Via First Class and Electronic Mail
January 14, 2016
U.S. Environmental Protection Agency
Region 9 ATTN: (WTR-2-3)
75 Hawthorne St.
San Francisco, CA 94105
R9RoseCanyon@epa.gov
RE: Comments on Scoping for Hubbs-SeaWorld’s Rose Canyon Fisheries Aquaculture
Project NPDES Permit
The Center for Biological Diversity (the “Center”) submits the following comments to
the Environmental Protection Agency (“EPA”) on scoping for the environmental assessment on
the issuance of a National Pollutant Discharge Elimination System (“NPDES”) permit for Rose
Canyon Aquaculture Project (the “Proposed Project”). The Center urges EPA to fully evaluate
the Proposed Project’s effects that will significantly degrade the ocean environment, and to deny
the permit on the basis of these harms. The Center is a non-profit public interest conservation
organization with more than 990,000 members and online activists dedicated to protecting
imperiled species and their habitats, including efforts to protect the marine environment from the
risks of offshore aquaculture.
Rose Canyon Fisheries — a partnership between Hubbs-SeaWorld Research Institute and
the private equity firm Cuna Del Mar — seeks to construct and operate an open ocean
aquaculture facility approximately 4.5 miles off the coast of San Diego, California. Open ocean
aquaculture operations involve the farming of aquatic animals in open ocean areas, most often
through the use of floating or submerged net-pens or sea cages. In this way, the facilities
replicate the large-scale onshore livestock operations in which thousands of animals are raised in
a confined environment. These offshore factory farms pollute the ocean, threaten wild
populations of fish by spreading disease and parasites, harm marine mammals and other marine
life through a variety of means, and otherwise degrade fragile ocean habitats.
The environmental threats surrounding open ocean aquaculture are particularly troubling
in this instance. At full capacity, the Proposed Project would be the largest commercial fish farm
in the United States, producing 5,000 metric tons — or 11 million pounds — of fish each year in
ecologically rich and important areas.
Under the Clean Water Act (“CWA”) and its implementing regulations, EPA can issue a
NPDES permit for a discharge into the ocean only when the discharge will not cause an
unreasonable degradation of the marine environment. 33 U.S.C. § 1343; 40 C.F.R. § 125.123.

 Here, issuance of the permit would lead to massive amounts of nutrient pollution linked to toxic
algae blooms and dead zones which threaten public health and can kill or harm a wide variety of
marine life, among other negative impacts. As such, the discharge would cause an unreasonable
degradation of the marine environment and issuing the NPDES permit would constitute a
violation of the CWA. See id. The Center therefore urges EPA to deny the permit application
under review.
If EPA nevertheless moves forward with approving the Proposed Project, it must first
prepare an environmental impact statement under the National Environmental Policy Act that
fully analyzes the significant, detrimental environmental impacts that will result from the
construction and operation of the Proposed Project, and considers a reasonable range of
alternatives. EPA must also engage in consultation under the Endangered Species Act and cannot
issue the permit unless and until the state of California issues a consistency determination under
the Coastal Zone Management Act.
I. Issuance of the Permit Would Require Preparation of an Environmental Impact
Statement under the National Environmental Policy Act
EPA’s issuance of the NPDES permit would require an environmental impact statement
(“EIS”) under the National Environmental Policy Act (“NEPA”). NEPA, America’s “basic
national charter for protection of the environment,” 40 C.F.R. § 1500.1(a), requires federal
agencies to take a “hard look” at the environmental consequences of their actions before taking
action. Kleppe v. Sierra Club, 427 U.S. 390, 410, n. 21 (1976); 40 C.F.R. § 1500.1(a). In this
way, NEPA ensures that federal agencies “will have available, and will carefully consider,
detailed information concerning significant environmental impacts” and that such information
“will be made available to the larger [public] audience that may play a role in both the
decisionmaking process and the implementation of the decision.” Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 349 (1989).
To that end, NEPA requires federal agencies to prepare an EIS for all “major Federal
actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C).
NEPA’s implementing regulations define “major federal action” to include the “[a]pproval of
specific projects, such as construction or management activities located in a defined geographic
area” and specify that “[p]rojects include actions approved by permit.” 40 C.F.R. § 1508.18.
NEPA’s implementing regulations also specify factors that must be considered in
determining when a major federal action may significantly affect the environment warranting the
preparation of an EIS. See id. § 1508.27(b). Specifically, in determining whether an action may
have “significant” impacts on the environment, an agency must consider the “context” and
“intensity” of the action. Id. § 1508.27. “Context” means the significance of the project “must be
analyzed in several contexts such as society as a whole (human, national), the affected region,
the affected interests, and the locality.” Id. § 1508.27(a).
The intensity of the action is determined by considering the ten factors enumerated in the
regulations, which include: (1) impacts that may be both beneficial and adverse; (2) the degree to
which the proposed action affects public health or safety; (3) unique characteristics of the

2

 geographic area such as proximity to ecologically critical areas; (4) the degree to which the
effects on the human environment are likely to be highly controversial; (5) the degree to which
the possible effects on the human environment are highly uncertain or involve unique or
unknown risks; (6) the degree to which the action may establish a precedent for future actions
with significant effects; (7) whether the action is related to other actions with individually
insignificant but cumulatively significant impacts; (8) the degree to which the action may cause
loss or destruction of significant scientific, cultural, or historical resources; (9) the degree to
which the action may adversely affect a species listed under the Endangered Species Act
(“ESA”) or its critical habitat; and (10) whether the action threatens a violation of federal, state
or local environmental laws. Id. § 1508.27(b)(1)-(10).
The presence of even just “one of these factors may be sufficient to require preparation of
an EIS in appropriate circumstances.” Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d
846, 865 (9th Cir. 2005). If “substantial questions as to whether a project . . . may cause
significant degradation of some human environmental factor,” an EIS must be prepared. Idaho
Sporting Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998). Accordingly, in order for a
court to find that an EIS is warranted, “a plaintiff need not show that significant effects will in
fact occur” only that there are “substantial questions whether a project may have a significant
effect on the environment.” Nat. Resource Defense Council v. Winter, 502 F.3d 859, 867 (9th
Cir. 2007) (citations omitted).
Because Rose Canyon Fisheries could not operate without a NPDES permit from EPA,
all of the effects from the construction and operation of the Proposed Project must be considered
in EPA’s analysis of the permit. See e.g., White Tanks Concerned Citizens, Inc. v. Strock, 563
F.3d 1033, 1042 (9th Cir. 2009) (holding that the Corps improperly limited its NEPA analysis of
private development to jurisdictional wetlands and limited uplands: because the “project’s
viability” was “founded on [the Corps’] issuance of a Section 404 permit, the entire development
was within [the Corps’] purview”); see also 40 C.F.R. § 1508.18(a) (“Actions include new and
continuing activities, including projects and programs entirely or partly . . . assisted, conducted,
regulated, or approved by federal agencies . . . .”) (emphasis added). Under any reasonable
analysis, the Proposed Project implicates several — if not all — of NEPA’s significance factors,
and clearly necessitates the preparation of an EIS.
A. The Proposed Project Will Have Negative Environmental Impacts
EPA must prepare an EIS because the project will have several adverse impacts on the
environment. See 40 C.F.R. § 1508.27(b)(1). These adverse impacts include, inter alia, pollution,
an increase in the frequency and severity of toxic algae blooms and dead zones; threats to wild
fish populations through the spread of disease, escaped fish and demand for feed; and negative
impacts on public health and other marine life addressed in sections below.
First, the Proposed Project will have adverse impacts because it will generate a
significant amount of waste, including excess fish feed, dead fish and fish feces that will pollute
the marine environment. One study found that a 200,000-fish salmon farm releases enough
nitrogen to equal the untreated sewage of 19,800 people, phosphorus for 26,667 people, and fecal

3

 matter for 62,505 people.1 Given that the Proposed Project will produce 11 million pounds of
fish per year, the amount of waste it would generate could be magnitudes higher. This is a
significant concern, as such wastes have been shown to alter fragile marine habitats, and the
effluent from such facilities has such a high nutrient content that it contributes to the formation
of hypoxic zones and harmful algal blooms (“HABs”).2 EPA must quantify the pollution from
the permit and disclose the impacts of that pollution.
Dead zones are already on the rise due to warming waters,3 and the increased nitrogen
pollution caused by the Proposed Project would only exacerbate the frequency and severity of
dead zones. Hypoxic zones, or “dead zones,” are areas where the dissolved oxygen content of
water is unusually low.4 Depleted oxygen levels can cause stress and mortality in aquatic
organisms, and can drive ecological collapse.5
HABs can cause mortality in marine mammals through contamination of food sources.
Some strains of phytoplankton in HABs produce copious amount of domoic acid, a kanic acid
analog neurotoxin that causes amnesic shellfish poisoning.6 Exposure to this toxin via food
sources can affect the brain, causing seizures, provoke organ failure, and ultimately death in
several marine mammal species, from small sea otters, seals, sea lions, to large whales.7 In the
past three decades, HABs seem to have become more frequent, more intense, and more
widespread.8 New reports show that levels of domoic acid, associated with HABs, have been
increasing over the past decades in the milk, stomach content, and feces of whales from tropical

1

Goldburg, R., Elliot M., and Naylor, R., “Marine Aquaculture in the United States, Environmental Impacts and
Policy Options,” 2001, citing Hardy, R.W., 2000b, Fish, Fish feeds, & Nutrition in the New Millennium,
Aquaculture Magazine 26 (1): 85-89.
2
Id.; Scottish Association for Marine Science and Napier University, “Review and Synthesis of the
Environmental Impacts of Aquaculture, 2002; Clover, C. “Pollution from fish farms ‘as bad as sewage.’”
Telegraph (UK), Sept. 19, 2011, available at: http://www.telegraph.co.uk/news/uknews/1355936/Pollutionfromfish-farms-as-bad-as-sewage.html; Donald Boesch et al., Pew Oceans Comm’n, Marine Pollution in the United
States 20-39 (2001).
3
Robert J. Diaz1 & Rutger Rosenberg. 2008. Spreading Dead Zones and Consequences for Marine Ecosystems.
Science. Vol. 321 no. 5891 pp. 926-929.
4
Sarah Zielinski, Ocean Dead Zones Are Getting Worse Globally Due to Climate Change, Smithsonian Magazine,
Nov. 10, 2014, http://www.smithsonianmag.com/science-nature/ocean-dead-zones-are-getting-worse-globally-dueclimate-change-180953282/?no-ist.
5
Id.
6
Anderson, D. M., et al. 2014. Understanding interannual, decadal level variability in paralytic shellfish poisoning
toxicity in the Gulf of Maine: The HAB Index. Deep Sea Research Part II: Topical Studies in Oceanography
103:264–276.
7
McHuron, E. A., D. J. Greig, K. M. Colegrove, M. Fleetwood, T. R. Spraker, F. M. D. Gulland, J. T. Harvey, K. A.
Lefebvre, and E. R. Frame. 2013. Domoic acid exposure and associated clinical signs and histopathology in Pacific
harbor seals (Phoca vitulina richardii). Harmful Algae 23:28–33; Kirkley, K. S., J. E. Madl, C. Duncan, F. M.
Gulland, and R. B. Tjalkens. 2014. Domoic acid-induced seizures in California sea lions (Zalophus californianus)
are associated with neuroinflammatory brain injury. Aquatic Toxicology 156:259–268; Jensen, S.-K., J.-P. Lacaze,
G. Hermann, J. Kershaw, A. Brownlow, A. Turner, and A. Hall. 2015. Detection and effects of harmful algal toxins
in Scottish harbour seals and potential links to population decline. Toxicon 97:1–14.
8
Lewitus, A. J., et al. 2012. Harmful algal blooms along the North American west coast region: History, trends,
causes, and impacts. Harmful Algae 19:133–159; Hallegraeff, G. M., editor. 2014. Impacts of climate change on
harmful algal blooms and seafood safety. Assessment and management of seafood safety and quality: current
practices and emerging issues. Rome.

4

 and temperate waters.9 In some cases these biotoxin have been identified as the main cause of
death in stranded whales, including humpbacks.10
In 2015, the Northeastern Pacific Ocean experienced one of the most prolific HABs ever
recorded.11 As the result of the HAB, California officials delayed the opening of the commercial
Dungeness crab fishery (which has yet to open) and closed the commercial rock fishery.12 And
scientists and federal officials believe it caused sea lion strandings and bird deaths along the
West Coast, and the deaths of 30 large whales in the Gulf of Alaska, including humpback and fin
whales listed as endangered under the ESA.13 The studies referenced above suggest that the
damage will continue in the future. In fact, ocean scientists have stated that these toxic blooms
could become the new normal in the face of climate change.14 The Proposed Project will cause a
significant increase in nitrogen pollution in the Pacific, which could exacerbate the frequency
and significance of HABs.
Second, the Proposed Project threatens wild fish populations by creating a breeding
ground for disease. Because fish are packed densely together in aquaculture farms, the fish are
exposed to pathogens in the marine environment, and can alter the surrounding ecology to such
an extent that they actually foster the proliferation of pathogens.15 Sea lice is one of the most
notorious pathogens associated with aquaculture facilities. Sea lice feed on the mucus, skin, and
scales of fish causing skin lesions prone to infection and affecting the host’s ability to
osmoregulate; chronic infections can cause mucus accumulation and attract myxobacteria and
other bacteria, fungi, and ectocommensal organisms, all of which may contribute to further
disease.16 And while sea lice normally exist outside of aquaculture, the unnaturally high host
9

Trainer, V. L., S. S. Bates, N. Lundholm, A. E. Thessen, W. P. Cochlan, N. G. Adams, and C. G. Trick. 2012.
Pseudo-nitzschia physiological ecology, phylogeny, toxicity, monitoring and impacts on ecosystem health. Harmful
Algae 14:271–300; Fire, S. E., et al. 2009. Domoic acid exposure in pygmy and dwarf sperm whales (Kogia spp.)
from southeastern and mid-Atlantic U.S. waters. Harmful Algae 8:658–664; Rust, L., F. Gulland, E. Frame, and K.
Lefebvre. 2014. Domoic acid in milk of free living California marine mammals indicates lactational exposure
occurs. Marine Mammal Science 30:1272–1278.
10
Trainer, et al. 2012; Leandro, L. F., R. M. Rolland, P. B. Roth, N. Lundholm, Z. Wang, and G. J. Doucette. 2010.
Exposure of the North Atlantic right whale Eubalaena glacialis to the marine algal biotoxin, domoic acid. Marine
Ecology Progress Series 398:287–303; Fire, S. E., Z. Wang, M. Berman, G. W. Langlois, S. L. Morton, E. SekulaWood, and C. R. Benitez-Nelson. 2010. Trophic transfer of the harmful algal toxin domoic acid as a cause of death
in a minke whale (Balaenoptera acutorostrata) stranding in southern California. Aquatic Mammals 36:342–35.
11
Anna Almendrala, Health Authorities Warn Against Eating Toxic Dungeness Crab, Huffington Post, Nov. 4, 2015,
http://www huffingtonpost.com/entry/dont-eat-dungeness-crab-toxin_563a4ff5e4b0b24aee48749a.
12
State of California Ocean Protection Council, Commercial Dungeness Crab Season Opener Delayed and
Commercial Rock Crab Season Close, http://www.opc.ca.gov/2015/11/commercial-dungeness-crab-season-openerdelayed-and-commercial-rock-crab-season-closed.
13
NOAA, West Coast Harmful Algal Bloom, http://oceanservice.noaa.gov/news/sep15/westcoast-habs html,
updated Sept. 3, 2015.
14
Id.
15
Gardner, J. & D.L. Peterson. (2003) “Making Sense of the Salmon Aquaculture Debate: Analysis of issues related
to netcage salmon farming and wild salmon in British Columbia.” Pacific Fisheries Resource Conservation Council,
January: 4; Cabello, F.C. (2006) “Heavy use of prophylactic antibiotics in aquaculture: a growing problem for
human and animal health and for the environment.” Environmental Microbiology, 8(7): 1138; Pulkkinen, K. et al.
(2009) “Intensive fish farming and the evolution of pathogen virulence: the case of culumnaris disease in Finland.”
Proceedings of the Royal Society Biological Sciences, October
16
Barber, I. (2007). Parasites, behaviour and welfare in fish. Applied Animal Behaviour Science, 104(3–4),
251–264. Rae, G. H. (2002). Sea louse control in Scotland, past and present. Pest Management Science, 58(6), 515–

5

 density created by cage fish farming provides a favorable environment for parasites such as sea
lice that rely on spatial proximity between hosts for transmission to proliferate.17
Third, there are significant effects of escaped aquaculture fish. Farmed fish often escape
from cages into the open ocean due to a variety of factors, including damage to nets and other
equipment from storms, handling, marine mammal interactions, and human error.18 For example,
one study found that wild juvenile pink salmon infested with lice from farmed salmon suffered
high mortality and population declines.19 In fact, the National Marine Fisheries Service and the
U.S. Fish and Wildlife Service cited the ecological risks of aquacultured salmon, including the
spread of sea lice, as one of the reasons for listing the Gulf of Maine Distinct Population
Segment of Atlantic salmon as endangered under the ESA, and actions for recovery of the
population include minimizing the effects of aquacultured animal escapes.20 Escaped fish can
also detrimentally alter the genetics of wild fish populations via diminished survival skills and
reduced fitness.21 And striped bass — one of the non-native species proposed to be produced
farmed by Rose Canyon Fisheries — have been known to prey on ESA-listed salmonids.22
Fourth, the Proposed Project’s demand for fish feed will deplete wild fish populations.23
The fish Rose Canyon Fisheries proposes to raise are carnivorous fish that require a diet high in
fishmeal and oil, which is often derived from wild-caught fish stocks such as mackerel, herring,
and anchovies.24 The removal of wild fish to produce fish feed depletes targeted populations, and
also reduces the natural supply of this food for other marine life.25 And the excess feed and other
wastes discharged by the Proposed Project into the ocean environment could affect the feeding
behavior of wild fish populations who feed on manufactured pellets rather than maintaining a
natural diet,26 which can have negative biological effects.27 The waste could also negatively
impact benthic communities when deposited on the seafloor.

520
17
Id.
18
Fisheries and Oceans Canada, Public Reports on Aquaculture – Escapes, http://www.pac.dfompo.gc.ca/aquaculture/reporting-rapports/escape-evasion-eng.html (last updated Sept. 9, 2015).
19
Krosek, M. & R. Hilborn, Sea lice (Lepeophtheirus salmonis) infestations and the productivity of pink salmon
(Oncorhynchus gorbuscha) in the Broughton Archipelago, British Columbia, Canada, Canadian Journal of Fisheries
and Aquatic Sciences, 6, 20 September: 17-29 (2001).
20
National Marine Fisheries Service US Fish and Wildlife Service. (2005). Recovery plan for the gulf of maine
distinct population segment of Atlantic salmon (Salmo salar).
21
Id.; Marine Aquaculture Task Force. “Sustainable Marine Aquaculture: Fulfilling the Promise; Managing the
Risks.” January 2007.
22
See Comments from the National Marine Fisheries Service to Melanie Tymes, U.S. Army Corp of Engineers,
Mar. 20, 2015.
23
Albert Tacon & Marc Metian, Fishing for Feed or Fishing for Food: Increasing Global Competition for Small
Pelagic Forage Fish, 38 Ambio, No. 6, Sept. 2009, at 294-302; R. Naylor & M. Burke, Aquaculture and Ocean
Resources: Raising Tigers of the Sea, 30 Annual Review of Envtl. Resources, 185-218 (2005); Brian Halweil,
Farming Fish for the Future 20 (Worldwatch Inst. 2008).
24
Marine Aquaculture Task Force, Woods Hole Oceanographic Inst., Sustainable Marine Aquaculture: Fulfilling
the Promises, Managing the Risks 16 (27), Jan. 2007.
25
Id.
26
C. Gambi et al., Biodiversity Response to Experimental Induced Hypoxic-Anoxic Conditions in Seagrass
Sediments, 18 Biodiversity & Conservation, 33–54 (2009).

6

 Finally, because farmed fish are often breeding grounds for disease and parasites, a large
amount of antibiotics, pesticides and other drugs or chemicals are often used in aquaculture
facilities.28 The majority of these chemicals are applied directly into the water, but little is known
about how these substances affect marine ecosystems and other aquatic organisms. What is
known indicates that there may be serious negative impacts from their use. For example,
pesticides used to kill sea lice at coastal salmon farms in Maine and Canada can also harm and
kill lobsters.29 Studies have also concluded that reliance on antibiotic applications in fish farming
has fostered the development of bacterial antibiotic resistance in our waters, which can
negatively affect both marine species and human health.30
B. The Proposed Project Affects Public Health and Safety
EPA must prepare an EIS because the proposed action affects public health and safety.
See 40 C.F.R. § 1508.27(b)(2). As explained above, the Proposed Project will contribute to the
negative impacts of HABs. In addition to harming wildlife, HABs can also harm humans.
Pseudo-nitzchia produces the neurotoxin domoic acid which bioaccumulates in fish. People who
consume contaminated seafood can suffer from domoic acid poisoning, which causes vomiting,
diarrhea, cramps, headaches and dizziness. While the symptoms typically subside after a few
days, serious cases can result in amnesic shellfish poisoning. Amnesic shellfish poisoning can
cause short-term memory loss, confusion, seizures, trouble breathing, coma and death.31
In addition, mercury and other contaminants may accumulate in finfish and can cause an
increase in this dangerous substance in the diet of those who consume the fish. Further, farmed
fish can accumulate toxins from eating fish feed contaminated with high levels of dioxins and
Polychlorinated Biphenyls (“PCBs”); additionally, some fish can carry organisms called
dinoflagellates which when eaten by humans is poisonous and causes a disease called
ciguatera.32

27

Fernandez-Jover et al., Changes in Body Condition and Fatty Acid Composition of Wild Mediterranean Horse
Mackerel (Trachurus mediterraneus, Steindachner, 1868) Associated to Sea Cage Fish Farms, 63 Marine Envtl.
Research, 1–18 (2007).
28
Marine Aquaculture Task Force; Center for Food Safety, The Catch With Seafood: Human Health Impacts of
Drugs & Chemicals Used by the Aquaculture Industry, 2005.
29
Trotter, Bill. “Parasites, Pesticides, Sick Salmon… Dead Lobsters.” Bangor Daily News, Maine, January 10,
2011.
30
Ole. E. Heuer et al., Human Health Consequences of Use of Antimicrobial Agents in Aquaculture, 49 Clinical
Infectious Diseases, no. 8, 2009, at 128-53.
31
Washington State Department of Health, Amnesic Shellfish Poisoning (ASP) from Domoic Acid,
http://www.doh.wa.gov/CommunityandEnvironment/Shellfish/BiotoxinsIllnessPrevention/Biotoxins/AmnesicShellf
ishPoisoning.
32
Hites RA, Foran JA, Carpenter DO, Hamilton MC, Knuth BA, Schwager SJ. 2004. Global assessment of organic
contaminants in farmed salmon. Science. 305(5683):478; Corsolini S., Guerranti C., Focardi S.E., 2005. “Dioxins
and dioxin-like compounds in food products.” Proceedings of 5th Mediterranean Basin Conference on Analytical
Chemistry (VMBCAC); Center for Food Safety, Like Water and Oil: Ocean Based Fish Farming and Organic Don’t
Mix, Oct. 2014.

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 C. The Action Area is Geographically Unique and Home to a Variety of Wildlife Including
ESA-Listed Species that Will Be Negatively Impacted by the Proposed Project
EPA must prepare an EIS because the area of the Proposed Project is geographically
unique and home to ESA-listed species that will be impacted by the Proposed Project. 40 C.F.R.
§ 1508.27(b)(3), (9). The Proposed Project would be located approximately 4.5 miles off the
coast of San Diego. Hundreds of marine species live in these waters, including gray whales,
short-beaked common dolphins, Baird’s beaked whales, Cuvier’s beaked whales, minke whales,
dall’s porpoise, elephant seals, northern fur seals, and California sea lions.33 The area is also
home to numerous species listed under the ESA, including blue whales, humpback whales, fin
whales, sperm whales, Guadalupe fur seals, loggerhead sea turtles, green sea turtles, and
leatherback sea turtles, as well as several listed bird species, including the California least tern,
and the western snowy plover. See 50 C.F.R. § 17.11 (ESA-listed species).
In addition, the Proposed Project is located in a region NMFS has deemed a Biologically
Important Area (“BIA”) — an area where cetaceans “engage in activities that are important to
the animal’s physical health and fitness, reproduction and ability to survive as a population.”34
Specifically, the area off the coast of San Diego is listed as a BIA for gray whale migration
between January through July and October through December, and a BIA for endangered blue
whale feeding from June to October.35
A densely-packed cage full of captive fish attracts predators, including marine mammals
and birds.36 Once attracted to the area, the animals are at risk of death and serious injury from
interaction with the gear that will be used by the Proposed Project — fish cages, nets and
mooring systems.37 The nets of offshore aquaculture facilities in other countries have killed
endangered dolphins, and over 50 California sea lions died in a mass drowning after they were
caught in the nets of a fish farm near Vancouver Island.38 The devices used to prevent predators
from eating the farmed fish can also cause significant problems — one study of a single salmon
farm in British Columbia, Canada, found that over a four-year period 431 harbor seals, 38 sea
otters, 29 sea lions, one harbor porpoise, 16 herons, and one osprey were killed by anti-predator
devices.39
The increased vessel traffic from construction and operation of the Proposed Project also
threatens a wide-variety of marine species. Ship strikes involving large vessels are the “principal
33

NMFS, Cetacean Data Availability, http://cetsound noaa.gov/cda.
NMFS, New Tool Aids U.S. Conservation and Management of Whales, Dolphins and Porpoises, Mar. 6, 2015,
http://www nefsc.noaa.gov/press_release/pr2015/scispot/ss1503/.
35
http://cetsound noaa.gov/biologically-important-area-map.
36
Congressional Research Service. (2010) Open Ocean Aquaculture 7. 9 August; McGinnity (2003).
37
Final Report Rose Canyon Fisheries Sustainable Aquaculture Project, Sept. 2014 at 10.
38
Kemper, C., Pemberton, D., Cawthorn, M., Heinrich, S., Mann, J., & Wursig, B. (2003). In N. Gales, M.
Hindell, R. Kirkwood, et al. (Eds.), Marine mammals: Fisheries, tourism and management issues (pp. 208–229).
Australia: CSIRO Publishing; CBC News. (2007) “Dozens of sea lions drown at B.C. fish farm.” CBC News, 20
April. Available at: http://www.cbc.ca/news/canada/british-columbia/dozens-of-sea-lions-drown-at-b-c-fish-farm1.640332.
39
B. Würsig and G. A. Gailey, “Marine Mammals and Aquaculture: Conflicts and Potential Resolutions,”
Responsible Marine Aquaculture, R.R. Stickney and J.P. McVey (Eds), CAB International, 2002, p. 49.
34

8

 source of severe injuries to whales.”40 Most ship strikes to large whales result in death.41 Ship
strike-related mortality is a documented threat to endangered Pacific coast populations of fin,
humpback, blue, and sperm whales. Ship strikes are an increasing problem in California.42
Between 2001 and 2010, nearly 50 large whales off the California coast were documented as
having been struck by ships.43
Ship strikes also affect ESA-listed sea turtles. Like cetaceans, sea turtles cannot breathe
under water and must regularly ascent to the surface for air, which makes them “highly
susceptible to vessel collisions.”44 Commercial vessels are thus major hazards to sea turtles,
particularly in shipping lanes and during peak tourism months when millions of recreational
boaters congregate in coastal areas. Injuries from propellers include amputated flippers, fractured
shells, brain injuries and broken bones.45 These injuries, if they do not result in immediate death,
can increase stress, which ultimately affect a sea turtle’s ability to forage, migrate, escape from
predators and reproduce.
In addition, Rose Canyon Fisheries states that construction and operation of the Proposed
Project will involve the use of artificial lights, which could negatively impact wildlife in the area
through light pollution. For example, artificial light attracts seabirds at night, especially
nocturnally active species such as auks, shearwaters, and storm-petrels, and disrupts their normal
foraging and breeding activities in several ways.46 In a phenomenon called light entrapment,
seabirds continually circle lights and flares, instead of foraging or visiting their nests, which can
lead to exhaustion and mortality.47 Seabirds also frequently collide with lights or structures
around lights, causing injury or mortality, or strand on lighted platforms where they are
vulnerable to injury, feather contamination, and exhaustion.48
Moreover, construction and operation of the Proposed Project will generate noise
pollution from increased vessel traffic and other activities that will harm marine mammals and
40

Laist, D.W., Knowlton, A.R., Mead, J.G., Collet, A.S. and Podesta, M., 2001, Collisions between ships and
whales, Marine Mammal Science, 17(1): 35-75.
41
Jensen, A.S. and Silber, G.K., 2004, Large Whale Ship Strike Database. U.S. Department of Commerce, NOAA
Technical Memorandum. NMFS-OPR-25.
42
Zito, Kelly, Whale deaths blamed on busy ship traffic, krill. San Francisco Chronicle, Oct. 10, 2010.
43
National Marine Fisheries Service, Large Whale Strandings Reported to California Marine Mammal Stranding
Network (2001 - Present), NMFS Southwest Regional Office, California Marine Mammal Stranding Network
Database (2010).
44
NMFS, Final Environmental Impact Statement, Right Whale Ship Speed Reduction, Aug. 2008,
http://www nmfs.noaa.gov/pr/pdfs/shipstrike/feis.pdf; NOAA Fisheries, Threats to Sea Turtles,
http://www nmfs.noaa.gov/pr/species/turtles/threats htm.
45
Mote Marine Laboratory. 2008. Sea Turtle Hospital.
http://www mote.org/index.php?src=gendocs&link=Sea+Turtle+Rehabilitation+Hospital&category=Animal+Care+
Programs.
46
Montevecchi, W. (2005) Influences of artificial light on marine birds. In C. Rich and T. Longcore, editors.
Ecological Consequences of Artificial Night Lighting. Washington, D.C: Island Press, 94-113.
47
Wiese, F. K., W. A. Montevecchi, G. K. Davoren, F. Huettmann, A. W. Diamond, and J. Linke (2001) Seabirds at
risk around offshore oil platforms in the North-west Atlantic. Marine Pollution Bulletin 42:1285-1290.
48
Wiese et al. (2001); Black, A. (2005) Light induced seabird mortality on vessels operating in the Southern Ocean:
incidents and mitigation measures. Antarctic Science 17:67-68.; Le Corre, M., A. Ollivier, S. Ribes, and P.
Jouventin (2002) Light-induced mortality of petrels: a 4-year study from Réunion Island (Indian Ocean). Biological
Conservation 105:93-102.

9

 other wildlife. Anthropogenic noise pollution can mask marine mammal communications at
almost all frequencies these mammals use.49 “Masking” is a “reduction in an animal’s ability to
detect relevant sounds in the presence of other sounds.”50 Ambient ship noise can cover
important frequencies these animals use for communications and echolocation of prey. NOAA
has recognized that this masking may affect marine mammal survival and reproduction by
decreasing these animals’ ability to “[a]ttract mates, [d]efend territories or resources, [e]stablish
social relationships, [c]oordinate feeding, [i]nteract with parents, or offspring, [and] [a]void
predators or threats.”51 Studies have also found that chronic exposure to boat traffic and noise
can cause whales to reduce their time spent feeding.52
In addition to masking effects, marine mammals have displayed a suite of stress-related
responses from increased ambient and local noise levels. These include “rapid swimming away
from [] ship[s] for distances up to 80 km; changes in surfacing, breathing, and diving patterns;
changes in group composition; and changes in vocalizations.”53 Some avoidance responses to
localized marine sounds may even lead to individual or mass strandings.54 And stress due to
noise can lead to long-term health problems, and may pose increased health risks for populations
by weakening the immune system and potentially affecting fertility, growth rates and mortality.55
Louder anthropogenic sounds may also lead to temporary or permanent hearing loss in
marine mammals.56 Hearing loss reduces the range in which communication can occur, interferes
with foraging efforts and increases vulnerability to predators. Hearing loss may also change
behaviors with respect to migration and mating and it may cause animals to strand, which is
often fatal. For marine mammals such as whales and dolphins that rely heavily on their acoustic
senses, both permanent and temporary hearing loss should be regarded as a serious threat.57

49

See, e.g., Hildebrand, J.A., Impacts of Anthropogenic Sound, in MARINE MAMMAL RESEARCH:
CONSERVATION BEYOND CRISIS (Reynolds, J.E. III et al., eds. 2006); Weilgart, L., 2007, The Impacts of
Anthropogenic Ocean Noise on Cetaceans and Implications for Management, 85 CANADIAN J. ZOOLOGY 10911116 (2007).
50
OCEAN NOISE AND MARINE MAMMALS, NAT’L RES. COUNCIL 41-42 (2003), at 96.
51
Jason Gedamke, Ocean Sound & Ocean Noise: Increasing Knowledge Through Research Partnerships, NOAA 2
(2014), at 2; Clark, C.W. et al., Acoustic Masking in Marine Ecosystems as a Function of Anthropogenic Sound
Sources, at *3.
52
See i.e. Williams, R. D., et al., 2006, Estimating relative energetic costs of human disturbance to killer whales
(Orcinus orca), Biological Conservation, 133: 301-311.
53
OCEAN NOISE AND MARINE MAMMALS at 94.
54
Id. at 132; BRANDON L. SOUTHALL ET AL., FINAL REPORT OF THE INDEPENDENT SCIENTIFIC
REVIEW PANEL INVESTIGATING POTENTIAL CONTRIBUTING FACTORS TO A 2008 MASS
STRANDING OF MELON-HEADED WHALES 3 (PEPONOCEPHALA ELECTRA) IN ANTSOHIHY,
MADAGASCAR, INT’L WHALING COMM’N 4 (2013).
55
Romano, T.A. et al., 2004, Anthropogenic sound and marine mammal health: measures of the nervous and
immune systems before and after intense sound exposure, Canadian Journal of Aquatic Science, 61: 1124-1134;
Rolland, R, S. Parks, K. Hunt, M. Castellote, P. Corkeron, D. Nowacek, S. Wasser, and S. Kraus. 2012. Evidence
that ship noise increases stress in right whales. Proceedings of the Royal Society B. February 8, 2012.
56
Kastak, D. et al., 2008, Noise-Induced Permanent Threshold Shift in a Harbor Seal, 123 J. ACOUSTICAL
SOC’Y OF AM. 2986; Kujawa, S.G. & Liberman, M.C., 2009, Adding Insult to Injury: Cochlear Nerve
Degeneration After “Temporary” Noise-Induced Hearing Loss, 29 J. NEUROSCIENCE 14,077.
57
Hildebrand, J., 2005.

10

 D. Granting the Permit Would Set a Precedent for Future Action
EPA must prepare an EIS because granting the permit and approving the Proposed
Project would set a precedent for future action. See 40 C.F.R. § 1508.27(b)(6). In considering
whether to prepare an EIS, NEPA’s implementing regulations require an agency to consider “the
extent to which the action may establish a precedent for future actions with significant effects or
represents a decision in principle about a future consideration.” Id. “The purpose of that section
is to avoid the thoughtless setting in motion of a ‘chain of bureaucratic commitment that will
become progressively harder to undo the longer it continues.’” Presidio Golf Club v. Nat'l Park
Serv., 155 F.3d 1153, 1162-63 (9th Cir. 1998) (quoting Sierra Club v. Marsh, 769 F.2d 868, 879
(1st Cir.1985)).
As stated by Rose Canyon Fisheries in its Final Report, the facility “would represent the
first commercial scale, offshore fish farm in the federal waters of the United States.”58 As such,
“[i]f successful, the project will serve as a model for the development of additional marine
aquaculture projects in the waters offshore the United States.”59 Granting the NPDES permit and
approving the Proposed Project would encourage other entities to pursue the same types of
projects. And the terms and conditions of this particular NPDES permit could serve as a model
for other future permits. Thus, EPA must conduct an EIS in order to prevent “the thoughtless
setting in motion of a ‘chain of bureaucratic commitment that will become progressively harder
to undo the longer it continues.’” Presidio, 155 F.3d at 1162-63.
E. Granting the Permit Threatens a Violation of Federal Law
Finally, EPA must prepare an EIS because the proposed action threatens a violation of
the CWA and its implementing regulations — federal laws imposed to protect the environment.
See 40 C.F.R. § 1508.27(b)(10) (in determining the significance of a proposed action’s effects on
the environment, an agency must evaluate “[w]hether the action threatens the violation of a
Federal, state or local law…imposed for the protection of the environment.”).
The CWA requires that permits to discharge into the ocean comply with ocean discharge
criteria. 33 U.S.C. § 1343. Pursuant to the ocean discharge criteria, EPA can issue a permit only
if it concludes “that the discharge will not cause an unreasonable degradation of the marine
environment.” 40 C.F.R. § 125.123. Unreasonable degradation of the marine environment is
defined as:
(1) Significant adverse changes in ecosystem diversity, productivity and stability of the
biological community within the area of discharge and surrounding biological
communities;
(2) Threat to human health through direct exposure to pollutants or through consumption
of exposed aquatic organisms; or
(3) Loss of esthetic, recreational, scientific or economic values which is unreasonable in
relation to the benefit derived from the discharge.

58
59

Final Report Rose Canyon Fisheries Sustainable Aquaculture Project, Sept. 2014 at 1.
Id. at 2.

11

 40 C.F.R. § 125.121(e). EPA must consider the following factors in the evaluation:
(1) The quantities, composition and potential for bioaccumulation or persistence of the
pollutants to be discharged;
(2) The potential transport of such pollutants by biological, physical or chemical
processes;
(3) The composition and vulnerability of the biological communities which may be
exposed to such pollutants, including the presence of unique species or communities of
species, the presence of species identified as endangered or threatened pursuant to the
Endangered Species Act, or the presence of those species critical to the structure or
function of the ecosystem, such as those important for the food chain;
(4) The importance of the receiving water area to the surrounding biological community,
including the presence of spawning sites, nursery/forage areas, migratory pathways, or
areas necessary for other functions or critical stages in the life cycle of an organism;
(5) The existence of special aquatic sites including, but not limited to marine sanctuaries
and refuges, parks, national and historic monuments, national seashores, wilderness areas
and coral reefs;
(6) The potential impacts on human health through direct and indirect pathways;
(7) Existing or potential recreational and commercial fishing, including finfishing and
shellfishing;
(8) Any applicable requirements of an approved Coastal Zone Management plan;
(9) Such other factors relating to the effects of the discharge as may be appropriate; and
(10) Marine water quality criteria developed pursuant to section 304(a)(1).
40 C.F.R. §125.22(a).
Available information indicates that the Proposed Project will cause an unreasonable
degradation of the marine environment. For example, the Proposed Project will lead to massive
amounts of nutrient pollution. This pollution will exacerbate the occurrences and impacts of
toxic algae blooms that can cause significant adverse changes in the stability of the marine
environment, and threaten human health through consumption of exposed aquatic organisms.
Further, the pollution will be discharged into an area that is ecologically rich and home to many
ESA-listed species, and a migratory corridor and feeding grounds for endangered blue whales.
Thus, granting the permit would be a violation of the CWA and its implementing regulations.
II. EPA Must Consider a Reasonable Range of Alternatives and the Direct, Indirect
and Cumulative Impacts of the Proposed Project
Pursuant to NEPA, EPA’s EIS must describe:
(1) The environmental impact of the proposed action;
(2) Any adverse environmental effects which cannot be avoided should the proposal be
implemented;
(3) Alternatives to the proposed action; and
(4) The relationship between local short‐term uses of man’s environment and the
maintenance and enhancement of long‐term productivity, and v. any irreversible and

12

 irretrievable commitments of resources which would be involved in the proposed action
should it be implemented.
42 U.S.C. § 4332(C).
The alternatives analysis “is the heart of the environmental impact statement.” 40 C.F.R.
§ 1502.14. Here, EPA must consider alternatives to the proposed action — the issuance of a
NPDES permit to Rose Canyon Fisheries to discharge pollutants from its offshore fish farm into
the Pacific Ocean. EPA cannot define the project purpose so narrowly as to prevent the
consideration of a reasonable range of alternatives. Indeed, the purpose and need inquiry is
crucial for a sufficient environmental analysis because “[t]he stated goal of a project necessarily
dictates the range of ‘reasonable’ alternatives.” Carmel-by-the-Sea v. U.S. Dep't of Transp., 123
F.3d 1142, 1155 (9th Cir. 1997). Thus, “an agency cannot define its objectives in unreasonably
narrow terms” without violating NEPA. Id.; see also 40 C.F.R. § 1502.5 (analysis must “not be
used to rationalize or justify decisions already made”). Accordingly, EPA’s alternatives analysis
must include a no-action alternative that represents the denial of the NPDES permit and rejection
of the Proposed Project. Moreover, during preparation of the EIS, EPA cannot take any action
that would “have an adverse environmental impact” or “limit the choice of reasonable
alternatives.” Id. § 1506.1(a).
EPA’s EIS must also describe the direct and indirect effects, and cumulative impacts of
the proposed action. 40 C.F.R §§ 1502.16, 1508.7, 1508.8; Northern Plains Resource Council v.
Surface Transportation Board, 668 F.3d 1067, 1072‐73 (9th Cir. 2011). These terms are distinct
from one another. Direct effects are “caused by the action and occur at the same time and place.”
40 C.F.R. § 1508.8(a). Indirect effects are caused by the action but, “are later in time or farther
removed in distance, but are still reasonably foreseeable. Indirect effects may include growth
inducing effects and other effects related to induced changes in the pattern of land use,
population density or growth rate, and related effect on air and water and other natural systems,
including ecosystems.” Id. § 1508.8(b). Finally, cumulative impacts are “the impact on the
environment which results from the incremental impact of the action when added to other past,
present, and reasonably foreseeable future actions regardless of what agency (Federal or
non‐Federal) or person undertakes such other actions. Cumulative impacts can result from
individually minor but collectively significant actions taking place over a period of time.” Id. §
1508.7.
In its EIS, EPA must address the direct and indirect impacts of the issues described
above. EPA must also address the impacts from the Proposed Project when added to other
actions that already stress or threaten the marine environment and wildlife, such as toxic algae
blooms and nutrient pollution, commercial shipping, noise pollution and light pollution.
III. Issuance of the Permit Would Require Consultation Under Section 7 of the
Endangered Species Act
In addition, granting the permit would also require consultation under Section 7 of the
ESA. In enacting the ESA, Congress recognized that certain species “have been so depleted in
numbers that they are in danger of or threatened with extinction.” 16 U.S.C. § 1531(a)(2).

13

 Accordingly, a primary purpose of the ESA is “to provide a means whereby the ecosystems upon
which endangered species and threatened species depend may be conserved, [and] to provide a
program for the conservation of such . . . species.” Id. § 1531(b).
To reach these goals, Section 9 of the ESA prohibits any person, including any federal
agency, from “taking” any endangered species without proper authorization through a valid
incidental take permit. 16 U.S.C. § 1538(a)(1)(B); see also 50 C.F.R. § 17.31(a) (extending the
“take” prohibition to threatened species managed by the U.S. Fish and Wildlife Service). The
term “take” is statutorily defined broadly as “to harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). The
definition of “harm” has been defined broadly by regulation as “an act which actually kills or
injures wildlife. Such act may include significant habitat modification or degradation where it
actually kills or injures wildlife by significantly impairing essential behavioral patterns,
including breeding, feeding or sheltering.” 50 C.F.R. § 17.3; see also Babbitt v. Sweet Home Ch.
of Communities for a Great Oregon, 515 U.S. 687 (1995) (upholding regulatory definition of
harm). Courts have found federal agencies liable for take of listed species where agency
authorized activities resulted in the killing or harming of ESA-listed species. See e.g., Defenders
of Wildlife v. Envtl. Prot. Agency, 882 F.2d 1294, 1300-01 (8th Cir. 1989); Strahan v. Coxe, 127
F.3d 155, 163 (1st Cir. 1997).
Additionally, Section 7(a)(2) of the ESA requires federal agencies to “insure that any
action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the
continued existence of any endangered species or result in the destruction or adverse
modification of [the critical] habitat of such species.” 16 U.S.C. § 1536(a)(2); 50 C.F.R. §
402.14(a). “Action” is broadly defined to include “all activities or programs of any kind
authorized, funded, or carried out, in whole or in part” by federal agencies and include granting
permits and licenses, as well as actions that may directly or indirectly cause modifications to the
land, water, or air. 50 C.F.R. § 402.02.
To comply with Section 7(a)(2)’s mandate, federal agencies must consult with the
delegated agency of the Secretary of Commerce or Interior whenever their actions “may affect” a
listed species and utilize the “best scientific and commercial data available” in doing so. 16
U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a). At the completion of consultation, the expert agency
issues a biological opinion that determines whether the action is likely to jeopardize the
continued existence of the species. If so, the opinion must specify reasonable and prudent
alternatives that would avoid the likelihood of jeopardy and allow the action to proceed. 16
U.S.C. § 1536(b)(3)(A).
A biological opinion that concludes that the agency action is not likely to jeopardize the
continued existence of a listed species, but will result in take incidental to the agency action must
include an incidental take statement (“ITS”). 16 U.S.C. § 1536(b)(4). The ITS specifies the
impact of any expected takes of individual members of the species, provides reasonable and
prudent measures necessary to minimize the impact of those takes, and sets forth terms and
conditions that must be followed to insure against jeopardy. Id.; 50 C.F.R. § 402.14(i). When
those listed species are marine mammals, however, the take must first be authorized pursuant to
the MMPA, and the ITS must include any additional measures necessary to comply with the

14

 MMPA take authorization. Id. The take of a listed species in compliance with the terms of a
valid ITS is not prohibited under Section 9 of the ESA. 16 U.S.C. §§ 1536(b)(4), (o)(2); 50
C.F.R. § 402.14(i)(5).
As described above, several federally threatened and endangered species may be
impacted by the Proposed Project. Although Rose Canyon Fisheries includes purported
mitigation measures along with its permit application, those mitigation measures will not avoid
all potential impacts to ESA-listed species from the Proposed Project, and in fact, specifically
acknowledge that such impacts could result.60 Moreover, the majority of the “mitigation
measures” consist of little more than a plan to make a plan in the future, nor are they binding
conditions. Thus, they cannot be used to offset the impacts to listed species. See e.g., Nat’l
Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917, 936 (9th Cir. 2008) (“even
a sincere general commitment to future improvements [cannot] be included in the proposed
action in order to offset its certain immediate negative effects, absent specific and binding
plans”).
Accordingly, the EPA must engage in Section 7 consultation under the ESA. Its failure to
consult would violate its clear statutory obligations under Section 7(a)(2), 16 U.S.C. §
1536(a)(2), and render it liable for any harm to ESA-listed species that results from the Proposed
Project. Strahan, 127 F.3d 155, 163 (1st Cir. 1997) (“a governmental third party pursuant to
whose authority an actor directly exacts a taking of an endangered species may be deemed to
have violated the provisions of the ESA”); id at 165 (“a single injury to one whale is a taking
under the ESA”).
IV. The Permit Application Requires a Consistency Determination under the Coastal
Zone Management Act
EPA cannot issue the Permit unless and until the Proposed Project receives a consistency
determination under the Coastal Zone Management Act (“CZMA”). Enacted in 1972, the CZMA
seeks “to protect and to give high priority to natural systems in the coastal zone” and thereby
prevent “[i]mportant ecological, cultural, historic, and esthetic values in the coastal zone…[from]
being irretrievably damaged or lost.” 16 U.S.C. § 1451(e), (h). To reach these goals, the CZMA
enhances the ability of coastal states to assume planning and regulatory powers over their coastal
zone. Id. § 1451(m); S. Rep. No. 92-753 (1972).
In particular, the CZMA authorizes states with federally approved coastal management
programs to review federal license and permit activities in, or outside of, the coastal zone that
affect land uses, water uses, or natural resources within the coastal zone to ensure the activity is
fully consistent with the state’s management plan. 16 U.S.C. § 1456(c)(3)(A); see also 15 C.F.R.
§ 930.53(a) (effects on coastal zone includes “reasonably foreseeable effects”). The Coastal Act
is part of California’s federally approved coastal zone management program, and created the
California Coastal Commission to, inter alia, ensure that federal actions are consistent with
California’s coastal management program (“CMP”). Cal. Pub. Res. Code § 30008; American
Petroleum Institute v. Knecht, 456 F.Supp. 889, 895 (C.D. Cal. 1978).
60

See e.g., Final Report at 10 (stating the applicant’s intent to report vessel collisions with marine wildlife).

15

 In order to trigger the Commission’s consistency review, however, the activity must
typically be included on the CMP List. 15 C.F.R. § 930.53(a).61 When a listed activity occurs
outside the coastal zone, it can be subject to consistency review if it affects resources within the
coastal zone and the Commission specifies the geographic location for such activities as part of
its list. Id. Typically, a federal agency cannot issue a permit for listed activities unless the
applicant submits a consistency certification to the Commission and the Commission concurs
with that certification. 16 U.S.C. § 1456(c)(1)(A), (3)(A); 15 C.F.R. § 930.53(d). If the
Commission objects to the applicant’s consistency certification, the federal government must
deny the application, unless the applicant works with the Commission to develop conditions that
will enable the activity to comply with the Coastal Act and otherwise satisfy the Commission’s
concerns, 15 C.F.R. § 930.4(a), or the U.S. Secretary of Commerce overrules the state’s
objection. 16 U.S.C. § 1456(c)(3)(A); 15 C.F.R. § 930.64.
Permits issued by EPA under Section 402 of the CWA — the provision under which EPA
would issue the NPDES permit — are on California’s CMP list.62 Thus, EPA cannot issue the
permit unless and until the Commission deems it consistent with California’s Coastal Act.
However, the Proposed Project is wholly inconsistent with California’s coastal management
program. For example, given the myriad of detrimental environmental impacts detailed above,
the Proposed Project, does not “protect the ecological balance of the coastal zone and prevent[]
its deterioration and destruction,” Cal. Pub. Res. Code § 30001(c). Nor does the Proposed Project
comply with the Coastal Act’s mandate that “[u]ses of the marine environment shall be carried
out in a manner that will sustain the biological productivity of coastal waters and that will
maintain healthy populations of all species of marine organisms adequate for long-term
commercial recreational, scientific, and educational purposes.” Id. § 30230.
V. Conclusion
Offshore factory fish farming pollutes the ocean, threatens wild populations of fish by
spreading disease and parasites, harms marine mammals and other marine life, and otherwise
degrades fragile ocean habitats. Permitting the nation’s largest commercial factory fish farm in
light of such risks would be incredibly improvident. And, given the discharge would constitute
an unreasonable degradation of the marine environment, granting the permit would also
constitute a violation of the CWA. The Center therefore urges EPA to deny the permit
application under review. If, however, EPA moves forward with the permit, it must prepare an
EIS under NEPA, engage in consultation under the ESA and cannot approve the permit unless
and until the Proposed Project receives a consistency determination from California under
CZMA.

61

The Commission can also review particular unlisted activities on a case-by-case basis if it requests, and receives,
authorization from the National Oceanic and Atmospheric Administration to do so. 15 C.F.R. § 930.54.
62
The Commission, Federal Consistency Program: List of Federal Licenses and Permits Subject to Certification
for Consistency, http://www.coastal.ca.gov/fedcd/fedcndx.html.

16

 Sincerely,
/s/ Kristen Monsell
Kristen Monsell
Staff Attorney
Center for Biological Diversity
kmonsell@biologicaldiversity.org

cc:
Mark Delaplaine
Federal Consistency Manager
California Coastal Commission
45 Fremont Street, Ste. 2000
San Francisco, CA 94105
(415) 904-5280

17

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