New eyes view water quality at fish farms

AUGUSTA – Maine’s aquaculture industry will likely have to wait until at least next year for permits to do business legally, due to a decision Thursday by the Board of Environmental Protection to take authority for regulating water quality at fish farms.

In doing so, the board takes on the duty of finding a compromise in the heated debate between the salmon aquaculture industry and federal endangered species regulators concerned with the fate of the Atlantic salmon. DEP had asked the citizen policy-setting board to take on the responsibility after months of unsuccessful negotiations. The DEP oversees state environmental regulation with guidance on specific issues from the Board of Environmental Protection.

“We are the special forces here, going where no one else wants to go,” said board member Ernest Hilton.

The board must approve the language of a new general aquaculture permit, designed to ensure facilities’ compliance with state and federal environmental statutes.

Once approved, the permit would validate Maine’s 44 existing aquaculture operations under the federal Clean Water Act, provided that each business can meet the permit’s list of technical requirements.

Since aquaculture began nearly two decades ago, Maine has never required that fish farms apply for a water quality permit from the Department of Environmental Protection. New fish farms must receive a Department of Marine Resources lease, as well as approval from the Army Corps of Engineers for the site and DMR-issued fish transfer permits.

Each of these steps requires a thorough review of the proposed facility’s impact on water quality, so DEP staff members didn’t believe that an additional evaluation would be necessary, said David VanWie, of the department’s Bureau of Land and Water Quality.

But everything changed this year when a coalition of environmental groups brought a lawsuit against large aquaculture operations in Washington County, and won. The judge found that each company should have been granted a water-quality permit before doing business.

Without this permit, every aquaculture operation in Maine is technically in violation of the federal Clean Water Act.

Van Wie told board members Thursday that the state failed to keep up with a rapidly growing and consolidating industry.

“The court has found that it is no longer good policy, and it probably wasn’t a good policy to begin with,” he said.

A majority of the state’s fish farming operations would receive immediate approval under the general permit, which is designed to ease the regulatory process in “low-risk areas,” VanWie said.

Criteria range from geographic limits that exclude sensitive areas such as Blue Hill Bay and the Mount Desert Island area, to restrictions on what feed and medications may be used. Operations that do not fit the general criteria must apply for an individual permit, and undergo a detailed review of whether clean-water standards can be met in their particular circumstances.

“This isn’t intended to cover every single fish farm out there today,” VanWie said of the general permit.

However, after more than a year of work, the permit is in its third draft and a fourth draft is expected.

Aquaculture operations and the federal government remain at odds over language regarding the genetics of salmon that will be allowed in Maine’s fish farms. Industry representatives believe that federal requirement would destroy their livelihood, while federal biologists threaten to take jurisdiction for Maine’s aquaculture permit away from the state if they are not satisfied with the final language of the permit.

“If you were hoping that it would get drafted, and issued, and we could all hold hands and sing ‘kumbayah’ – that hasn’t happened,” VanWie said. “We’re not foot-dragging. It’s been hard work, and we’re 90 percent there.”

The Board of Environmental Protection’s decision Thursday to take jurisdiction over the permit will create new delays, as the board follows its formal procedure of identifying intervening parties and hearing expert testimony. It is not expected that a public hearing will be scheduled before 2003.

Board members said Thursday that they were not familiar with the long, complicated history of the issue, and were hesitant to take it on.

“It’s such a morass of dueling opinions by experts – I can’t imagine how we have the power to cut through this,” said board member Jean Wilkinson.

“Understand that you are taking hold of a tiger,” added Elizabeth Butler, a Portland-based lawyer who represents two of the defendants in the aquaculture lawsuit, Atlantic Salmon of Maine and Stolt Sea Farms.

Butler appealed to the board Thursday, asking for a speedy resolution. The damages determination phase of the lawsuit is scheduled to begin in early October, and the companies could be responsible for fines as high as $27,000 per day for each of their seven sites, she said.

The board noted in its motion to take jurisdiction that the issue would be resolved “as judiciously as possible,” and set a date of Oct. 1 for intervening parties to identify themselves.

“We just want to see this finished,” Van Wie said.