January 13, 2016
U.S. Environmental Protection Agency, Region 9
ATTN: (WTR-2-3)
75 Hawthorne St.
San Francisco, CA 94106
R9RoseCanyon@epa.gov
Sent via email
Re: San Diego Coastkeeper Comments on NEPA Scoping for Rose Canyon
Aquaculture Project
Dear Elizabeth Sablad:
Thank you for the opportunity to provide comments on scoping pursuant to the
National Environmental Policy Act (NEPA) and applicable federal regulations. 1
Founded in 1995, San Diego Coastkeeper (“Coastkeeper”) is a non-profit organization
working to protect and restore the fishable, swimmable, drinkable waters of San Diego
region’s bays, watersheds, beaches, and ocean.
The EPA Should Deny the Application
The proposed project constitutes a first of its kind offshore finfish farm of
unprecedented size and scope located in federal waters and starting approximately 3.6
miles off the San Diego coastline. Nothing like this project exists or has been permitted
in federal waters of the United States. This is due in large part to the fact that currently
neither comprehensive environmental regulations nor express Congressional authority to
review and permit such activities in federal public trust waters exists. As such,
significant legal and regulatory impediments stand in the way of this project moving
forward. For these reasons, and those stated in previous letters addressing Army Corps
permitting2, the EPA should deny this permit unless and until both comprehensive
environmental regulations ensuring environmental protection and express Congressional
delegation for offshore aquaculture activities exist.
If, despite the lack of clear legal and regulatory authority, the EPA decides to
move forward with environmental review of the permit, an EIS, rather than an EA,
1

See generally NEPA (42 USC 4321-4370h); 40 CFR Part 1500-1508; and 40 CFR Part 6.
Coastkeeper’s comments on Army Corps Permit No. SPL-2014-00600-MBT are included as
Attachment 1 and incorporated by reference. See, for example, pp. 17-23 of our comments
specifically discussing the lack of Corps authority and regulations to approve open ocean
aquaculture projects. There exist similar questions regarding whether EPA has jurisdiction or
authority to permit the proposed project without a property right or express Congressional
authorization.
2

 should be prepared. As discussed in detail below, there is a substantial likelihood that
this project would result in significant environmental impacts.
Finally, Coastkeeper suggests that the EIS be conducted as a joint EIR/EIS with
the California Coastal Commission acting as lead state agency, as there is a strong
likelihood that coastal resources associated with the project’s activities such as supply
piers and other infrastructure would be necessary. The impacts of such coastal dependent
development would require approval by the Coastal Commission. Thus, a joint EIR/EIS
should be conducted.
Preparation of an Environmental Impact Statement is Required
The purpose of NEPA and its relevant implementation regulations is, quite
simply, “to promote efforts which will prevent or eliminate damage to the
environment…”3. To achieve that purpose NEPA requires that federal agencies,
“consider every significant aspect of environmental impact of a proposed action…[and]
inform the public that it has indeed considered environmental concerns,” and it imposes,
“requirements designed to force agencies to take a “hard look” at environmental
consequences.”4 “NEPA procedures must insure that environmental information is
available to public officials and citizens before decisions are made and before actions are
taken. The information must be of high quality. Accurate scientific analysis, expert
agency comments, and public scrutiny are essential to implementing NEPA”. 5 Finally,
“the NEPA process is intended to help public officials make decisions that are based on
understanding of environmental consequences, and take actions that protect, restore, and
enhance the environment”.6
To achieve NEPA’s purposes of protection, restoration, and enhancement of the
environment it is imperative that the proper level of environmental review be conducted.
This examination must include a detailed, rigorous identification and analysis of the
foreseeable consequences of an action. This is especially true with projects and impacts
that are without precedent in our country, as is the case here.
NEPA requires the preparation of an Environmental Impact Statement (“EIS”) in
circumstances where an action, “significantly affects the quality of the human
environment”.7 An assessment of whether an action is “significant” hinges on both the
“context” and “intensity” of the action. Context “means that the significance of an action
must be analyzed in several contexts such as society as a whole (human, national), the

3

42 U.S.C. 4321.
Earth Island Institute v. U.S. Forest Service, 351 F.3d 1291.
5
40 C.F.R. § 1500.1
6
40 C.F.R. § 1500.1(c), emphasis added.
7
42 U.S.C. §4332(2)(C)
4

2

 affected region, the affected interests, and the locality. Significance varies with the
setting of the proposed action”.8
Intensity refers to the severity of the impact and “relates to the degree to which
the agency action affects the locale and interests identified in the context part of the
inquiry.”9 In evaluating intensity, the following factors are to be considered:
(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 geographic area such as proximity to
ecologically critical areas;
(4) The degree to which the effects on the quality of 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 or represents a decision in principle about a future
consideration
(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 an endangered or
threatened species or its habitat; and
(10) Whether the action threatens a violation of Federal, State, or local law or
requirements imposed for the protection of the environment.
NEPA Regulations Require the Preparation of an EIS
It is clear that most, if not all, of the NEPA factors of significance are met in this
case and preparation of an EIS is required.
(5) Uncertainty and Unknown and Unique Risks
Preparation of an EIS is mandated where uncertainty may be resolved by further
collection of data, or where, “the collection of such data may prevent ‘speculation on
potential…effects. The purpose of an EIS is to obviate the need for speculation by
insuring that available data are gathered and analyzed prior to the implementation of the
proposed action’.”10

8

40 C.F.R. § 1508.27
40 C.F.R. § 1508.27 and Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 731 (9th
Cir. 2001).
10
Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 732 (9th Cir. 2001)
9

3

 The applicant’s own environmental document points out in several places that
important project elements and impacts are “unknown” 11 and that, “impacts on receiving
waters from offshore aquaculture facilities have not been characterized to date.”12
Additionally, the Report acknowledges the unresolved nature of impacts and effects, as
well as the difficulty in controlling these impacts and effects, in stating, “excess feed,
fecal material, and therapeutics generated by the net-pen system can impact both water
and sediment quality, and are difficult to assess and control.”13 Scientific literature
indicates that the benthic effects of fish farming in deep water are poorly understood. 14
As such, there exists a significant degree of uncertainty, and unknown and unique risks
are associated with project impacts.
(3) Unique characteristics of the geographic area such as proximity to…ecologically
critical areas; and…
(8) The degree to which the action…may cause loss or destruction of significant
scientific, cultural, or historical resources.
The proposed project is located in close proximity to one, and moderate proximity
to several, California Marine Protected Areas (MPAs). MPAs were established as a
network, in part, “to help sustain, conserve, and protect marine life populations…and
rebuild those that are depleted,” to, “protect the natural diversity and abundance of
marine life...and integrity of marine ecosystems,” and to, “improve recreational,
education, and study opportunities provide by marine ecosystems.” 15 MPAs, by
definition, are unique ecologically critical areas and significant scientific and cultural
resources.
Escapes are common in the aquaculture industry and can be massive. 16 Among
the impacts of escapes are genetic contamination of the wild genome, competition with

For example, the applicant’s Final Report: Rose Canyon Fisheries, Sept. 2014 (“Final Report”)
states, “the potential for use of antibiotics for the proposed project is unknown at this time,”(p.
59) and “the breeding population origins and migratory habits of olive ridley turtles frequenting
waters off the west coast of the U.S. are unknown” (p.77).
12
Final Report, p. 17. The Report continues, recognizing the uniqueness and precedential nature
of this project, “this is largely due to the lack of offshore facilities.” Id.
13
Final Report, p. 28.
14
Holmer M. Environmental issues of fish farming in offshore waters: perspectives, concerns and
research needs. Aquac Environ Interact. 2010;1:57-70. See also Environmental Best
Management Practices for Aquaculture, Edited by Tucker and Hargreaves, 2008 on p 263: “Most
net pens are operating in coastal marine environments, and the complexity of that ecosystem
makes it difficult to accurately assess risks.”
15
California Marine Life Protection Act, Section 2853.
16
Naylor R, Burke M. Aquaculture and Ocean Resources: Raising Tigers of the Sea. Annu Rev
Environ Resour. 2005;30:185-218., and Issue Brief, February 2013 from Food and Water Watch,
listing numerous examples of mass escapes.
11

4

 wild fish for food and favorable space, predation on wild fish, and disease and parasite
transmission, to name a few.17 The applicant’s own report points out just some of the
significant impacts that may result from escapes when it states, “escapees may present a
genetic threat to locally adapted natural populations,”18 and:
“Escaped fish may compete with wild populations for mates and nesting sites.
They may compete with native fish species for forage and habitat space, predate
on endemic fish populations, and act as vectors for the introduction of bacterial or
viral pathogens or parasites. The effects of these processes can be a reduction in
the numerical or genetic fitness of the wild population, and possibly a reduction in
the fitness of other fish populations.”19
It is well established that fish feed and fecal waste can have significant adverse
impacts on the environment.20 The applicant’s Final Report acknowledges as much in
stating, “unconsumed feed and fecal waste can result in organic buildup that produces a
variety of physical, chemical, and biological changes within the benthos,”21 and that,
“studies have repeatedly implicated excessive feed as a cause of changes in benthic
community structure around aquaculture facilities.”22 The scientific literature supports
the likelihood of significant impacts and indicates that, as opposed to operations in
shallower and less dynamic locations, expected increased dispersal of waste products in a
deep, dynamic location results in potential effects at a much larger spatial scale. 23
Numerous examples of both near- and far-field aquaculture-derived nutrient and
contaminant loading of sediments exist in the literature.24
17

Holmer M. Environmental issues of fish farming in offshore waters: perspectives, concerns and
research needs. Aquac Environ Interact. 2010;1:57-70., Toledo-Guedes K, Sanchez-Jerez P,
Benjumea ME, Brito A. Farming-up coastal fish assemblages through a massive aquaculture
escape event. Mar Environ Res. 2014;98:86-95., and Noble T, Smith-Keune C, Jerry D. Genetic
investigation of the large-scale escape of a tropical fish, barramundi Lates calcarifer, from a seacage facility in northern Australia. Aquac Environ Interact. 2014;5:173-183..
18
Final Report, p. 85.
19
Id.
20
Sarà, G., M. Lo Martire, M. Sanfilippo, G. Pulicanò, G. Cortese, A. Mazzola, A. Manganaroc,
and A. Pusceddu. 2011. Impacts of marine aquaculture at large spatial scales: Evidences from N
and P catchment loading and phytoplankton biomass. Marine Environmental Research. 71(5):
317-324.
21
Final Report, p. 55.
22
Id. See also Attachments 1 and 4 to these comments.
23
Bannister RJ, Valdemarsen T, Hansen PK, Holmer M, Ervik A. Changes in benthic sediment
conditions under an atlantic salmon farm at a deep, well-flushed coastal site. Aquac Environ
Interact. 2014;5:29-47.
24
See, for example, Sarà G, Scilipoti D, Mazzola A, Modica A. Effects of fish farming waste to
sedimentary and particulate organic matter in a southern Mediterranean area (Gulf of
Castellammare, Sicily): A multiple stable isotope study (δ13C and δ15N). Aquaculture.
2004;234:199-213., Yokoyama H, Abo K, Ishihi Y. Quantifying aquaculture-derived organic
matter in the sediment in and around a coastal fish farm using stable carbon and nitrogen isotope
ratios. Aquaculture. 2006;254:411-425., Holmer M, Marba N, Diaz-Almela E, Duarte CM,
Tsapakis M, Danovaro R. Sedimentation of organic matter from fish farms in oligotrophic

5

 Aquaculture practices have been known to attract large and persistent
aggregations of fish25, thereby having potentially large impacts on wild fish feeding
behavior, energetics26, fecundity27, and migratory behavior 28, as well as the increased
potential for disease transmission29 or genetic introgression30 between wild and farmed
fish stocks.
The location of a massive fish farm in fairly close proximity to, and within the
network of, San Diego MPAs that are meant to collectively, “help conserve biological
diversity, provide a sanctuary for marine life, and enhance recreational and educational
opportunities,”31 may have a significant impact on the unique ecologically critical Marine
Protected Areas and may result in the loss and destruction of scientific and cultural
resources present in those Areas and beyond.
(9) The degree to which the action may adversely affect an endangered or threatened
species or its habitat that has been determined to be critical under the Endangered
Species Act of 1973.

Mediterranean assessed through bulk and stable isotope (δ13C and δ15N) analyses. Aquaculture.
2007;262:268-280, Bannister RJ, Valdemarsen T, Hansen PK, Holmer M, Ervik A. Changes in
benthic sediment conditions under an atlantic salmon farm at a deep, well-flushed coastal site.
Aquac Environ Interact. 2014;5:29-47 Debruyn AMH, Trudel M, Eyding N, et al. Ecosystemic
effects of salmon farming increase mercury contamination in wild fish. Environ Sci Technol.
2006;40(11):3489-3493., Nikolaou M, Neofitou N, Skordas K, Castritsi-Catharios I, Tziantziou
L. Fish farming and anti-fouling paints: a potential source of Cu and Zn in farmed fish. Aquac
Environ Interact. 2014;5:163-172..
25
See, for example, Dempster T, Uglem I, Sanchez-Jerez P, et al. Coastal salmon farms attract
large and persistent aggregations of wild fish: An ecosystem effect. Mar Ecol Prog Ser.
2009;385(Fao 2008):1-14., and Bustnes JO, Nygård T, Dempster T, et al. Do salmon farms
increase the concentrations of mercury and other elements in wild fish? J Environ Monit.
2011;13:1687-1694. Aquaculture facilities may act as ecological traps, where wild populations
prefer low quality habitat that acts as a population sink over high quality source habitats. Battin J
(2004) When good animals love bad habitats: Ecological traps and the conservation of animal
populations. Conserv Biol 18:1482–1491. doi: 10.1111/j.1523-1739.2004.00417.x
26
Abaad M, Tuset VM, Montero D, et al (2016) Phenotypic plasticity in wild marine fishes
associated with fish-cage aquaculture. Hydrobiologia 765:343–358. doi: 10.1007/s10750-0152428-5.
27
Uglem I, Karlsen Ø, Sanchez-Jerez P, Sæther B (2014) Impacts of wild fishes attracted to opencage salmonid farms in Norway. Aquac Environ Interact 6:91–103. doi: 10.3354/aei00112.
28
Ottera H, Skilbrei OT (2014) Possible influence of salmon farming on long-term resident
behaviour of wild saithe (Pollachius virens L.). ICES J Mar Sci 71:2484–2493. doi:
10.1093/icesjms/fst176.
29
Krkosek M, Lewis M a, Morton A, et al (2006) Epizootics of wild fish induced by farm fish.
Proc Natl Acad Sci U S A 103:15506–15510. doi: 10.1073/pnas.0603525103.
30
Skjæraasen JE, Meager JJ, Karlsen Ø, Mayer I, Dahle G, Rudolfsen G, Fernö A (2010) Mating
competition between farmed and wild cod Gadus morhua. Mar Ecol Prog Ser 412:247-258.
31
California Fish and Wildlife MPA website;
https://www.wildlife.ca.gov/Conservation/Marine/MPAs, last accessed December 9, 2015.

6

 The proposed location for this project provides habitat to numerous marine
species listed under the Endangered Species Act (“ESA”), including blue whales,
humpback whales, fin whales, sperm whales, Guadalupe fur seals, loggerhead sea turtles,
green sea turtles, and leatherback sea turtles. 32 It is also home to listed bird species
including the California least tern and the western snowy plover. 33 Aggregations of fish
will attract predators, including protected marine mammals, fish, and birds, and may have
significant adverse effects on such species. 34 Additionally, an increase in shipping
traffic from project activities may lead to increased ship strikes to endangered and
threatened species, resulting in adverse effects. 35
(7) Whether the action is related to other actions with individually insignificant but
cumulatively significant impacts.
The proposed location of the project falls directly within the monitoring and
sampling zone for Pt. Loma Wastewater Treatment Plant (“PLWWTP”). Currently the
PLWWTP discharges treated effluent at less-than-secondary treatment and continues to
receive a waiver from secondary treatment under Section 301(h) of the Clean Water Act.
That section and the NPDES permit for PLWWTP contain specific requirements for
monitoring and for attainment of benthic health and water quality standards. The Point
Loma Permit Monitoring and Reporting Program (Attachment E to that permit) lists
specific GPS longitude and latitude locations for offshore monitoring stations required to
be monitored as part of the NPDES waiver.36 One monitoring station in particular is
situated directly within the planned footprint of this project 37, while several others are in
close proximity to the project.38

32

50 C.F.R. § 17.11
Id.
34
Jiménez JE, Arriagada AM, Fontúrbel FE, Camus PA, Ávila-Thieme MI (2013) Effects of
exotic fish farms on bird communities in lake and marine ecosystems. Naturwissenschaften
100:779–787, and Papastamatiou, Yannis P., Itano, David G., Dale, Jonathan J., Meyer, Carl G.,
and Holland, Kim N. (2010). Site fidelity and movements of sharks associated with oceanfarming cages in Hawaii. Marine and Freshwater Research 61, 1366–1375.
35
See, for example: “Mortality from ship strikes has been identified as a threat to population
recovery of these vulnerable whale species.” NOAA,
http://sanctuaries.noaa.gov/protect/shipstrike/welcome.html (last accessed January 6, 2016); and,
“Commercial vessel traffic along the coast of California may negatively impact large whales,
both through chronic exposure to engine and propeller noise, and the increased risk of ship
strike.” NOAA, “Of Ships and Whales”, found at
http://sanctuaries.noaa.gov/protect/shipstrike/pdfs/poster.pdf. This, despite the fact that,
“mortality of whales due to vessel collision is likely underestimated and under-documented…”
Id.
36
NPDES Permit No. CA 0107409 (Order No. R9-2009-002), Attachment E, Pages E4-E6.
37
Site F-23. NPDES Permit No. CA 0107409 (Order No. R9-2009-002), Attachment E.
38
See, for example, monitoring sites F-34, F-26, F33, F22, F35, SD13, B8, and F24, to name a
few. NPDES Permit No. CA 0107409 (Order No. R9-2009-002), Attachment E.
33

7

 NEPA defines “cumulative impact” as, “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.” 39 “Cumulative impacts can result from
individually minor but collectively significant actions taking place over a period of
time.”40 The applicant’s own Report indicates that, “benthic effects should be anticipated
with the culture or natural aggregation of any large biomass of animals.” 41 Additionally,
oxygen depletion, eutrophication, and harmful algae blooms may occur as a result of
aquaculture activities. 42 There is already evidence of anthropogenic nutrient loading
rivaling the naturally occurring upwelling sources at regional scales in the Southern
California Bight, a pattern of declining oxygen content along the southern California
coast, and potential links between anthropogenic nitrogen sources and HABs. 43
Continued discharges from the PLWWTP, in combination with discharges from a
massive factory fish farm and its associated waste, feed, and antibiotics, may
cumulatively result in significant impacts.
(6) The degree to which the action may establish a precedent for future actions with
significant effects or represents a decision in principle about a future consideration
It is undisputed that this project would be, “the first commercial-scale, offshore
fish farm in the federal waters of the United States.”44 In fact, the applicant proposes this
project to specifically, “serve as a model for the development of additional marine
aquaculture projects in the waters offshore the United States.”45 Thus, approval of an
NPDES permit for this project is certain to establish a precedent for future actions with
significant effects, or represents a decision in principle about a future consideration.
(10) Whether the action threatens a violation of Federal, State, or local law or
requirements imposed for the protection of the environment
39

40 C.F.R. § 1508.7. The proposed project is a self-described demonstration project, and
therefore “reasonably foreseeable actions” should include other similarly scaled projects.
40
Id.
41
Final Report, p. 56.
42
Final Report, p. 52.
43
Howard, M. D. A. , Sutula M. , Caron D. A. , Chao Y. , Farrara J. D. , Frenzel H. , Jones B. ,
Robertson G. , McLaughlin K. , Sengupta A. (2014) Anthropogenic nutrient sources rival natural
sources on small scales in the coastal waters of the Southern California Bight, Limnology and
Oceanography, 59, doi: 10.4319/lo.2014.59.1.0285, and Booth J. A. T. , Woodson C. B. , Sutula
M. , Micheli F. , Weisberg S. B. , Bograd S. J. , Steele A. , Schoen J. , Crowder L. B. , (2014),
Patterns and potential drivers of declining oxygen content along the southern California coast,
Limnology and Oceanography, 59, doi: 10.4319/lo.2014.59.4.1127., and Nezlin, N. P., M. A.
Sutula, R. P. Stumpf, and A. Sengupta (2012), Phytoplankton blooms detected by SeaWiFS
alongthe central and southern California coast, J. Geophys. Res., 117, C07004,
doi:10.1029/2011JC007773.
44
Final Report, p. 1.
45
Id., at p. 2.

8

 Because state waters will be impacted by the proposed project due to the nature of
the proposal and the close proximity of the project, any environmental review that occurs
must be done in the context of ensuring consistency with California law under the Coastal
Zone Management Act (CZMA), California Coastal Act, the California Sustainable
Oceans Act (S.B. 201), and other state laws governing coastal management. The
proposed project would violate, or threaten to violate, these applicable Federal and State
laws.
For example, the California Coastal Act requires that, “marine resources shall be
maintained, enhanced, and, where feasible, restored,” and that “uses 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.”46 Further, the Act requires that, “the biological productivity and the quality
of coastal waters…appropriate to maintain optimum populations of marine organisms and
for the protection of human health shall be maintained and, where feasible, restored.” 47
The Act requires that, “the economic, commercial, and recreational importance of fishing
activities shall be recognized and protected.”48 Finally, the California Ocean Plan
prohibits degradation to marine and benthic communities. 49 Yet, detrimental impacts to
the seafloor, benthic communities, and marine life should be expected. 50
(2) The degree to which the proposed action affects public health or safety
High nutrient levels associated with the proposed action can stimulate harmful
algae blooms, which can significantly impact public health. According to the applicant’s
Final Report, “nutrient loads from coastal aquaculture farms may contribute to the growth
of these blooms,” and, “laboratory studies of fish farm wastes indicate that they can
stimulate dinoflagellate growth.”51 Further potential public health threats stem from the
46

Cal. Pub. Res. Code § 30230
Cal. Pub. Res. Code § 30231
48
Cal. Pub. Res. Code § 30234.5. “Aquaculture” is distinguished from “fishing” in the Coastal
Act in Section 30100.2, and is instead categorized as agriculture: “’Aquaculture’ means a form of
agriculture as defined in Section 17 of the Fish and Game Code. Aquaculture products are
agricultural products, and aquaculture facilities and land uses shall be treated as agricultural
facilities and land uses in all planning and permit-issuing decisions governed by this division”.
Cal. Pub. Res. Code § 30100.2 (West)
49
See California Ocean Plan 2012, p. iv, “The Ocean Plan is clear that there shall not be
degradation of marine communities…due to waste discharges.”
50
See Final Report Rose Canyon Fisheries Sustainable Aquaculture Project, Marine Research
Specialists, September 2014, p. 55. “The most commonly reported and measurable effects of net
pen aquaculture involve the near field excessive loading of bottom sediments with particulate
organic matter,” and, “It is an accepted fact that seafloor accumulations of consumed feed and
fecal waste can result in organic buildup that produces a variety of physical, chemical, and
biological changes within the benthos.”
51
Final Report, p. 52. See also Kudela et. al, 2008.
47

9

 use of antibiotics, pesticides, antifoulants, metals, and other organic pollutants, which
have been shown to persist in the surrounding environment.52
(4) The degree to which the effects on the quality of the human environment are likely to
be highly controversial
The existing scientific literature on expected or known negative impacts, in
addition to the unknown and unstudied risks of large-scale, offshore aquaculture
activities, contribute to the highly controversial nature of effects on the environment.
Additionally, the lack of existing offshore aquaculture environmental regulations and
serious questions surrounding agency authority to regulate activities in public trust waters
without express Congressional authorization all contribute to the highly controversial
nature of the proposed project.
While the lack of comprehensive regulations and standardized best management
practices and mitigation requirements for offshore aquaculture alone justifies preparation
of an EIS, when coupled with the scientific literature on impacts that result from marine
aquaculture projects, many, if not all, of the above requirements of significance are met.
As such an EIS is required.
Finally, courts have consistently held, “that an EIS must be prepared if
‘substantial questions are raised as to whether a project…may cause significant
degradation,”53 and that an interested party, “need not show that significant effects will in
fact occur.”54 Instead, “raising ‘substantial questions whether a project may have a
significant effect’ is sufficient.”55 If an interested party, “raises substantial questions
whether a project may have a significant effect, an EIS must be prepared. This is a low
standard.”56
EPA Regulations Require an EIS
Similar to general NEPA regulatory requirements, EPA’s own NEPA regulations
require the preparation, “of an environmental impact statement…for major federal
52

Cabello FC, Godfrey HP, Tomova A, et al (2013) Antimicrobial use in aquaculture reexamined: its relevance to antimicrobial resistance and to animal and human health. Environ
Microbiol 15:1917–42. doi: 10.1111/1462-2920.12134; and Sapkota A, Sapkota AR, Kucharski
M, et al (2008) Aquaculture practices and potential human health risks: Current knowledge and
future priorities. Environ Int 34:1215–1226. doi: 10.1016/j.envint.2008.04.009; and Cole DW,
Cole R, Gaydos SJ, et al (2009) Aquaculture: Environmental, toxicological, and health issues. Int
J Hyg Environ Health 212:369–377. doi: 10.1016/j.ijheh.2008.08.003
53
Idaho Sporting Congress vs. Thomas, 137 F.3d 1146, 1149; LaFlamme vs FERC, 852 F. 2d
389, 398, emphasis original.
54
Id.
55
Id.
56
Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 562 (9th Cir. 2006).

10

 actions significantly affecting the quality of the human environment.” 57 Those same
regulations recognize an EIS is normally required for an action if it meets any of the
following criteria: 58
i.
The proposed action would result in a discharge of treated effluent from a new or
modified existing facility into a body of water and the discharge is likely to have a
significant effect on the quality of the receiving waters; (See discussion above on
waste and antibiotic discharge likely to have significant impact on quality of
receiving waters).
ii.
The proposed action would be inconsistent with state or local government, or
federally-recognized Indian tribe environmental, resource-protection, or land-use
laws and regulations for protection of the environment; (See discussion above on
violations or potential violations of California Coastal Act, Sustainable Oceans
Act, and Coastal Zone Management Act).
iii.
The proposed action is likely to significantly affect the environment through the
release of radioactive, hazardous or toxic substances, or biota; (See discussion
above on escaped and/or diseased fish).
iv.
The proposed action involves uncertain environmental effects or highly unique
environmental risks that are likely to be significant; (See discussion above on
unknown and unique risks of offshore aquaculture).
v.
The proposed action is likely to significantly affect environmentally important
natural resources such as … coastal zones… and significant fish or wildlife
habitat; (See discussion above of impacts to MPAs and the Southern California
Bight, above).
vi.
The proposed action in conjunction with related federal, state or local
government, or federally recognized Indian tribe projects is likely to produce
significant cumulative impacts; (See discussion on PLWWTP discharges, above,
for cumulative impacts).
As discussed above and in our attached comments to the Army Corps, the proposed
action requires the preparation of an EIS as each of the above criteria are met.
The EPA Must Identify and Analyze All Significant Environmental Impacts
Issuance of an NPDES permit to the applicant for the proposed project would
result in significant and unavoidable adverse environmental impacts. Our comments on
the many significant impacts that may result from issuance any permit to this project
were submitted to the Army Corps in March of 2015 and are attached and hereby
incorporated by reference. 59 Those comments and the attached bibliography (Attachment
4) detail some of the expected environmental impacts and lack of mitigation to address
those impacts. Even if the EPA believes that proposed mitigation measures would lessen
57

40 C.F.R. § 6.207(a)
40 C.F.R. § 6.207(a)(3)
59
See Attachments 1 and 4 to these comments.
58

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 environmental impacts, all significant environmental impacts must still be identified and
analyzed.60
Among the matters that must be identified and analyzed in the EIS are whether
the project location is an appropriate area for offshore aquaculture activities of the
proposed size and scope and whether the location would avoid adverse impacts, minimize
any unavoidable impacts on user groups, public trust values, and the marine environment.
Environmental review must consider impacts on sensitive ocean and coastal habitats, and
other plant and animal species, including the impacts of escaped fish on wild fish
populations and aquatic ecosystems; the impacts of interactions with marine mammals,
marine wildlife, and birds; the impacts of the use of chemical and biological products,
pollutants, and nutrient wastes on the marine environment; and effects of removal of
forage fish for feed, fishmeal, and fish oil on marine ecosystems. Additional
consideration must be given to the cumulative effects of a number of offshore
aquaculture facilities and other uses and discharges on the ability of the marine
environment to maintain pre-existing flora and fauna.
The EIS should fully evaluate the impacts of the project on all public trust
resources, including fisheries. Marine and estuarine fisheries are increasingly stressed
throughout the Coastal Zone, and the activities proposed as part of this project create
individual and cumulative risks to trust resources. The EIS must demonstrate that the
proposed project individually and cumulatively can be located, constructed, and operated
to assure that it will not add further environmental stresses that would jeopardize ongoing
and reasonably foreseeable efforts to restore fisheries and other public trust resources to
health and sustainability.
The EIS should also identify and analyze in detail the potential impacts to state
Marine Protected Areas (MPAs), which are designed to work as a network providing
(among other benefits) connectivity via larval dispersal. This project, along with its
expected impacts on marine life behavior, including feeding, could have a significant
impact on this larval connectivity between the MPAs at the northern and southern ends of
the Bight.
The scope must include a full and adequate science-based environmental review
including, but not limited to, a risk analysis and assessment of the potential genetic and
ecological impacts that this project could have on wild fish and other aspects of the
60

See Northern Plains Resource Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1085-86
(9th Cir., 2011). “Mitigation measures, while necessary, are not alone sufficient to meet...NEPA
obligations to determine the projected extent of the environmental harm to enumerated resources
before a project is approved. Mitigation measures may help alleviate impact after construction,
but do not help to evaluate and understand the impact before construction. In a way, reliance on
mitigation measures presupposes approval. It assumes that—regardless of what effects
construction may have on resources—there are mitigation measures that might counteract the
effect without first understanding the extent of the problem.”

12

 environment resulting from escapement. This rigorous analysis should include, but not
be limited to, impacts resulting in crossbreeding, disease transmission, and competition
for food, habitat, and other resources.
Review and analysis in the EIS must include impacts resulting from, “nutrient and
chemical wastes, water use demands, aquatic animal diseases and invasive species,
potential competitive and genetic effects on wild species, effects on endangered or
protected species, effects on protected and sensitive marine areas, effects on habitat for
other species, and the use of forage fish for aquaculture feeds”. 61
Review and analysis must also consider the potential significant socioeconomic,
cultural and other foreseeable impacts on commercial and recreational fisheries, as they
may be considerable. The socio-economic analysis EPA must perform should include an
analysis of both the economic and cultural importance of local fisheries and marine life,
an analysis of potential impacts to commercial fisheries, potential impacts to recreational
fishing, potential harm to fishery dependent communities, and an analysis of the market
impacts of this product’s introduction.
Within the cumulative impact analysis, the EIS must also consider how this
approval will affect efforts by the FWS, NMFS, EPA, state agencies, tribes, commercial
fishermen, and foreign nations to protect wild fish populations, including already
imperiled wild native stocks, and promote sustainable fishing practices. Likewise the EIS
must consider how this approval will impact endangered and threatened species, whale
migrations, and the special biological significance of both nearby individual Marine
Protected Areas and MPA networks, and the Southern California Bight.
Foreseeable cumulative impacts include this approval opening the door to various
additional offshore aquaculture projects in San Diego, up and down the Coast of
California, or even nationwide. It is without question that issuance of an NPDES permit
would be precedent-setting in that it will prompt and influence future permits for offshore
finfish aquaculture in the United States. Since this is the first of its kind, and the project
proponent itself identifies this action as a means to set standards whereby other projects
might proceed, it is reasonably foreseeable that approval of this project would result in
the expansion and development of additional offshore aquaculture projects both locally
and nationwide. There are likely to be unresolved conflicts concerning uses of available
resources given the lack of property rights present to occupy and utilize federal public
trust resources, as well as the lack of comprehensive environmental regulations. The EIS
must consider the cumulative impacts of this likelihood.62
61

NOAA Marine Aquaculture Policy, June 2011.
Even if evidence of copycat projects is not clear, any lack of certainty as to future actions in no
way negates the agency’s duty to consider them. “It must be remembered that the basic thrust of
an agency’s responsibilities under NEPA is to predict the environmental effects of a proposed
action before the action is taken and those effects fully known. Reasonable forecasting and
speculation is thus implicit in NEPA and we must reject any attempt by agencies to shirk their
62

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 Finally, the EIS should consider the impacts of this project on the City of San
Diego’s Pure Water wastewater recycling project, and consider the cumulative impacts of
the projects together. The wastewater recycling approach, offered as a multi-benefit
solution to Pt. Loma’s discharge and the water supply needs of San Diego, has recently
received express support from the EPA (see Attachment 2 to these comments). The Pure
Water project is the result of many years of stakeholder negotiations and partnerships in
which Coastkeeper played a leadership role. That partnership has resulted in a
Cooperative Agreement between Coastkeeper, our environmental colleagues, and the
City of San Diego. That agreement requires the City, among other things, to continue the
existing monitoring program in the PLWWTP NPDES permit. A change in that
monitoring program would conflict with that agreement and perhaps negate that
agreement. Specifically, “Article 4 – Ocean Monitoring” of our Cooperative Agreement
requires that, “[t]he City shall continue the ocean monitoring program for the Point Loma
outfall as set forth in NPDES Permit No. CA 0107409 (Order No. R9-2009-002), which
is herein incorporated by reference.”63 The Point Loma Permit Monitoring and Reporting
Program Section (Attachment E to that permit) lists specific longitude and latitude
locations for offshore monitoring stations required to be monitored as part of that
permit.64 One monitoring station in particular is situated directly within the planned
footprint of this project 65, while many others are in close proximity to the project.66 As
such, it is certain that changes to NPDES Permit No. CA 0107409 (Order No. R9-2009002) Attachment E would be required if the applicant’s permit is issued for this location.
Such a result conflicts with the Cooperative Agreement and potentially disrupts the
possibility of continued 301(h) waivers for the Point Loma Wastewater Treatment Plant
from secondary treatment requirements.
The above impacts include just some of the expected significant impacts that are
likely to result from this action that must be identified and analyzed, and is by no means
meant to be exhaustive of the issues requiring identification and analysis in the EIS.

responsibilities under NEPA by labeling any and all discussion of future environmental effects a
‘crystal ball inquiry.’” Scientists’ Inst. for Public Info. v. Atomic Energy Comm’n, 481 F.2d
1079, 1091-92 (D.C. Cir. 1973); see also Conner v. Burford, 848 F.2d 1441, 1450-51 (9th Cir.
1988).
63
Cooperative Agreement In Support of Pure Water San Diego, October 2014. The Agreement
goes on to state, “ocean monitoring required by this Agreement shall not be changed, however,
without the written consent of all parties.”
64
NPDES Permit No. CA 0107409 (Order No. R9-2009-002), Attachment E, Pages E4-E6.
65
Site F-23. NPDES Permit No. CA 0107409 (Order No. R9-2009-002), Attachment E.
66
See, for example, monitoring sites F-34, F-26, F33, F22, F35, SD13, B8, and F24, to name a
few. NPDES Permit No. CA 0107409 (Order No. R9-2009-002), Attachment E.

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 Proposed Alternatives and Impacts:
NEPA regulations require a rigorous and objective analysis of alternatives to
proposed projects. An alternatives identification and analysis, in fact, “is the heart of”
the NEPA document.67
The EIS must identify a reasonable range of alternatives to this project. Almost
every alternative imaginable would result in fewer environmental impacts than the one
proposed, especially given the lack of comprehensive environmental regulations
governing aquaculture in federal waters.
At a minimum, alternatives that must be explored include: a “no action”
alternative; a “wild/native fisheries management” alternative that instead accelerates the
pace of native fisheries recovery and sustainable management that encompasses new
projects and policies designed to support the expanded sustainable commercial fishing
practices and to protect and restore wild native fisheries populations; integrative species
management approaches (aimed at reducing pollutant discharges); fallowing/pen rotation
approaches (if these are shown to reduce pollutant impacts, rather than spread over a
greater area); an alternative such as onshore aquaculture that allows for more controlled
pollution mechanisms and that would result in far fewer environmental impacts; a pilot or
smaller project with expansion allowed only after follow-up studies and additional
environmental review, and a combination of these alternatives.
Additional Studies and Review:
The EPA should be careful in its NEPA review to not rely on flawed, biased, or
inadequate data, or on outdated scientific methodology or conclusory statements. Still,
existing literature strongly indicates there will be significant, perhaps immitigable,
environmental impacts.68
Since this is a first of its kind project in the US, should the EPA move forward
with issuance a permit or conducting an EIS, additional data and studies must be
conducted to complement existing data. “NEPA procedures must insure that
environmental information is available to public officials and citizens before decisions
are made and before actions are taken. The information must be of high quality. Accurate
scientific analysis, expert agency comments, and public scrutiny are essential to
implementing NEPA”69, and, “if the incomplete information relevant to reasonably
foreseeable significant adverse impacts is essential to a reasoned choice among

67

40 C.F.R. § 1502.14
See Attachment 1, Comments on Section 10 permit; and Attachment 4, Bibliography.
69
40 C.F.R. § 1500.1
68

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 alternatives and the overall costs of obtaining it are not exorbitant, the agency shall
include the information in the environmental impact statement.” 70
Based on existing literature on marine aquaculture and the proposed location and
its surroundings, the proposed project will result in significant adverse impacts to the
environment. To assess the full scope of those impacts, further study must be conducted
on a site-specific basis prior to, and concurrently with, conducting an identification and
analysis of impacts. Specifically, additional studies and review should be conducted by
unbiased third parties to determine the true extent of environmental impacts that would
result from waste discharge, antibiotics discharge, and other impacts. 71
For example, studies that should be required at the outset should include tracer
studies for fecal and food waste, and antibiotics in the water column and benthic
environment. These studies should be conducted over multiple seasons and during varied
flow conditions. In-depth baseline benthic and site assessments should also be required,
and should include assessment of seasonal variation. Studies aimed at determining which
pathogens are present in native populations and which are present only in farmed
populations should be conducted to insure that pathogens not presently found in native
populations are not introduced.
The cost of such studies will not be “exorbitant”. Further, even if associated costs
are substantial, the environmental costs of issuing an NPDES permit without proper
knowledge and regulatory safeguards would be incalculable and could lead to the
devastation, if not collapse, of native and wild fish stocks and a thriving and recovering
ecosystem off the coast of San Diego.
Legal and Regulatory Considerations:
Finally, there exist regulatory and legal impediments that could prohibit this
project from moving forward, as there exists no property right to use and exploit public
trust resources for aquaculture projects. 72 Without express authorization from Congress
authorizing the use and occupation of public lands and public trust resources for
aquaculture, the authority of the EPA to issue an NPDES permit for aquaculture activities
in federal waters remains unclear. Consideration of the proposed permit’s application is
premature and should be postponed until comprehensive regulations have been adopted
that prescribe and define minimum BMPs, govern the leasing of public trust resources,

70

40 C.F.R. § 1502.22
See, for example, 40 CFR 1501.7(a)(6), requiring the lead agency to, “Identify other
environmental review and consultation requirements so the lead and cooperating agencies may
prepare other required analyses and studies concurrently with, and integrated with, the
environmental impact statement as provided in § 1502.25.”
72
See Attachment 1.
71

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 and contain the full spectrum of environmental considerations associated with offshore
finfish aquaculture.
To that end, we respectfully request the EPA stop work on environmental review
and issuance of an NPDES permit until further authority from Congress to proceed with
aquaculture projects in federal waters occurs. At a minimum the agency must promulgate
binding regulations specific to offshore finfish aquaculture projects, establish how their
foreseeable environmental and socioeconomic impacts are encompassed within EPA’s
review standard, and issue regulatory amendments to account for the novel risks they
create, including interagency cooperation and increased transparency.
Should EPA move forward with this NPDES application, careful consideration
must be given to the lack of existing comprehensive regulations and regulatory oversight
to deal with the myriad environmental impacts that would likely occur if this project were
to move forward.73 Thus, during scoping, we respectfully request that analysis occur
with this lack of overarching protection and oversight in mind, and look beyond the mere
implications that would result from the strictly NPDES pollution-related activities such as
waste, antibiotics, and escaped fish.
Conclusion
Given the legal and regulatory hurdles, lack of environmental regulations, and
regulatory and legal uncertainty over permitting authority for offshore aquaculture
projects, and likely significant impacts that would result from this project moving
forward, the application should be denied. If, however, the EPA chooses to move
forward with NEPA review, an EIS must be prepared, as significant environmental
impacts will result.
Thank you for the opportunity to provide scoping comments for NEPA review.
Please feel free to contact me with any questions or for additional feedback. We look
forward to working with the EPA toward development of a meaningful, effective, and
truly sustainable approach to fisheries management in our region.
Sincerely,

Matt O’Malley
Waterkeeper and Legal & Policy Director

73

40 C.F.R. § 6.200(c)(4)(iii) requires agencies to integrate review of applicable federal laws into
the environmental review process in conjunction with the development of NEPA documents.

17

 Attachments 1-4
cc:
Elizabeth Sablad, EPA, Sablad.Elizabeth@epa.gov
Melanie Tymes, USACE, Melanie.B.Tymes@usace.army.mil
David Smith, EPA, Smith.DavidW@epa.gov
Peter Kozelka, EPA, Kozelka.Peter@epa.gov
Diane Windham, NOAA Fisheries, Office of Aquaculture (Western),
diane.windham@noaa.gov
Deborah Lee, CA Coastal Commission, deborah.lee@coastal.ca.gov
Greg Murphy, Office of County Supervisor Greg Cox, greg.murphy@sdcounty.ca.gov
Cassidy Teufel, CA Coastal Commission, cassidy.teufel@coastal.ca.gov
Alejandra Gavaldon, Mayor Faulconer’s Office, agavaldon@sandiego.gov
David Gibson, San Diego Regional Water Quality Control Board,
david.gibson@waterboards.ca.gov

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