Offshore Aquaculture Permitting and Legal Considerations

Offshore AquacultureOffshore AquaculturePermitting and Legal Permitting and Legal

ConsiderationsConsiderations

Bob RheaultExecutive Director East Coast Shellfish Growers Associationbob@moonstoneoysters.comwww.ECSGA.org

The Rationale for AquacultureThe Rationale for Aquaculture

• 80% of US seafood is imported80% of US seafood is imported• 50% of that is cultured50% of that is cultured• $8 Billion seafood trade deficit$8 Billion seafood trade deficit

Why offshore?Why offshore?

• Fewer user conflicts• Lots of available area• Reduction in environmental impacts

Buoy for holding and Buoy for holding and dispensing fish feeddispensing fish feed

U.S. Exclusive Economic ZoneU.S. Exclusive Economic Zone

USAUSA

Norway

SpainSweden

Spain

“I am convinced that the United States must explore the potential of offshore aquaculture to help meet the growing demand for seafood in this country and to create jobs and economic opportunity for coastal communities.

To support that, we are making the National Offshore Aquaculture Act of 2005 a priority for this department and this country. We need to create this opportunity now.”

– Carlos Gutierrez, U.S. Secretary of CommerceFebruary 13, 2006

ChallengesChallenges

• Engineering and technical

• Regulatory and legal

• Socio-political – user conflicts

• Financial – competing with near-shore producers and multi-nationals

Legal and Legal and RegulatoryRegulatory

Issues Issues

• No leasing authority – questionable ownership of fish• Piecemeal regulatory scheme• ACOE defacto lead agency - Rivers and Harbors Act

– consultations w/ EPA, NOAA, F&W• EPA CWA § 402 requires permits for the discharge of

pollutants• CZMA – State consistency review

Recent Offshore Aquaculture Recent Offshore Aquaculture InitiativesInitiatives

• New England Council – draft plan 1998• Sea Grant – UDel Marine Policy efforts

Policy Framework Policy Framework (2000-2001)(2000-2001)

• Biliana Cicin-Sain• Susan M. Bunsick M. Richard DeVoe Tim Eichenberg John Ewart Harlyn Halvorson Robert W. Knecht Robert Rheault

Part 2 June 2005Part 2 June 2005• Biliana Cicin-Sain • Susan M. Bunsick John Corbin M. Richard DeVoe Tim Eichenberg John Ewart Jeremy Firestone Kristen Fletcher Harlyn Halvorson Tony MacDonald Ralph Rayburn Robert Rheault Boyce Thorne-Miller

http://dspace.udel.edu:8080/dspace/handle/http://dspace.udel.edu:8080/dspace/handle/19716/250619716/2506

UDel Recommendations on:UDel Recommendations on:

• Governance and Regulatory Authority• Leasing (rent) and Permitting • Environmental Review • Planning and Site Assessment• Operations and Monitoring• Decommissioning and removal• Enforcement, Bonding and Compliance

http://dspace.udel.edu:8080/dspace/handle/19716/2506http://dspace.udel.edu:8080/dspace/handle/19716/2506

Offshore Aquaculture InitiativesOffshore Aquaculture Initiatives

• Sea Grant – UDel Marine Policy efforts• US Commission on Ocean Policy• Pew Oceans Commission• US adopts FAO Code for Responsible

Aquaculture• Offshore Aquaculture Act (s)• Regional Fisheries Councils

Pew Oceans Commission on Pew Oceans Commission on Marine Aquaculture Marine Aquaculture

• National oceans agency and regional ocean governance councils limit negative effects

• EPA enforces water quality standards

• Research ecologically sustainable aquaculture

• Halt expansion until standards implemented

• Halt use of GMOs until sustainability determined

• The U.S. should work to encourage ecologically sustainable marine aquaculture internationally

U.S. Commission On Ocean U.S. Commission On Ocean Policy on Marine Aquaculture Policy on Marine Aquaculture

• NOAA implements a national marine aquaculture policy via a new Office of Sustainable Marine Aquaculture

• Balance development and environment

• Coordinate across government and uses

• Include rent collection to public trust

• Use a multi-agency permit application

• Require aquaculture facility bonding

• Develop best management practices

U.S. Commission On Ocean U.S. Commission On Ocean Policy on Marine Aquaculture Policy on Marine Aquaculture

Congress should increase funding for expanded marine aquaculture research, development, training, extension, and technology transfer programs

The United States should work with the UN Food and Agriculture Organization to facilitate worldwide adherence to the aquaculture provisions of the Code of Conduct for Responsible Fisheries

2004 2004 U.S. Ocean U.S. Ocean Action Plan Action Plan

• Support legislation giving Commerce Department clear regulatory authority over offshore aquaculture

• Support EPA authority to regulate aquaculture effluents

• Support sustainable aquaculture in the Americas

June 2007June 2007AquacultureAquaculture

SummitSummit

July 2008 July 2008 NOAA NOAA

Symposium Symposium and and

Economic Economic AnalysisAnalysis

Gulf Council Aquaculture FMPGulf Council Aquaculture FMP

• Draft EIS, Public comment – Fall of 2008

• Passed January 2009

• Goes to Secretarial Review Process • NOAA comment 60d, Secretary decision in 30 days

• If approved goes to rule making• Questions on legal authority

• Questions on regulatory authority

• Questions on environmental impacts

Alternative Approaches to Regulation Alternative Approaches to Regulation of Offshore Aquacultureof Offshore Aquaculture

• Case-by-case approachExample: Hubbs project, NE mussels

• Regional approachExample: Gulf of Mexico FMP

• National approachExample: National legislation

Legislative ApproachLegislative Approach

• Offshore Aquaculture Act of 2003, 04, 05, 07, 08….

• Substantially revised in an attempt to address charges of vague environmental standards

• Finally Introduced in 2008 – never voted on.

Parallels Between Aquaculture Parallels Between Aquaculture and Wind Power Permittingand Wind Power Permitting

• Private use of a public resource

• New users in a crowded resource

• Need to start with the premise that these new users have a valid place in the ocean.

• Relegating new users to totally unused areas is to doom them to failure.

Similarities between Permitting Similarities between Permitting Offshore Wind and AquacultureOffshore Wind and Aquaculture

• Naysayers uniformly praise wind and aquaculture as long as they cannot see it.

• NIMBYs rise specter of environmental damage when actual evidence is weak.

• Supporters are placed in the position of proving a negative.

• Unknowns cause paralysis in regulators.

Fishing ConflictsFishing Conflicts

• Fishermen are not limited by the amount of available area – they are quota limited.

• Some small reduction in available grounds will not impact their ability to fill their quota.

• The amount of area needed for wind and aquaculture is a tiny fraction of the EEZ.

• Only need to protect critical habitat and best fishing areas.

ConsiderationsConsiderations

• Efforts to block culture of carnivorous fish are hampering efforts to develop sustainable shellfish culture.

• We will never be able to answer the questions of critics to their complete satisfaction until we try it. (case for adaptive management)

• Despite intensive monitoring we have not been able to detect environmental impacts of any deep water fish farms.

New Zealand Mussel FarmsNew Zealand Mussel Farmsproduction goal $1 Billion by 2025production goal $1 Billion by 2025

We can grow it ourselves or buy We can grow it ourselves or buy it from Taiwanit from Taiwan

ResourcesResources

• Udel Sea Grant projects I and II http://seagrant.oregonstate.edu/sgpubs/onlinepubs.html#w08001 http://darc.cms.udel.edu/sgeez/sgeez2final.pdf

• Firestone et al. Columbia Law Review http://www.ocean.udel.edu/cms/jfirestone/WindAquaRegCJP.pdf

• NOAA Offshore Aquaculture economics report http://aquaculture.noaa.gov/news/econ.html

• NOAA 2007 Marine Aquaculture Summit http://aquaculture2007.noaa.gov/agenda/welcome.html