Full opinion text
FINDINGS OF FACT, MEMORANDUM OF DECISION AND ORDER ON REMEDIAL AND INJUNCTIVE RELIEF, ORDER AND INJUNCTION GENE CARTER, Senior District Judge. I. PROCEDURAL BACKGROUND These cases are before the Court for determination, after an evidentiary hearing, of issues relating to the remedies and injunctive relief to be granted to Plaintiffs in consequence of this Court’s previous determination that Defendants’ operation of their salmon farm aquaculture pen sites is in violation of the requirements of the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251 et seq., as alleged in Plaintiffs’ Complaint. A bench trial on the subject issues was commenced on October 8, 2002, and concluded on October 17, 2002. The matter was taken under advisement on January 14, 2003. The Court herewith renders its findings of fact and decision on the remedial and injunctive relief aspects of the cases. II. FINDINGS OF FACT The facts as established in proceedings herein prior to the hearing on remedial and injunctive relief are cogently stated in the Magistrate Judge’s Recommended Decision on Plaintiffs’ Motion for Summary Judgment and Defendant’s Motion for Summary Judgment, entered on February 19, 2002, and affirmed by this Court’s Order Affirming the Recommended Decision of the Magistrate Judge, entered on June 17, 2002. The facts as there stated in pertinent part are as follows: A. The Parties Plaintiffs consist of the United States Public Interest Research Group, a national organization dedicated to environmental protection, and two individuals, Stephen Crawford and Charles FitzGerald, members of USPIRG. (PSMF ¶¶ 144-145.) Collectively, the plaintiffs will be referred to as “USPIRG.” US-PIRG initiated this citizen suit claiming that ASM’s salmon farms release pollutants into the water in violation of the Clean Water Act. (Am. Compl. at 1.) Defendant, Atlantic Salmon of Maine, LLC (“ASM”), owns and operates five salmon farms known as Stone Island, Libby Island, Starboard Island, Cross Island North, and Cross Island. (Pis.’ Statement of Material Facts (PSMF) ¶ 1.) These farms are located off the Maine coast in Machias Bay. (Def.’s Statement of Material Facts (DSMF) ¶ 1; PSMF ¶ 12.) ASM’s other two salmon farms are called Flint Island and Dyer Island and are located in Pleasant Bay. (PSMF ¶ 1.) ASM also owns one hundred percent of the stock of both Treat’s Island Fisheries and Island Aquaculture. (PSMF ¶¶ 2-3; Def.’s Resp. Pis.’ Statement of Material Facts (DRSMF) ¶¶ 2-8.) Treat’s Island Fisheries, located in Cobscook Bay, consists of four farms and Island Aquaculture in Blue Hill Bay consists of three farms. (Id.) Although an ASM production manager manages these sites (PSMF ¶ 6), it is disputed that ASM is responsible for regulatory compliance. (PSMF ¶ 5; DRSMF ¶ 5.) Defendant, Stolt Sea Farm, Inc. (“Stolt”), owns and operates three salmon farms known as Johnson Bay, Rogers Island North, and Rogers Island South. (Pis.’ Statement of Material Facts (PSMF) ¶ 1.) The farms are located in Cobscook Bay. (Id. ¶ 1.) Stolt also owns D.E. Salmon, which consists of two salmon farms known as Booth and Gove Point, both located in Cobscook Bay. (Id. ¶¶ 2-3.) B. ASM’s Fish Farm Operations ASM’s salmon farms consist of two types of sea cages (also referred to as net pens). (DSMF ¶ 2.) One type consists of walkways and square steel frames. (Id.) An inner containment net and an outer predator net hang from the steel frame structure. (Id.) The other type of sea cage consists of circular Polar Circles, plastic piping, and the same inner and outer nets hanging from the structure. (Id.) Both types of net pens are moored to the sea floor. (DSMF ¶ 27; DRSMF ¶ 27.) The open mesh of the nets allows the current to pass through the nets. (Id.) ASM grows salmon at its Maine freshwater hatcheries until the fish become smolts (i.e. young salmon that are ready to migrate from fresh water to salt water). (PSMF ¶ 26.) When the fish become smolts, ASM transfers them from a boat into the net pens by pumping, dumping, or netting them. (Id. ¶¶ 27-28.) The salmon are grown in the net pens for about eighteen to twenty-four months and are then harvested for market. (Id. ¶ 29.) Each of ASM’s farms, except the Libby Island site, produces at least 9,090 harvest weight kilograms (approximately 20,000 pounds) of salmon a year. (Id. ¶ 97; DRSMF ¶ 97.) 1. Copper The nets that confine the fish, as well as the nets that keep predators away from the fish, are treated with an “anti-foulant” called Flexguard II. (PRSMF ¶ 35.) Flexguard II contains copper, which is designed to reduce marine growth that would otherwise “foul” ASM’s nets. (Id. ¶ 36.) ASM cleans its nets by dropping them to the sea floor and allows them to remain there for up to five months. (Id. ¶38.) USPIRG claims that copper from the nets is released into the marine environment. (Id. ¶ 37.) 2. Feed ASM feeds its salmon a meal containing ground-up fish, primarily herring and anchovetta. (Def.’s Additional Statement of Material Facts in Opp’n to Pis.’ Mot. Summ. J. (DASMF) ¶ 2.) The fish meal also contains eanthaxanthin and astaxanthin, pharmaceutical manufactured pigments that color the fish’s flesh pink. (PSMF ¶40.) ASM sprays the feed into the net pens from underwater pipes attached to a barge. (Id. ¶ 41-42.) Occasionally, the fish are fed by hand or by “blowers” which blow the feed into the salmon cages. (Id. ¶42.) During feedings, excess feed falls through the bottom of the net pens or is flushed out by the current. (Id. ¶ 84; DASMF ¶ 9.) This excess feed can negatively effect the environment. (PSMF ¶ 85.) Each ASM farm, except the Libby Island site, feeds at least 2,272 kilograms (approximately 5,000 pounds) of food during the calendar month of maximum feeding. (Id. ¶ 98; DRSMF ¶ 98.) 3. Diseases, Viruses, and Parasites Salmon in ASM’s pens have contracted bacterial kidney disease (“BED”), funrunculosis, cold water disease (also known as fexibacter) and vibrio, which can kill fish or have sublethal effects. (PSMF ¶ 43-44.) Diseases that have affected ASM’s fish are transmitted through the water, through fish-to-fish contact. (Id. ¶ 50.) Additional concerns at ASM’s farms are viruses and parasites, such as trematode (a type of worm) and sea lice. (Id. ¶ 61, 62, 67.) USPIRG claims that fish at an ASM farm have been infected with a viral disease called infectious salmon anemia (“ISA”). (Id. ¶ 48.) USPIRG asserts that there is no cure for ISA and it is a significant threat to the remaining endangered wild salmon. (Id. ¶ 49.) 4. Chemicals and Fish Wastes ASM treats bacterial infections by mixing the antibiotic oxytetracycline (also known as Terramycin) into the salmon feed. (Id. ¶¶ 54, 55, 57.) This feed, like the unmedicated feed, can fall through the bottom of the net pens or be flushed out of the nets into the water by the current. (Id. ¶¶60, 84; DRSMF ¶¶ 60, 84.) In order to treat sea lice, ASM uses cypermethrin, a toxic chemical. (PSMF ¶ 68.) The cypermethrin is contained in a product called Excis, which the FDA has not yet approved. (Id. ¶ 72.) Excis contains one percent cypermethrin and is used by ASM as an Investigational New Animal Drug (“INAD”). (Id. ¶ 73; DRSM ¶ 13.) Although, the designation of cypermethrin as an INAD has expired, ASM wants to continue to use this toxic chemical to control sea lice in its pens. (PSMF ¶ 74.) ASM applies cy-permethrin after placing a tarp around a net pen and raising the tarp to confine the salmon in a small area. (Id. ¶ 69.) The cypermethrin is then poured from a container into the tarped net pen. (Id.) Following the treatment, the tarp is removed and the cypermethrin is released from the net pens into the marine environment. (Id. ¶ 70.) In 1995, ASM administered Excis once at one farm site; in 1996, ASM used it once at one farm site; in 1997, it was applied once at three farm sites; in 1998, it was used three times at one farm site, twice at two farm sites, and once at another farm site. (DASMF ¶ 14.) During 1999, Ex-cis was used once at two sites and in 2000, Excis was used once at one farm site. (Id.) ASM uses two other chemicals which it releases in the bays. When ASM counts the sea lice on its fish, it anesthetizes the fish with a chemical called Fin-quel that ASM puts into the water. (PSMF ¶ 65-66.) ASM also puts Parasite-S, a parasite treatment, into the water. (Id. ¶ 75.) Aside from these chemicals, salmon feces and urine fall through the bottom of the net pens or are flushed out by the current and enter the bay water. (Id. ¶ 84.) Salmon feces, urine, or other fish wastes exit the net pens at each ASM farm, except the Libby Island site, at least thirty days a year. (Id. ¶ 96.) 5. Escapees Fish can escape through holes in ASM’s nets which can be created by wear, chaffing, storms, seals, boats, ice, floating logs, feed pipes, and feed barges. (Id. ¶¶ 78-80.) Fish are also able to escape when the sea cages are submerged due to severe icing. (Pis.’ Statement of Material Facts Sealed (PSMFS) ¶ 4.) On a few occasions, ASM has discovered holes in its net pens. (PSMFS ¶¶ 1-3; Def.’s Resp. to Pis.’ Statement of Material Facts Sealed (DRSMFS) ¶¶ 1-3.) In December 2000, approximately 100,000 fish escaped from ASM’s Stone Island farm during a storm. (PSMF ¶ 76.) These fish were Landcatch-St. John hybrids, Land-catch-Penobscot hybrids, and St-John-Penobscot hybrids. (Id. ¶ 77.) ASM’s salmon are different from the salmon that naturally exist in Machias Bay and Pleasant Bay. First, some of ASM’s salmon are of non-North American origin. (Id. ¶¶ 18, 20.) Second, ASM’s farm raised salmon can have shortened and eroded fins, a plumper body, and a smaller head to body ratio than non-farmed salmon. (Id. ¶ 24.) C. Stolt’s Fish Farm Operations Stolt’s salmon farms consist of sea cages and working platforms (ie. catwalks) which are moored by chain, line, and mooring blocks. (Def.’s Statement of Material Facts (DSMF) ¶2.) Stolt uses two types of sea cages (also referred to as net pens). (Id.) One type consists of square steel frames that contain flotation. (Id.) An inner containment net and an outer predator net hang from the steel frame structure. (Id.) These sea cages are moored in a grid system. (Id.) The other type of sea cage consists of plastic collars containing flotation and has the inner and outer nets hanging from the collars. (Id.) The net pens are anchored to the bottom of the sea floor. (PSMF ¶ 25.) The open mesh of the nets allows the current to pass through the nets. (DSMF ¶ 2.) At Stolt’s farms, young fish are brought in, grown for about eighteen months to maturity, and then harvested for market. (PSMF ¶¶ 19, 20.) Stolt purchases its salmon from freshwater hatcheries when the fish are smolts (ie. young salmon that are ready to migrate from fresh water to salt water). (Id. ¶ 23.) After receiving smolts from a hatchery, Stolt delivers the smolts to the net pens by boat. (Id. ¶ 24.) The smolts are “sluiced” from the boat into the net pens through a 6-inch diameter plastic hose. (Id. ¶ 26.) Stolt can stock up to twenty-eight pens at a single farm site, and each pen can hold between 5,000 and 16,000 fish. (Id. ¶27.) US-PIRG estimates that at any given time, over a quarter of a million fish can be stocked at one of Stolt’s farms. (Id. ¶ 28.) Each of Stolt’s farms produces at least 9,090 harvest weight kilograms (approximately 20,000 pounds) of salmon a year. (PSMF ¶ 117; Def.’s Resp. to Pis.’ Statement of Material Facts (DRSMF) ¶ 117.) 1. Copper The nets that confine the fish, as well as the nets that keep predators away from the fish, are treated with an “anti-foulant” called Flexguard. (PSMF ¶ 39.) Flexguard contains copper, which is designed to reduce the growth of plant life, mussels, and other life that would otherwise clog the mesh in the nets. (Id. ¶ 40.) Copper can be toxic to fish at a certain concentration. (Id. ¶ 41.) USPIRG claims that copper from the nets is released into the marine environment. (Id. ¶ 42.) 2. Feed Stolt feeds its salmon a meal containing poultry parts and a chemical dye called earophyll red that colors the fish’s flesh pink. (Id. ¶ 47; Def.’s Additional Statement of Material Facts (DASMF) ¶ 1.) Stolt stores the feed on scows, and then delivers the feed by boat from the scows to the net pens. (PSMF ¶ 46.) Stolt’s smolts are fed by hand three or four times a day. (Id. ¶ 44.) As the fish mature, Stolt switches to a “blower mechanism” feeding one or two times a day. (Id.) A blower is a large hopper with an air supply that blows the feed through a pipe into a salmon cage. (Id. ¶ 45.) During feedings, excess feed falls through the bottom of the net pen or is flushed out by the current. (Id. ¶ 96; DASMF ¶ 2.) Stolt’s farms each feed at least 2,272 kilograms (approximately 5,000 pounds) of food dining the calendar month of maximum feeding. (PSMF ¶ 118; DRSMF ¶ 118.) 3. Diseases, Viruses, and Parasites Salmon in Stolt’s pens have contracted bacterial kidney disease (“BED”), flexi-bacter, and vibrio (hitra, angularium, or ordalli), which can kill fish or have sub-lethal effects. (PSMF ¶¶ 48-49.) Flexi-bacter resides in the ambient waters and infects farmed salmon opportunistically when the fish are stressed or physically injured from rubbing against the containment net. (Id. ¶ 52.) When bacterial diseases exist in a pen, the bacterial pathogens can be dispersed from the pens by tidal currents or can be spread through feces and urine from infected salmon. (Id. ¶¶ 59, 97.) Some bacterial diseases such as BED, can be spread “horizontally” through the water from fish in one cage to fish in other cages, and “vertically” from the parent or broodstock to later generations. (Id. ¶ 51.) Stolt’s primary concern regarding viral diseases is infectious salmon anemia (“ISA”). (Id. ¶ 53.) USPIRG claims that ISA has been found in Stolt’s New Brunswick salmon farms and at salmon farms near Treats Island, not over a mile from Stolt’s Johnson Bay operations. (Id. ¶¶ 55-56.) USPIRG asserts that there is no cure for ISA and it is a significant threat to the remaining endangered wild salmon. (Id. ¶ 58.) An additional problem at Stolt’s farms is parasites such as sea lice that can damage or kill salmon. (Id. ¶ 72-73.) The “intensive culture” of Stolt’s farms makes the sea cages an attractive spot for sea lice to gather. (Id. ¶ 75.) Once in the net pens, these parasites can be dispersed into the waters by tidal currents. (Id. ¶ 76.) 4.Chemicals and Fish Wastes Stolt treats bacterial infections by mixing the antibiotic oxytetraeycline (also known as Terramycin 100) or Romet to the salmon feed or by feeding the salmon a purchased medicated feed. (Id. ¶¶ 65-67; DRSMF ¶ 65-67; DASMF ¶ 12.) Antibioticladen feed can fall through the bottom of the net pens or be flushed out of the nets into the water by the current. (PSMF ¶ 70; DSMF ¶ 70.) Stolt stopped using the antibiotic oxytetraeycline in either 1999 or 2000. (DASMF ¶ 10; Pis.’ Reply to Def.’s Resp. Additional Statement of Material Facts (PRASMF) ¶ 10.) In order to kill sea lice, Stolt uses cyper-methrin, a chemical found in agricultural pesticides. (PSMF ¶ 77.) The cy-permethrin is contained in a product called Excis, which the FDA has not yet approved. (Id. ¶ 78.) Excis contains one percent cypermethrin and is used by Stolt as an Investigational New Animal Drug (“INAD”). (Id. ¶79; DASMF ¶ 5.) Although, the designation of cypermethrin as an INAD has expired, Stolt wants to continue to use this toxic chemical to control sea lice in its pens. (PSMF ¶ 80.) Stolt applies cypermethrin after placing a tarp around a net pen and raising the tarp to confine the salmon in a small area. (Id. ¶ 83.) The cypermethrin, diluted in water, is then poured from a container into the tarped net pen. (Id. ¶ 83; DASMF ¶ 3.) Following the treatment, the tarp is removed and the cypermeth-rin is released from the net pens into the marine environment. (PSMF ¶ 84.) Stolt has used cypermethrin from 1995 through 2000. (DASMF ¶ 9; PRASMF ¶ 9.) Stolt uses a similar tarp technique to treat its fish for gill parasites, but uses formaldehyde. (PSMF ¶ 85; DRSMF ¶ 85.) Like cypermethrin, formaldehyde washes out of Stolt’s net pens into the surrounding water after the treatment. (PSMF ¶ 87; DSMF ¶ 87.) In order to control ISA, Stolt’s workers and equipment are treated with an iodine-based disinfectant called Germ Kill which washes into the water. (PSMF ¶¶ 63-64; DRSMF ¶¶ 63-64.) Aside from these chemicals, salmon feces and urine fall through the bottom of the net pens or are flushed out by the current and enter the bay water. (Id. ¶ 96.) Each of Stolt’s farms releases substances such as feces, urine, and excess feed, into the waters at least thirty days a year. (Id. ¶ 116; DRSMF ¶ 116.) 5. Escapees Fish can escape through holes in Stolt’s nets, which can be created by seals, storms, vandalism, chafing, and mechanical equipment such as a boat’s propeller. (PSMF ¶¶ 88-89; DRSMF ¶¶ 88-89.) In September 1999, approximately 30,000 fish escaped through a hole in a net pen at one of Stolt’s Canadian sites. (PRSMF ¶ 91.) Stolt’s internal documents report “negative variances” from the number of fish initially stocked in its pens and this loss could be the result of escapes. (Id. ¶ 90.) Stolt cannot guarantee that its fish will not escape from its Maine sites in the future. (Id. ¶ 92.) Stolt’s salmon are different from the salmon that naturally exist in Cobscook Bay. First, some of Stolt’s salmon are of non-North American origin. (Id. ¶¶ 15-17.) Second, Stolt’s farm raised salmon can have shortened and eroded fins, a plumper body, and a smaller head to body ratio than non-farmed salmon. (Id. ¶ 21.) D. EPA Involvement In a July 18, 1989 letter from the Director of EPA Region One Water Management Division to William Lawless, Chief Regulatory Branch, Army Corps of Engineers, the Director, in commenting on proposed floating aquatic animal production facilities in a bay, stated that “[u]pon reevaluating the regulations, we have determined that some of these concentrated aquatic animal production facilities may require a permit under the National Pollutant Discharge Elimination System (NPDES) program.” (DSMF ¶ 4, Culley Decl. I Ex. 3.) The following month, August 1989, the EPA responded by letter to a parties’ notice of intent to sue the EPA for failing to require salmon net pen facilities in Maine to have NPDES permits. (DSMF ¶ 5, Culley Decl. I Ex. 4.) In the letter, the EPA stated that upon its review of the Clean Water Act and the applicable regulations, it concluded that salmon net pen facilities in Maine may constitute “Concentrated Aquatic Animal Production Facilities” under 40 C.F.R. § 122.24(b) and Appendix C or under § 122.24(c). (Id.) The EPA noted that the Maine salmon net pen facilities would be required to submit information to enable the EPA to take appropriate action. (Id.) However, over a year passed without any EPA action to require information from the salmon aquaculture sector in Maine. (Id. ¶ 8.) Fourteen months later, in October 1990, EPA Region One sent letters to ASM and Stolt stating that its facilities are required to obtain National Pollutant Discharge Elimination System (“NPDES”) permits and instructed Stolt to submit an NPDES application. (PSMF ¶ 105; DSMF ¶ 9.) 1. ASM’s NPDES Application In October 1990, EPA Region One sent ASM a letter stating that its facilities are required to obtain National Pollutant Discharge Elimination System (“NPDES”) permits and instructed ASM to submit an NPDES application. (Id. ¶ 9.) ASM submitted its application for an NPDES permit in October 1990, for its Cross Island sites. (Id. ¶¶ 10, 18.) In January 1992, ASM submitted an NPDES application for its Starboard Island site and has since submitted NPDES applications for each of its successive sites. (Id. ¶ 18, 20.) However, ASM never received any permits or any response from the EPA regarding any of its NPDES applications. (Id. ¶ 11.) In 1993, ASM wrote to the EPA and asked for a “letter of assurance” that the farms could operate without an NPDES permit. (PSMF ¶ 91; DRSMF ¶ 30.) The EPA did not respond to ASM’s request. (DRSMF ¶ 30.) During these years, the EPA was the only NPDES permitting agency, as delegation to the State of Maine did not occur until January 2001. (DSMF ¶ 21.) Although ASM submitted NPDES permit applications to the EPA for its net pen sites at Cross Island North, Dyer Island, Starboard Island, Libby Island, and Flint Island (Pis.’ Resp. to Def.’s Statement of Material Facts (PRSMF) ¶27), ASM has not obtained an NPDES permit for any of its Maine salmon farms. (PSMF ¶ 90; DRSMF ¶¶ 26, 30.) The EPA has not contacted ASM to conduct a site inspection nor conducted such inspection [as of February 19, 2002], (DSMF ¶ 21.) 2. Stolt’s NPDES Application Stolt submitted its application for an NPDES permit on December 17, 1990, for its Johnson Bay farm. (PSMF ¶ 106; DSMF ¶ 10.) However, Stolt never received a permit or any response from the EPA regarding its NPDES application. (PSMF ¶ 107; DSMF ¶ 11.) A few years later in August 1992, in compliance with a request from the Maine Department of Marine Resources (“DMR”), Stolt sent a “Notice of Intent” to DMR stating that Stolt “intends to be covered by and will comply with the terms of the general NPDES permit for offshore net pen facilities in the State of Maine.” (PSMF ¶ 108.) During these years, the EPA was the only NPDES permitting agency, as delegation to the State of Maine did not occur' until January 2001. (DSMF ¶ 21.) In a September 1994 letter to Stolt, the U.S. Army Corps of Engineers granted navigation permits for Stolt’s net pens and explained that Stolt still needed to obtain NPDES permits from the EPA. (PSMF ¶ 110.) Stolt was also advised by one of its operating managers that Stolt’s salmon farms located in the State of Washington required NPDES permits, and that its Maine farms would most likely be required to have permits as well. (Id. ¶ 111.) To this day, Stolt has not obtained an NPDES permits for any of its Maine salmon farms and is not aware of any permit being issued by the EPA for the salmon farming industry in Maine. (Id. ¶¶ 104, 109.) Recommended Decisions of the Magistrate Judge at 2-8. The Court makes the following additional findings of fact on the basis of the prior record, the evidence heard in the bench trial commencing on October 8, 2002 (Docket Item Nos. 71 and 72, transcripts of proceedings), and careful consideration of the written submissions of the parties in post-trial briefs. ASM is a Maine company that operates seven salmon sea farm sites, two salmon hatcheries, and one processing plant in the state of Maine. ASM has five sea farm sites in Machias Bay (Cross, Cross North, Starboard, Libby, and Stone Islands) and two in outer Narraguagus Bay (Flint and Dyer Islands). It also operates, and is responsible for, as sole and controlling owner, the site pens of Island Acquacul-ture Company located in Blue Hill Bay, including two pen sites at Scragg Island in Jericho Bay. See Opinion and Order entered on May 9, 2003 (Docket Item No. 97 in Civil No. 00-151-B-C). ASM has hatcheries in Oquossoc and Embden and a processing plant in Machiasport, processing up to 6,000 fish each day. ASM commenced sea farm operations in Maine in 1987 at the Cross Island pen site. ASM then added the remaining six aquaculture lease sites incrementally through the years, ending with Stone Island in 1998. ASM currently cultivates fish at its Cross, Cross North, Starboard, Flint, and Dyer Island sites, but it has not conducted aquaculture at its Libby Island site since 1997 or 1998, or at its Stone Island site since December 2000. Stolt Sea Farm, Inc. (“Stolt”), a Delaware corporation with a place of business in Lubec, Maine, operates two sea farm sites at Johnson Bay and Rodger’s Island in Cobscook Bay. Stolt commenced aquaculture operations at Johnson Bay in 1989 and commenced operations at Rodger’s Island in 1996. ASM is a Maine limited liability company, most recently a wholly owned subsidiary of Fjord Seafood, USA, Inc., and ultimately, Fjord Seafood, ASA, a Norwegian company. Fjord Seafood, USA assumed 100 percent ownership of ASM on May 2, 2001. Stolt is a wholly owned subsidiary of companies that are owned by Stolt-Nielson S.A., a Norwegian company, and ultimately, Stolt Sea Farm Holdings B.V., a Netherlands corporation. ASM and Stolt each obtained a Maine Department of Marine Resources (“DMR”) aquaculture lease for each of its sea farms pursuant to 12 M.R.S.A. § 6072. The DMR lease process mandates protection of state water quality requirements and protection of marine organisms as a condition of lease issuance. The lease hearing process requires completion of two environmental site review reports (by applicant and DMR) in order to provide an environmental characterization and baseline measurement of site conditions. Maine law authorizes the DMR Commissioner to grant an aquaculture lease only upon a finding, based on state standards, inter alia, that the lease will not unreasonably interfere with water quality or the ability of surrounding areas to support existing ecologically significant flora and fauna. See 12 M.R.S.A. § 6072(7-A)(D) and (7-B). Maine law prohibits issuance of a lease unless DEP certifies that the project will not violate the standards ascribed to the receiving waters classification. See 12 M.R.S.A. § 7-B; 38 M.R.S.A. § 465-B. A DEP Water Quality Certification has been issued under 12 M.R.S.A. section 6072(7-B) for each ASM and Stolt farm site, with a finding, based on state standards, that aquaculture operations would not have a significant adverse effect on water quality or violate water quality standards, with provision for revocation if such standards are violated. The finding is directly contrary to the burden of the considerable evidence in this record which shows clearly that those operations do have a substantial, adverse effect on water quality and do not comply with water quality standards. The record is devoid of any evidence of an effort, other than the implementation of the FAMP monitoring surveys, by DMR or any other agency to determine if, after issuance of the certification, there was, in fact, any adverse impact on water quality. No action to revoke the certifications has ever been taken. ASM and Stolt also have an Army Corps of Engineers (“ACE”) permit issued under section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, for each of their sea farm sites. Each ACE permit contains water quality and benthic monitoring provisions. A regulatory scheme to protect the health of both aquaculture production stock and wild stocks has been administered and updated by DMR since 1984. DMR must issue, pursuant to the fish health regulations, a permit for introduction, importation, or transfer of salmon into the coastal waters; must require extensive monitoring and surveillance of sea farm site production fish to ensure disease protection; and it may take any action, including quarantine or eradication of salmon stocks, in order to protect fish health. Neither ASM nor Stolt holds a federal CWA NPDES permit for aquaculture operations at any of their sea farm sites. ASM and Stolt timely applied for an NPDES permit for each site, but neither the United States Environmental Protection Agency (“EPA”) nor the Maine Department of Environmental Protection (“DEP”) has yet made a decision on the applications. Although EPA advised Defendants in August 1989 that Maine sea farms “may constitute concentrated aquatic animal production facilities” under 30 C.F.R. section 122.24, and that companies would be required to submit sufficient information to enable EPA to take “whatever appropriate action is necessary.” In October of 1990, EPA sent a letter to ASM and Stolt stating that they were required to obtain an NPDES permit for the discharge of pollutants to the waters of the United States and instructing them to fill out an NPDES application form and return it within sixty days. EPA has not advised or suggested at any time that ASM or Stolt should cease operations. At that time, ASM and Stolt timely submitted NPDES applications for their existing sites at Cross Island and in Johnson Bay. EPA did not act on those applications and, instead,' participated with ACE, National Marine Fisheries Service (“NMFS”), United States Fish and Wildlife Service (“USFWS”), DMR, and DEP in a joint effort from 1990 to 1992 to create the State of Maine Finfish Aquaculture Monitoring Program (“FAMP”) and a coordinated state and federal permit application. The product of this effort was a 1992 DMR letter to all Maine companies, including ASM and Stolt, advising that federal and state agencies regulating aquaculture in Maine had “finalized a coordinated monitoring program for finfish aquaculture” and stating that the DMR would be the “lead agency” that is “now ready to implement this program.” ASM and Stolt timely filed either a Notice of Intent to be Covered by General Permit or an individual permit application for existing and subsequent lease site applications, and their pen sites were monitored under the FAMP. ASM contacted EPA numerous times after 1992 with respect to its sea farm operations. It filed six applications for new lease sites through 1998, sent a letter in 1993 requesting an EPA letter of assurance that ASM could commence operations at new lease sites upon receipt of ACE or DEP authorizations, and sent a letter in 1995 reminding EPA of its continued operations and change in ownership. EPA never responded. Similarly, Stolt contacted EPA to request new lease sites and notified EPA of continued operations under new ownership. EPA never responded. EPA’s response to Plaintiffs’ notice of intent to sue acknowledged that Defendants had applied for NPDES permits many years ago and indicated that EPA had not considered the sea farm discharges to be a significant environmental concern, falling into the “minor” permit category that EPA could not address due to resource constraints. EPA offered to serve as a mediator or to facilitate settlement discussions so as to avoid litigation. Plaintiffs did not accept this offer. The State of Maine has not acted on the pending NPDES permit applications following delegation by EPA of the CWA program to the State in 2001. DEP is more than a year beyond the agreed EPA-DEP deadline for a final permit decision on Maine sea farm sites, although the administrative proceedings to issue a draft general permit are now underway. The EPA has final authority to approve or to disapprove the PDES permits issued by the State of Maine. ASM and Stolt generally transfer salmon smolt from freshwater hatcheries to their sea farms in October and May. The fish are placed in circular or square cages that are moored on the sea bottom and dressed with containment nets to hold the salmon and predator nets to deter marine predators and birds. The fish are harvested beginning as early as fifteen months following initial stocking. Harvest entails pumping the fish into a harvest barge where they are stunned and their gills are cut, followed by transport to shore in containers. During the growth cycle, fish are fed pellets of feed containing fish meal, fish oil, vitamins and minerals, and, occasionally, soybean meal, wheat, and corn. ASM and Stolt use mechanical feeding systems, feeding tables, and underwater cameras in their net pens to monitor the amount of feed given to the fish, with very short periods of hand feeding of smolt just after stocking in order to minimize the amount of feed used, and thus the amount of feed that falls to the sea bottom. Certain mature fish are selected to breed the next generation. On occasion, ASM and Stolt have imported salmon eggs or milt (gametes). ASM and Stolt received specific importation authorization from both USFWS and from DMR prior to importation of eggs or milt. ASM imported salmon milt of non-North American origin for several years from 1988 through 1999. The waste discharged from the aquaculture farming operations of Defendants caused benthic conditions at Defendants’ farm sites to deteriorate. Stolt’s feed contains fishmeal, fish oil, a wheat or soybean binder, vitamins, minerals (including zinc), pigment, ground up chicken carcasses, and feathers. ASM’s feed contains fishmeal, fish oil, vitamins, minerals, soybean meal, wheat, corn, and pigment. Defendants have also discharged garbage and discarded equipment and nets to the sea floor at their various sites. Nets that lie on the sea floor at Defendants’ sites trap feces and excess feed and can degrade the benthic environment more severely than would occur in their absence. In September 1998, ASM’s own consultant, KPMG, told ASM that its bloodwater treatment was inadequate for disease control and that its discharge of bloodwater directly to the ocean included chemical pollutants such as chlorine. Until late 2000, ASM discharged bloodwater mixed with chlorine and another chemical directly to the ocean. ASM eventually spent $100,000 to upgrade the wastewater treatment system at its processing plant so that it could treat bloodwater. Aquaculture net pens create a “footprint” which forms an approximate five-meter shadow in each direction around the net pen. After a growth cycle, the footprint consists of large patches and contiguous mats of beggiatoa, anoxia, and black sediments, and the release of methane and hydrogen sulfide gases are all adverse environmental conditions and are all conditions found at Defendants’ farm sites that are subject to remediation under the CWA. The majority of the material that falls to the ocean floor is organic, consisting primarily of carbon in the form of fish feed and fish feces. All of the regulatory agencies acknowledge and recognize that some impact to the bottom is inevitable. Consequently, the agencies have established a “mixing” zone in which it is understood that there will be impact. DMR finds that it is reasonable to have up to fifty percent of the area below the pens covered with organic buildup. In order to remediate these conditions and to allow the ocean floor to recover from the waste discharged by Defendants’ salmon farms, Defendants must fallow their farm sites. Most farm sites should be fallowed for twelve to twenty-four months, on average, for the benthos to fully recover from the negative conditions occasioned by Defendants’ activities at their fish pens. ASM generally fallows its farm sites, while Stolt does not regularly do so. The FAMP requires monitoring of the benthic conditions beneath and around the net pens. The FAMP has demonstrated that impact from the salmon farms is temporary and that even the temporary impact is generally confined to the footprint of the sea cages. FAMP Divers videotape the ocean floor. Videotapes are then analyzed, and the observations are incorporated into graphic representations of the ocean floor. When observing the ocean floor, DMR looks for beggiatoa, which is an oxygen-consuming bacteria which may indicate hypoxia (reduced oxygen levels) or anoxia (absence of oxygen). Anoxia is a sign of severe deterioration, but it is not necessarily unacceptable. The beginning of an unacceptable impact occurs when large areas of beggiatoa are seen. In the vast majority of cases, the impact is restricted right to the edge of the cage. It is very unusual to have severe impact beyond the footprint of the cage. It is exceptionally unusual to see any evidence of impact at a point sixty meters outside the net pen footprint. The FAMP consists of monitoring only and does not set forth environmental standards with which salmon farms must comply. The primary purpose of the FAMP is to assess the impact of aquaculture farms on the ocean floor and on water quality around the net pens, to enable DMR to determine whether or not the salmon farms are in compliance with the conditions in their leases, and to allow DEP to determine if water quality standards are being met. The FAMP does not monitor or regulate the utilization of antibiotics, other drugs, pesticides, copper, zinc, oil, gasoline, or other chemicals used by the farms or deal with the control of alga-blooms or the impact of aquaculture farm operations on wild salmon. FAMP reports and correspondence from DMR repeatedly informed Defendants of severely deteriorated benthic conditions at certain of their farm sites. DMR maintains enforcement oversight over the FAMP and may use lease revocation or denial of a fish transfer permit (required to transport smolt from hatcheries to sea farm sites) if it determines that the environmental impacts of a site are unacceptable. DMR has never issued a notice of violation to either ASM or Stolt in connection with aquaculture operations at their sea farm sites. However, DMR has required remedial plans from ASM when DMR determined that benthic impacts were reaching an unacceptable stage. Fallowing, in aquaculture, is the removal of fish from a sea farm site for a period of time. Given a sufficient amount of fallow time, the ocean floor will recover from the impact caused by the sea farms, including anoxic conditions, when organic loading is removed. The most effective way of accomplishing the removal of organic loading is a regimen of site fallowing following harvest. The time period over which fallowing will result in improvement to the benthos is often site specific but is generally no less than twenty-four months. Single-year-class stocking allows salmon farm operators to fallow farm sites between each generation of fish. Stolt has not ruled out a return to full multi-year-class stocking in the future at its Maine salmon farms. Wild salmon live in the rivers near Defendants’ fish farms, are genetically distinct from salmon populations in Canada and Europe, and have been recently included on the Federal Endangered Species List. Wild salmon populations living in the rivers near Defendants’ farms are small and threatened with extinction, but they are not doomed to extinction if appropriate protective measures are speedily taken. The small size of the salmon populations in Downeast Maine rivers make them severely vulnerable to the negative effects of interactions with farm escapees. Escaped aquaculture salmon have been found in the rivers near Defendants’ fish farms, often in numbers that exceed the known numbers of returning wild salmon, and have previously been found by this Court herein to be a “pollutant” under the CWA. The end result of repeated interactions with farm escapees could ultimately be the extinction of these wild populations. Escapees from Defendants’ farms can negatively affect the endangered wild salmon by spreading pathogens and parasites and by competing for food, habitat, mates, and spawning sites. These are identified in the testimony as ecological impacts. After several generations of selective breeding, farm-bred salmon differ genetically very significantly from wild salmon in fitness-related traits such as growth rate, age and size at sexual maturation, and number of eggs produced. ASM and Stolt grow salmon that have been selectively bred for at least four generations. According to Stolt, ASM, and others in the Maine aquaculture industry, as of October 1998, a “characteristic” fish loss profile for salmon farms in Maine is one in which “excluding the ten percent of losses due to disease and temperature extremes, just over one quarter of farm losses can be traced to accidental releases due to storm damage or equipment failure.” Farm escapees can have a negative genetic impact on Maine’s wild salmon through cross-breeding. Because farm-bred salmon and wild salmon differ genetically, the offspring of matings between farm escapees and wild salmon are likely to be less fit for survival in the wild than are the offspring of wild salmon. The greater the geographical distance between two populations of Atlantic salmon, the greater the genetic differences between them and the less fit their offspring are likely to be for survival in the wild in rivers in which they have not previously habituated. The offspring of matings between a non-North-American-strain Atlantic salmon and a North-American-strain Atlantic salmon are less likely to be fit to survive in North American rivers than are the offspring of matings between two North-American-strain Atlantic salmon. The USFWS and the NMFS have determined that non-North American strains of farmed salmon constitute a major threat for the wild salmon in Downeast Maine rivers. Indeed, the State of Maine’s policy is to remove and destroy any aquaculture escapees found in Downeast rivers. Defendants have known since 1988 that the federal government has consistently taken the position that salmon farms in Maine should not grow non-North American salmon. The joint application form developed, but not yet implemented, for ACE section 10 permits, DMR leases, and MPDES permits for salmon farms in Maine requires farm operators to represent that they will not grow non-North American Salmon in the subject pens. Almost all of the fish grown at ASM’s farms are European-strain salmon or a cross of European-strain salmon with North-American-strain salmon. ASM also maintains stocks of fish it believes are all or predominantly all of North American origin, known as Penobscot River strain and St. John River strain. ASM sold four million St. John River-strain eggs to other companies in 2001. Stolt and ASM grow the strains of fish they grow because they believe these strains will maximize their profits. Stolt grows only North American strains of salmon at its New Brunswick farms. Until 1999, Stolt grew only North American strains of salmon at its Maine salmon farms. In 1999, Stolt began growing salmon of European origin because of its availability. Stolt’s ACE permit for its Johnson Bay farm prohibits the growing of salmon whose original source as fertilized eggs or gametes was outside North America. Transgenic, or genetically modified, strains of salmon differ genetically very significantly from wild salmon because genes from other species have been inserted into their DNA. Escapees of transgenic strains of farm salmon could negatively affect Maine’s wild salmon by interbreeding, because the offspring of matings between transgenic farm escapees and wild salmon are less likely to be fit for survival in the wild than are the offspring of wild salmon. Defendants have not ruled out the growing of transgenic fish at their farms. The State of Maine biologists can accurately distinguish between wild Atlantic salmon and aquaculture escapees found in Maine rivers. However, currently available identification techniques do not enable them to determine from which farm an aquaculture fish escaped. The development of an adequate system of tagging farm-raised salmon to permit their identification to a particular site is economically and technically feasible. ASM and Stolt are participating in a study with the agencies to research methods of marking farm-raised Atlantic salmon. Methods of marking or tagging other than with coded wire tags are being investigated because of concerns that coded wire tags may be rejected by the fish, may migrate into the flesh of the fish, may not receive FDA approval, may be perceived negatively by customers who eat the fish, and may interfere with vaccines administered to the fish. Pathogens arising inside a net pen can spread to and infect wild fish swimming outside the net pen. A single diseased farm escapee could spread disease to wild salmon. Feces from diseased salmon can spread pathogens. Sea lice can carry the ISA virus. ISA is a clear threat to wild salmon. In 2000-2002, in response to the threat of ISA, the United States Department of Agriculture (“DOA”) and DMR cooperated to create a specific, detailed ISA prevention program requiring: single-year-class stocking; use of certified disease-free fish for stocking; heightened monitoring of production fish to identify disease outbreaks; site sanitation; biose-curity protocols to suppress disease transfer; and reporting and action plans for expedited response to ISA detection. The frequent removal of dead fish (so-called “morts”) from the net pens lowers the disease risk they pose. The veterinarian hired by Stolt and ASM to conduct biosecurity audits of their salmon farms testified that, if it were possible, hourly mort collection would be desirable. Morts in Stolt’s and ASM’s net pens present a “major” risk for spreading disease, including ISA. Stolt confirmed the existence of ISA at its Rodgers Island site on August 30, 2001. ASM’s own consultant, KPMG, recommended in 1998 that ASM remove morts daily from its net pens as a biose-curity measure. The ACE permits for all of Stolt’s and ASM’s salmon farms require daily removal of morts. Stolt currently removes morts from its net pens once per week in bad weather and twice per week at other times of the year. ASM removes morts from its net pens twice per week on average. It does daily mort removal only after there has been a disease outbreak. One way to reduce disease is to require the farms to adhere to a stocking density. At Stolt’s salmon farms in New Brunswick, Canada, the leases Stolt obtains from the government of New Brunswick contain an operating condition that limits the stocking density in each net pen to a maximum of 18 kilograms of salmon per cubic meter of water (Kg/m3) inside the pen. Stolt’s goal is to comply with a maximum stocking density of 18 kg/m3 at its Maine salmon farms. Stolt has exceeded this limit on occasion at its Maine salmon farms. ASM’s goal is to comply with a maximum stocking density of 25 kg/m3. ASM has exceeded this limit on occasion at its Maine salmon farms. Single-year-class stocking of salmon farm sites, with no overlap of fish from different year-classes, also reduces the risk of disease and the risk of parasite infestation. By April 2001, ASM had not yet fully implemented single-year-class stocking of salmon at all of its farm sites. Although Stolt began moving toward single-year-class stocking in 2000, the company may still try to overlap its year-classes with no true fallowing period. When Defendants use drugs in their aquaculture operations, they discharge tons of feed impregnated with hundreds of pounds of drugs into their pens. Neither Stolt nor ASM monitors fish or shellfish near their Maine salmon farms for the presence of antibiotic residues. Stolt’s and ASM’s ACE permits prohibit prophylactic use of antibiotics. Stolt has used antibiotics prophylactically at its Maine salmon farms in the past. Neither Stolt nor ASM post warning signs at its farm sites notifying the members of the public when it uses medicated feed or discharges chemicals. Neither Stolt nor ASM monitors the environment for the effects of its chemical usage at farm sites. Stolt and ASM also use cypermethrin to treat outbreaks of sea lice at their farm sites. Cypermethrin is highly toxic to arthropods, including adult and larval lobsters. A cypermethrin plume can remain toxic to sensitive marine organisms for several hours after release. Larval lobsters and other small marine organisms can become entrained in a cypermethrin plume and be unable to escape it. Neither Stolt nor ASM has ruled out using cypermethrin to treat sea lice in the future. Cypermethrin is a “pollutant” under the CWA, the discharge of which into Maine waters has an adverse ecological effect. At any given time, ASM has 1,000,000 to 2,000,000 fish in the water. ASM uses approximately 7,000 tons of feed, company-wide, at its sites. ASM’s annual production is approximately 5,000 tons (10,000,000 pounds) of salmon. ASM stocked new fish at Cross Island North in October 2002 and stocked new fish at Starboard Island, Flint Island, and Dyer Island in the spring of 2002. At any given time, Stolt has approximately 500,000 fish in the water. Stolt’s annual production has been approximately I,000 tons (2,000,000 pounds) of salmon. Stolt stocked new fish in April and May 2002. ASM has estimated that an individual 24-by-24-meter square net pen at a farm site generates nearly two metric tons (1,837.5 kilograms) of waste products each month. ASM, at the time of the hearing, had fish in sixty-eight pens and Stolt had fish in thirty-two pens. Some of those pens are 24-by-24-meter square pens and some are the larger 70-meter or 100-me-ter circular pens, which hold more fish and generate more waste. Defendants have realized a significant economic benefit, in the form of a substantial cash flow, by operating without MPDES permits, although the record made in the various proceedings herein is insufficient to permit the Court to determine the precise amount of such benefit. Neither ASM nor Stolt have operated profitably in 2001 or 2002. III. ANALYSIS A. Primary Jurisdiction This Court has jurisdiction over Plaintiffs’ action pursuant to 33 U.S.C. §§ 1365(a), which expressly authorizes a “citizen suit.” The CWA states: any citizen may commence a civil action on his own behalf (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation ... and to apply any appropriate civil penalties under section 1319(d) of this title. The CWA provides for limited circumstances in which governmental action will bar a citizen suit. See 33 U.S.C. §§ 1365(b)(1) (prior to giving sixty days notice of the violation or when the agency or the state has commenced and is diligently prosecuting an action), 1319(g)(6)(B). Thus in certain statutorily defined circumstances in which federal or state agencies are attentively looking after the citizens’ interests, citizen suits may not be permitted. Defendants here contend that the Court should deny Plaintiffs’ request for injunctive relief on the basis of primary jurisdiction because the State of Maine DEP is working on an MPDES permit enforcing requirements of CWA. Plaintiffs respond that the only situation in which primary jurisdiction has been invoked to successfully dismiss a citizen suit involves a collateral attack on agency orders. By contrast, Plaintiffs assert, the instant cases were filed before the initiation of the NPDES permitting process now pending before the DEP and that “the relief sought will not conflict in any way with that process.” Plaintiffs’ Post-Trial Reply Brief (Docket Item No. 82) at 3. Pursuant to the doctrine of primary jurisdiction, a court may defer or stay litigation pending an administrative agency’s consideration of the issues presented in the suit. See Ass’n of Int’l Auto. Mfrs., Inc. v. Comm’r, Mass. DEP, 196 F.3d 302, 304 (1st Cir.1999). The doctrine is typically applied, “whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.” United States v. Western Pac. R.R., 352 U.S. 59, 64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). “The primary jurisdiction doctrine is intended to ‘serve[ ] as a means of coordinating administrative and judicial machinery’ and to ‘promote uniformity and take advantage of agencies’ special expertise.’ ” Pejepscot Indus. Park, Inc. v. Maine Central R.R., 215 F.3d 195, 205 (1st Cir.2000) (quoting Mashpee Tribe v. New Sedbury Corp., 592 F.2d 575, 580 (1st Cir.1979)). Although the Supreme Court has prescribed no fixed formula for determining whether a court should defer to an administrative agency, in Pejepscot Indus. Park the Court’of Appeals for the First Circuit relied on three factors to guide the decision on whether to refer an issue to an agency under the primary jurisdiction doctrine: (1) whether the agency determination l[ies] at the heart of the task assigned the agency by Congress; (2) whether agency expertise [i]s required to unravel intricate, technical facts; and (3) whether, though perhaps not determinative, the agency determination would materially aid the court. Id. (citing Commonwealth of Mass. v. Blackstone Valley Elec. Co., 67 F.3d 981, 992 (1st Cir.1985) (quoting Mashpee Tribe, 592 F.2d at 580-81) (alterations in original)). The Court believes that the scientific and ecological impact issues implicated in the remedial aspects of this case are, ideally and in the first instance (with one exception), properly for the special expertise of the administrative agency and that a decision by EPA or DEP, except in the case of the exception, could assist the Court. The Court also notes that an EPA determination of what conditions should be placed on the salmon farming operations regarding the permissible discharge of pollutants has been certainly a central responsibility of the EPA. It has, for no apparent reason in the circumstances, evaded for years its functions in that regard. The EPA has, in fact, recently delegated the task of setting conditions for, and issuing, the NPDES permits to the State of Maine and has retired to the sidelines of this pressing controversy, while ultimately retaining veto power over the NPDES permits issued by Maine. As discussed above, in the fall of 1990, EPA sent letters to Stolt and ASM stating that they were required to obtain NPDES permits for their farm sites and instructing them to fill out an NPDES application form and return it within sixty days. Stolt and ASM timely submitted NPDES applications. EPA did not act on these applications and, instead, participated with ACE, NMFS, USFWS, DMR, and DEP in a joint effort from 1990 to 1992 to create the State FAMP. Thereafter, in 1992, DMR sent letters to all Maine companies, including ASM and Stolt, advising that federal and state agencies regulating aquaculture in Maine had “finalized a coordinated monitoring program for finfish aquaculture” and stating that the DMR would be the “lead agency” that is “now ready to implement this program.” Joint Ex. 193. The letter also stated, however, that Defendants should “submit a notice of intent to be covered by the U.S. Environmental Protection Agency (USEPA) National Pollutant Discharge System (NPDES) general permit when it is issued.” Joint Ex. 193. ASM and Stolt timely filed either a Notice of Intent to be Covered by General Permit or an individual permit application for existing and subsequent lease site applications, and participated in the FAMP. ASM contacted EPA numerous times after 1992 with respect to its sea farm operations. It filed six applications for new lease sites through 1998, sent a letter in 1993 requesting an EPA letter of assurance that ASM could commence operations at new lease sites upon receipt of ACE or DEP authorizations, and sent a letter in 1995 reminding EPA of its continued operations and change in ownership. EPA never responded. Similarly, Stolt contacted EPA to request new lease sites and notified EPA of continued operations under new ownership. EPA never responded. In 2001 EPA delegated to the State of Maine the task of issuing the NPDES permits under the CWA. The State has yet to provide any definitive action on the issues passed to it, so there is no way to know whether EPA has, or will have in the future, any inclination to act on the basis of its reserved veto power. The past record of its performance casts the likelihood that it will do so severely in doubt. Although DEP is now working on a draft permit, DEP is more than a year beyond the agreed EPA-DEP deadline for a final permit decision on Maine sea farm sites. The Court concludes that deferring the injunctive relief aspects of this case on the basis of primary jurisdiction is not warranted given the history of the administrative agencies’ inexcusable delay in effectively addressing the issues raised by Defendants’ past methods of operating their pen sites and getting to the issuance of meaningful, effective regulations and permits. On the record of the past two and one-half years, this Court is clearly better posed to address those issues and prescribe the appropriate remedial relief for Defendants’ violations than are the regulatory agencies. They have sat overlong on their hands in this respect. B. Statute of Limitations The CWA contains no statute of limitations. Ordinarily, when a federal statute contains no limitations provision, a federal court should apply the “most appropriate” statute of limitations provided by state law, unless there is a “relevant” federal statute of limitations. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975). Defendants contend that the relevant federal statute of limitations is 28 U.S.C. § 2462. That section states: Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fíne, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued.... 28 U.S.C. § 2462. Many courts have already held that section 2462 applies to citizen actions seeking the enforcement of civil penalties under the CWA. See, e.g., Public Interest Research Group of N.J. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 74-75 (3rd Cir.1990) (applying same five-year federal statute of limitations period to citizen suit brought under CWA), cert. denied, 498 U.S. 1109, 111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991); Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1521 (9th Cir.1987) (five-year statute of limitations found in 28 U.S.C. § 2462 is the relevant federal limitations period for a citizen suit under CWA); United States v. Reaves, 923 F.Supp. 1530, 1533 (M.D.Fla.1996) (five-year statute of limitations applicable to the CWA); United States v. Aluminum Co. of America, 824 F.Supp. 640, 644 (E.D.Tex.1993) (same); United States v. Windward Properties, Inc., 821 F.Supp. 690, 692 (N.D.Ga.1993) (same); United States v. Hobbs, 736 F.Supp. 1406, 1408-09 (E.D.Va.1990) (same); National Wildlife Federation v. Consumers Power Co., 657 F.Supp. 989, 1010 (W.D.Mich.1987) (same), rev’d on other grounds, 862 F.2d 580 (6th Cir.1988); Atlantic States Legal Found. v. Al Tech Specialty Steel Corp., 635 F.Supp. 284, 287 (N.D.N.Y.1986) (same); Connecticut Fund for the Environ. v. Job Plating Co., Inc., 623 F.Supp. 207, 213 (D.Conn.1985) (same); Sierra Club v. Simkins Indus., Inc., 617 F.Supp. 1120, 1124-25 (D.Md.1985) (same), aff'd, 847 F.2d 1109 (4th Cir.1988); Chesapeake Bay Found. v. Bethlehem Steel Corp., 608 F.Supp. 440, 450 (D.Md.1985) (same); Friends of the Earth v. Facet Enterprises, Inc., 618 F.Supp. 532, 536 (W.D.N.Y.1984) (same). This Court agrees. The Court must next determine, for purposes of section 2462, when Plaintiffs’ “claim first accrued.” If the statute of limitations has commenced to run on these continuing violations, the claims that accrued prior to June 1, 1995, are barred. Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1524 (9th Cir.1987). It appears that there has been a preference among courts deciding the issue for a discovery-rule in determining when accrual occurs. See, e.g., Windward Properties, Inc., 821 F.Supp. 690, 694 (N.D.Ga.1993). This rule is often based upon the perception that a strict interpretation of the limitations period in section 2462, which provides that a claim accrues at the time of the violation, “would have the effect of significantly thwarting the purposes of the CWA.” Id. Other courts hold that accrual occurs at the time the violation occurs. See United States v. The Telluride Co., 884 F.Supp. 404, 408 (D.Col.1995). The Court need not decide the issue in this case since