This fee subsection, moreover, also has no requirement that fees even cover the costs of reviewing permit applications or enforcement duties, and is totally discretionary. The bond (as opposed to the fee) requirement is limited to insuring payment of unpaid fees, the cost of removing the facility at the end of the permit period, “and other financial risks as identified by the Secretary.” Lacking is a requirement for the bond to cover clean-up costs, damage done by escapes, and damage done by the spread of farm based disease. Finally, the provision that allows for waiver of fees for research or hatchery facilities should be limited to facilities that are not showing any monetary profit.
The Secretary is also given broad discretion in the bill to modify or suspend the permits. This power is subject to “consultation with Federal agencies as appropriate and after affording the permit holder notice and opportunity to be heard” unless an emergency situation. This subdivision lists some of the factors that can be considered, but compels nothing other then reasonable notice to and right to be heard by the fish farmer. In another sign of the bill’s bias, these provisions omit notice to the public when considering modification of a permit and contain no attempt to conform modification requirements to requirements of original permits.
The final subsection addresses the transferability of permits by making them fully transferable subject to procedures established by NOAA. There is nothing that prevents NOAA from allowing transfer to a less solvent corporation or a foreign corporation, nor to prevent consolidation of fish farms under the ownership of a few or single corporations.
Section 5: Few Environmental Requirements
Section 5, in spite of its promising title, contains little actual environmental protection. The single requirement of Section 5 is to “consult with other Federal agencies and identify the environmental requirements applicable to [ocean fish farming] under existing laws and regulations.” In other words, they are compelled merely to follow the laws they were already compelled to follow before.
The Secretary is allowed under Section 5 to “establish additional environmental requirements” for ocean fish farming “if deemed necessary.” These additional requirements, if any, are to be made in consultation with other Federal agencies, coastal states and the public. The environmental requirements under this section shall consider risks and impacts on “natural fish stock” (as opposed to unnatural fish stock?), “marine ecosystems,” various features of “water quality and habitat,” “marine wildlife and endangered species,” and “other features of the environment.”
The second part of section 5 allows, but does not compel, “regulations regarding monitoring and evaluation of compliance with” permit requirements. Also authorized, but not compelled, is monitoring of the effects of ocean fish farming and of compliance with the “environmental requirements.”
In other words, though this section contains a number of phrases that sound like environmental protection, being only advisory they have no force. As in other parts of this bill, this “consideration” requirement adds no protections that are not already generally required by NEPA and other laws.
In general, the bill completely ignores the fact that ocean fish farming presents a set of known risks to the environment and to fish stocks that should be addressed. While not perfect, the current version of the pending California fish farming bill, for example, requires, among other things, that: the use of fish meal and fish oil be minimized; fees be sufficient to pay for the costs of administering the permitting program, and for monitoring and enforcing the terms of the leases; a baseline assessment be done along with regular monitoring of fish stocks and facilities; drugs and antibiotics be minimization and reported, and; all farmed fish be tagged. The Federal bill contains none of these protections.
The Environmental Requirements of Section 5 and the total discretion it, along with Section 4, gives to the Secretary also completely ignore NOAA’s own past policy statements. The National Marine Fisheries Service (NMFS) (now pompously calling itself “NOAA Fisheries”) has previously developed A Code of Conduct for Responsible Aquaculture Development in the U.S. Exclusive Economic Zone (www. nmfs.noaa.gov/trade/AQ/AQCode.pdf). That Code calls for use of best management practices and site evaluation consideration of effects on local communities, adoption of the precautionary approach, escape prevention, inventory tracking systems, and predator protection. While these statements do not go nearly far enough, it is outrageous that NOAA is ignoring even its own weak standards in the legislation that it designed and is now aggressively promoting.
Administration
Administration of offshore aquaculture is found in Section 7 of the bill, which has eight subsections. The first authorizes the Secretary to promulgate rules to carry out the bill and to amend those rules as need be. The next authorizes the Secretary to promulgate rules to “protect marine aquaculture facilities,” and to request the Coast Guard to “establish navigational safety zones around such facilities.” The “Secretary of the department in which the Coast Guard is operating” may also designate a navigational safety zone that excludes other uses.
Subsections 7(c) and 7(d) require the Secretary to “consult” with other Federal agencies with permitting authority in the EEZ to develop a coordinated and streamlined permitting process for ocean fish farming. Problems with the permit coordination provisions are discussed above. Neither the Section 4 permits nor the Section 7 coordination provisions supersede or substitute for any of the other permits currently required by law for a fish farming facility; e.g., section 10 permits from the Corps, CWA permits from EPA, and incidental take permits under the MMPA and ESA. In other words, they do not shift other permit reviews from EPA, for example, to NOAA.
There does appear to be a conflict between the Section 4 and the Section 7 coordination provisions. The Section 7 coordination provisions are not mandatory while the Section 4 coordination provisions, while vague, seem to allow NOAA to set-up a required coordination process. Section 7 only requires that the Secretary “consult” with the other agencies “to develop” the streamlined process. The Section 4 provision, however, authorizes NOAA to establish a process for development of fish farming in the EEZ that includes the coordination of the permitting process “with similar activities administered by other Federal agencies and States.”
Subsection 7(h) provides that state law applies to all matters not covered by Federal law on the fish farm. An example might be when a dispute arises between a farmer and a supplier on a farm in the EEZ and there is no Federal law regarding the issues presented. This is a confirmation of the preemption doctrine. It is still unclear, however, what if any state laws apply in purely Federal waters.
What’s Not In The Bill
Transparency: This bill does not address any issues of transparency and the extent that other statutes like the Administrative Procedures Act may require public notice of things like permit applications or disclosure of documentation. Moreover, because ocean fish farming would under this legislation be exempted from the provisions of the Magnuson- Stevens Act, the public process provided under that Act for the conservation and management of capture fisheries would not be available for ocean fish farming. The NMFS Code of Conduct, however, does encourage public participation.
Private Attorney General Actions: Almost all Federal environmental statutes contain provisions for private suits against those in violation of the statute, including alleged permit violators. The purpose of those provisions is to allow individual groups to help police the statute, especially when the government does not act or does not act fast enough. Since this bill contains no such provisions, only the federal government would be left to enforce the Act. Thus fishing and conservation groups or the public would be precluded from suing the Secretary for any violation under this Act.
Liability: This bill contains no provisions about who is liable for escaped fish. As a general rule, the negligent owner of escaped private livestock is responsible for the damage done by that escaped livestock. If sheep escape through a negligently maintained fence and eat a neighbor’s lettuce crop, for example, the owner of the fence is liable for the value of the lost lettuce crop. However, proof that escaped farmed stock did any alleged damage could be difficult, if not impossible, depending on the type of farmed fish, the location and the damage. Section 4(e)(4) authorizes, but does not require, the Secretary to require farmers to “track, mark, or otherwise identify” the farms’ product. This should be a requirement.
Conclusion: A Seriously Flawed Bill
NOAA’s ocean fish farming bill does not exempt those farms from NEPA, CWA, CZMA or any other Federal environmental statutes other than the Magnuson-Stevens Act. Other than that, however, it insures no environmental protection from the effects of ocean fish farming because it gives the Secretary of Commerce nearly complete discretion to manage them as s/he sees fit, regardless of the environmental consequences.
What few environmental standards exist in the bill are either optional or have to do only with “consultation” on and “consideration” of environmental issues, but no objective or mandatory targets to meet, and no attempt to balance one interest against damage to the others. In short, the bill as it now exists is seriously flawed and would open the road to disaster for much of our industry.
Responding To The Legislation
Although the bill has serious flaws and the early response from Congress has been tepid, there are active supporters for this measure, including the Bush Administration, some in the research and fish farming community, and the oil industry seeking uses for aging offshore oil platforms that would allow them to escape cleanup costs. At the national level a group of environmental and consumer groups, organized by Dr. Rebecca Goldberg (Environmental Defense) have been meeting intermittently to share information. The Pew Charitable Trusts, which established the Pew Oceans Commission in 2000, in June announced the creation of the Pew Marine Aquaculture Task Force.
Last November at Pacific Marine Exposition in Seattle a number of commercial fishing groups started work to form a national coalition, together with recreational fishing, conservation, consumer, Tribal/First Nation groups, marine scientists and others to protect our oceans, fisheries and fishing communities from the hazards ocean fish farming presents. It is not possible to list all of the individuals and groups that have been holding these discussions, but they have included Anne Mosness, who has been outstanding for her tireless work speaking out on salmon aquaculture, many of the Alaskan and Pacific Northwest fishing groups, including Paula Terrel, Jeremy Brown, Bob Alverson on behalf of the sablefish and halibut fisheries, and others from Hawaii, the Atlantic and Gulf coasts.
In July, the Institute for Fisheries Resources received a startup grant from the Munson Foundation to facilitate the creation of a national coalition to address marine fish farming impacts. At this date, there are still discussions taking place on whether the coalition should limit itself to the EEZ or include state (provincial?) coastal waters as well, whether the coalition should be for North America or just the U.S., and finally, what to call this coalition. Fishermen’s News readers will be kept appraised of developments in this monthly PCFFA column.
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Mitchell Shapson is a San Francisco-based attorney, in practice the past 19 years, who now serves as the Policy & Litigation Analyst for the Institute for Fisheries Resources (IFR), and whose work is currently focused on marine fish farming and the coalition discussed in the article. If you have questions about this issue, or would like a copy of his more extensive and detailed analysis of this bill, you can contact him by e-mail at MShapson@ifrfish.org or at the San Francisco IFR office at (415)561-3474.
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