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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.
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.
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 areas of the [EEZ] available … for the development” of ocean fish 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 any 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:
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.
Subdivision (a)(4) of Section 4 requires that a permit holder must be an U.S. resident or other U.S. organized business entity. This requirement can be waived (under certain conditions not relevant here), thus allowing non-citizens and foreign corporations to hold ocean fish farming permits. On the same day that Senators Stevens and Inouye introduced the bill they also introduced an amendment that removed the waiver provisions. It would seem that this is a distinction without difference since a foreign corporation could simply set up a U.S.-based shell corporation to qualify.
The bill provides that site and operating permits may be submitted and reviewed at the same time. While it may be hard to argue with this “good government” provision, it does have the effect of speeding up the process and of lumping the site considerations together with the operating aspects of any particular project. This is in contrast to the proposed California system, currently pending in the State Senate, that requires appropriate sites be inventoried before specific operations are considered.
The Secretary must also rule on a permit application within 120 days of completion of all applicable statutory and regulatory requirements. Extra time is allowed at NOAA’s request (but not at the public’s), under certain circumstances. Requiring a ruling on permit applications within 120 days is solely for the protection of the fish farmers by protecting them from regulation by delay. NOAA’s Analysis indicates that this 120-day requirement is “needed to ensure an efficient permitting process in which applicants receive decisions on proposed operations within a reasonable time frame.” This, of course, only highlights the bias of the bill by the failure to acknowledge the time needed to prepare a response to any application.
Several provisions of the bill confirm that the bill does not supersede other Federal laws and regulations (except the Magnuson-Stevens Act, as discussed below). Under the preemption doctrine, however, state law applies unless it is in conflict with Federal law. Thus, for example, a state ban on salmon farming would still apply in state waters, but since the Federal fish farming bill allows salmon farming in Federal waters the state ban would have no effect on Federal actions in Federal waters. State laws protecting their offshore resources thus become irrelevant outside state territorial waters.
Vessels owned or used by a permit holder in furtherance of the fish farm operation are “exempt from the requirement for documentation or a fishery endorsement” normally required by the Jones Act. The documentation and fishery endorsement requirements govern who can fish. This appears to be an attempt to make allowances for foreign owned farms and/or foreign owned vessels. More research will be needed to put these exemptions into context, but it does not appear to be a blanket exemption from the Jones Act that several people suspected. On the same day that Senators Stevens and Inouye introduced the bill they, along with Senator Snowe, also introduced an amendment that deleted this exception.
The subsections that address site and operating permits give the Secretary total discretion regarding the permits terms, conditions and restrictions. The only requirement for a site permit is that it must specify “the duration, size and location of the [fish farming facility].” The operating permit must additionally indicate the species to be raised. Thus, the Secretary is given the legislative equivalent of carte blanche regarding the site and operation permit conditions, except for the few obvious and non-controversial details listed just above. This is one place in the bill where standards might be placed, but the only standards are incorporated by reference. Those references to environmental protection are: (1) in the incorporation of pre-existing environmental law; (2) in the ‘Criteria’ section (Section 4(d), discussed just below), and; (3) in the Environmental Requirements section (Section 5, discussed below).
The site permit subsection also compels the permits to have a duration of 10 years and be renewable in 5-year increments. The duration of permits for facilities that are also covered by a lease issued under the OCSLA (e.g., offshore drilling platforms) is determined by the Secretary of Commerce in consultation with the Secretary of Interior. Leases for “demonstration projects” are also not included in the 10-year/5-year requirements and could go on indefinitely.
Elsewhere in the bill, the Secretary of the Interior is given authority to enforce lease, permit and OCSLA requirements and to issue emergency orders over fish farming that occurs on or within one mile of drilling platforms. This again confirms the possibility that fish farms will be authorized at or near a producing oil or gas drilling platform. It also repeats earlier provisions that grant Interior some concurrent authority over fish farms on and near these platforms.
The site permit subsection also compels holders of a site permit to “remove all structures, gear, and other property from the site as may be prescribed by the Secretary” when the permit term is complete. As a part of those removal provisions, should a fish farmer not be able to remove the farming facilities from a drilling platform, the owner of the platform could be responsible for those costs. This subsection also provides further confirmation that fish farms are contemplated on and near drilling platforms.
Section 4(d) is entitled Criteria for Issuing Permits. This subsection requires the Secretary to “consult as appropriate with other Federal agencies to ensure that” a permitted ocean fish farm “meets the environmental requirements established under section 5(a) and is compatible with the use of the Exclusive Economic Zone for navigation, fishing, resource protection, recreation, national defense (including military readiness), mineral exploration and development, and other activities.” Unfortunately, this provision borders on meaningless for ensuring any protection of the marine environment.
The first requirement, that ocean fish farming only meet the very minimal environmental requirements of Section 5 of the bill will be discussed below. This “criteria” subsection, moreover, only requires that NOAA “consult as appropriate” with other agencies to insure compatibility with the other listed uses, not that it actually protect other listed uses. As a part of that consultation, fishing and resource protections are accorded the same weight, if any, as navigation, recreation, national defense, mineral exploration and development, and “other activities.”
A second part of this “criteria” subdivision compels the Secretary to “consider risks to and impacts on natural fish stocks, the coastal environment, water quality and habitat, marine mammals and endangered species, and the environment, as identified by the Secretary and other Federal agencies.” Again, risk and impact consideration is the only thing required here. Once those risks and impacts are considered, the Secretary is still free to ignore them. This consideration requirement adds no protections that are not already required by the National Environmental Policy Act (“NEPA”). There is no requirement that those risks be minimized or balanced against other aspects of an ocean fish farm. There is also no requirement that the process of that consideration be public. These “criteria for issuing permits,” therefore, do nothing to assure any ecosystem protections.
The final subdivision under 4(d) requires NOAA to “periodically” review the criteria for permits and to modify them “based on the best available science.” This is also such a vague standard as to make it unenforceable and meaningless. “Periodically” and “best available science” are so vague that the subdivision essentially gives complete discretion to NOAA. The language, moreover, does not compel NOAA to change the criteria based on that review.
Subsection 4(e) excludes the permitting system set up under this bill from the Magnuson-Stevens Act. Whether permits under this bill should be governed by the Magnuson-Stevens Act and its regional councils may be subject to debate and full discussion of that issue is beyond the scope of this article. Some of the points to consider, however, are that Magnuson-Stevens, at least, requires some balancing of competing interests and transparency of the process. This bill does neither.
The bill also requires that the Secretary consult with the local Regional Fishery Management Council prior to issuing a permit and to “ensure, to the extent practicable, that offshore aquaculture does not interfere with conservation and management measures promulgated under the [Magnuson-Stevens] Act.” Requiring consultation may be a positive step, but without requiring that action be taken based on that consultation or, better yet, requiring that the regional council also permit farming facilities, the consultation requirement is hollow.
Finally, this portion of the bill authorizes, but does not require, the Secretary to require ocean fish farmers to “track, mark, or otherwise identify” the farms’ product. Tagging farmed fish should be required.
A “Fees and Other Payments” subsection authorizes the Secretary to set application and permit fees and to waive those fees for research or hatchery facilities. The Secretary is also required to demand a bond to insure payment of unpaid fees, the cost of removing the farming facilities at the end of the permit period, “and other financial risks as identified by the Secretary.” The worst part of this section is that there is no requirement for royalty payments for use of a common public resource.
Most statutory schemes that allow extraction of a public resource also require some sort of a lease or royalty payment to the government. Oil, gas and coal extraction, for example, requires a royalty, while grazing requires a lease payment. These are paid to the Federal government to help compensate for the value lost to the public and/or for the damage that the activity does to the environment.
This bill, on the other hand, gives away large plots of ocean to private corporations, without requiring either royalty payments or a compensating high level of employment/economic benefit to coastal communities. Adding a lease or royalty payment requirement would be the fair thing to do because: 1) it would be consistent with most other Federal laws; 2) it would more fully internalize the true environmental costs of the operation, and; 3) it would compensate the public for the loss of a public resource.
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, 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 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.
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.
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.
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 start-up 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.
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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