NOTE: This is from the biological report on the status of Atlantic Salmon - see Table of Contents and News Release for additional information.

7.4 INADEQUACY OF EXISTING REGULATORY MECHANISMS

7.4.1 International, National and State Laws, Treaties and Agreements

Convention for the Conservation of Salmon in the North Atlantic Ocean
This treaty, ratified by the United States in 1982, provides a mechanism for managing the international commercial fishery for Atlantic salmon for the purpose of conserving and restoring salmon stocks. The Convention provides a forum for coordination among members, proposing regulatory measures, and for making recommendations regarding scientific research. The Treaty was adopted by the U.S., Canada, Greenland as represented by Denmark), Iceland, Faroes Islands, Norway, and the EC. Russia joined later. The North Atlantic Salmon Conservation Organization (NASCO) was formed by this treaty.

The U.S. became a charter member of NASCO in 1984. NASCO is charged with the international management of Atlantic salmon stocks on the high seas. The NASCO is composed of three geographic Commissions: Northeast Atlantic, West Greenland, and North American. Each signatory appoints three Commissioners, and the three Commissioners sit on the Commissions that impact the salmon from their area. NASCO seeks scientific advice from the International Council for the Exploration of the Seas. The three U.S. Commissioners are appointed by the President and function under the auspices of the U.S. State Department. The U.S. Commissioners seek advice and input from scientists involved in Atlantic salmon research and management throughout New England, which comprise the U.S. Atlantic Salmon Assessment Committee (USASAC). The USASAC was formed by the Federal and New England state fishery agencies for this purpose.

Convention for the International Council for the Exploration of the Sea (ICES) (24 U.S.A. 1080; T.I.A.S. 7628)
The Convention was established in 1973 and its purpose is to: a) promote and encourage research and investigations for the study of the sea, particularly those related to the living resources thereof; b) draw upon programs required for this purpose and to organize such research and investigations as may appear necessary; and c) publish or otherwise disseminate the results. ICES is the official research arm of NASCO, and is responsible for providing scientific advice to be used by NASCO members as a basis for formulating biologically sound management recommendations for the conservation of North Atlantic salmon stocks. ICES delegates responsibilities for the collection and analysis of scientific data on Atlantic salmon to the North Atlantic Salmon Scientific Working Group, which is then used by the ICES Advisory Committee for Fishery Management to formulate advise to NASCO annually.

Fishery Conservation and Management Act of 1976, (16 U.S.C.(1801 et seq.)
This Act, commonly referred to as the "Magnuson Act," gives regional fishery management councils the authority to prepare plans for the conservation and management of each federally managed fishery in the EEZ, including the establishment of necessary habitat conservation measures. As discussed in Section 7.2.2.1, a fishery management plan for Atlantic salmon was implemented by the New England Fishery Management Council (NEFMC) and the Assistant Administrator for Fisheries in 1987.

The 1996 amendments to the Magnuson-Stevens Fishery Management and Conservation Act set forth a number of new mandates for the NMFS, regional fishery management councils, and other federal agencies to identify and protect important anadromous fish habitat (16 U.S.C. (1855(b)). The fishery management councils, with assistance from NMFS, are required to delineate "essential fish habitat" (EFH) for all managed species. Federal action agencies which fund, permit or carry out activities that may adversely impact EFH are required to consult with NMFS regarding the potential effects of their actions on EFH, and respond in writing to the NMFS' recommendations. In addition, NMFS is required to comment on any state agency activities that would impact EFH.

The NEFMC promulgated a fishery management plan for Atlantic salmon in 1985. In accordance with the 1996 amendments, the NEFMC has designated EFH for Atlantic salmon. EFH is defined in the Magnuson-Stevens Act as "...those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity." As required by the Magnuson-Stevens Act, NMFS promulgated regulations to provide guidance to the Councils for EFH designations. The regulations further clarify EFH by defining "waters" to include aquatic areas and their associated physical, chemical, and biological properties that are used by fish and may include aquatic areas historically used by fish where appropriate; "substrate" to include sediment, hard bottom, structures underlying the waters, and associated biological communities; "necessary" to mean the habitat required to support a sustainable fishery and the managed species? contribution to a healthy ecosystem; and "spawning, breeding, feeding, or growth to maturity" to cover a species' full life cycle.

Essential fish habitat for Atlantic salmon is described as all waters currently or historically accessible to Atlantic salmon within the streams, rivers, lakes, ponds, wetlands, and other water bodies of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island and Connecticut and that meet conditions for eggs, larvae, juveniles, adults and/or spawning adults. Atlantic salmon EFH for eggs, larvae, juveniles and adults includes all aquatic habitats in the watersheds of rivers where salmon are currently present (26 rivers total), including all tributaries, to the extent that they are currently or were historically accessible for salmon migration.

The regulations also direct the Councils to consider a second, more limited habitat designation, Habitat Areas of Particular Concern (HAPCs). HAPCs are rare, particularly susceptible to human-induced degradation, especially ecologically important, or located in an environmentally stressed area. Designated HAPCs are not afforded any additional regulatory protection under the Magnuson-Stevens Act; however, federal projects with potential adverse impacts to HAPCs will be more carefully scrutinized during the consultation process. Considering the unique habitat associations and requirements of Atlantic salmon, the Council has designated the habitat of eleven rivers in Maine as HAPCs for Atlantic salmon. The habitat of the Dennys, Machias, East Machias, Pleasant, Narraguagus, Ducktrap, Sheepscot, Kennebec, Penobscot, St. Croix Rivers and Tunk Stream was identified as serving the following two important purposes in terms of being habitat areas of particular concern: (1) they provide a unique and important ecological function; and (2) they are sensitive to human-induced environmental degradation.

The NMFS has committed to attempt to incorporate EFH consultations into interagency procedures previously established under the National Environmental Policy Act, Endangered Species Act, Clean Water Act, Fish and Wildlife Act, or other applicable statutes. Once the NMFS learns of a federal or state project that may have an adverse effect on EFH, NMFS is required to develop EFH Conservation Recommendations for the project. These recommendations may include measures to avoid, minimize, mitigate, or otherwise offset adverse effects on EFH. Federal agencies are required to respond to EFH Conservation Recommendations in writing within 30 days. Councils are also authorized to comment on federal and state projects and are required to comment on any project that may substantially impact anadromous fish habitat. Federal action agencies are required to prepare an EFH Assessment which must include the following: (1) a description of the proposed action; (2) an analysis of the effects, including cumulative effects of the actions on EFH, the managed species, and associated species by life history stage; (3) the federal agency's views regarding the effects of the action on EFH; and (4) proposed mitigation, if applicable.

The Maine Atlantic Salmon Commission
The Maine Atlantic Salmon Commission (ASC) was formed by the Maine Legislature in June of 1999, replacing the Atlantic Salmon Authority. The ASC consists of three members appointed by the Governor: Commissioner of IFW; Commissioner of DMR; and one At-Large public Member. The Commission appoints an executive director for a five year term. The ASC, like its predecessor the Atlantic Salmon Authority, is granted sole authority and responsibility to manage the Atlantic salmon fishery in the state.

Cooperative Agreement: USFWS, NMFS and the AS
The USFWS and Maine had an agreement initiated on May 9, 1962, and renewed through 1997 to create a program of Atlantic salmon hatchery production and stocking for the purpose of furthering restoration of Atlantic salmon in the State of Maine. To assist in technical matters and marshal scientific expertise for addressing appropriate research, a Technical Advisory Committee (TAC) was established as part of the Agreement. The USFWS, NMFS, and ASA entered into a Cooperative Agreement effective January 1, 1998, through December 31, 2003, to further their common goal of protecting and recovering Atlantic salmon in Maine. The Cooperative Agreement maintains the TAC for the purpose of advising the Parties on any technical matter relative to the Atlantic salmon restoration and rehabilitation programs in Maine, pledges cooperation in activities to implement the Conservation Plan, continues FWS? commitment to the river-specific stocking program, and contains an agreement to cooperate on salmon population and habitat inventories, management investigations, and other activities of shared concern.

Cooperative Agreement: NMFS and the Maine Atlantic Sea Run Salmon Commission
This Agreement was created in 1990 to address research issues of concern relative to the rivers of eastern Maine that have predominately wild Atlantic salmon populations.

Fish and Wildlife Coordination Act (6 U.S.C. 661-66; 48 Stat. 401), as amended
Under this Act the federal regulatory and construction agencies must give consideration to fish and wildlife resources in their project planning and in the review of applications for federal permits and licenses. These agencies must consult with state and federal fish and wildlife agencies regarding the possible impacts of proposed actions and obtain recommendations for fish and wildlife protection and enhancement measures. The USFWS and the NMFS provide recommendations to federal action agencies that include measures to protect fish and wildlife resources. The FWCA consultation requirement applies to water-related activities for which federal permits are required, the most significant of which are Section 404 and discharge permits under the Clean Water Act, and Section 10 permits under the River and Harbors Act. Agency recommendations are to be given full consideration by the permitting agency, but are not binding.

Federal Power Act (16 U.S.C. 791a-8254; 41 Stat. 1063), as amended
This act, as amended, established several processes intended to protect and restore anadromous fishes impacted by hydroelectric facilities regulated by the Federal Power Commission and its successor agency, the Federal Energy Regulatory Commission (FERC). Section 18 of the Act assigns to the Commission a responsibility to require hydroelectric licensees to construct, maintain, and operate at their expense fishways prescribed by the Secretaries of Interior or Commerce. The Electric Consumers Protection Act of 1986 strengthened the position of the fish and wildlife agencies by requiring FERC to include conditions in licenses to protect, mitigate, and enhance fish and wildlife resources.

Federal Water Pollution Control Act Amendments of 1972 (33 U.S.C. 1251-1376)
Section 402 requires permits from the Environmental Protection Agency for the discharge of pollutants into navigable waters. Section 404 also provides for the Corps of Engineers to issue permits for the discharge of dredge or fill materials into navigable waters. Permit applications must be reviewed by the USFWS and the NMFS for impacts on fish and wildlife.

Fish and Wildlife Act of 1956 (16 U.S.C. 742a-742j; 70 Stat. 1119), as amended
Section 7(a), among other things, authorizes the Secretary of Interior to initiate measures required for the development, enhancement, management, conservation, and protection of fishery resources.

Federal Aid in Fish Restoration Act (16 U.S.C. 777-77k; 64 Stat. 430), as amended
This act, commonly referred to as the "Wallop-Breaux Act", provides federal funds to states for management and restoration of fish in connection with sport or recreation in the marine and/or fresh waters of the United States.

Anadromous Fish Conservation Act (16 U.S.C. 757a-757f; 79 Stat.) as amended
Public Law 89-304 authorizes the Secretaries of the Interior and Commerce to enter into cost sharing agreements with the states and other non-federal interests for conservation, development, and enhancement of the nation's anadromous fish (such as Atlantic salmon, Pacific salmon, shad, and striped bass). Investigations, engineering and biological surveys, research, as well as the construction, maintenance and operations of hatcheries are authorized.

National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347; 83 Stat. 852)
Public Law 91-90 requires federal agencies to consult with each other and to employ systematic and interdisciplinary techniques in planning and decision making. It also requires federal agencies to include in every major Federal action significantly affecting the quality of the human environment a detailed statement on a) the environmental impact of the proposed action; b) any adverse environmental effects which cannot be avoided should the proposal be implemented; c) alternatives to the proposed action; d) the relationship between local short-term uses and enhancement of long-term productivity; and e) any irreversible and irretrievable commitments of resources involved in the proposed action.

INTERSTATE AND INTERAGENCY COMMITTEES

The committees listed below have the potential to significantly influence issues related to Maine-origin Atlantic salmon.

Maine Technical Advisory Committee - established 1980
This committee succeeded an earlier group (Research Committee) and is an interagency committee with members from the three state fishery agencies in Maine, the University of Maine, the Penobscot Indian Nation, and the Services. The Technical Advisory Committee reviews activities associated with Atlantic salmon management in Maine and recommends appropriate actions to the ASA, FWS and NMFS.

New England Atlantic Salmon Committee - established 1984
This committee is composed of all state and federal fishery agency directors in New England. It addresses broad policy issues related to salmon restoration and interacts regularly with the U.S. Commissioners to the North Atlantic Salmon Conservation Organization.

New England Salmonid Health Committee - established 1985
This group of fish health specialists was originally established by the New England Atlantic Salmon Committee to address policy issues and provide guidelines related to Atlantic salmon disease management and other health needs related to salmon culture and restoration. Originally established only to address Atlantic salmon, their charge was expanded to all regional salmonid health issues in 1987.

U.S. Atlantic Salmon Assessment Committee (USASAC)
This committee is composed of state and federal fishery staff who provide advice and input to the three U.S. Commissioners to NASCO. The USASAC focuses on preparing annual stock assessments and the proposal and evaluation of research needs.

STATE REGULATIONS

State laws that offer Atlantic salmon and their habitat protection are contained in the Conservation Plan. In March 1998 the Maine legislature passed a new law, which has the potential to reduce nonpoint source pollution from Maine agriculture. That law, "An Act Regarding Nutrient Management" (7 MRSA Ch 747) requires all Maine farms with more than 50 animal units (1 unit = 1000 lbs of body weight) to develop a whole farm nutrient management plan by January 1, 2001. The law also prohibits winter spreading of manure. The Commissioner of Agriculture is granted authority for enforcing these regulations (LWRC 1999).

7.4.2. Regulations and Permitting for Aquaculture

The laws applying in the State of Maine include: Maine Department of Marine Resources aquaculture lease requirements: PL 1991, c. 381, subsection 2; and Federal regulations and laws include:

a) 50 CFR 16.16, Injurious Wildlife: importation of fish or fish eggs;

 

b) Rivers and Harbors Appropriation Act of 1899, Section 10; construction of structures in navigable waters;

 

c) Federal Water Pollution Control Act Amendments of 1972 (33 U.S.C. 1341-1345; 86 Stat.877), as amended, established the National Pollutant Discharge Elimination System Permits; and

 

d) Fish and Wildlife Coordination Act (16 U.S.C. 661-667e; 48 Stat. 401), as amended; authority for U.S. Fish and Wildlife Service to comment on the effects on fish and wildlife of activities proposed to be permitted by the U.S. Army Corps of Engineers.

These guidelines, regulations and laws address and/or govern the importation of finfish and their eggs, define the location and size of aquaculture facilities, and establish monitoring requirements for disease and environmental impacts.

The Legislature for the State of Maine has amended Public Law 1991, c. 381, subsection 2, specific to aquaculture to prohibit the importation or introduction into any waters of the state, of any Atlantic salmon, live or as eggs, that originate in any Icelandic or European territorial water, or any other species of salmon, exclusive of rainbow trout, originating west of the North American Continental Divide. This law initially provided for the introduction of salmon originating from outside of North America, excluding stocks from west of the Continental Divide, until January 1, 1995.

A joint Federal and State of Maine permit processing procedure has been established to facilitate the processing of applications for net-pen aquaculture permits. At the federal level, permits for placement of cages in marine waters are issued by the U.S. Army Corps of Engineers (ACOE) under Section 10 of the Rivers and Harbors Act of 1899. Standard Siting Requirements and Permit Conditions issued by the ACOE (1/17/97) state that no live finfish of any species at any stage of development post hatching whose source is outside of the North American continent shall be introduced or transported to marine waters within the State of Maine and also that no live anadromous Atlantic salmon whose original source as fertilized eggs or gametes was outside of the North American continent shall be introduced or transported to marine waters within the State of Maine (conditions B2 and B3). An additional requirement states that applicants must provide documentation that they understand that no live finfish species at any stage of development post hatching whose source is outside of the North American continent and that no live Atlantic salmon whose original source as fertilized eggs or gametes was outside of the North American continent shall be introduced or transported to marine waters within the State of Maine (condition C10d). The NMFS has requested ACOE assistance to investigate and ensure compliance with these siting and permit conditions at all existing cage sites. The ACOE, NMFS and FWS are engaged in discussions with the State of Maine on this issue, but it remains unresolved at this time.

The North American Commission (NAC) of NASCO (comprised of the U.S. and Canada) has recognized the potential for adverse fish health, genetic, and ecological effects on native Atlantic salmon stocks. The NAC formally adopted protocols in 1992 (amended 1994) for the introduction and transfer of salmonids that include a zoning concept for the introduction and transfer of salmonids in the Commission area and specific actions regarding fish health and genetic issues, including a prohibition on the use of reproductively viable European or Icelandic stocks. The protocols per se are not legally enforceable regulations, but each NAC country, as a signatory to the treaty, has a commitment to take whatever measures are necessary to implement the protocols in their respective country. An updated revision of the protocols is currently out for public review.

Three Zones are identified in the current NAC protocols, and two are applicable to the coastal waters of Maine. Maine, east of Rockland, lies within Zone II and the area west of Rockland lies within Zone III. The proposed revision to the protocols would place rivers within the State of Maine from the Kennebec River drainage eastward in Zone II and west of the Kennebec River drainage in Zone III. Key aspects of protocols that apply to all Zones, and that are recommended by NAC for protection of native Atlantic salmon stocks, include:

1. Atlantic salmon of European origin, including Icelandic origin, are not to be released or used in aquaculture in the NAC area.
2. Salmon, eggs, gametes, or fish products are not to be imported from IHN enzootic areas without thoroughly demonstrating the absence of IHN.
3. Prior to transfer of eggs or fish, at least three health inspections of the donor facility must be completed within a two-year period preceding the transfer to ensure the absence of restricted fish pathogens.
4. Prior to movement of non-native fishes to rivers or rearing sites inhabited by Atlantic salmon, the potential for adverse impacts on the productivity of wild salmon populations must be reviewed and evaluated.
5. Hatchery rearing programs to support the introduction, re-establishment, rehabilitation and enhancement of Atlantic salmon should comply with identified selection, spawning and mating procedures.

Atlantic salmon restoration, enhancement, and aquaculture activities are permitted in the freshwater and marine environments. Domesticated broodstock should be developed using local stocks or nearby stocks; non-indigenous stocks may be introduced into the wild or used in cage rearing operations if fish are reproductively sterile, and the risk of adverse ecological interactions is minimal. Preferred locations for cage culture are at least 20 km from watersheds managed for Atlantic salmon production.

Within Zone III, indigenous and non-indigenous salmonine and non-salmonine (except reproductively viable Atlantic salmon stocks non-indigenous to the NAC Area) fishes may be considered for introduction or transfer if fish health and genetic protocols are followed, and negative impacts on Atlantic salmon can be shown to be minimal. Use of local stocks in cage culture or salmon farms is preferred, but non-indigenous stocks may be cultured. Cage culture or salmon farming can be widely practiced yet preferred locations are at least 20 km from watersheds managed for Atlantic salmon production.

The Maine Conservation Plan stated that threats to wild salmon may occur if farmed salmon transmit diseases or parasites to Atlantic salmon stocks within the seven rivers or the nearshore marine environment when wild salmon migrate through marine waters adjacent to sea cages; if farmed salmon escapees interbreed with wild salmon and cause reduced fitness for survival; if farmed salmon superimpose redds on wild salmon redds, thus disrupting the egg incubation process; or if farmed salmon escape as juveniles into the salmon rivers and compete for food and space with wild stocks. It was further stated that potential threats from any poor hatchery practices in freshwater fish culture operation could affect wild salmon in the Sheepscot, Pleasant and East Machias Rivers and potential threats from cage rearing operations would likely impact Atlantic salmon populations in the Dennys, East Machias, Machias, Pleasant and Narraguagus Rivers.

The Conservation Plan identified the following actions addressing threats: maintenance of current state, federal and New England fish health inspection protocols; vaccination of farmed fish prior to stocking in sea cages; enforcement of private insurance standards; harvesting of farmed salmon before maturation; escape control efforts; minimization of seal induced escapes through the use of predator guard nets, and acoustic and visual deterrent devices; and screening intakes and discharges of freshwater facilities to minimize escape of juveniles. Proposed actions for enhanced protection identified in the Conservation Plan include the following: maintenance and improvement of the current state and federal fish health protocols; development of an emergency disease eradication program; expansion of an ongoing epidemiological monitoring program to determine the type, incidence and geographic distribution of salmonid pathogens in Maine; documentation, evaluation and compilation of industry practices into a Fish Health Code of Practices; complete adoption of an Industry Code of Practices to minimize escapes of farmed fish; development and adoption of a Fish Culture Code of Practices for culture in freshwater and sea cage cites; rearing of river-specific stocks in cages for stocking back to their river of origin; weir construction; development of a marking system proposal; and initiation of research into seal behavior around sea cages and site and cage vulnerability to seal attack.

The 1998 Annual Progress Report on the Conservation Plan identified the following actions related to aquaculture: adoption of a Loss Control Code of Practices; State/industry cooperation to develop a system of compliance monitoring; permits for a fish weir on the Pleasant River; drafting by the Fish Health Advisory Board of rules for instituting fish health protocols and disease eradication measures; and an intention by the Department of Marine Resources to finalize rules on fish health standards and protocols governing the intrastate movements of salmon and disease detection and eradication measures binding on fish farmers. Application of an effective code of practice has proven in Norway to reduce losses and therefore risks to wild stocks. Improved containment alone, however, cannot prevent impacts to wild stocks but rather slow the rate at which changes would occur (DFO 1999).

7.4.3 SUMMARY

Water withdrawals: Maine has made substantial progress in regulating water withdrawal for agricultural use. The Land and Water Resource Council and the Land Use Regulatory Commission must approve requests for withdrawals for irrigation, and can curtail withdrawals if water levels go below what is considered necessary for the well being of the species. The State Department of Environmental Protection is developing a rule to address withdrawals on a statewide basis. At this point, water withdrawals in unorganized towns are not regulated.

Recreational Fishing Mortality: Maine currently allows catch and release salmon fishing in the DPS rivers. The Atlantic Salmon Commission can promulgate regulations governing salmon fishing, and in the past its predecessor, the Atlantic Salmon Authority, reduced the season by closing it in July and August when water temperatures are normally highest, thus increasing the risk of mortality. Recent efforts to close the DPS rivers to all salmon fishing were unsuccessful, however Maine is reconsidering that option along with closing parts of some of the rivers to all fishing to protect salmon parr as well as adults. The legal means to do these things exist, but they have not yet been fully applied.

Disease: A number of State and Federal laws exist to reduce the threats to both wild and cultured fish from disease. Maine has very stringent fish health requirements, and the FWS monitors hatchery fish at Craig Brook and Green Lake with extreme care. Cultured fish are vaccinated against various diseases and screened continuously. However, in spite of regulations, the European ISA virus has become established in North American aquaculture fish in proximity to DPS salmon. Also, the occurrence of a here-to-fore unknown retrovirus, SSSV is not yet specifically addressed by any regulations. These recent disease episodes have compromised the Services' river specific stocking program in that Pleasant River broodstock had to be destroyed and brood stock for three other wild river populations has been compromised.

Aquaculture: The risks inherent in wild stocks interacting with aquaculture escapees has increased significantly from what was believed to be the case three years ago when certain restrictions on the importation and use of foreign salmon stocks were believed by the BRT and the Services to be in place and enforced. Regulations governing import and placement of aquaculture fish fall short on two counts; (1) the Maine state law (PL 1991 c381 sub section 2) regulating import fails to restrict European milt from entering the state as it does fish or eggs, thus enabling expansion of the use of hybrids between European and North American salmon in aquaculture; and (2) the Corps of Engineers continues to not enforce permit conditions under Section 10 of the Rivers and Harbors Act which prohibit placing European strain or hybrids in sea cages. Failure to adequately enforce certain existing regulations or correct deficiencies identified in others significantly increases risks to the survival of the severely depressed existing U.S. wild salmon populations. The BRT concludes that the Gulf of Maine DPS is in danger of extinction.