above.

3. Permits should require state-of-the-art feeding and waste control techniques. Underwater cameras, for example, are not used on all sites. And at sites where benthic impacts are most severe, waste collection technology, such as the "Lift-Up" system described above, should be required.

4. Feces should be periodically tested for the presence of human pathogens.

5. Permits should prohibit the disposal or discarding of nets, equipment, or garbage at salmon farm sites.

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