Endangered Species Law & Policy

On April 28, 2010, the U.S. District Court for the Western District of Washington granted a motion for summary judgment filed by Wild Fish Conservancy, holding that EPA and NMFS failed to use the best scientific and commercial data available in their informal consultation regarding EPA's approval of water-quality standards that exempted salmon farms from various state water quality standards.  Wild Fish Conservancy v. U.S.E.P.A., No. C08-0156, 2010 WL 1734850 (W.D. Wash April 28, 2010).

Specifically, the court held that when EPA and NMFS engaged in informal consultation over EPA's approval of the disputed water quality standards, they should have considered the recent recovery plans for Puget Sound Chinook salmon (2007) and for the Southern Resident Killer Whales (2008) (PDF).  Both recovery plans expressly stated that they were developed based on the best scientific data available regarding each species.  The letter that NMFS issued concurring in EPA's not-likely-to-adversely-affect determination referenced three earlier studies prepared by NMFS and one prepared by the Washington State Department of Natural Resources, but not the more recent recovery plans.  Indeed, the court found that the administrative record was devoid of any mention of the two recovery plans.

Ultimately, the court ordered EPA and NMFS to reconsider whether formal consultation is required taking into account the best available science.

The challenge stems from Washington State's adoption of water-quality standards in 1995.  The regulation exempted "marine finfish rearing facilities and their associated discharges" from "authority and purpose standards," "marine sediment-quality standards," "sediment impact zone maximum criteria," and "sediment impact zone standards."  Wild Fish Conservancy v. U.S.E.P.A.,  2010 WL 1734850 at *2.  Wild Fish Conservancy is concerned about these exemptions because fish farming operations can result in inadvertent releases of non-native salmon into the wild, spread of disease and parasites into native populations, and adverse water quality and sea-bottom impacts due to use of antibiotics and detritus from farming operations.  Impacts to wild salmon can, in turn, adversely impact killer whales, which prey on native salmon.

Under the Clean Water Act, EPA is required to review and approve or reject the 1995 state standards.  But EPA failed to take action for over a decade.  In 2007, the Wild Fish Conservancy issued a notice of intent to bring suit under the Clean Water Act to compel EPA to take action on the 1995 regulations.  This prompted EPA to consult with NMFS.  EPA determined that formal consultation was not required because the new regulations were not likely to adversely affect the Chinook or Southern Resident Killer Whales.

NMFS concurred, primarily based on three studies it performed specifically relating to the impacts of mariculture on the Puget Sound.  Those studies concluded that fish farms in the Puget Sound did not pose a significant problem for wild salmon or the food web because of "unique grading and tidal attributes," rare use of antibiotics, "naturally reduced salinity levels," and "farm siting [that] involves locations with fast currents or relatively great depth that distribute wastes over large areas where they may be incorporated into the food web while maintaining aerobic surfical sea bottom sediments."  Id. at *3-4.

The court found it significant, however, that the 2007 Chinook recovery plan indicates that fish farms likely pose a threat to salmon in the Puget Sound.  Id. at 4.   And while the 2008 killer whale recovery plan indicates that problems posed by fish farms in the Puget Sound have been largely ameliorated, and that the risks of transmission of sea lice from salmon farms to wild salmon remains uncertain, it nevertheless indicates that sea lice from fish farms in British Columbia were correlated with a decline of wild pink salmon populations.

It is too soon to tell if EPA will appeal the court's judgment, or whether it will re-engage in informal or formal consultation with NMFS, this time careful to take into account the recovery plans and any other recent scientific information.  Wild Fish Conservancy's lawsuit includes Clean Water Act claims, which appear not to have been adjudicated.  Thus, the legal battle is likely to continue for some time before the issues are resolved.