This appeal was filed by Marine Environmental Consortium, Washington Environmental Council, Protect our Waters and Natural Resources, and Washington Trout (collectively, the “Appellants”) to challenge the Department of Ecology’s issuance of National Pollutant Elimination System (“NPDES”)/Waste Discharge Permits to Global Aqua-USA L.L.C. (“Global”) and Scan Am Fish Farms (“Scan Am”). Ecology, the Washington Department of Fish & Wildlife (“WDFW”), Global, and Scan Am were named as Respondents in the appeal. WDFW was subsequently dismissed pursuant to a Stipulation and Agreed Order of Dismissal. Scan Am came under new ownership and changed its name to Cypress, Inc. (“Cypress”). (As used in these Findings and Conclusions, the term “Cypress” includes both Cypress and Scan Am unless otherwise specified.) Global and Cypress are referred to collectively herein as the “Permittees”.

This case was heard on December 15-19, 1997, February 23-27, 1998, March 17, 1998, March 30 – April 2, 1998, and April 21 –23, 1998. The Board was comprised of James A. Tupper, Jr., Robert V. Jensen and Ann Daley. The Honorable Suzanne Skinner presided for the Board. Court reporting services were provided by Gene Barker & Associates of Olympia, Washington.

The Board considered the Prefiled written testimony of expert witnesses, the live testimony of lay and expert witnesses, the exhibits admitted into evidence, and the argument of counsel. Based on the foregoing, the Board enters the following Findings of Fact and Conclusions of Law.

PROCEDURAL FINDINGS

This consolidated appeal challenges Ecology’s issuance of 12 NPDES/Waste Discharge Permits (the “Permits”) to Global and Cypress. The Permits authorize discharge of waste materials from floating net-pen facilities, also referred to as “farms,” that raise Atlantic salmon for commercial sale. The permitted sites are located in Rich Passage (Global’s Clam Bay, Fort Ward, Orchard Rocks and Viking sites), Dana Passage (Global’s Hartstene Island site), Port Angeles Bay (Global’s PA-II site), Cypress Island’s Secret Harbor (Cypress’ sites I through III), Skagit Bay (Cypress’ site IV), Discovery Bay (Global undeveloped site) and in the Strait of Juan De Fuca off Whiskey Creek (Global undeveloped site). All of the sites are operating salmon farms with the exception of Discovery Bay and Whiskey Creek, which have not yet been developed, and Hartstene Island which is currently not in operation.

II.

Appellants initially appealed Permits issued by Ecology to the four Cypress sites, the Global sites at Clam Bay, Fort Ward, Orchard Rocks, Viking, Hartstene Island and Port Angeles, and two sites operated by the Washington Department of Fish and Wildlife (“WDFW”) near Fox Island in southern Puget Sound. WDFW was subsequently dismissed as a Respondent by stipulation among the parties. After Ecology issued additional Permits to Global for Discovery Bay and Whiskey Creek, Appellants appealed those Permits to the Board. All of the appeals were subsequently consolidated into these proceedings by the Pre-Hearing Order and Order of Consolidation (the “Pre-Hearing Order”) entered by the Board on December 20, 1996.

ISSUES PRESENTED

III.

The consolidated appeals raised a number of legal issues under state and federal law which were identified in the Pre-Hearing Order: (1) whether the Permits provided for “all known, available and reasonable methods of treatment” (“AKART”); (2) whether the Permits authorized the discharge of pollutants in violation of water quality or sediment management standards, (3) whether the Permits authorized the discharge of pollutants in violation of anti-degradation requirements; (4) whether the Permits included sufficient monitoring and reporting requirements, (5) whether Ecology’s Fact Sheets provided the information mandated by law; (6) whether the Permit applications disclosed the information required by law; (7) whether Ecology violated the State Environmental Policy Act (“SEPA”) by not requiring the preparation of an Environmental Impact Statement (“EIS”) and consideration of appropriate alternatives; and (8) whether SEPA requires that the Programmatic Environmental Impact Statement for Fish Culture in Floating Net-Pens (the “PEIS”) be updated, completed or corrected.

IV.

Following a conference with all the parties, the Board issued a prehearing order which identified eight legal issues for hearing.

1. Do the permits fail to provide for “ all known, available and reasonable methods of treatment” (AKART) to prevent and control the discharge of escaping Atlantic salmon, sediments within a 100-foot perimeter of each salmon net pen, fish feces, unconsumed fish feed, dead fish, antibiotics, food additives and anti-fouling pesticides, into navigable waters in violation of 33 USC §§1311(a) and 1342(b), 40 CFR §124.44, RCW 90.48.010, 90.48.520, 90.52.040 and 90.54.020(3)(b), and WAC 173-204-120(1)(c)(ii) and 173-220-130?

2. Do the permits authorize the discharge of escaping Atlantic salmon, sediments within a 100-foot perimeter of each salmon net pen, fish feces, unconsumed fish feed, dead fish, antibiotics, food additives and anti-fouling pesticides, in violation of the water quality criteria or sediment management standards for receiving waters authorized or established by 33 USC §§1311(a), 1312(a) and 1342(b), 40 CFR §122.44(d), RCW 90.48.010, 90.48.180 and 90.48.520, and WAC 173-201A-060(6), 173-201A-030, 173-204 and 173-220-130?

3. Do the permits authorize the discharge of escaping Atlantic salmon, sediments within a 100-foot perimeter of each salmon net pen, fish feces, unconsumed fish feed, dead fish, antibiotics, food additives and anti-fouling pesticides, that will degrade existing water quality and adversely affect characteristic water uses, including salmonid migration, rearing spawning and harvesting, in violation of the anti-degradation requirements of 40 CFR §131.12, WAC 173-221A-020 and 173 201A-070?

4. Do the permits fail to include sufficient environmental monitoring and reporting requirements to ensure that discharges of escaping Atlantic salmon, sediments within a 100-foot perimeter of each salmon net pen, fish feces, unconsumed fish feed, dead fish, antibiotics, food additives and anti-fouling pesticides, comply with state water quality standards as required by 33 USC § 1342(b)(1) and WAC 173-221A-110(4) and (5)?

5. Do the fact sheets prepared for the permits fail to provide the information mandated by WAC 173-220-060(1)(b), (c)(i) and (iii), (d), (e) and (f)?

6. Do the permit applications fail to provide complete disclosure of potential adverse water quality impacts and omit analysis of AKART in violation of RCW 90.48.010, 90.48.520, 90.52.040 and 90.54.020(3)(b), and WAC 173-220-130 and 173-240-130?

7. Did Ecology fail to conduct an adequate environmental review of the permits by not requiring preparation of an environmental impact statement and the consideration of appropriate alternatives, including specific measures to mitigate or eliminate adverse impacts of discharges under the permits, in violation of RCW 43.21C.030(2)(c) and (e) and WAC 197-11-300 et seq.?

8. If the issuance of these permits are actions contemplated or encompassed by the Department of Fisheries’ Programmatic Environmental Impact Statement for Fish Culture in Floating Net Pens (PEIS) of January 31, 1990, does RCW 43.21C et seq. require supplemental environmental review of the site-specific impacts of the permits or to update, complete and correct the PEIS?

The parties subsequently filed cross-motions for summary judgment focused primarily on whether escaping salmon could be regulated as pollutants under state and federal law. The motions also addressed several issues under SEPA. The Board’s first order on summary judgment granted partial summary judgment to appellants on some issues and to the Permittees and Ecology on others. But the order also dismissed part of legal issue seven and all of legal issue eight based upon the Board’s conclusion that the permits were categorically exempt from the threshold determination and SEPA process.

Ecology then filed a second motion for summary judgment seeking dismissal of the first three legal issues; that motion was denied.

At the close of appellants’ case-in-chief, Ecology moved to dismiss several of appellants’ claims. After considering the arguments of counsel, the Board dismissed most of legal issue one. Appellants had not proved that the permits failed to incorporate “all known, available and reasonable methods of treatment” (AKART) to prevent and control the discharge of Atlantic salmon and other substances under state and federal law—except as to genetic manipulation of salmon. The Board dismissed legal issue five finding that appellants had failed to prove that the permit fact sheets were legally insufficient. The Board also dismissed legal issue six; appellants did not prove that the permit applications were legally defective. The Board memorialized its bench ruling in an Order of Partial of Dismissal.

This decision addresses the following legal issues.

1. Whether the permits fail to provide AKART as to biological or genetic means of preventing or controlling the impacts of escaping Atlantic salmon, in violation of the federal and state water pollution law? See 33 USC §§1311(a) and 1342(b), 40 CFR §124.44, RCW 90.48.010, 90.48.520, 90.52.040 and 90.54.020(3)(b), and WAC 173-204-120(1)(c)(ii) and 173-220-130.

2. Whether the permits violate the water quality criteria and sediment management standards by allowing discharges of escaping Atlantic salmon, fish food, feces and other substances? See 33 USC §§1311(a), 1312(a) and 1342(b), 40 CFR §122.44(d), RCW 90.48.010, 90.48.180 and 90.48.520, and WAC 173-201A-060(6), 173-201A-030, 173-204 and 173-220-130.

3. Whether the permits violate the anti-degradation standards by allowing discharges of escaping Atlantic salmon, fish food, feces and other substances? 40 CFR 131.12, WAC 173-221A-020 and WAC 173-201A-070.

4. Whether the permits fail to include sufficient environmental monitoring and reporting requirements to comply with state water quality standards? 33 USC 1342(b)(1); WAC 173-221A-110(4) and (5).

5. Whether RCW 43.21C.030(2)(e) required Ecology to consider appropriate alternatives to the permits?

FINDINGS OF FACT

THE FACILITIES AND OPERATIONS

The salmon farms at issue are all similar in construction and concept. Farm salmon are raised in enclosures called net-pens that consist of a square or circular steel frame from which hangs a heavy net that forms the enclosure. The depth of the containment nets can vary between 10 and 20 meters with most farms using nets that are 15 meters deep. The individual pens are arranged in clusters, provided with companionways, and anchored in position using chains and concrete or iron anchors. Support facilities at the farms include barges, service boats and a shore facility where feed and supplies are stored. In Rich Passage, Global’s farms are serviced from a pier adjacent to the Fort Ward site. All farm activities at each site are required to be located within aquatic lands leased from the Washington Department of Natural Resources. The size of each farm varies considerably. The footprint for all of Global’s currently operating farms occupies 10.19 acres, and for Cypress the number is 4.6 acres.

VI.

The fish that are raised in Global’s and Cypress’ farms are Atlantic salmon. Atlantic salmon are more economic to rear than Pacific salmon and pose less of a threat to native salmon than do farm-raised Pacific salmon. The farmers obtain juvenile fish, called “smolts”, from fresh water hatcheries located in Washington State. The hatcheries spawn captive brood stock and raise the juvenile fish until they reach the smolt stage when they are physiologically prepared to make the transition from fresh to salt water. The smolts are transferred to the net-pen farms and introduced to salt water, a process that causes some mortalities. The fish are held in pens and initially hand-fed. As they grow, feeding is transferred to various automatic systems which incorporate video cameras, computers, and various other means to regulate the feed and avoid waste. The fish are raised in different year groups until they are ready for harvest, grading, and transportation to a processing facility. It typically takes 18-22 months to raise an Atlantic salmon from smolt to marketable size.

VII.

The dominant and most difficult question in this appeal is what level of risk to Pacific salmonids is posed by the continued farming of Atlantic salmon in Puget Sound. (For purposes of these Findings and Conclusions, the term “Puget Sound” encompasses the San Juan Islands and the Strait of Juan de Fuca, unless otherwise specified). The concept of risk is often misunderstood and frequently misused as a synonym for probability. In scientific terms, however, the methodology for risk assessment multiplies the probability of the occurrence by the seriousness of the damage that would result. Thus, our use of the term risk combines the likelihood of an event occurring with the level of harm that would result if it did, in fact, occur.

Using this methodology, we also note that the level of risk will differ depending on the focus of the question. If the question of risk posed by escaping Atlantic salmon is focused on the entire Pacific salmonid species, the risk is far less than if the question is focused on one particular stock on the brink of extinction. In the latter case, a stock with only a few remaining individuals breeding in a particular stream would face a significant, perhaps overwhelming risk, if even one of the female’s redds is spawned on by a precocious Atlantic parr. Assuming ten individuals, five males and five females, such an event would affect 20 percent of the reproductive output of that particular population. Thus we see a much higher risk to particular stocks of native salmon than we do for Pacific salmon as a whole. For reasons discussed below, we do not find that escaping Atlantic salmon now pose a significant risk to Pacific salmon in Puget Sound.

Atlantic salmon are not native to Puget Sound or the Pacific Ocean but have been the farm fish of choice in Puget Sound for a variety of reasons. Only when they escape from the net-pens do they pose any theoretical threat to the viability of native salmonids. Farmed Atlantic salmon are sometimes unintentionally released from the Permittee’s net-pen facilities due to a number of causes, including tears in nets made by predators, accidental releases during handling, and occasional breakup of net-pens during towing or adverse tidal conditions. Two very large releases have occurred in recent years. Approximately 107,000 fish escaped from Cypress’ site in July 1996 during a pen breakup caused by anchor line failure. Global experienced a towing accident in Rich Passage in July 1997 that resulted in the release of approximately 369,000 fish of various age groups. Releases of this magnitude – if they continue -- significantly increase the risk to native salmonids posed by the continued farming of Atlantic salmon in Puget Sound.

The specific legal question in this appeal is whether escaped Atlantic salmon “cause or tend to cause pollution” under the Washington Water Pollution Control Act, RCW 90.48.080, and whether they constitute “a man-made change to the…biological…integrity of [state] water” under federal law. 33 USC § 1362(19). The Board therefore heard evidence on whether escaped Atlantic salmon cause “pollution” under state and federal law by adversely impacting native salmonid species that are an essential part of the ecosystem of Puget Sound.

Impacts of Escaped Atlantic Salmon

VIII.

In its First Order on Summary Judgment, the Board identified five key subissues relating to the potential impacts of escaping Atlantic salmon on native fish: (1) risk of competition with native salmon for spawning, rearing and migratory habitat; (2) risk of predation on native salmon; (3) risk of disease transmission to native salmon; (4) risk of hybridization between escaped Atlantic salmon and native salmon; and (5) establishment of feral anadromous runs of Atlantic salmon in Washington’s rivers. The parties presented evidence on each of these issues.

Risk of Competition and Predation

IX.

The presence of Atlantic salmon in Puget Sound and its surrounding streams and rivers raises the question of whether Atlantic salmon are competing or have the potential to compete with Pacific salmon. Competition can occur for food, habitat, breeding space and for mates. It is reasonable to presume that as long as Atlantic salmon have been raised in Puget Sound, they have escaped into surrounding marine waters, and possibly traveled to nearby streams and rivers. However, observations of Atlantic salmon in fresh water did not occur until Cypress Island suffered its large July, 1996, release and later from Global’s Orchard Rocks site in July, 1997. Anglers in the Nooksack, Skykomish, Skagit and Green rivers reported to the Washington Department of Fish & Wildlife (“WDFW”) that they had observed and sometimes caught Atlantic salmon. Atlantic salmon had also been observed in the Elwha River during the summer of 1996 and again in Rich Passage in July of 1997. Although native chinook salmon were also present during the 1996 Elwha observations, no direct interactions or interference on spawning beds was observed. Likewise, the Atlantic salmon did not exhibit any aggressive behavior toward the chinook salmon. These observations were consistent with observations by WDFW personnel. WDFW has observed Atlantic salmon in Washington rivers for several years. Over an eight-day period in 1996 WDFW personnel caught 20 Atlantic salmon ranging in size from 5 to 9 pounds on the Dungeness River using a spinning lure. A snorkel survey conducted in the Elwha River indicated that none of the Atlantics were forming redds (spawning nests) or engaging in spawning behavior. Other studies conducted by WDFW personnel in the Elwha and Dungeness Rivers indicated that the observed Atlantic salmon were largely immature and at least a year away from spawning, as assessed by the degree of gonadal maturation.

Considerable testimony focused on whether escaped Atlantic salmon will learn to forage for food in the wild. Farmed Atlantic salmon are accustomed to eating food pellets doled out at regular intervals by automatic feeding machines. Atlantic salmon with food in their stomachs have been observed. According to Scott McKinnell’s study for Atlantic Salmon Watch, 5.8 percent of the Atlantic salmon caught in British Columbia marine waters had natural food in their stomachs. Of the Atlantic’s caught in Alaskan marine waters, 13 percent had natural food in their stomachs. These relatively small percentages are significant. Roughly 30 to 50 percent of native salmon have food in their stomachs when caught in marine waters.

After the large escapement from Cypress’ site I in July 1996, Cypress funded a

study conducted by the Lummi and Nooksack Tribes to determine the impact, if any, of the escaped Atlantic salmon. This study found that most of the fish captured in the Nooksack River and adjacent areas had empty stomachs. Some had ingested bark chips that may have resembled the food pellets they were fed at the farms, and some had ingested what appeared to be natural food.

XI.

Competition also occurs for breeding and rearing habitat. All salmonids breed in fresh water. Upon entering fresh water, it is characteristic of both Atlantic and Pacific salmon to cease eating as they prepare to reproduce. Of the Atlantic salmon observed in fresh water, most did not exhibit color or gonadal changes that would indicate readiness to spawn. Studies conducted by WDFW personnel in the Elhwa and Dungeness Rivers found that the observed Atlantic salmon were largely immature and at least a year away from spawning. Indeed, some Atlantic salmon observed in the Elhwa snapped at pebbles thrown into the water, indicating the possibility they were attempting to feed.

Risk of Disease Transmission

XII.

Similarly, there is no substantial evidence that Atlantic salmon escaping from Permittees’ facilities pose a risk to native Pacific salmon through the transmission of endemic or exotic fish diseases. The only diseases occurring in net-pens are endemic (native) to the Pacific Northwest. These endemic diseases are caused by bacteria, viruses or parasites and include such conditions as furunculosis, yellow-mouth, infectious hematopoietic necrosis (“IHN”), bacterial kidney disease (“BKD”) and sea lice. Farmed Atlantic salmon are susceptible to these diseases, as are native Pacific salmon, but there is no evidence of any Atlantic salmon, escaped or in captivity, transmitting a disease to a native salmon. WDFW is not aware of any instances of diseased fish in net-pens transferring diseases to wild stock. One of the ways that farm fish possibly could expose wild fish to diseases is through the importation of exotic diseases through imported eggs or live fish. The State and Federal certification and inspection programs are designed to prevent the importation of fish diseases into Washington on eggs or live fish products. The State program under WAC Ch. 220‑77 and Federal program under 50 C.F.R. Part 6 provide multiple, redundant levels of protection through inspection of source hatcheries, inspection of eggs and fish, quarantine procedures, and reporting requirements. The Permittees do not import eggs or live fish from outside the Pacific Northwest.

Risk of Hybridization

XIII.

The fourth subissue concerning escaped Atlantic salmon is whether there is a threat that escaped Atlantic salmon will hybridize with native Pacific salmon, thus diluting the native gene pool and threatening the continued viability of native species. It is unlikely that Pacific and Atlantic salmon will interact in a spawning context because Pacific salmon belong to the genus Oncorhynchus while Atlantic salmon belong to the genus Salmo. As a result, genetic clues to trigger spawning behavior such as recognition of color patterns, body shapes and behavior, will be lacking. Although spawning interactions between farm and wild Atlantic salmon are more likely because they are the same species, Salmo salar, farm fish are at a competitive disadvantage. This disadvantage will be even more pronounced if farm Atlantic salmon escape and attempt to compete with wild Pacific salmon. The competitive disadvantage of farm Atlantic salmon appears to increase with the number of generations that the brood stock has been kept in captivity. Atlantic salmon raised in Washington are the progeny of brood stock that has been held in captivity for up to 45 generations.

XiV.

Dr. Bruce Devlin conducted a laboratory study on hybridization in British Columbia. Devlin achieved hybridization between Atlantic and Pacific salmon in 10 out of 14 crosses. Devlin also found, however, that there was very low survival for these crosses. There was less than a 0.5% survival rate for all Atlantic and Pacific crosses, except for steelhead trout, which was somewhat higher. He also found low survival from the hatch stage to the adult stage. One of Appellant's expert witnesses characterized this experiment as demonstrating “rampant hybridization potential” based on the report that 20% of the Atlantic chum salmon hybrids survived at least five years after hatch. However, Devlin reported that only 0.12% of the female chum Atlantic crosses and 0.014% of the male chum Atlantic crosses survived to the hatching stage. Thus, the overall probability that an Atlantic salmon and Pacific chum salmon would successfully cross and produce an adult hybrid remains extremely low. The Board notes that Dr. Devlin’s study was a laboratory experiment, and that the actual survival rate for hybrids in the wild would be much lower than under ideal laboratory conditions. Thus, the Devlin study does not demonstrate “rampant hybridization.” The Devlin study notes that, of the hybrids that survived, none showed signs of sexual maturation, and that the surviving hybrids demonstrated either abnormal or no gonadal development. The Board therefore finds there is no reasonable potential for hybridization between escaped farm Atlantic salmon and native Pacific salmon in Puget Sound based on current knowledge and experience.

Risk of Colonization

XV.

The fifth subissue concerning escaped farm Atlantic salmon is whether they pose an unacceptable threat of colonizing Washington’s waters to the detriment of native salmon. There have been numerous attempts around the world to establish anadromous runs of Atlantic salmon, which is considered an important sports fish. All of these attempts have failed. Unsuccessful attempts to establish Atlantic salmon runs have occurred in Washington, Oregon, British Columbia, South America and New Zealand. The State of Washington’s early attempts to plant Atlantic salmon were likewise unsuccessful.

XVI.

It is very difficult to establish an anadromous run (salt water to fresh water) of any salmon species outside its native range. Non-native Atlantic salmon have escaped over a period of years from salmon farms in Chile, but the fish have failed to establish anadromous runs in Chile or neighboring Argentina. For reasons not fully understood by even the experts, Atlantic salmon have a difficult time establishing anadromous runs in nonnative waters. This historical evidence indicates that escaped Atlantic salmon do not pose a reasonable potential threat of establishing anadromous runs in Puget Sound.

XVII.

Appellants presented five theories on why they believe the risk of colonization of Puget Sound by escaped Atlantic salmon is now greater than at any time in the past: (1) precocious Atlantic salmon parr interfering with spawning Pacific salmon; (2) the existence of "open niches" in spawning habitat; (3) "explosive" establishment of non-native species; (4) genotypic and phenotypic adaption of Atlantic salmon broodstock; and (5) the recent occurrence of large escapements in Puget Sound. Findings XIX through XXVIII address these claims.

Xviii.

A precocious parr is a juvenile salmon that becomes sexually mature before it changes into a smolt. A precocious Atlantic salmon parr could theoretically “sneak” onto Pacific a salmon redd and disrupt Pacific salmon spawning behavior. However, there is no evidence that precocious Atlantic salmon parr are present in Washington streams or are interacting with Pacific salmon in this manner. Precocious parr and deformed fish generally make up approximately seven percent of the juvenile population at Global’s Atlantic salmon hatcheries in Washington. Permittees cull out precocious parr because they are of no economic value, and the hatcheries are equipped with screens, filters, pumps and other barriers to escapement of juvenile fish. If a precocious parr escaped into salt water, it would likely die or become dysfunctional. This is because a parr has not yet reached the smolt stage in which it can survive the transition from living in fresh to living in salt water. The Board therefore finds that precocious Atlantic salmon parr do not currently pose a threat to native salmon in Puget Sound. If Atlantic salmon were to achieve self-sustaining populations, precocious parr could pose a threat to native salmon.

XiX.

The significant decline of wild Pacific salmon in Puget Sound, coupled with the fact that the habitat needs of Atlantic salmon are generally met in Puget Sound, has raised concerns that these “open niches” could provide a potent opportunity for Atlantic salmon to exploit. However, the negative forces that adversely affect Pacific salmon are also likely to impact Atlantic salmon. The existence of overfishing, habitat degradation, and loss of spawning grounds are equal opportunity destroyers of salmon runs. Moreover, the open niches, if they exist, would not be the exclusive domain of escaped Atlantic salmon. Other fish species, salmonid and nonsalmonid, would compete with an Atlantic salmon for available habitat and feed. No evidence was presented to the Board that Atlantic salmon are now occupying spawning grounds or other habitat in Washington, to the exclusion of Pacific salmon. Atlantic salmon appeared in the Elwha and Dungeness rivers after Scan Am’s large escapement in July 1996, but the fish were not observed spawning, trying to build redds, or interacting with Chinook salmon present at the same time. The Board finds that the existence of open ecological niches does not pose a reasonable potential threat of colonization by escaped Atlantic salmon. However, the risk of Atlantic salmon establishing a self-sustaining population would increase substantially if large quantities of Atlantic salmon were to escape regularly from net-pens.

XX.

There are cases where nonnative species have failed to establish themselves in a given area and then, many years later and for reasons not fully understood, have suddenly “exploded” onto the scene and become a significant, adverse factor in the ecosystem. Two examples are the gypsy moth and the zebra mussel which is a nuisance in the St. Lawrence River and Great Lakes. However, there is limited evidence that any fish species has colonized by such “explosive” means. For example, rainbow trout were planted in the Great Lakes during the 1800s and became established several years after they were initially planted. Pink salmon were inadvertently introduced into the Great Lakes in the 1950’s in small numbers. These fish have established runs in many areas of the Great lakes and now constitute a nuisance. Due to the lack of evidence that Atlantic salmon have ever established self-sustaining runs outside of their native habitat, and the lack of evidence that any fish species has successfully colonized by “explosive” means, there is no reasonable potential that escaped Atlantic salmon will become established in Puget Sound under the operations of the net-pens as currently permitted. The risk of colonization is increased, however, in the event there are regular large escapements of Atlantics from the net-pens.

XXI.

Atlantic salmon juveniles are produced in hatcheries by broodstock adults maintained for that purpose. Farm broodstock are held in captivity and do not develop the traits necessary for their progeny to survive in the wild, such as migrating, finding appropriate spawning grounds, and dealing with competitors and predators. Farm fish genetically select for a simplistic feeding system that allows for fast growth of stock, rather than ability to compete for and find food in the wild. The risk that the Atlantic salmon broodstock used for Washington farms may become genotypically and phenotypically adapted to Washington’s marine environment, in the absence of regular large escapements, therefore appears small. The majority of Atlantic salmon broodstock are raised entirely in fresh water, which means that they never become adapted to Washington’s salt water environment. Atlantic salmon broodstock for Washington salmon farms have been held in fresh water for approximately 45 years.

XXII.

The risk of colonization is increased by large escapements such as occurred in 1996 and 1997. Scan Am lost approximately 107,000 Atlantic salmon of various age groups when its Cypress Island site I broke apart during severe tides in July 1996. Global lost approximately 369,000 fish in various age groups when it attempted to tow its Orchard Rocks pens to avoid a phytoplankton bloom in July 1997. The existence of such large escapements is undesirable and changes the potential for competition and colonization. Permittees cannot survive if such large escapements continue.

Actions Taken to Prevent Escapes

XXIii.

In light of this evidence, the actions taken by Ecology and the Permittees to prevent future escapements of this magnitude are highly relevant. The Permittees initiated a meeting with WDFW in October 1997 to develop a plan for reducing or preventing fish escapements. Ecology subsequently issued Administrative Order No. DE 97WQ-N296 requiring Global to develop two specific plans to address accidental releases of large numbers of fish, and to implement management practices and monitoring to minimize escapements of any size. The Administrative Order was drafted by Ecology’s Wilmot Moore with input from WDFW. Global has prepared and submitted both required plans to Ecology. Ecology will likely include specific requirements along the lines of the Administrative Order in future permits. The Accidental Fish Release Response Plan contains emergency procedures for contacting agencies and reporting releases of 1,500 or more fish whose average weight exceeds 1 kg., or 3,000 of more fish whose average weight is equal to or less than 1 kg. The plan identifies technology to minimize fish releases, procedures to recapture escaped fish, and procedures to determine the medication status of escaped groups of fishes. The companion Fish Release Prevention and Monitoring Plan addresses best management practices, implementation of technology and procedures to prevent or minimize escapements during routine operations, moving of pens, and emergency operations to avoid adverse water quality conditions. Implementation of the plans will significantly reduce the risk of escapements from Global’s facilities, including the reoccurrence of large escapements.

XXIV.

WDFW has also taken actions to reduce the risk of escapements by monitoring for the presence Atlantic salmon in commercial catches, sport catches, and in certain rivers and streams. As previously discussed, WDFW has not observed Atlantic salmon preying on, interfering with, or occupying the spawning redds of Pacific salmon. . However, we are disturbed by the knowledge that WDFW has no funds budgeted for observation and removal of Atlantic salmon. WDFW has entered into a Stipulation and Order with the Appellants that requires WDFW to formalize its protocols related to the monitoring and gathering of information relating to Atlantic salmon, and to develop a public information program to allow fishers and the general public to provide data related to the presence of Atlantic salmon in state waters. WDFW reviewed the Administrative Order that Ecology issued to Global, and Ecology must consult with WDFW in reviewing the plans required by the order.

XXV.

Permittees have taken additional actions to address the problem of accidental fish releases. A major risk posed to salmon farms is the existence of toxic phytoplankton (algae) blooms in Puget Sound. When these blooms occur, most often during summer months, it occasionally has been necessary for the farmers to move their pens to unaffected locations in order to avoid loss of stock. It was during such a towing incident in July 1997 that part of Global’s Port Orchard farm became fouled on the rocky bottom and broke apart, releasing large numbers of fish. Global has since reoriented the farm and changed its towing handbook and procedures to avoid a reoccurrence of such an incident. Global also has reconfigured all of its barrier nets so that they can be towed as a single unit with the net-pens, which simplifies the towing operation and lowers the risk of accidents. Improved monitoring procedures and technologies are now in place to mitigate the effect of toxic algae blooms and avoid towing.

XXVI.

Cypress’ major fish loss in July 1996 was caused by a severe tidal fluctuation that broke up site I at Cypress Island. Cypress’ anchoring and mooring systems have been redesigned to improve the ability of the system to withstand annual, extreme tidal conditions. Cypress’ anchoring and mooring systems were inspected in February 1998 by a marine surveyor on behalf of Sunderland Marine Insurance Co., the company that insures the fish stock. Similarly, all of Global’s facilities have been inspected by the company that insures Global’s fish stocks. Both Cypress and Global continue to be insured. The reengineered block and anchor system now employed by Cypress is reasonably designed to withstand local conditions of tide and wind.

XXVII.

The Board is concerned about the two large escapements from Global’s and Cypress’ facilities. However, the record shows that the operators have taken reasonable measures at the two involved sites to prevent a reoccurrence. Global has initiated detailed inventory control procedures to better monitor losses from all causes, including escapes. Improved barrier nets are being installed to protect the net-pens from predators, floating debris and other sources of holes in the nets. The Permittees have indicated willingness to suffer economic losses, such as loss of fish stocks to algae blooms, rather than expose pens to the risk of break-up through towing or other risky operations. The Board therefore finds that the risk of large escapements is being addressed. While the existence of any risk is troublesome, the evidence does not justify a finding that a pattern of large escapement will continue into the future and cause unacceptable risk of Atlantic salmon colonizing Washington waters.

xxviiI.

Based on the foregoing Findings of Fact, the Board finds that the accidental release of Atlantic salmon from the Permittees’ facilities, while undesirable, does not pose a reasonable potential threat in terms of competition with native salmon, predation on native salmon, transmission of disease to native salmon, hybridization with native salmon or the establishment of self-sustaining colonies of Atlantic salmon. The accidental release of Atlantic salmon does not, therefore, degrade water quality by posing a threat to the existence of native Pacific salmon species in Washington waters. Likewise, the accidental release of Atlantic salmon from the Permittees’ facilities does not pose a threat to other uses, such as fisheries for native salmon. We do find, however, that regular and large releases such as those that occurred in 1996 and 1997 could constitute a significant threat to Pacific salmon.

akart

XXiX.

The Board ruled in its Order of Partial Dismissal that Appellants failed to meet their burden to prove that structural alternatives to net-pens, such as rigid tanks, floating bags and upland tanks, are required for the salmon farm industry under Washington’s “AKART” (“all known, available and reasonable technology”) treatment standard. However, the Board reserved ruling on the issue of so-called “biological AKART.” Specifically, the Board left open the issue of whether all-female or triploid culture represents AKART for the Atlantic salmon farming industry in Washington. Triploid fish are created by treating the eggs so that the resultant adult is sterile. Biological AKART is relevant to the colonization issue, because no offspring will result if the fish escaped are all females or triploid.

XXX

The Scan Am Group participated in a three-way performance study of all-female and triploid stocks of Atlantic salmon. The study showed that the all-female stocks compared relatively well as a food product with normal male/female stocks, while the sterile triploids suffered from significant disadvantages in terms of growth rate, deformities, and other factors affecting their marketability and commercial value. Both Global and Cypress have purchased, or intend to purchase, all-female smolts from Cascade Aqua Farms, in order to carry out trials to determine if the all-female culture is viable for their businesses. However, neither company has yet made this determination. The Board finds that the all-female technology is “known” in the sense of methods used to make all-female stocks. However, this technology has not been demonstrated to be “available” or “reasonable” for Washington’s salmon farming industry in terms of implementation on a commercial scale. In the event that the trials are successful, the all-female technology should be seriously considered as an additional means to diminish the risk of accidental colonization by Atlantic salmon.

Water Quality Impacts —
Benthic Effects

XXXI.

This appeal also raises the issue of whether the Permits authorize adverse impacts on Puget sound sediments and water quality, in violation of Washington’s water quality criteria (WAC Ch. 173-201A), sediment management standards (WAC Ch. 173-204), and antidegradation requirement (WAC 173-221A-020, 173-204-120). The broad purpose of Washington’s antidegradation requirement is to provide overarching protection against activities which, even though they meet specific water quality standards, may nevertheless degrade water quality to such a degree that other beneficial uses suffer significant adverse impacts, thereby calling into question the continued sustainability of those uses. Thus the Board must consider the impact of the Permitted activities on other beneficial uses, as well as examine whether the Permits authorize violations of sediment or water quality standards.

XXXII.

There is no allegation or evidence that Permittees have been operating their facilities in violation of the Permits issued by Ecology. The Permittees’ current operations are authorized by the Permits, and thus the impacts of Permittees’ facilities constitute direct evidence of whether the Permits authorize violations of sediment and water quality standards. Relevant to such an assessment is a large body of data that already exists on the impacts of net-pen facilities in Washington and British Columbia. In Washington, this data exists in the form of water quality, sediment and biological monitoring reports that have been submitted by the farmers to the Department of Natural Resources (“DNR”) under DNR’s aquatic lands leases, and to Ecology under the Permits.

XXXIii.

As part of their appeal, Appellants’ criticize Ecology’s net-pen sediments rule authorizing a sediment impact zone (“SIZ”) of 100 ft. from the perimeter of the net-pens. WAC 173-204-412. Within this SIZ, the sediment impacts of the salmon farm can exceed the usual sediment biological effects standards otherwise applicable under the Sediment Management Standards Rule, WAC Ch. 173-204. At the perimeter of the SIZ, the Permittees are required to monitor the sediments for total organic carbon (“TOC”) as an indicator of excessive enrichment. The TOC triggers are a function of the amount of silt and clay contained in each sediment sample. Higher percentages of silt and clay result in more natural organic material; thus, the trigger must be set higher in such cases. If the TOC trigger is exceeded at the 100-ft. perimeter, the Permit requires the farmer to sample TOC again in the succeeding year and also sample for the abundance of benthic infauna, which are animals that live in the sediments. The Department of Ecology proposed language that appropriately clarifies the definition of the sediment impact zones and benthic monitoring requirements. These clarifications are necessary to maintain compliance with the sediment management standards.

XXXiV.

The benthic infaunal analysis required by the rules and the Permits calls for animals in three groups or taxa to be counted and compared against the counts at a reference station unaffected by the net-pens. If there is a reduction of 50% of more in the mean abundance of any one of these three taxa, when compared to the reference sample, the criteria are violated and the farmer must take remedial action, including possibly reducing production or ceasing to use a site. WAC 173-204-412. The rule is based on a 1995 technical memorandum regarding development of sediment quality standards, authored by Stripland Environmental Associates. The rule was subject to considerable public comment and debate. A Net-Pen Advisory Work Group (“NPAW”) was formed which included members of the Appellants. The NPAW Group reviewed and commented on the development of the model net-pen discharge permit that incorporated the sediment rule.

XXXV.

Appellants’ expert witnesses criticized Ecology’s net-pen sediments rule as inconsistent with current scientific literature and practices. Their criticisms extended to the Permits, because the Permits are consistent with the rule. The rule’s reliance on abundance (total number of all species) as a viable measure of the health of the benthic infaunal community was criticized. Concern was expressed that the presence of a species that thrives on organic enrichment, such as the worm Capitella capitatta, could mask the reduction of other, pollution sensitive species. At least seven factors, including abundance and species richness, could be used as measures of organic enrichment. It was suggested that a “far-field” approach involving monitoring the impacts of salmon net-pens on sediment depositional areas at considerable distances from the sites would be superior to the near-field monitoring required by the Permits. There is no evidence of how impacts measured at far-field depositional sites could be causally linked with a net-pen farm. Ecology does not believe that a regulatory program based on far-field monitoring is scientifically supportable.

XXXVI.

The net-pen sediments rule and the Permits reduce the “masking” effect of organisms that thrive on pollution by incorporating three different groups or taxa: mollusks, crustaceans and polychaete worms. If there is a 50% or greater decline in any one of the three groups, the biological effects criteria is triggered and the farmer must take remedial action. Under the rule, an inordinate increase in the polychaete worm Capitella capitatta, a species that thrives on organic enrichment, might mask corresponding declines in pollution-sensitive polychaete worms, but it would not mask the decline of pollution-sensitive mollusk or crustacean species.

XXXVII.

Sampling reports indicate that the benthic biological community is quite variable or "patchy" in the vicinity of many of the farms, due primarily to varying sediment grain size. Populations of certain creatures may decline in sampling areas for reasons totally independent of waste deposition from the net-pens. Ecology’s 50% rule takes account of these statistical variations and reduces the risk of “false positives.” The Board takes note of the difference between scientific studies - which can be complex and present many alternative solutions to a problem - and regulatory standards, which much have a rational basis, but must also be capable of practical application. Ecology’s biological effects criterion, as manifested in the rule and the Permits (as amended by the board’s order), is fundamentally sound and not unreasonable as a regulation.

XXXvIii.

Appellants also claim that net-pens cause significant, adverse impacts on sediments and the benthic infaunal community by discharge and deposition of fish feces, waste feed, antibiotics and other chemicals, and that net-pens cause adverse water quality impacts manifested by low dissolved oxygen and the presence of toxic algae blooms triggered by nutrients from the farms.

Xxxix.

Permittees’ facilities produce waste feed and feces during normal operations, some of which accumulates on the bottom, depending on depth, currents, bottom characteristics and other factors. Under Ecology’s Recommended Interim Guidelines for the Management of Salmon Culture in Puget Sound (SAIC 1986), salmon farms are sited by local government in areas of depth and current conducive to dispersion of solid waste from the farms. Not all of the Permittees’ facilities are sited in accordance with the Interim Guidelines, because some of the facilities predate these policies. Appellants initially asserted in this appeal that solid waste deposition from salmon net-pens creates “death zones” beneath the facilities. Appellants’ Response and Cross Motion for Partial Summary Judgment, at 43. But Appellant's witnesses concede that, even in the most impacted sediment areas, there will be some life.

The actual sediment and water quality impacts of Permittees’ sites have been monitored and reported since their inception. Prior to the NPDES/Waste Discharge Permit requirement, the subject sites were required under their DNR aquatic lands leases to conduct annual monitoring for sediment, biological and water quality impacts. The most recent DNR reports are part of the record. DNR monitoring was replaced by the monitoring required under the Permits in 1996. The monitoring reports show that the impacts of the Permittee’s facilities on benthic infaunal life is variable and highly localized.

XLI.

In addition to the above-referenced monitoring reports, Permittees presented two video surveys as evidence of underwater conditions at their sites. These video surveys were designed to show stations that had failed the TOC test in 1996, and a variety of conditions from the worst to the best. The biologist responsible for Global’s monitoring, Dr. Kenneth Brooks, testified that the worst conditions beneath Global’s farms occurred at the former Port Angeles PA‑I site which was not sited under the Interim Guidelines. The video revealed some anaerobic sediments and bacterial mats in the immediate vicinity of the PA‑II farm. The video also showed marine life and decreasing impacts within the SIZ of PA‑II, and substantially recovered sediments at the former location of the PA‑I site. The Brooks video showed relatively abundant marine life and a lack of adverse effects at Global’s Clam Bay and Orchard Rocks sites in Rich Passage. The biologist responsible for monitoring the Cypress sites, Dr. Jack Rensel, testified that the waste “footprint” of the Cypress Island I site was somewhat displaced by the strong currents in the area. The Rensel video showed only minor benthic impacts from the Cypress Island sites and a relative abundance of marine life.

XLII.

The Permittees have improved their management practices and equipment so that the amount of waste feed, a major component of salmon farm wastes, has been reduced per unit of production. This is reflected by changes in the feed conversion ratio (“FCR”) which is the pounds of feed needed to produce one pound of fish. Representative FCRs have decreased from six to one 20‑30 years ago, to approximately 1.1 to one for Cypress currently. This reduction has been accomplished through use of high-energy feed pellets, automated technology, and training. Feeding in a manner which maximizes ingestion by reared fish is recognized as a Best Management Practices and a required element of the Permits and the Pollution Prevention Plans (“PPP’s”) adopted by the Permittees. Although the presence of organic enrichment usually has an adverse effect, the number and variety of benthic animals has actually increased in the vicinity of Global’s Fort Ward site.

XLIii.

The impacts of these facilities on underlying sediments and the benthic infaunal community are generally limited to the SIZs created by the Permits and authorized by Ecology’s net-pen sediment rule. The impacts vary from farm to farm, depending to large degree on site-specific conditions. At Global’s PA‑II site, the effects are more pronounced but are limited to the immediate area of the operating farm and, to some extent, the area of the former PA‑I site. The effects are much less significant at the other Global and Cypress sites covered by the monitoring reports and the video surveys. Studies conducted in British Columbia, which has a much larger salmon-farming industry than does Washington, show that there is a rapid decline in sedimentation from the center of salmon net-pens to their perimeters, thus illustrating the localized nature of waste deposition from net-pen facilities. Permittees’ sites follow a pattern of measurable waste dispersion and zone of impact that is comparable to British Columbia sites, but the magnitude of impacts from Permittees’ facilities is less than that observed at the British Columbia sites.

XLiV.

A dive survey covered the operating Global Port Angeles sites PA-II and portions of PA‑I which had been taken out of operation less than a year before the survey was made. Although the site had been fallow for less than a year, the sediments and biota at one end of the site showed significant, visual signs of recovery. Studies of other sites in Washington and British Columbia demonstrate that recovery times vary considerably, from a matter of months to five to eight years. However, the studies indicate that the benthic area does remediate, both chemically and biologically, once a salmon farm site is taken fallow.

XLV.

In summary, the Board finds that Permittees’ facilities create some adverse impacts to sediments and benthic life due to organic enrichment caused by waste feed and feces. The magnitude of these impacts varies substantially from site to site, depending on production levels and site-specific conditions. However, the magnitude of adverse impacts is limited in terms of spatial extent. Even under the most impacted Port Angeles site, there is evidence of life on the bottom and in the sediments. There is no evidence that Permittees’ facilities create anoxic (absence of life) conditions or “death zones.” The adverse impacts rapidly decline with distance from the center of the site, except where the site’s footprint has been shifted by currents. At most sites, the adverse impacts are not significant even under the net-pens and within the 100-ft. SIZ. Thus, we find that the Permits do not authorize adverse impacts on Puget Sound sediment quality or the benthic community in violation of the sediment management standards.

Water Quality Impacts —
water quality criteria

XLVI.

There is no direct evidence that the Permittees’ facilities have caused violations of applicable water quality standards while operating under the subject Permits. The water quality effects of Permittees’ facilities were studied for years under requirements imposed by the DNR through the aquatic lands leases issued to the facilities. This direct monitoring evidence shows that the Permittees’ facilities have little if any adverse effect on dissolved oxygen, pH and other water quality parameters.

XLVII.

The discharges from the Permittees’ facilities are not comparable in quantity or effects to permitted discharges from municipal sewage treatment plants, in terms of biochemical oxygen demand (“BOD”) and nutrients. The water quality impacts of salmon farms in Puget Sound were studied and reported in the Final Programmatic Environmental Impact Statement: Fish Culture in Floating Net-Pens (WDFW 1990) (“PEIS”). The evidence shows that the BOD loading from Puget Sound salmon farms is considerably less than that of municipal sewage treatment facilities such as Metro’s West Point plant. The nitrogen loading is similarly less than large sewage treatment plants, and is dwarfed by certain natural sources such as large rivers and the Puget Sound inflow. Permittees’ facilities do not discharge the fecal coliforms, chlorinated organics, pesticides or heavy metals which can be found in sewage treatment plant discharges.

XLviii.

There was considerable testimony concerning the origin and effect on salmon farms of toxic algae blooms, commonly known as “red tides.” Puget Sound salmon farms are more the victims than the causes of toxic algae blooms. There is no direct causal link between Permittees’ facilities and the existence of Heterosigma sp. and other forms of toxic phytoplankton in Puget Sound. Because phytoplankton are light-limited in Puget Sound, it is unlikely that the nutrient levels produced by salmon farms have any effect on the existence of such blooms. Toxic algae blooms jeopardize the Permittees’ fish stocks and may cause the Permittees to request approval of emergency actions such as the towing of pens discussed earlier in these Findings.

xLix.

Appellants also claim that the Permittees’ facilities degrade water quality through the transmission of disease organisms to native salmon and the discharge of antibiotics used by the Permittees to treat their stocks. Farm salmon held in net-pens contract the same endemic fish diseases that are ubiquitous in Puget Sound and affect native Pacific salmon species. There is no evidence that salmon farming has led to the importation of exotic fish diseases into Washington waters. Detailed inspection, certification and reporting procedures under Federal and State law govern the importation of live fish eggs and products into Washington. In addition, the Permittees are required by WDFW to report the occurrence of certain diseases. Given the redundant levels of protection, the risk of salmon farms importing exotic fish diseases into Washington is low.

There have been occurrences of fish diseases in Permittees’ farms. For example, there were serious outbreaks of a bacterial infection known as furunculosis during the earlier days of the Puget Sound salmon farming industry. However, furuncolosis is no longer a significant disease for farmed Atlantic salmon due to the development of a vaccine. The Permittees vaccinate all smolts before entry into salt water. The advent of vaccines has greatly reduced the amount of antibiotics used by the salmon farms because of the lower incidences of bacterial diseases.

LI.

Although there is evidence that endemic diseases have occurred in Puget Sound salmon farms, there is no evidence that the occurrence of disease in native salmon is associated with the presence of salmon farms. Likewise, there is no evidence that Puget Sound salmon farms cause the spread of salmon parasites, such as sea lice which have been a problem in Norway. There is no evidence that Puget Sound salmon farms have increased the incidence of fish diseases or parasites that infect and destroy native salmon.

LII.

Appellants claim that the salmon farming industry’s use of antibiotic medications has resulted in degradation of water quality and sediment quality. They also expressed concern that ingestion of antibiotics by humans can cause the development of antibiotic-resistant strains of bacteria and suggested that the issue of antibiotic usage in agriculture should be re-examined. It is possible that use of antibiotics in salmon culture could result in development of antibiotic-resistant strains of bacteria which might have human-health implications. Antibiotic use becomes a greater concern to human health when farmers employ the same antibiotics to treat fish disease that are used to treat human diseases. Direct danger to human health could theoretically result from the consumption of Atlantic salmon containing antibiotic residues in its tissues if antibiotic resistant plasmids passed from the fish to humans. Treatment for human diseases could be compromised if the disease only responded to an antibiotic and humans had become host to resistant plasmids transferred from farm raised fish. This would occur only if the antibiotic resistance is transferred from the fish pathogen to a human pathogen. This is a rare event, even under laboratory conditions. There is no evidence linking use of antibiotics in Puget Sound salmon farms to a human health problem. To protect human health, the operators of the net pens should notify the Department of Ecology and WDF&W if escaped fish have been treated with antibiotics. The permits should include conditions for notification if escaped fish were being treated with antibiotics or any other drugs subject to withdrawal requirements established by the United States Department of Agriculture. This is a requirement in release prevention plans required by regulatory which our order today requires to be adopted as a condition to each permit.

LIii.

The Permittees do not use antibiotics prophylactically; they only use them to treat diseases. Only two licensed antibiotics, oxytetracycline and Romet, are currently used in Washington. The Permittees are required to file annual reports with Ecology on their use of any disease control chemicals. With the exception of a spike in antibiotic use in 1997 due to a rikettsia outbreak in Global’s Rich Passage farms, there has been a general decline in such usage.

LiV.

In summary, we find that the Permits do not authorize adverse water quality impacts in violation of applicable water quality standards. We further find that the Permittees’ facilities have not caused, and are not likely to have a reasonable potential to cause, significant adverse impacts on water quality or native fish through the discharge of waste materials, disease organisms or medications.

Antidegradation Policy

LV.

Appellants additionally challenge the Permits on the ground that they violate the State’s antidegradation policy. That policy provides that “existing uses shall be maintained and protected and no further degradation which would interfere with or become injurious to existing beneficial uses shall be allowed.” WAC 173-201A-070. The antidegradation policy is incorporated into both the water quality standards and sediment management standards. The sediment management standards further require that (a) existing beneficial uses be maintained and protected from further degradation, interference or injury; (b) existing sediment quality in ecologically significant waters be preserved, and (c) to the degree that existing surface sediments are of a higher quality than assigned by regulation, that quality should be preserved. WAC 173-204-120. Thus, the purpose of the antidegradation policy is to provide protection against activities which, even though they may meet specific water quality and sediment standards, may nevertheless have the effect of degrading water or sediment quality to such a degree that other beneficial uses of an affected water body suffer adverse impacts, thereby calling into question the overall sustainability of those uses. For purposes of this appeal, the “affected water body” is identified on the cover page of the Permit for each facility. The relevant beneficial uses are designated by WAC 173-201A-030(1) and (2) as characteristic uses for Class AA and A marine waters. These protected uses include fish and shellfish uses, including salmonids and commercially valuable shellfish species, wildlife habitat and recreational uses.

LVI.

To large degree, the foregoing Findings answer the question of whether the permitted activities degrade sediment and water quality to such a degree that other beneficial uses suffer adverse impacts, thereby calling into question the overall sustainability of those uses. We have already found that accidental release of Atlantic salmon, while posing some risk if large regular escapements of Atlantics was to occur, has not been shown to have caused harm to native salmon through competition, predation, disease transmission, hybridization or colonization of Atlantic salmon. Thus, we find that the accidental release of Atlantic salmon that has occurred in the past and is likely to occur under permitted operations has not been shown to threaten the sustainability of uses associated with native salmon species, such as commercial and sports fishing, salmon propagation and related uses.

LVII.

Likewise, the permitted activities have not been shown to cause harm or reasonable potential of harm to other wildlife-related uses, such as commercial and recreational shellfish harvesting, preservation of important wildlife habitat and preservation of marine mammal populations. As discussed in the foregoing Findings, the Permittees’ facilities do have some adverse impacts on underlying sediments and benthic infaunal creatures, including mollusks and crustaceans that might be commercially valuable. However, as previously found, these impacts vary considerably and are very localized in nature. The SIZs associated with the Permittees’ facilities are not devoid of life, but rather host a relative abundance of marine life except in the immediate vicinity of the most-affected Port Angeles site. The marine life in these zones exhibit decreased diversity of species. Thus, there is no evidence before the Board that the Permittees’ facilities have impacted commercially valuable species of shellfish or benthic habitat in violation of anti-degradation requirements.

Lviii.

There is no scientific evidence that salmon farms have caused conflicts with marine mammals, including Orca whales, by driving them away from their usual habitats. The evidence regarding the effect on marine mammals of acoustic devices the farmers use to discourage predators is inconclusive Orca whales transited Rich Passage during 1997 to feed on salmon in Dyes Inlet, despite the presence of Global’s four farms in the immediate vicinity. Thus, there is no evidence that the Permittees’ facilities have adversely affected marine mammals to any significant extent.

LiX.

We have already found that the existence of fish diseases in the Permittees’ facilities, and the use of antibiotic medications by the farmers, do not pose unacceptable threats to native salmon. Thus, these permitted activities do not pose threats to the beneficial uses associated with native salmon, nor do they call into question the overall sustainability of these uses.

LX.

In summary, we find that the Permits do not authorize activities or impacts in violation of the antidegradation policy. The evidence is that other beneficial uses are not, and will not be, adversely impacted to such a degree that their overall sustainability is called into question. We note at this point that siting decisions by local governments are guided by Ecology’s Interim Guidelines which take into account avoidance of use conflicts and impacts on important resource areas such as sensitive fish and wildlife habitats. While some of the Permittees’ facilities predate the Interim Guidelines, the Guidelines provide some measure of assurance that future siting decisions and permits will not cause conflicts in violation of the antidegradation policy.

ENVIRONMENTAL MONITORING AND REPORTING

LXI.

We find that the Permits fail, in part, to provide for adequate environmental monitoring and reporting. We have already discussed the sediment and benthic biological monitoring required by the Permits. The monitoring and biological criteria contained in the Permits, as clarified by language proposed by the Department of Ecology, are consistent with Ecology’s net-pen sediment rule, WAC 173-204-412. As to water quality, the monitoring formerly required by DNR has resulted in a considerable body of data which shows that the Permittees’ facilities have only insignificant effects on water quality. Additional monitoring in the Permits should include conditions for monitoring and reporting required for escape prevention and response plans adopted under regulatory orders issued after the permits at issue here. Those conditions should include appropriate reporting of antibiotic uses with respect to escaped fish.

SEPA ALTERNATIVES ANALYSIS

LXII.

The final issue for our consideration is whether Ecology violated SEPA when it did not perform an independent alternatives analysis under SEPA prior to issuing the permits. We have already ruled, in our First Order on Summary Judgment, that these Permits are exempt from the threshold determination and EIS requirements of SEPA. However, RCW 43.21C.030(2)(e) directs agencies to “study, develop, and describe appropriate courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” (Emphasis added.) In many respects, the SEPA alternatives analysis is similar to the antidegradation analysis undertaken in the preceding paragraphs. The key factual inquiry is whether the Permits authorize activities that create unresolved conflicts concerning alternative uses of available resources. In other words, do the existence of the Permittees’ facilities have impacts which effectively exclude other beneficial uses of available resources of Puget Sound? Do the Permittees’ facilities present an “either/or” choice between salmon farming and other uses or resources? We answer this question in the negative for the following reasons.

LXiii.

We have already found that the presence of escaped Atlantic salmon in Puget Sound, while certainly not desirable, does not pose an unacceptable risk to native Pacific salmon in terms of competition, predation, disease transmission, hybridization or colonization by Atlantic salmon. The measures being undertaken by Ecology, WDFW and the Permittees are reasonably calculated to prevent or reduce future escapements from the Permittees’ facilities. Thus, the escapement of Atlantic salmon from the Permittees’ farms does not pose an “unresolved conflict” with the existence of Pacific salmon in terms of threatening them with extinction.

LXiV.

Similarly, we have already found that the authorized waste discharges from the Permittees’ facilities do not cause significant, adverse impacts on sediment quality, the benthic community and water quality. To the extent that the Permittees’ facilities have adverse effects, those effects are restricted in magnitude, limited in spatial extent and reversible. Even if the facilities created anoxic areas within the SIZs, the relative impact on the total benthic environment of Puget Sound would be small. There is no evidence from these proceedings that those impacts threaten or jeopardize the availability of Puget Sound resources for other beneficial uses.

LXV.

In so finding, we are mindful that salmon farms do have localized environmental impacts, as demonstrated by the monitoring data and video surveys in evidence. There is also evidence that the presence of some of the farms creates localized conflicts with recreational boating and fishing. It is self-evident that the space occupied by the farms cannot be used for navigation, recreation, shell fish aquaculture or other endeavors. However, there is no evidence that the existence of these farms and their impacts are so severe in magnitude or broad in extent that they operate to the exclusion of other beneficial uses. Moreover, in directing Ecology to permit net-pen facilities, the legislature effectively resolved any conflicts between recreational uses of the waters of the state and net-pens. The legislature has determined that the marine waters of the state shall accommodate both recreational uses and net-pen facilities. Siting decisions under the Interim Guidelines are consistent with the legislature's policy determination, because the Guidelines take into account avoidance of use conflicts and impacts on important resource areas such as sensitive fish and wildlife habitats.

LXVI.

We have already discussed the issue of whether the Permits authorize activities that conflict with marine mammals and their habit. They do not. There was conflicting evidence regarding whether the farmers’ use of acoustic devices deterred certain types of marine mammals. There was no credible scientific evidence that salmon farms have any adverse impacts on marine mammals.

LXVIi.

We therefore find that the Permittees’ facilities do not create unresolved conflicts with alternative uses of Puget Sound resources as contemplated by RCW 43.32C.030(2)(e). The existence of commercial salmon farms as permitted uses does not preclude other beneficial uses in Puget Sound, such as shellfish harvesting, commercial or sport fishing, navigation or recreational boating. Likewise, the existence of the salmon farms does not operate to the exclusion of available resources, such as native salmon runs, sediment and water quality, or marine mammals. In short, salmon farming in Puget Sound does not present the citizens of the State of Washington with an “either/or” choice with respect to other beneficial uses and important resources.

LXVIII.

Any conclusion of law deemed to be a finding of fact is hereby adopted as such..

Based on the foregoing findings of fact, the board enters the following

CONCLUSIONS OF LAW

The Board has jurisdiction over the issues. RCW 43.21B.110(1)(c).

II.

The burden of proof is on Appellants as the parties requesting review. Save Lake Sammamish v. King County and Burnstead Construction Co., PCHB No. 93-240, 1994 WL 905569 (1994).

III.

Atlantic salmon that inadvertently or accidentally escape from Permittees’ farms, absent large regular releases in the future, do not cause or tend to cause “pollution” under RCW 90.48.080 nor do they constitute a “man made change to the biological integrity” of state waters under 33 USC §1362(19). After review of the evidence we conclude that, at current levels of escapement, Atlantic salmon that enter state waters do not create a “nuisance” or render those waters harmful, detrimental or injurious to native salmonid species. Ecology and the Permittees have taken affirmative steps to prevent or reduce future escapement through issuance Ecology’s Administrative Order, adoption of plans required under the Order, implementation of technology such as improved predator nets and anchoring and mooring systems, and adoption of operational procedures governing inventory control and avoidance of toxic algae bloom impacts. WDFW has also taken affirmative steps through monitoring for the presence of Atlantic salmon in streams and rivers, and by entering into a stipulation with the Appellants requiring adoption of procedures for monitoring and for public dissemination of information relating to escaped Atlantic salmon. These actions are reasonably designed to reduce the risk of future escapements.

IV.

Based on all the evidence, Appellants have failed to demonstrate that escaped Atlantics, absent large regular releases in the future, will cause a or create a reasonable potential threat of competition, predation, disease transmission, hybridization or colonization to the detriment of native salmonids. We therefore conclude that the presence of farmed Atlantics in net pens in Puget Sound does not have a reasonable potential to cause or contribute to a violation of state water quality standards by posing a significant threat to the existence of native salmon or to other uses such as the wild salmon fishery. The conclusion is conditioned on adoption of the controls and monitoring proposed by the Department of Ecology.

The regulations codified at WAC 173-221A establish discharge standards representing “all known, available and reasonable methods” (“AKART”) of pollution prevention, control and treatment for marine salmon net-pens. These standards have been incorporated into the permits. The AKART standard requires the use of technology that has been previously developed, is presently available, and is both technologically and economically feasible. Weyerhaeuser Co. v. Southwest Air Pollution Control Authority, 91 Wn.2d 77, 586 P.2d 1163 (1978). We have previously ruled that there are no structural alternatives to net-pens for marine aquaculture that constitute AKART. The only other technology advanced by Appellants as AKART is all-female or triploid fish stocks. After review of the evidence, we find that there is insufficient evidence available to show that the use of triploid stocks is a feasible alternative. This conclusion is based on evidence of unacceptable growth rates, physical deformities and other factors affecting marketability. Although we find that the use of all-female fish stocks is a “known” technology at the current time in the sense of methods to make all-female stocks, this technology has not been demonstrated to be “available” or “reasonable” for implementation on a commercial basis. In the future, AKART for Washington marine net-pen salmon farms could potentially include the use of fish that cannot reproduce. The use of nonreproductive fish would lessen further the already extremely low chances of adverse impacts on native salmonids. At this time, however, we find that Ecology’s decision to incorporate the “best management practices” (“BMPs”) set forth at WAC 173-221A as AKART for marine net-pens was proper. The permittees should be required, nonetheless, to pursue studies regarding the use of nonreproductive fish as a potential best management practice in future permit decisions. To this end, the Department of Ecology should issue modified or amended permits setting forth the requirements for an appropriate study.

VI.

Under the state waste discharge and NPDES permit programs, Ecology was required to adopt waste discharge and sediment impact standards for marine net-pens. RCW 90.48.220. See also 33 USC § 1311(a); 33 USC §1342(b); RCW 90.48.160; RCW 90.48.180. After conducting the review of studies and reports required by RCW 90.48.220, (Exhibit RGS-102 and RGS-103), Ecology issued the regulations codified at WAC 173-204-412 (sediment standards for marine net-pens) and WAC 173-221A-110 (waste discharge standards for marine net-pens). The permits incorporate the requirements of these regulations and prohibit any discharges in violation of all applicable state and federal water quality statutes and regulations. Numeric water quality standards for Class AA and A waters are set forth at WAC 173-201A-030(1) and (2) and include standards for fecal coliforms, dissolved oxygen, temperature, pH and turbidity. Monitoring data presented at the hearing demonstrates that Permittees’ facilities fully comply with the applicable numeric limits. We conclude that as issued these Permits do not authorize significant adverse water quality impacts in violation of applicable water quality standards. We further conclude that the Permittees have been operating their facilities in accordance with the Permits, and the facilities have not caused, and are not likely to cause, impacts on water quality or native fish through the discharge of waste materials, disease organisms or medications in violation of state sediment standards.

VII.

Ecology has adopted a set of regulations governing allowable sediment impacts for marine net-pens. WAC 173-204-412. As set forth in the Findings of Fact, these regulations require all farm operators to monitor total organic carbon in the sediments at the perimeter of a 100’ sediment impact zone (“SIZ”) as an indicator of excessive organic enrichment, and to sample for abundance of benthic infauna in the event TOC triggers are exceeded. The regulations require remedial action, including reducing production or closing a site, where a reduction of 50% or more occurs in the mean abundance of any one of three reference taxa. Ecology’s rule is supported by technical analysis and is the product of a public process in which Appellants participated. We conclude that Ecology’s biological effects criteria, as manifested in the rule and the Permits, as amended by this board’s order, are fundamentally sound and not unreasonable as a regulation. The Department of Ecology has proposed language which fully implements these regulations.

VIII.

Permittees’ facilities create some localized adverse impacts to sediments and benthic life due to organic enrichment. The magnitude of these impacts varies from site to site, depending on production levels and site-specific conditions. We find that Permittees’ facilities do not create anoxic conditions or “death zones” even at the most highly impacted sites. Adverse impacts beneath the facilities decline with distance from the center of the site and are reversible once the site is fallow. At most sites, adverse impacts are not significant even within the 100’ SIZ. We conclude that the Permits do not authorize, nor do Permittees’ facilities have a reasonable potential to create adverse impacts on sediment quality or the benthic community or otherwise violate sediment management standards subject to permit modifications proposed by the Department of Ecology that will require more specific benthic monitoring and clarify the size of the SIZ for each facility.

IX.

Washington’s antidegredation policy requires that existing beneficial uses of state waters be maintained and protected from further degredation, interference or injury, that existing sediment quality in ecologically significant waters be preserved, and that to the degree that existing surface sediments are of a higher quality than assigned by regulation, that quality should be preserved. WAC 173-204-120; WAC 173-201A-070. Federal antidegredation policy requires that existing water uses be maintained, and that the level of water quality necessary to preserve those uses be maintained. 40 CFR § 131.12; Save Lake Sammamish v. King County and Burnstead Construction Co., PCHB No. 93-240 (1995). Protected uses in Washington include fish and shellfish, wildlife habitat and recreational uses. WAC 172-201A-030(1) and (2).

We conclude that the permitted activities, as further conditioned by our order herein, do not degrade protected uses or existing beneficial uses. At current levels, accidental releases of Atlantic salmon do not have a reasonable potential of adversely affecting native salmonids, and do not threaten the sustainability of uses associated with native salmonids. We further conclude that the permitted activities, as conditioned by our order herein, do not pose a reasonable potential risk to native salmonids in terms of disease transmission, nor to other wild-life related uses such as commercial and recreational shellfish harvesting, nor to the preservation of wildlife habitat or marine mammal populations. The impacts of the permitted activities as conditioned by our order herein on sediments and benthic infaunal creatures are highly localized and do not pose a reasonable potential threat to species abundance or diversity.

XI.

WAC 173-220-210 and 40 CFR §122.41 require monitoring and reporting to verify compliance with discharge control standards. The subject Permits incorporate six pages of monitoring and reporting requirements. These include requirements for sediment sampling, underwater photographic surveys and, upon a triggering event, sediment antibiotic resistance monitoring. The sediment monitoring requirements are designed to ensure that the maximum biological effects limits set forth in WAC 173-204-320(3)(c) are not exceeded outside the sediment impact zone (SIZ). We conclude that the Permit requirements for monitoring and reporting are adequate with the addition of the proposed language.

XII.

RCW 43.21C.030(2)(e) states that agencies shall: “study, develop and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.”[1] An “unresolved conflict concerning alternative uses of available resources” means that a project proposal presents an “either/or” choice concerning the use or allocation of natural resources. Bob Marshall Alliance v. Hodel, 852 F.2d 1223 (9^th Cir. 1988). An agency need not complete an alternatives analysis for a project independent of any alternatives analysis under RCW 43.21C.030(2)(c) unless the project proposal would result in the irrevocable allocation of a resource to the project proposal to the exclusion of other alternative, uses. Bob Marshall Alliance, 852 F.2d 1223, 1229 (alternatives analysis required because oil and gas leases at issue were incompatible with the future designation of the area as wilderness).

XIII.

We find no evidence that Permittees’ facilities have impacts that effectively exclude other beneficial uses of available resources of Puget Sound. The escapement of Atlantic salmon from Permittees’ facilities absent large regular releases in the future does not pose an unacceptable risk to native Pacific salmon in terms of competition, predation, disease transmission, hybridization or colonization. Measures that are reasonably calculated to prevent or reduce future escapes from the farms are being implemented under the supervision of Ecology and WDFW. Permittees’ farms do not pose a threat of significant adverse effects or extinction to native Pacific salmon. Similarly, the authorized waste discharges from the farms do not cause significant adverse impacts to sediment quality, the benthic community or water quality. The farms have some localized impacts on boating, shell-fish aquaculture and other uses. The farms do not, however, operate to the exclusion of other beneficial uses. Permittees’ facilities do not create unresolved conflicts with alternative uses of available Puget Sound resources. The existence of the farms should not preclude other beneficial uses or unacceptably impact those uses. To the contrary, they successfully coexist with those uses.

XIV.

Any finding of fact deemed to be a conclusion of law is hereby adopted as such.

Based on the foregoing findings of fact and conclusions of law, the Board enters the following

ORDER

The issuance of National Pollutant Elimination System waste Discharge Permits to Global Aqua-USA, L.L.C. and Scan Am Fish Farms (the latter now known as Cypress, Inc.) by the Department of Ecology is hereby AFFIRMED subject to the following conditions:

1. The Department of Ecology shall issue modified or amended permits to Global Aqua-USA, L.L.C. incorporating the terms of Administrative Order DE 97WQ-N296 as a condition to the operation of the permittee’s net pens.

2. The Department of Ecology shall issue modified or amended permits to Cypress, Inc., incorporating terms comparable to those in Administrative Order DE 97WQ-N296 issued to Global Aqua-USA, L.L.C. as a condition to the operation of the permittee’s net pens.

3. The Department of Ecology shall issue modified or amended permits to Global Aqua-USA L.L.C. and Cypress, Inc., setting forth specific requirements for the use of all female smolts in order to carry out trials as to the viability of all female culture in the subject operations. The permit condition shall include requirements for design and reporting of the results for the trials for use in future permitting decisions by the Department of Ecology.

4. Condition S1 in each of the subject permits is hereby modified as follows:

A sediment impact zone by rule consistent with the requirements of WAC 173-204-412 Marine Finfish Rearing Facilities, is established for the area encompassed by a line projected 100 feet horizontally from the salmon net-pen rearing area vertically to the seafloor (see Appendix B). The sediments biological effects limitations established in Condition S1 shall apply to the sediment quality outside the area defined by the sediment impact zone by rule.

5. Condition S2.B.2.e in each of the subject permits is hereby modified as

follows:

Sediment samples analyzed for compliance with the Sediment Management Standards benthic abundance biological effects criteria shall identify benthic in fauna at the lowest taxonomic level possible, usually species. Taxonomic identification above the genus level must be approved by the Department of Ecology prior to submittal of net-pen sampling data.

The appeals of the subject permits are hereby otherwise DENIED.

SO ORDERED this 30^th day of November, 1998.

POLLUTION CONTROL HEARINGS BOARD

JAMES A. TUPPER, JR., Chair

ROBERT V. JENSEN, Member

ANN DALEY, Member

P96-257f

[1] Our summary judgment ruling in this matter regarding the applicability of SEPA catergorical exemptions to an alternatives analysis under RCW 43.21C.030(2)(e) is hereby reversed to the extent that it is inconsistent with our ruling in Yakama Indian Nation v. Department of Ecology, PCHB No. 93-157, Order on Motions for Summary Judgment (October 9, 1998).