On June 8, 2005 the Bush Administration, through the Department of Commerce, introduced the “National Offshore Aquaculture Act of 2005” (S. 1195), introduced by Senators Ted Stevens (R-AK) and Daniel Inouye (D-HI). This bill, which the Administration claims was 10 years in the making, is “to provide the regulatory framework for the development of aquaculture in the United States Exclusive Economic Zone (EEZ),” the area three to 200 miles offshore. Unfortunately, the bill contains no environmental protections or standards specific to fish farms, gives away the right to use the public’s land to private entities and allows all of this to be done in secrecy. Without these protections, massive offshore aquaculture development would threaten ocean fisheries in a number of ways, which is why this bill is of such concern to our industry.
For background information leading up to the introduction of the offshore aquaculture bill, see, the analysis of the Administration’s draft aquaculture bill that appeared in the November 2004 issue of Fishermen’s News, and also see the previous PCFFA articles that appeared in FN: “Effectively Communicating Aquaculture’s Threat” (March, 2005, at: www.pcffa.org/fn-mar05.htm); “Fish Farmers and Fishermen” (January, 2004, at: www.pcffa.org/fn-jan04.htm); “A Pacific Rim Strategy for Wild Salmon” (May, 2003, at: www. pcffa.org/fn-may03.htm); and “Aquaculture’s Next Wave Threatens to Swamp Commercial Fisheries” (December, 2002, at: www.pcffa.org/fn-dec02.htm). Along with introduction of the bill, NOAA issued a document titled Section- By-Section Analysis, National Offshore Aquaculture Act of 2005 (“NOAA’s Analysis”), available at: www.nmfs.noaa. gov/mediacenter/aquaculture along with other Administration documents on the bill.
The introduction of the bill was done, according to the authors, only as courtesy to the Administration. While the Administration is touting their legislation as the centerpiece of the President’s “Ocean Action Plan” developed last year in response to the U.S. Commission on Ocean Policy recommendations, this aquaculture bill is getting lukewarm response at best on the Hill. Three amendments were immediately made to it by the bills own authors, and a fourth was introduced by the authors and Senator Olympia Snowe (R-ME). Among the amendments introduced by Senators Stevens and Inouye is one to allow coastal states to decide whether or not they even want offshore aquaculture in the EEZ off that state’s coastline.
Alaska’s other U.S. Senator, Lisa Murkowski, has said the Administration’s proposal to is flawed and should be a source of concern for anyone who cares about coastal communities and the environment. Senator Murkowski introduced her own legislation (S.796) earlier this year to prohibit fish farming in Federal waters until Congress acts to ensure that every Federal agency involved analyzes such potential problems as disease control, engineering, pollution prevention, and biological and genetic impacts.
The following is a summary of a 26-page memo I prepared earlier on the Administration’s Open Ocean Aquaculture (OOA) ocean fish farming bill. Also please note that the Secretary of Commerce, the Secretary and NOAA may be used interchangeably throughout this article.
Findings
On balance, I found the bill contained serious problems that should be of great concern to U.S. fishermen and anyone else concerned about wild fish stocks and the ocean environment. Even the title is problematic, since it has the same acronym as the implementing agency, the National Oceanic & Atmospheric Administration (“NOAA”), indicative either of a lack of thought or someone’s attempt at being cute. Imagine NOAA implementing “NOAA.”
The first major section called “findings” contains statements that highlight just how biased toward fish farming the bill really is. It states that is the policy of the U.S., for example, to support “an offshore aquaculture industry that will produce food and other valuable products, protect wild stocks and the quality of marine ecosystems, and be compatible with other uses of the Exclusive Economic Zone.” Yet the pollution generated by these ocean-based feed lots along with the damage caused by escaping non-native fish in conjunction with the net loss of protein due to feeding requirements means that the farms would actually threaten wild stocks and the ocean ecosystem. The bias of the bill is shown by the fact that it ignores the damage done by the activity that it is itself encouraging.
The bias of the bill is also evident in a finding that expresses a desire for a permitting system “to encourage private investment” but with no mention of the permitting system’s potentially positive environmental protection aspects. Most Federal environmental statutes contain a policy statement that encourages the industrial conduct while reciting the need for protecting the environment from the effects of that industrial conduct. The findings in this bill do not even give lip service to using the permitting system to protect the marine environment.
This is especially troublesome because the lack of any policy to protect the ecosystem could be interpreted as a decision by Congress to give preference to fish farms over ecosystem protection in all cases of conflict. It could be argued that by not including a “balancing approach” in the bill, but by including balancing approaches in other statutes, Congress was making a clear choice to open up the EEZ to fish farming without regard to the ecological consequences.
By a comparison, the Magnuson-Stevens Act requires a balancing of several interests and leaves the outcome of that balancing to the individual fisheries councils, while the Marine Mammal Protection Act (“MMPA”) explicitly prohibits the intentional taking of marine mammals without any balancing. Lack of any balancing language makes this finding section potentially a very dangerous portion of the bill.
Site Permitting Ocean Fish Farms
Section 4 is the heart of the bill in that it sets up the procedures for the two permits that a farmer will need to obtain; a site permit and an operating permit. Section 4 is divided into the following subsections: (a) general provisions (with eight subdivisions); (b) site permits (with four subdivisions); (c) operating permits (with two subdivisions); (d) criteria for issuing permits (with six subdivisions); (e) exclusion from provisions of Magnuson-Stevens (with four subdivisions); (f) fees and other payments (with three subdivisions); (g) authority to modify or suspend permits (with two subdivisions); (h) actions affecting the outer continental shelf (with four subdivisions); and, (i) transferability of permits.
The general provisions authorize the Secretary of Commerce “to establish ... a process to make areas of the [EEZ] available ... for the development” of ocean fish farming by setting up the permitting procedures. That permitting process must include: A) “development of procedures necessary to implement” the process, and; B) “coordination of the offshore aquaculture permitting process ... with similar activities administered by other Federal agencies and States.”
Authorizing the Secretary to “establish a process to make of the [EEZ] available ... for the development” of ocean farming is, like some of the statements in the “findings” section, another sign of the explicit bias built into the bill. There is no attempt to make it look like a balancing approach with reference to environmental protection. There is no standard by which to judge the point at which open ocean aquaculture should not be developed; only that it is to be developed.
The second part of this subdivision is especially confusing and subject to two differing interpretations. It could be interpreted as allowing NOAA to set up a coordination procedure that is required to be followed by all Federal and state agencies with permitting authority. It could also be interpreted as allowing NOAA to set up a coordination procedure that might be followed those same agencies. NOAA’s Analysis describes this by stating that “[c]oordination with other Federal agencies and States is an important element of the regulatory system established in this Act.” This provision is worthy of note for three reasons:
It vests sole authority in the Secretary of Commerce to develop the rules governing this coordination, as opposed to other possibilities such a committee from the relevant agencies setting the rules or Congress laying out the rules. By granting that authority solely to one department, the bill allows Commerce (under the first interpretation) to make rules that govern other departments, such as the EPA, Army Corps of Engineers and Department of Interior.
It also leaves the permitting authority with the original agency, as opposed to allowing NOAA to issue permits on those other agencies behalf.
This coordination provision, finally, brings in States efforts to address ocean fish farming facilities by bringing them into the coordination rules.
The bill also adds an additional permit where the permit application is for a farm on or within one mile of a permit issued under the Outer Continental Shelf Lands Act (“OCSLA”). In those situations, the additional permit requires the “concurrence of the Secretary of the Interior.” This formally acknowledges that ocean fish farming immediately off of or near a drilling platform could be allowed.
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