development of a policy framework marine ......center for the study of marine policy university of...

DEVELOPMENT OF A

POLICY FRAMEWORK

FOR OFFSHORE

MARINE AQUACULTURE

IN THE 3-200 MILE

U.S. OCEAN ZONE

Prepared by:

Biliana Cicin-Sain,

Robert W. Knecht,Robert Rheault,

University of Delaware

University of DelawareMoonstone Oysters, Rhode Island

Susan M. Bunsick,Rick DeVoe,Tim Eichenberg,John Ewart,Harlyn Halvorson,

University of DelawareSouth Carolina Sea Grant Consortium

Legal Consultant, San FranciscoDelaware Aquaculture Resource Center

University of Massachusetts

Center for the Study of Marine PolicyUniversity of Delaware

DEVELOPMENT OF A POLICY FRAMEWORK

FOR OFFSHORE MARINE AQUACULTURE

IN THE 3-200 MILE U.S. OCEAN ZONE

Prepared by:

Biliana Cicin-Sain,

Robert W. Knecht,Robert Rheault,


University of DelawareMoonstone Oysters, Rhode Island

Susan M. Bunsick,Rick DeVoe,Tim Eichenberg,John Ewart,Harlyn Halvorson,

University of DelawareSouth Carolina Sea Grant Consortium

Legal Consultant, San FranciscoDelaware Aquaculture Resource Center

University of Massachusetts

Center for the Study of Marine PolicyUniversity of Delaware

TABLE OF CONTENTS

EXECUTIVE SUMMARY 1

1. MARINE AQUACULTURE IN THE

UNITED STATES: POTENTIAL AND

OBSTACLES 9

Introduction 9

Major Purpose and Orientation of the Study 10

The Absence of a Policy Framework

for Offshore Aquaculture 11

Issues Confronting Marine Aquaculture 13

Aquaculture in the United States 13

Nature of the Marine Aquaculture Industry 13

Example of Economic Success of Offshore

Aquaculture in Japan 15

The Nature of the Issues Confronting the

Development of Marine Aquaculture

in the United States 17

Other Impediments to Industry Development 19

Major Questions in the Governance

of Offshore Aquaculture 20

Organization of the Report 22

2. REVIEW OF PAST STUDIES

ON MARINE AQUACULTURE 25

Introduction 25

Historical Overview of Major Studies 25

Laying the Policy Groundwork 26

Assessing the Technological Prospects

for Offshore Aquaculture 27

Environmental Perspectives 28

Documenting the Current Policy Framework 28

Policy Development 29

Findings and Recommendations of Past

Studies on Three Major Issues 38

Absence of Policy Framework 38

Environmental Issues 40

Public Trust and Conflicts Issues 43

Conclusion 44

3. ANALYSIS OF PAST AND CURRENT

EFFORTS TO ESTABLISH AND OPERATE

MARINE AQUACULTURE FACILITIES

IN THE UNITED STATES 45

Experiences with Offshore Marine Aquaculture 45

American Norwegian Fish Farm, Inc. 46

SeaStead Project 50

SeaFish Mariculture 53

Open Ocean Demonstration Projects 54

Lessons Learned 59

Army Corps of Engineers Permitting 59

Fishery Management Council Approval 60

Integration with Other Uses: Research 60

Integration with Other Uses: Commercial Fishing 60

Synergy with Other Uses:

Offshore Oil and Gas Production 61

Moving Ahead: Federal Open Ocean

Demonstration Projects 61

The Big Gaps: Addressing the Security

of Tenure, Public Trust, and Environmental Issues 61

The Bottom Line: No Active Commercial

Projects in the 3-200 Mile Ocean Zone 62

OFFSHORE MARINE AQUACULTURE | i

4. THE FEDERAL FRAMEWORK FOR

ADMINISTRATION OF OFFSHORE

MARINE AQUACULTURE 63

Introduction 63

The Federal Government and Aquaculture 64

The National Aquaculture Act and the

Joint Subcommittee on Aquaculture 64

Current Programs 65

The Federal Government and the

Management of Offshore Marine Aquaculture 66

Overview of Federal Agency Roles 70

The Key Agencies Currently Involved

in Marine Aquaculture 73

Regulatory Agencies 73

Agencies with Mixed Roles 77

Conclusions: Problems and Gaps

that Need to Be Addressed 82

Limitations of Existing Statutory Authorities:

Few Explicit References to 82

Conflicts 83

Major Gaps 84

5. RELEVANT EXPERIENCES

FROM THE U.S. COASTAL STATES 85

Introduction 85

Summary Overview of State

Aquaculture Policies 86

Designation of a Lead Agency

for Marine Aquaculture 88

Current Leasing Policy 88

Administrative Requirements 88

States’ Critiques of Current Policy Framework 89

Learning from the States: Examples

of Good Practices in U.S. Coastal States 93

State Policy for Aquaculture Leases/Permits

in Open Waters 93

State Efforts to Coordinate/Streamline

Aquaculture Permitting Process 96

Institutional Bodies Created to Address

Aquaculture Issues 97

State Policies to Address

Environmental/Biological Risks 98

Incorporating Aquaculture in State Legislation

and Regulation 99

Integration of Marine Aquaculture in State

Coastal Zone Management 100

Applicable Lessons from Coastal

State Experiences 102

Planning 102

Permitting/Leasing 102

Operations 102

Termination 103

Conclusion 103

6. POLICY DEVELOPMENT ON

OFFSHORE AQUACULTURE:

LESSONS FROM THE

INTERNATIONAL ARENA 105

The Experiences of Other Nations with

Offshore Marine Aquaculture 106

Norway 106

United Kingdom (Scotland) 108

Ireland 114

Canada 116

Chile 118

Australia 121

New Zealand 124

Japan 127

Policy Guidance from International Entities 129

FAO Code of Conduct for Responsible Fisheries 129

FAO Aquaculture Guidelines 131

ii | OFFSHORE MARINE AQUACULTURE

The Precautionary Approach 131

ICES Code of Practice 133

Sustainable Development 134

Lessons Learned Relevant to the Policy

and Regulatory Framework for Aquaculture

in the U.S. EEZ 135

7. PROPOSED POLICY FRAMEWORK FOR

OFFSHORE MARINE AQUACULTURE 137

Introduction 137

Summary of Issues Raised in Past Studies

and Experiences and Criteria for Evaluation 138

Criteria Guiding Recommended Policy Framework 139

Proposed Policy Framework 140

Outline of Major Features of the Proposed

Policy Framework 140

Planning 141

Permitting/Leasing 143

Operation and Monitoring of Facilities 148

Abandonment of Facilities 149

Conclusion 150

BIBLIOGRAPHY 151

APPENDIX 1. LIST OF ADVISORY

COMMITTEE MEMBERS 161

APPENDIX 2. SURVEY OF U.S.

COASTAL STATES 163

3.4 Site Selection Criteria for New Hampshire Open Ocean

Aquaculture Demonstration Project

3.5 Permitting Process for New Hampshire Project

4.1 Joint Subcommittee on Aquaculture

4.2 Major Issues Addressed in the National Aquaculture

Development Plan

4.3 Federal Funding for Aquaculture, Selected Agencies

4.4 Aquaculture-Related Programs in the Federal

Government

4.5 Agencies with a Role in Offshore Marine Aquaculture

4.6 Statutory Authorities for the Regulation of Offshore

Marine Aquaculture, by Agency

4.7 Explicit References to Aquaculture in Current U.S.

Statutes

5.1 Summary of Marine Aquaculture Policies in Coastal

States

5.2 Types of Marine Aquaculture Leases Offered in State

Waters

5.3 State Permitting/Leasing Requirements for Marine

Aquaculture

5.4 Suggestions for Federal Offshore Marine Aquaculture

Policy

5.5 Relationship of Aquaculture to State Coastal Zone

Management Plans

CSMP - University of Delaware -

OFFSHORE MARINE AQUACULTURE | iii


iv | OFFSHORE MARINE AQUACULTURE

FOREWORD AND ACKNOWLEDGEMENTS

Marine aquaculture is a promising new use of offshore waters in the United States. As one of the neweruses of the ocean, marine aquaculture needs to be developed in an environmentally sustainable mannertaking into account impacts that may result for ocean resources, environments, and users. However, atpresent, there is no explicit policy framework at the federal level in the U.S. for managing and providingguidance for the development of offshore marine aquaculture.

This report addresses issues that must be confronted in the development of this new industry;especially those related to environmental impacts, effects on other users, and issues related to theexclusive private use of public waters. The study draws lessons from past efforts to address theseconcerns, and from the experience of coastal states and other nations in managing offshore marineaquaculture. A policy framework for managing aquaculture operations in federal waters in the U.S.Exclusive Economic Zone is proposed.

This work is the product of the research and discussions among a diverse and multidisciplinaryresearch team, including scholars and practitioners in the fields of marine science, aquaculture industry,ocean policy, and environmental law. It is interesting to note that, notwithstanding the variety ofperspectives and backgrounds represented on the research team, after extended discussions, the teamwas able to develop a broad consensus on the policy framework proposed here, although not alwaysagreeing on every detail of the framework.

Much of the research and the writing of the report was carried out by the University of Delawaremembers of the research team (Susan Bunsick, Biliana Cicin-Sain, John Ewart, and Robert Knecht)with valuable input from Richard DeVoe (marine aquaculture, South Carolina Sea Grant Consortium),Tim Eichenberg (environmental law, legal consultant, San Francisco), Harlyn Halvorson (marinescience and biotechnology, University of Massachusetts, Boston, and Robert Rheault (marineaquaculture industry, Rhode Island). Many thanks are due to Danielle M. Tesch, Center for the Study ofMarine Policy, for her assistance in the project, especially in the analysis presented in Chapter 2 of thereport, to Jorge A. Gutierrez, Center for the Study of Marine Policy, for technical editing, graphics, andformatting of the report, and to Catherine Johnston, Center Program Coordinator, for managerialsupport.

The project benefitted greatly from the advice and feedback provided by an advisory committeecomposed of distinguished individuals from the Congress, state and federal agencies, aquacultureindustry, fishing industry, and environmental groups: Charles Chesnutt, U.S. Army Corps ofEngineers; John Corbin, Hawaii Department of Agriculture; Tom Ellis, National Association of StateAquaculture Coordinators; Jean Flemma, Resources Committee, U.S. House of Representatives;Rebecca Goldburg, Environmental Defense; Betsy Hart, National Aquaculture Association; Roger


OFFSHORE MARINE AQUACULTURE | v

McManus, Center for Marine Conservation; Luke Nachbar, Office of Senator Judd Gregg (NewHampshire); Pietro Parravano, Pacific Coast Federation of Fishermen's Associations; Jeff Peterson,U.S. Environmental Protection Agency; David Redlin, Office of Senator Bill Roth (Delaware); EdRhodes, National Marine Fisheries Service; Louise Scura, World Bank; Margaret Spring, CommerceCommittee, U.S. Senate; Boyce Thorne-Miller, SeaWeb; and Ken Turgeon, Minerals ManagementService. Many thanks are due to the members of the advisory committee for their time and energy inproviding initial guidance on the project and comments on draft reports.

This work has also benefitted significantly from the input and comments provided by MerylBroussard, Chair of the Joint Subcommittee on Aquaculture (JSA), Ben Mieremet, NOAA Office ofSustainable Development and Intergovernmental Affairs, Jim McVey, National Sea Grant Office, andby the input provided by members of the JSA during several JSA meetings in 1999-2000 when theproject was discussed.

Funding for the study came from the National Sea Grant Technology Program through the DelawareSea Grant College Program; this support is acknowledged with sincere thanks.

Notwithstanding all the valuable inputs received from various reviewers, the members of theresearch team are solely responsible for the contents of the report. The views expressed here also do notrepresent those of the funding agency.

Dr. Biliana Cicin-SainProject Director


vi | OFFSHORE MARINE AQUACULTURE

LIST OF FIGURES

1.1 Definitions of Sustainability

1.2 The Precautionary Approach

1.3 Major Types of Offshore Aquaculture Operations

1.4 U.S. Aquaculture Production and Value, 1992

and 1997

1.5 Scallop Landings in the United States and Japan

3.1 Example of a Netpen/Barge Configuration

3.2 Location of SeaStead Project

3.3 Location of University of New Hampshire Project

3.4 Ocean Spar Sea Station

3.5 Tube Used in Stocking Sea Cage in Hawaii

6.1 FAO Code of Conduct Contains the Major Provisions

for Aquaculture

6.2 A Questionnaire Based on the FAO Code of Conduct

for Responsible Fisheries—Article 9

LIST OF TABLES

1.1 Estimated U.S. Aquaculture Production, 1992-1997

2.1 Summary of Major Past Studies Relevant to Marine

Aquaculture

3.1 Summary of Offshore Aquaculture Projects in the

United States

3.2 Issues Raised by the Conservation Law Foundation in a

Suit Against the American Norwegian Fish Farm, Inc.

Permit

3.3 Events Associated with the Permitting Process for the

SeaStead Project

3.4 Site Selection Criteria for New Hampshire Open Ocean

Aquaculture Demonstration Project

3.5 Permitting Process for New Hampshire Project

4.1 Joint Subcommittee on Aquaculture

4.2 Major Issues Addressed in the National Aquaculture

Development Plan

4.3 Federal Funding for Aquaculture, Selected Agencies

4.4 Aquaculture-Related Programs in the Federal

Government

4.5 Agencies with a Role in Offshore Marine Aquaculture

4.6 Statutory Authorities for the Regulation of Offshore

Marine Aquaculture, by Agency

4.7 Explicit References to Aquaculture in Current U.S.

Statutes

5.1 Summary of Marine Aquaculture Policies in Coastal

States

5.2 Types of Marine Aquaculture Leases Offered in State

Waters

5.3 State Permitting/Leasing Requirements for Marine

Aquaculture

5.4 Suggestions for Federal Offshore Marine Aquaculture

Policy

5.5 Relationship of Aquaculture to State Coastal Zone

Management Plans


OFFSHORE MARINE AQUACULTURE | vii

Executive Summary

This report is the first comprehensiveassessment of federal policy with respect to thedevelopment of aquaculture as a new oceanindustry in federally-controlled waters off theU.S. coast. Researched and written by aninterdisciplinary, multi-institutional team, thereport develops a set of policy approaches toaddress the gaps and deficiencies of currentfederal policy with respect to the siting andoperation of aquaculture facilities in the U.S.Exclusive Economic Zone (EEZ). Developed inconsultation with an advisory committeerepresenting the full range of stakeholderinterests (see Appendix 1), the report draws onthe experience with marine aquaculture policy inU.S. coastal states and eight other nations andconsiders international guidelines for thedevelopment of environmentally sound andeconomically sustainable aquaculture.

The report:

• Describes the current status of marineaquaculture in the United States and therationale for siting projects furtheroffshore (Chapter 1)

• Reviews the major questions and policyissues in the governance of offshoreaquaculture raised by earlier studies(Chapter 2)

• Provides case studies on the experience ofthe major offshore projects that havesought U.S. approval to date (Chapter 3)

• Presents an overview of the complexframework employed by federal agencies

in governing offshore aquaculture undercurrent U.S. law and identifies major gapsand deficiencies in current policy (Chapter4)

• Identifies alternative approaches based ona review of marine aquaculture policy inU.S. coastal states (Chapter 5)

• Reviews relevant international experiencewith respect to aquaculture, includingapproaches to marine aquaculture in eightother nations (Norway, Scotland, Ireland,Canada, Chile, Australia, New Zealandand Japan) and international guidelines fordevelopment of the aquaculture industry(Chapter 6)

• Proposes a set of policy approaches thataddress the full life-cycle of offshoreprojects (from planning through theissuance of permits/leases, operation andmonitoring of facilities, and eventualabandonment at the end of an offshoreaquaculture project), and advocates thedevelopment of an overall policy forplanning and governing all activities in theU.S. EEZ, including aquaculture (Chapter7).

�Scope of Study

The focus of this report is on thepolicy/regulatory issues involved in placing andoperating marine aquaculture structures in theU.S. EEZ for purposes of raising native/locallypresent species and hybrids. The major policy


OFFSHORE MARINE AQUACULTURE | 1

issues examined in this report are the absence ofan explicit policy framework for offshoreaquaculture, environmental impacts, public trustissues, and impacts on other users. The widerange of issues related to industry assistance anddevelopment, optimum economic developmentof the industry, and marine aquacultureinvolving the introduction of new species orgenetically modified organisms (includingtransgenic species) are beyond the scope of thestudy.

�Research Results

Industry Status

Aquaculture is a rapidly growing industryworldwide, and currently accounts for about 25percent of total seafood production. In theUnited States, however, the industry represents arelatively smaller share of the seafood market(about 8-9 percent).

Aquaculture is defined in the 1980 NationalAquaculture Act as “the propagation and rearingof aquatic species in controlled or selectedenvironments, including, but not limited to,ocean ranching.” Aquaculture operationsinvolve hatcheries (land-based facilities tospawn and rear broodstock), nursery culture (therearing of juveniles to a size conducive togrowout), and growout facilities which bring theorganisms to full size, ready for harvest.

The aquaculture industry in the UnitedStates encompasses a wide range of products,including food fish, bait fish, shellfish,ornamental fish, seaweed, and even alligators inFlorida. U.S. aquaculture production totaled768 million pounds in 1997, consisting largelyof freshwater species (mainly catfish, trout,crawfish, tilapia, and striped bass). The major

marine species (salmon, oysters, clams, musselsand shrimp) accounted for less than 10 percent ofthe total. Between 1992 and 1997, productionincreased by 11 percent in terms of volume and29 percent in terms of value. Despite its recentgrowth, U.S. aquaculture remains a relativelysmall industry, accounting for only about 2percent of aquaculture production worldwide.Net seafood imports, which exceed $6 billionannually, are among the top contributors to theU.S. trade deficit.

The marine aquaculture industry istechnologically diverse, with ponds, raceways,silos, circular pools, closed (water reuse)systems, cages and net-pens, rafts, and long linesused according to the species cultured; it alsoincludes sea ranching. Aquaculture practicesrange from extensive, with few inputs andmodest output, to intensive, with high inputs andoutput. These diverse technologies havewide-ranging resource needs, produce differingenvironmental impacts, and require a suite oftechnological and management responses. Theprimary rationale for moving operationsoffshore is the theoretically greater availabilityof appropriate sites with potentially fewer userconflicts and environmental impacts than incoastal waters closer to shore.

Major Offshore Projects

Experience with offshore aquacultureprojects in the United States is limited. Alarge-scale, private sector salmon projectproposed offshore Massachusetts in the late1980s (American Norwegian Fish Farm, Inc.),although never approved or built, drew attentionto the issue of the need for a coherent federalpolicy for the industry. Since then, a smallnumber of projects have been approved,including a federally funded experimental sea


2 | OFFSHORE MARINE AQUACULTURE

scallop project also offshore Massachusetts(SeaStead), a seafood/oil industry venture basedon an offshore platform in the Gulf of Mexico(SeaFish Mariculture), and federally sponsoreddemonstration projects in open waters off NewHampshire, Hawaii, and in the Gulf of Mexico.However, there are currently no activecommercial projects in the 3-200 mile oceanzone.

For most offshore projects, the primaryregulatory hurdle is a permit from the ArmyCorps of Engineers; fishery managementregulations also present challenges for sometypes of projects. The major issues that have notyet been adequately addressed in the publicpolicy arena relate to the need to ensure securityof tenure for the project (i.e., conveying propertyrights in public waters that are traditionally freeand open to all) while fulfilling public trustobligations, minimizing/mitigating impacts onother users, and ensuring that other governmentpolicy objectives, such as environmentalprotection, are not jeopardized.

Current Federal Policy

Under current law, federal agencies havelimited, and often unclear, statutory authoritywith respect to offshore aquaculture. There arefew explicit references to aquaculture in the U.S.Code, and existing authorities do not address thespecific issues associated with offshore marineaquaculture. With few exceptions, federalagency statutory authority over offshore marineaquaculture is based on agency interpretation ofstatutory authority over particular aspects of anaquaculture operation (e.g., waste discharges,placement of structures in navigable waters,etc.).

The key federal agencies currently involvedin offshore marine aquaculture are: the Army

Corps of Engineers, which issues permits foractivities on or in navigable waters of the UnitedStates under Section 10 of the Rivers andHarbors Act of 1899; the EnvironmentalProtection Agency, which issues permits forwaste discharges into public waters under theClean Water Act and is beginning to developstandards and effluent guidelines for theaquaculture industry; the National Oceanic andAtmospheric Administration, which managesU.S. fishery resources in the EEZ; and theDepartment of Agriculture, which chairs theJoint Subcommittee on Aquaculture tocoordinate federal agency activities.

State Policies

Although there has been little practicalexperience with offshore marine aquaculture infederal waters of the United States,commercial-scale marine aquaculture hasdeveloped in state waters along the U.S. coast.Maine and Washington are the most importantstates in the production of salmon, the primaryfood fish produced by the U.S. marineaquaculture industry. The main shellfish speciesfor the U.S. aquaculture industry are oysters,clams, shrimp, and mussels. Shrimp are grownmainly in the south (Texas, South Carolina,Florida). Mollusks (clams, oysters, mussels) areproduced in the northeast, Pacific Northwest,and the South, with Connecticut, Florida, andWashington among the largest producers.

The states have significant experience inmanaging aquaculture leasing programs incoastal waters under their jurisdiction. In recentyears, a number of states have taken initiatives tocoordinate/streamline the permitting process,establish institutional bodies to addressaquaculture issues, adopt policies to addressenvironmental/biological risks, incorporate



aquaculture in state legislation and regulation,and integrate aquaculture into their state coastalzone management plans. This experience,combined with responses to a questionnaire sentto state aquaculture coordinators as part of thisproject (Appendix 2) provide suggestions forplanning, permitting, and operations elements tobe included in federal policy for offshoreaquaculture.

U.S. coastal state experiences with marineaquaculture policy provide useful lessons for thedevelopment of a federal approach to planning,permitting/leasing, and oversight of aquaculturefacilities in the EEZ. Designation of a leadagency for aquaculture, regulatory flexibility,program consolidation, streamlined applicationprocesses, public reviews, environmentalassessments, and monitoring of operations areimportant elements of state policies. A numberof states have demonstrated the use of specificpolicy features such establishing aquaculturezones, requiring performance bonds, issuingexperimental/research leases, allowing theextent of exclusivity to be negotiated, andidentifying best management practices (BMPs).Some states have created new institutionalauthorities, and some have used legislation tospecify lease conditions and criteria for leaseapproval.

International Comparisons and Guidelines

While no other nations appear to have yetdeveloped an explicit regulatory policyframework for their EEZs, a number of nationshave had considerable experience with themanagement of offshore aquaculture locatedsome distance from shore. Of particular interestare Norway, the United Kingdom (Scotland),Ireland, Canada, Chile, Australia, New Zealand,and Japan.

In general, it is clear that offshore marineaquaculture policy needs to flexible andresponsive to industry changes, with simplified,well-coordinated regulatory processes andtechnically competent staff. Specificapproaches used by the countries examined inthis study include: 1) a two step approach inwhich a lease for a particular location is issuedfirst, followed by a license to operate a specificfacility; 2) siting criteria or advancedetermination of “areas suitable for aquaculture”to minimize conflicts; 3) criteria for determiningthe “capacity” of specific sites (i.e. number anddensity of fish per site or per net cage); 4)aquaculture management plans; and 5)interagency processes that promote efficientsiting and monitoring of aquaculture facilities.

In addition, international organizations, inparticular the UN Food and AgricultureOrganization (FAO), provide guidance in theapplication of principles of sustainabledevelopment to world fisheries, which includeaquaculture. Of particular relevance are FAO’sCode of Conduct for Responsible Fisheries andits companion guidelines that explicitly addressapplication of the code of conduct to aquaculturedevelopment. The chief guidance from thebroader international environmental communityrelates to the application of a precautionaryapproach to aquaculture. These guidelines setforth the types of questions that must be asked ofaquaculture development (e.g., whetheraquaculture development conserves land, water,plant, and genetic resources; is environmentallynon-degrading; and is technologicallyappropriate, economically viable, and sociallyacceptable) and requires the parties proposingthe development and the governmental agenciesmanaging the development to provide evidenceon potential impacts.



�Proposed Policy Framework

The framework presented in this report isdesigned to meet the following criteria:

1. Encourages responsible open oceanaquaculture in the US EEZ.

2. Promotes a decision-making processthat is efficient, coordinated, andpredictable.

3. Employs a precautionary approach toavoid and minimize environmentalimpacts and promote integration into theecosystem.

4. Applies separate criteria to native andnon-native species.

5. Is consistent with existing U.S. lawsand agency responsibilities.

6. Is equitable and fair to offshoreaquaculture and to other U.S. users of theEEZ.

7. Is consistent, to the maximum extentpossible, with the coastal, water,environmental, and aquaculture policiesof adjacent coastal states.

8. Is consistent with U.S. obligationsunder international agreements.

9. Will fit within the context of an overallframework for sustainable development ofthe U.S. EEZ.

10. Produces a fair return to the public forthe use of federal ocean space.

11. Is conducted in a transparent mannerwith opportunities for public involvement.

12. Is adaptive and promotes opportunitiesfor innovation, data collection, andlearning.

Recommendations are organized accordingto the various stages involved in locating andoperating a marine aquaculture facility inoffshore waters (planning, permitting, operation,monitoring, and abandonment ). They alsoaddress the need to establish or modify agencyroles in order to provide a more effectiveframework for offshore marine aquaculture.

Planning

Appropriate planning is needed to identifysuitable (and not suitable) areas for offshoreaquaculture, avoiding environmentally sensitiveareas and avoiding undue interference with otherusers (navigation, national defense, fishing,recreation, etc.). Planning should take placebefore areas are offered for aquaculture leasing.

Legislation to provide an overall plan for themapping, management, development, andconservation of the U.S. Exclusive EconomicZone needs to be developed. In the interim,through executive action, the National Oceanicand Atmospheric Administration and theDepartment of Interior should be given anexplicit mandate to develop assessments of EEZareas suitable for various uses (includingaquaculture) through mapping and analysis.

Joint Permitting

A joint federal/state permitting process foroffshore marine aquaculture should beestablished under the coordination andleadership of the U.S. Army Corps of Engineersin consultation with the (new) NOAA Office of



Offshore Aquaculture (see below), first throughexecutive action using an inter-agencymemorandum of understanding, and ultimatelyin new congressional legislation on offshoremarine aquaculture.

The joint federal/state permitting process shallinvolve the use of one comprehensiveapplication form and procedure to meet theapplication requirements of all agenciesinvolved, that would involve the submission of aproposed operational plan.

Environmental Review

Review of offshore marine aquacultureprojects should employ the precautionaryapproach, adhere to the environmental reviewrequirements of the National EnvironmentalPolicy Act, and consider mitigation measures toaddress adverse impacts on other ocean uses.

A set of special standards related to the impactof offshore aquaculture operations on the naturaland human environments should be taken intoaccount in the environmental review process(e.g. factors such as minimization of drugs, useof environmentally-friendly feeds, etc.). Ingeneral, an environmental assessment should beperformed as part of the leasing process, andEnvironmental Impact Statements should beprepared for individual projects.

The extent of the review process should reflectthe risks associated with the project underconsideration (e.g., smaller operations usingwell-understood species/methods vs. largerprojects with potential impacts that are notgenerally agreed upon in the scientificcommunity).

Leasing

Leases (short-term or long-term) giving theaquaculturist exclusive rights to occupy the site

and exclusive rights to the cultured organismsshould be developed. Such leases should beguided by a set of principles relevant to publictrust responsibilities and should specify thescope, size, duration, and other terms of thelease.

The degree of exclusivity will be negotiable,and some form of compensation to the public forthe exclusive rights granted will be expected.Rents collected should be used to establish aspecial fund to support offshore aquaculturemanagement and to provide revenue-sharing tostates for impact mitigation.

Monitoring

A monitoring process, which may involveconditions on operations such as insurance,bonds, or environmental monitoringrequirements, should be put in place to insure thesafety of operations, and, in the case oftermination of operations, the removal ofstructures and the return of the area to itsprevious state.

Public Participation

The leasing, permitting, and environmentalreview processes should be conducted in an openand transparent manner with opportunities forparticipation by the public and by affectedinterests.

Administering Agency

The creation of a new NOAA Office ofOffshore Aquaculture (OOA) is recommendedto oversee the leasing, environmental review,and subsequent monitoring of offshoreaquaculture, including the eventualabandonment of offshore aquaculture facilities.



The draft policy framework discussed aboveis offered for the consideration of interestedparties in the Administration, Congress,industry, environmental, and academiccommunity for discussion and deliberation. Nodoubt parts of the proposed framework will needto be revised and changed, other parts fleshedout, other parts dropped entirely. There may bealternative ways of accomplishing the goals anddirections we have suggested. We do think,

however, that the broad directions we have putforth on the basis of our review of the issuespresent in this area, of past work, and of theexperiences of coastal states and other nations,are the appropriate directions toward which weshould move in order to develop aneconomically sustainable and environmentallysound offshore marine aquaculture industry inthe United States.



Chapter 1

MARINE AQUACULTUREIN THE UNITED STATES:POTENTIAL AND OBSTACLES

INTRODUCTION

As fisheries decline, nations around the worldare increasingly turning to aquaculture to satisfyneeds for food and protein. Currently,one-fourth of all fish consumed globally isproduced from fish farms or aquacultureoperations. Anticipating this trend, the U.S.Congress declared in 1980 that aquaculture wasin the national interest, and established anational policy to encourage its development toreduce the existing large trade deficit in fisheriesproducts, augment existing commercial andrecreational fisheries, induce job growth, andhelp meet future U.S. food needs. (NationalAquaculture Act of 1980, 16 USC 2801 et seq.).Prospects for the U.S. aquaculture industry areespecially promising in offshore areas, wherethere are fewer competing uses and greater waterflow to dissipate waste discharges than innearshore areas. However, the United States hasyet to develop the necessary mechanisms foradequately considering, siting, and monitoringoffshore aquaculture operations. Nor have

fundamental assessments been undertaken of thecarrying capacity for aquaculture in areas of theocean or effluent standards been established forindustry discharges.

A governance framework is a criticalprerequisite if offshore aquaculture is to becomecommercially viable and environmentallysustainable in the United States. Offshoreaquaculture constitutes a new use of ocean spaceunder U.S. jurisdiction. Therefore, developmentof an aquaculture governance framework willhave to be crafted with great care, and in aneconomically and environmentally sustainablemanner (see Figure 1.1). Such a framework alsomust provide due concern for the impacts thatmay be created for ocean resources andecosystems, for competing users of ocean space(such as fishing, navigation, national defense,conservation, recreation, mineral development),and for the public.



�Major Purpose and Orientation

of the Study

This study is a collaborative effort by amultidisciplinary team of ocean policy and lawspecialists, aquaculture scientists, and anaquaculture industry member to examine theissues surrounding expansion of the aquacultureindustry offshore and to develop the key featuresof a national policy for governing open oceanaquaculture in the United States.

The study focuses specifically on thefederally controlled ocean zone—from the limitsof coastal state control (3 nautical miles offshorefor most states) to the 200 nautical mile limit ofthe U.S. Exclusive Economic Zone (EEZ). TheU.S. EEZ covers a total area of nearly 3.4 millionsquare nautical miles, including areas withinstate jurisdiction and areas around U.S.territories in the Caribbean and the PacificOcean.



Sustainable Development

“Sustainable development is development that meets the needs of the present without compromising the ability offuture generations to meet their own needs. It contains within it two key concepts:

(1) The concept of needs, in particular the essential needs of the world’s poor, to which overriding priorityshould be given; and

(2) The idea of limitations imposed by the state of technology and social organization on the environment’sability to meet present and future needs.”

—Prepared by the World Commission on Environment and Development [the

Brundtland Commission] in its report Our Common Future, (Oxford:

Oxford University Press, 1987)

Economically Sustainable

“The characteristic of prolonged, careful, efficient, and prudent (wise and judicious) use of resources (natural, fiscal,human), products, facilities, and services. It is based on thorough knowledge and involves operating with little wasteand accounting for all costs and benefits, including those which are not marketable and can result in savings.”

—The International Institute for Sustainable Development, Wordwatch glossary

Environmentally Sound

“The maintenance of a healthy environment and the protection of life-sustaining ecological processes. It is based onthorough knowledge and requires or will result in products, manufacturing processes, developments, etc. which are inharmony with essential ecological processes and human health.”

—The International Institute for Sustainable Development, Wordwatch glossary

Figure 1.1. Definitions of Sustainability

The study identifies the issues that must beconfronted in managing offshore aquaculture—most prominently, issues related toenvironmental impacts, effects on other users,and the absence of appropriate regulatory andpolicy guidance, and examines how these issuesmight be addressed. This is done through anexamination of past U.S. experiences withoffshore aquaculture and the problems that havearisen; the findings and recommendations ofpast studies on these issues; the experienceswhich U.S. coastal states have encountered intheir efforts to manage offshore aquaculture; theexperiences of other nations with activeaquaculture industries; and the guidance offeredby international entities, such as the UN Foodand Agriculture Organization’s Code ofConduct for Responsible Fisheries (FAO 1995)and its technical guidelines for aquaculturedevelopment (FAO 1997b). The lessons drawnfrom these sources are aggregated and applied topropose a policy framework for governingaquaculture in the U.S. EEZ.

The policy framework developed in thisstudy is intended to be neither undulypromotional of the industry nor arbitrarilyrestrictive. While recognizing that thedevelopment of the industry has been declared tobe in the national interest (National AquacultureAct of 1980), the framework seeks to ensure thatmarine aquaculture activities that occur in theU.S. EEZ take place in an environmentally safeand sensitive manner with due respect for thelegitimate interests and activities of other oceanusers and the public. Also, in view of the factthat little meaningful information on the possibleimpacts of offshore aquaculture is yet available,it is anticipated that some aspects of theframework will be adaptive in nature evolvingover time as additional information and data areobtained.

Several caveats should be noted. Our reportonly addresses the policy/regulatory issuesinvolved in placing and operating marineaquaculture structures in the U.S. EEZ. It doesnot address the wide range of issues related toindustry assistance and development, and theroles of various federal agencies in this regard.The study also does not directly address issuesrelated to the optimum economic developmentof the industry; some economic studies on thesequestions are ongoing at the Marine PolicyCenter, Woods Hole Oceanographic Institution(Hoagland et al., ongoing). Finally, the reportexplicitly addresses marine aquaculture utilizingnative/locally present species and hybrids, butdoes not address marine aquaculture involvingthe introduction of new species or geneticallymodified organisms (including transgenicspecies). The study recognizes that there is aneed for the development of a policy andframework that takes into account the legitimateenvironmental concerns about the use oftransgenic species in aquaculture, as well as thepotential for these technologies. However,consideration of this issue is outside the scope ofthis report.

�The Absence of a Policy

Framework for Offshore

Aquaculture

Commercial-scale offshore aquaculture hasthe potential to compete for resources in federalwaters with other activities—such as navigation,fishing, offshore oil development, militaryactivities, recreation, and conservation. Theseother legitimate uses of ocean space operateunder regulatory regimes that may need toaccommodate potential conflicts with newaquaculture operations (see Eichenberg 1993).Similarly, the governing framework for theoffshore aquaculture industry will need to



consider the potential for interference with otheroffshore activities and with ocean conservation.Opportunities for integration with existing usesof offshore ocean areas need to be considered aswell, such as the possibility of using offshore oilplatforms for aquaculture operations (instead ofabandoning them at the end of their useful oilproduction life) or the use of aquaculture sites asdata collection points in support ofoceanographic, environmental, and meteorol-ogical research.

Two major issues must be taken into accountin devising a policy and management frameworkfor offshore aquaculture. The first relates to themechanism by which an aquaculture facility willbe granted exclusive rights to the use of publicocean space for private business activities.Regardless of the form such an authorizationtakes (e.g., lease, license, permit, etc.), it shouldinclude provisions for the payment of reasonablefees, royalties, or other forms of compensation tothe public, as well as due consideration of theimpacts on and mitigation for other users. Thesecond issue is the need to launch this new oceanindustry on an environmentally sustainable pathutilizing the precautionary principle (see Figure1.2), under which decision-makers err on theside of protecting environmental quality andother principles of sustainability in cases ofuncertainty over impacts of aquaculture sitingand operations.

The lack of a regulatory regime foropen-ocean aquaculture has been muchdiscussed and cited as a serious obstacle to theindustry’s development in the United States. Amajor National Research Council report, Marine

Aquaculture: Opportunities for Growth (NRC1992), highlighted the problems involved in theabsence of a federal framework to manage theleasing of offshore submerged lands and watersfor marine aquaculture purposes and noted thefollowing:

A framework is needed to provide anorderly process for the leasing and conductof marine aquaculture operations to reducethe uncertainty that industry now faces infuture planning activities. A managementframework should have an environmentalimpact assessment requirement wherebypotential environmental impacts can beidentified and addressed; it should be aimedat identifying potential impacts on otherusers and evaluating appropriate strategies;it should provide a fair return to the publicfrom the use of public waters, in the form oflease payments, royalties, and rents (NRC1992, p. 87).



Figure 1.2. The Precautionary Approach

UNCED/Rio Declaration, 1992

- “Where there are threats of serious orirreversible damage, lack of full scientificcertainty shall not be used as a reason forpostponing cost-effective management to preventenvironmental degradation”(Principle 15)

FAO Code of Conduct, 1995

- “States…should apply a precautionary approachto conservation, management and exploitation ofliving aquatic resources in order to protect themand preserve the aquatic environment, takingaccount of the best scientific evidence available.”(Art. 6.5)

- “The absence of adequate scientific informationshould not be used as a reason for postponing orfailing to take measures to conserve targetspecies, associated or dependent species and non-target species and their environment.” (Art. 6.5)

ISSUES CONFRONTING MARINE AQUACULTURE

�Aquaculture in the United States

Aquaculture is defined in the 1980 NationalAquaculture Act as “the propagation and rearingof aquatic species in controlled or selectedenvironments, including, but not limited to,ocean ranching.” As noted in Figure 1.3, thereare various types of aquaculture operationsinvolving hatcheries (land-based facilities tospawn and rear broodstock), nursery culture (therearing of juveniles to a size conducive togrowout), and growout facilities which bring theorganisms to harvest size.

The aquaculture industry in the UnitedStates encompasses a wide range of products,including food fish, bait fish, shellfish,ornamental fish, seaweed, and even alligators inFlorida. U.S. aquaculture production totaled 768million pounds in 1997 (Figure 1.4), consistinglargely of freshwater species (mainly catfish,trout, crawfish, tilapia, and striped bass). Themajor marine species (salmon, oysters, clams,mussels and shrimp) accounted for less than 10percent of the total. Between 1992 and 1997,production increased 11 percent, largely due toincreased investment in catfish and salmon. Theincrease in terms of value - 29% - was even moreimpressive, due in large part to an increase inboth the market price and volume of catfishproduction. In contrast, the value of salmonproduction declined, despite increasingvolumes, due to price declines (Table 1.1).

Despite its recent growth, U.S. aquacultureremains a relatively small industry, accountingfor only less than two percent of aquacultureproduction worldwide. Its share of the U.S.seafood market is only about 8-9 percent,compared with an overall share of 25 percent for

aquaculture worldwide (Naylor et al. 2000).Nevertheless, aquaculture has considerablemarket potential in the United States. Inparticular, the industry could compete withimported seafood (much of which isfarm-raised), which now supplies more than halfof the annual demand for seafood in the UnitedStates. Net seafood imports, which exceed $6billion annually, are among the top contributorsto the U.S. trade deficit. Aquaculture also hasthe potential, if properly managed, tosupplement declining supplies from commercialfisheries in the United States, although somehave argued that marine finfish aquaculture maycontribute to further net depletion of fish stocksworldwide due to nearshore habitat destruction,pollution, non-native introductions, and the useof fish meal and oils in feed (see, for example,Naylor et al. 2000). However, the industrycontinues to evaluate the practicality of variouslower-cost, plant-based dietary alternatives tofish meal.

�Nature of the Marine Aquaculture

Industry

The marine environment, in theory, hasgreat potential for supplying seafood to the U.S.market. By virtue of the vast area of the U.S.EEZ, offshore aquaculture has the theoreticalpotential to overtake the production seen innearshore and land-based facilities; however, inU.S. waters that potential is still unknown,despite current efforts to evaluate the economicviability of certain types of offshore operations(e.g., Hoagland et al., in preparation). A numberof species have been grown or are contemplatedfor offshore aquaculture in different regions ofthe United States. Some examples include: theSeaStead Project offshore Massachusetts





Figure 1.3. Major Types of Offshore Aquaculture Operations

What is aquaculture?

Aquaculture is defined in the National Aquaculture Act of 1980 as the “propagation and rearing of aquatic species incontrolled or selected environments, including, but not limited to, ocean ranching."

Types of aquaculture

HatcheriesConventional hatcheries involve land-based facilities to spawn and rear broodstock

Nursery cultureThis involves the rearing of juveniles to a size conducive to growout

GrowoutIncludes shellfish culture, finfish culture, and seaweed culture

Shellfish culture

Floating longlines or hanging cages or lantern nets

Free planted— “bottom ranching”

Bottom cages

Finfish culture

Net pens or sea cagesEither for the conventional rearing of hatchery-reared fingerlings or for “fattening” to add value towild-harvested fish (such as tuna)Including: traditional floating pens

submersiblepossibly mobile

“Ranching"Release of juveniles that either return or are “trained” to aggregate for harvest

Seaweed culture

Longlines for aquatic plants

Stock enhancement

Typically considered aquaculture, but this is a “gray area”

Three factors help to determine if a practice falls within our working definition of aquaculture:1) Are aquatic species being reared or propagated (defined as spawning, feeding, nurturing,

predator control, disease prevention, etc.)?

2) Is some degree of exclusive use of an area required by the operation?For instance, free planting of shellfish on the bottom does not require a structure and requires little or nohusbandry once the seed are released, but to justify the investment in the seed and early husbandryexclusive harvest rights must be granted.

3) Will the operation require placing a structure in the water?

involving sea scallops (Smolowitz et al. 1998aand 1998b); the New Hampshire Open OceanDemonstration Project involving summerflounder, cod, and blue mussels; the SeafishMariculture project in the Gulf of Mexicoinvolving red drum; and culture of Pacificthreadfin in Hawaii (see Chapter 3).

The marine aquaculture industry istechnologically diverse, with ponds, raceways,silos, circular pools, closed (water reuse)systems, cage and net-pens, sea ranches, raftsand long lines used according to the speciescultured (JSA 1983). Aquaculture practicesrange from extensive, with few inputs andmodest yields, to intensive, with high inputs andyields. These diverse technologies havewide-ranging resource needs, produce differingenvironmental impacts, and require a suite oftechnological and management responses(DeVoe 2000b).

New technologies should provide additionalopportunities for the growth of offshoreaquaculture. Two possibilities where newtechnologies are expected to enhance thepotential for offshore aquaculture are the use ofdrifting cages (Goudey 1998a, 1998b) and thecombination of renewable energy (windmills)with aquaculture. Similarly, new advances indisease management, feeding, engineering, andspecies development will also give the industry aboost. While the economic potential of offshoremarine aquaculture has not yet been fullydemonstrated in the United States, it has beenshown to be successful in other countries, as thefollowing example from Japan illustrates

�Example of Economic Success of

Offshore Aquaculture in Japan

One of the most successful internationalexamples of offshore marine aquaculture is inJapan where sea scallop aquaculture has beendramatically improved by collecting spat andoutgrowing them offshore (Rappaport 1999). InJapan per capita fish consumption is nearly ninetimes greater than in the United States, and thewild capture fishing industry and the aquacultureindustry are seen as complementary to oneanother. The Japanese sea scallop fishery wasactive as far back as 1915. The sea scallopfishery exhibited wide fluctuations in landingsthrough the 1930s, presumably driven byvariability in larval recruitment, similar to trendsin the U.S. scallop fishery.

In the last several years, the Japanese scallopfishery (Ito 1998) became based almost entirelyon an intensive and directed effort to collect spatscallop from ocean waters. The fastest growing10% of juveniles are selected for “outgrowing”in the ocean in hanging nets or on hanging lines.The remaining 90% of the juvenile scallops are



Figure 1.4. U.S. Aquaculture Production and Value.

1992 and 1997

Source: National Marine Fisheries Service 1998

691768

$724

$934

0

200

400

600

800

1000

1200

Production

(pounds)

Value ($)

Mil

lio

ns

1992 1997



Table 1.1. Estimated U.S. Aquaculture Production, 1992-1997

1992 1993 1994 1995 1996 1997

Volume (millions of pounds)

Finfish

BaitfishCatfishSalmonStriped bassTilapiaTrout

20.6457.423.93.69.5

56.3

20.6459.025.36.0

12.554.6

21.7439.324.77.6

13.052.1

21.8446.931.38.3

15.155.9

20.8472.130.77.9

16.053.6

19.9524.939.78.4

16.956.7

Shellfish

ClamsCrawfishMusselsOystersShrimp (SW*)

4.363.00.3

24.04.4

6.156.80.3

24.46.6

4.949.10.4

28.14.4

4.358.10.4

23.22.2

3.846.61.0

18.52.9

8.149.23.0

15.72.6

Miscellaneous 24.0 6.6 20.5 23.4 19.8 22.6

Total 691.2 678.8 665.6 691.0 693.7 768.0

Value (millions of dollars)

Finfish

BaitfishCatfishSalmonStriped bassTilapiaTrout

61.2273.575.28.3

10.353.9

63.0325.468.414.315.654.3

68.7344.561.918.816.252.6

75.5351.276.021.222.661.4

70.3365.061.020.323.957.0

73.6372.565.121.829.560.2

Shellfish

ClamsCrawfishMusselsOystersShrimp (SW*)

11.534.91.2

82.417.6

12.128.50.9

76.126.5

14.027.01.2

69.917.6

19.734.71.2

70.68.8

20.334.85.1

64.411.5

30.949.23.4

39.010.6

Miscellaneous 94.2 97.2 58.6 75.2 152.2 178.0

Total 724.2 782.4 751.1 815.3 885.6 933.7

*SW = Saltwater

Note: Table may not add due to rounding. Clams, oysters and mussels are reported as meat weights (excludes shell)

while other identified species such as shrimp and finfishes are reported as whole (live) weights. Some clam and oyster

aquaculture production are reported with U.S. commercial landings. Weights and values represent the final sales of

products to processors and dealers. "Miscellaneous" includes ornamental/tropical fish, alligators, algae, aquatic

plants, eels, scallops, crabs, and others. The high value and low production of "miscellaneous" occurs because

production value, but not weight, are reported for many species such as ornamental fish.

Source: National Marine Fisheries Service, Fisheries Statistics and Economics Division.

seeded directly on the bottom in areas wherescallops are left to grow to market size. Scallopproduction continues to increase dramaticallyeach year, with about half the annual output inweight contributed from the spat collection,contained raising of juveniles, bottom sowing,and rotational harvesting methodology (see

www.seascallop.com). Pre-WWII landingspeaked at about 21.8 million pounds in 1934.Postwar landings averaged 2.7 to 5.5 millionpounds until the late 1960s and have steadilyincreased in 1997 to over 150 million pounds(550,000 metric tons whole weight) using thesemethods (Ito 1998). In contrast, as noted inFigure 1.5, U.S. landings averaged around 22million pounds over this same period.

�The Nature of the Issues

Confronting the Development of

Marine Aquaculture in the United

States

Marine aquaculture represents a relativelynew use of the nation’s coastal and ocean areas,and it must compete for access to these areas(Nixon 1994). Newcomers to the industry, aswell as local authorities, often suffer from a lackof experience, inappropriate advice on siteselection, inadequate evaluation of marketopportunities and product diversification, and alack of understanding of marine aquaculturedevelopment in relation to other forms ofcompetition (Chamberlain and Rosenthal 1995).Much of this confusion stems from itsuniqueness and complexity.



Figure 1.5. Scallop Landings in the United States and Japan

Source: Atlantic Sea Scallop web page (http://www.seascallop.com/US-Japan.comp.gif)

Further complicating the development ofmarine aquaculture is the complexity that stemsfrom unique factors that distinguish it from otherforms of agricultural activity, including: (1)interaction of marine aquaculture with othermarine and coastal activities andinterests—interactions that are oftencharacterized by conflict; (2) the fact thatalthough marine aquaculture is ocean-based, itoften depends on the use of land and freshwaterresources as well; and (3) numerousenvironmental and regulatory considerationsinvolved in the development and use of coastalzone land and water resources, usually held inthe public trust (NRC 1992). The discussionbelow describes each of these major issues.

Coastal and Ocean Use Conflicts

Use conflicts represent one of the primaryissues U.S. marine aquaculturists must face andare likely to become more pronounced andfrequent in the future (Chamberlain andRosenthal 1995, DeVoe 2000b). The escalatingcosts of acquiring access to coastal lands andwaters in the country exacerbate the problem.

Increasing pressures along the coastal zonemay mean that recirculating (closed) systems onland and confined systems in the open oceanmay prove the best opportunities for futurecommercial aquaculture development (NRC1992). However, despite the emphasis ofresearch and development (R & D) on closedsystem aquaculture rather than offshore facilitiesduring the past 20 years, the economic viabilityof closed system aquaculture remains elusive.The United States is only now exploring thepotential for establishing facilities inunprotected offshore areas.

Aquaculture and the Environment

Much has been published over the last 15years on the environmental impacts of marineaquaculture. One of the major challenges to themarine aquaculture industry in the United Stateswill be how it responds to these environmentalissues (see DeVoe 2000b and deFur and Rader1995 for representative references).

Aquaculture practices can generateenvironmental impacts as a function of (1) thetechnique applied, (2) site location, (3) size ofthe production, (4) capacity of the receivingbody of water (Ackefors and Sodergren 1985),and (5) type of species raised (Eichenberg 2000).These can include impacts on water quality, thebenthic layer, the native gene pool, otherfisheries and the ecosystem as a whole, as well asimpacts from non-native species, disease, andchemicals (DeVoe 2000b, Naylor et al. 2000).

The state of knowledge regarding theenvironmental impacts of marine aquaculture israpidly improving. Whereas two decades agovery little research data were available, there hasbeen a surge in the number and scope of researchand monitoring programs seeking to documentthese effects (see, for example, Reichhardt 2000,Naylor et al. 2000 and 1998, Goldburg andTriplett 1997, Webber 1997). Much workworldwide has focused on the effects of net-penculture on the environment, with theInternational Council for the Exploration of theSeas (ICES) leading the way. In the UnitedStates, early research efforts dealt with fishhatchery effluents and catfish ponds. As thedomestic industry diversified, so didenvironmental research, with major federalstudies examining the impacts of marine shrimppond culture and salmon net-pen culture, and theissues regarding species introductions, the use of



chemicals in aquaculture, and effluentdischarges.

Legal and Regulatory Issues

The current regulatory environment formarine aquaculture in the United States is amajor constraint to its development (e.g., NRC1978, NRC 1992, JSA 1993, Smolowitz et al1998), particularly at the federal level, where noformal framework exists to govern the leasingand development of private commercialaquaculture activities in public waters. Majoraquaculture problems that arise from state lawsand regulations are caused by the lack ofuniformity of laws among the states, the sheernumber of permits, licenses and certificationsthat must be obtained, and the difficulty inobtaining them. Each state has its own uniquelegal, political and economic climate foraquaculture, and culturists must navigate theregulatory environment differently in each. Stateagencies vary greatly as well as to whatstandards they apply to aquaculture, and somestill apply laws designed for other applicationssuch as those for public fisheries managementand agriculture.

Federal agencies that establish the groundrules that most state agencies must follow haveadopted vague, confusing and poorly conceivedregulations or none at all (McCoy 1989). Thistranslates into inconsistencies in thedevelopment and application of laws andregulations at the state level. Few states have acomprehensive regulatory plan thatsatisfactorily balances economic developmentand environmental protection. Complicatingmatters is the fact that existing permit programsdo not have provisions for determining thecapacity of the coastal ecosystem foraquaculture (deFur and Rader 1995).

The complexity that results from theinvolvement of many federal, state and localagencies responsible for all aspects (includingadvocacy, promotion, conduct and regulation) ofmarine aquaculture leads to an array of laws,policies and regulations (NRC 1992). Federallaws are applied differently in variousgeographic regions of the country, and theindustry remains concerned about the lack ofcoordination among agencies regulatingaquaculture (Smolowitz et al. 1998).

Another limitation to the current regulatoryregime for marine aquaculture in the UnitedStates is the lack of long-range and wholesystems planning (deFur and Rader 1995).Aquaculture policy appears to be made bygranting permits on a case-by-case basis(Rubino and Wilson 1993), and the requirementsare often determined using regulations andtechnical standards not originally developed orintended for aquaculture (Ewart et al. 1995).Each permit is considered individually by theissuing agency, usually with no provision forexamining cumulative impacts (deFur and Rader1995).

�Other Impediments to Industry

Development

In addition to the problems discussed above,new aquaculture operations in the U.S. EEZ willalso have to overcome a number of financial andtechnological challenges.

Firms will have to compete in the globalmarket against established firms working incountries that may have substantial subsidies,lax regulations or cheap labor costs. They willalso have to compete against firms that havelower costs because they are operating innearshore areas where both capital and operatingexpenses are likely to be lower. As the industrydevelops, it will be critical to develop suitable



plant-based dietary protein supplements toreplace limited and expensive fish meal and fishoils.

Availability of capital has been a problem forthe aquaculture industry for years and willcontinue to be a problem for firms planning towork offshore. Banks and financial institutionstypically demand that crop ownership be welldefined and that all permits be obtained inadvance. They will also require security oftenure in the form of long-term, renewableleases. For the lease itself to have any value ascollateral, there must usually be provisions toallow transfer of the lease to another firm usingsimilar techniques and technologies. Bankstypically require a track record of profits andsignificant prior experience in the field. Both ofthese are in short supply. Venture capitalists areattracted to low-risk ventures that offersignificant returns over short timeframes.Aquaculture rarely fits these demands.

Technological challenges also significantlyaffect the industry. There is still much to belearned about the severity of the physical forcesin these operating environments, and the tacklerequired to withstand these forces. As theindustry develops, some of these questions willbe resolved, but the learning curve will be steepand the cost of knowledge may be high. Theindustry will also need to develop techniques toaddress the various environmental challengesthat will be encountered. Some of the concernsthat plague nearshore growers (disease,escapement, predators, environmentaldegradation and use conflicts) may perhaps bediminished in the EEZ, but will still have to beaddressed to the satisfaction of the permittingagencies, concerned environmental groups, andthe public.

MAJOR QUESTIONS IN THE GOVERNANCEOF OFFSHORE AQUACULTURE

We should note that the major problems in thegovernance of offshore aquaculture pertain tofederal waters—the 3 to 200 mile ocean zone.Currently, most aquaculture in coastal oceanwaters of the United States takes place innearshore areas, primarily in sheltered bays,estuaries, and inlets. Although a number offederal permits are required, siting decisions arelargely a state and local responsibility. A varietyof approaches to aquaculture in coastal watersunder direct State jurisdiction (out to 3 miles formost states) have been identified (e.g., DeVoeand Mount 1989, Ewart et al. 1995). RecentState and regional initiatives have begun tointegrate (or consider integrating) open oceanaquaculture into coastal zone and fisherymanagement activities. The Massachusetts stateaquaculture policy and plan (developed by the

state’s Office of Coastal Zone Management) andthe New England Fishery ManagementCouncil’s Aquaculture Policy are two examples(Massachusetts 1995, NEFC 1999). There isthus much to be learned from a carefulexamination of state experiences with offshoreaquaculture siting and monitoring. Such lessonsmay well be applicable to aquaculture operationsin U.S. federal waters.

As one moves up the levels of government andaquaculture projects move further offshore intofederal waters, responsibilities become lessclear. At the regional level, for example, what isthe role, if any, of fishery management councils?In federal waters, which agency has ultimateapproval authority, and how much say do stateshave with respect to siting decisions off their



coasts? Such questions are largely unsettled andhinder the development of the industry. Thecurrent framework of federal laws related toaquaculture development has been described as“an unfinished patchwork quilt. All the squaresexist but some remain incomplete and they havenot been assembled into a pattern or sewntogether” (Hopkins et al. 1997, p. 239).

As noted by Hopkins et al. (1997), severalfederal agencies have asserted authority overopen ocean aquaculture under existing federallaws—i.e., the Army Corps of Engineers (underthe Rivers and Harbors Act and the OuterContinental Shelf Lands Act); theEnvironmental Protection Agency (under theClean Water Act and the Ocean Dumping Act);the National Marine Fisheries Service (under theMagnuson-Stevens Fishery Conservation andManagement Act and the Marine MammalProtection Act); the Department of Agriculture(under the National Aquaculture Act); and theU.S. Fish and Wildlife Service (under the LaceyAct Amendments*). None of these Acts,however, have been written or established withmarine aquaculture in mind, and as the authorsnote, “considerable uncertainty exists as towhether the agencies’ assertions of jurisdictionover open ocean aquaculture under thesestatutes, principles and protocols will withstandlegal challenge” (Hopkins et al. 1997, p. 240).

The problems arising from the absence of anappropriate policy framework for governingaquaculture in federal waters have been evidentin several U.S. offshore areas, particularly in theNew England region. Hopkins et al. (1997)recount the difficulties encountered by threeprojects proposing offshore aquaculturefacilities—the American Norwegian Fish Farm,Inc. project (approximately 40 miles offGloucester, Massachusetts), the WestportScallop Project (approximately 12 miles off

Martha’s Vineyard, Massachusetts), and the SeaPride Industries, Inc. project (approximately 4miles off Fort Morgan, Alabama). As noted bySmolowitz et al. (1998b, p. 1) with respect to theWestport Scallop Project, “the existingmechanisms cope with rather than direct andchannel the gathering energies of our emergingopen ocean farming industry in the UnitedStates.” In the case of the American NorwegianFish Farm, for instance, the Conservation LawFoundation of New England contested in courtthe company’s proposal to develop a 47-square-mile salmon farm off Cape Ann. Thelitigation raised key questions as to whether suchan enterprise represents the best use of publicwaters, whether lease charges should be levied,and whether an environmental impact statementshould be required (National Fisherman 1991).

Policy and legal issues related to open oceanaquaculture (such as the public trust doctrine)have been examined and discussed in detail.Regulatory gaps and overlaps have beenidentified, for example, by the Office ofTechnology Assessment (1994), by a MarineLaw Institute report and article (Eichenberg andVestal 1992), and in the results of a symposiumon open ocean aquaculture published in a specialissue of Ocean and Coastal Law Journal (seee.g., Barr 1997, Brennan 1997, Hopkins et al.1997, Rieser 1997, and Underwood 1997).Major problems presented by the incoherentfederal framework for offshore aquacultureinclude: (1) the limited availability of propertyrights or other interests that can secure aproducer’s investment; (2) poorly definedstandards that fail to reduce conflicts amongcompeting users of public resources; (3) poorlydefined agency jurisdictions leading to delays indefining applicable standards or regulations; (4)



* The Lacey Act, as amended (Title 16, U.S.C. 3371) regulates the movement of live fish between states.

the existence of redundant regulations due tooverlapping agency responsibilities; and (5)inappropriate restrictions designed to protectwild stocks (Rieser 1997).

In addition to deliberations and writings on thepart of academics, nongovernmentalorganizations (NGOs), and others noted above,the need to create an appropriate offshoreaquaculture governance regime has also beenraised with increasing frequency and urgency bythe federal government itself. Recently, forexample, the federal agencies involved in theinteragency Joint Subcommittee on Aquaculture(JSA), as well as NOAA’s AquacultureTaskforce, have begun to consider the questionof possible governance frameworks for offshoreaquaculture (JSA undated (a), Mieremet 2000).Several congressional bills proposing anoffshore aquaculture policy framework havealso been introduced and considered in recentyears (for example, Senate Bill 1192—theMarine Aquaculture Act of 1995), but none haveyet been enacted.

Notwithstanding the absence of a governanceframework, federal agencies are already makinginvestments in demonstration projects onoffshore aquaculture. NOAA, for example, isfunding research efforts that include a project offthe coast of New Hampshire designed todemonstrate the feasibility of such projects.Although much of the New Hampshire project isdedicated to examining the scientific,engineering, and economic feasibility ofopen-ocean aquaculture, another important

element in the feasibility equation is theregulatory framework. Before investingmillions of dollars in what are likely to behigh-risk operations, potential investors willneed information about the regulatoryrequirements and associated costs. Where willsuch projects be allowed? On what basis willthey be approved? Which agencies and levels ofgovernment will be involved? What possible upfront and annual fees can they expect to pay?Before accepting a new program that wouldfacilitate the allocation of rights to exclusive useof ocean space, the public will also need to beassured that existing rights are adequatelyprotected. What environmental protectionmeasures will be required? What areas will beprotected? What mechanisms will be includedto protect the rights of competing users? Willthe public be adequately compensated?

Policy development for aquaculturemanagement in the 3-200 mile U.S. ocean zonewill also benefit from comparisons with othercountries—such as Canada, the UnitedKingdom, Ireland, Norway, Chile, Australia,New Zealand, Japan—that have more highlydeveloped aquaculture industries (see, forexample, NRC 1992, Appendix A; OECD1989b; British Columbia Environmental Assess-ment Office 1997; Norway 1994-1995). Inaddition, international organizations such as theU.N. Food and Agriculture Organization (FAO)have developed guidance on the conduct ofaquaculture operations (see for example FAO1997b), which may be useful in structuringaquaculture policy development in U.S. oceanareas.

ORGANIZATION OF THE REPORT

In Chapter 2 of the report we present areview of nineteen studies that have addressedissues related to offshore marine aquacultureand summarize their findings andrecommendations. In particular, we focus on

findings and recommendations relevant to themajor factors affecting offshore marineaquaculture: absence of an explicit policyframework, environmental impacts, public trustissues, and impacts on other users. In Chapter 3,



we present an analysis of major past and currentefforts to operate marine aquaculture facilities infederal waters, including a large-scale, privatesector salmon project offshore Massachusetts(American Norwegian Fish Farm, Inc.), afederally-funded experimental sea scallopproject also offshore Massachusetts (SeaStead),a seafood/oil industry venture based on anoffshore platform in the Gulf of Mexico(SeaFish Mariculture), and federally-sponsoreddemonstration projects in open waters off NewHampshire and Hawaii and in the Gulf ofMexico. Lessons are drawn on the problemsfaced by these efforts and what they reveal aboutthe nature of the current governance regime foroffshore aquaculture.

Existing federal laws and regulations as theymight be applied to offshore aquaculture arediscussed in Chapter 4. We first provide anoverview of federal legislation and activitiesestablished to stimulate the development of theaquaculture industry (freshwater and marine),and then address more specifically the federalroles and legislative authorities relevant to themanagement and regulation of offshoreaquaculture. The discussion reveals a number ofgaps and problems in federal agency authoritiesand roles that need to be addressed.

Chapter 5 presents an analysis and drawslessons from relevant experiences with offshoreaquaculture in selected coastal states. SeveralU.S. coastal states have significant experiencewith offshore aquaculture in state waters; wereview and discuss these experiences, makingreference to a survey of state practices inoffshore aquaculture that we conducted for thisstudy. Survey questions focused specifically onleasing/permitting requirements and the overallframework governing marine aquaculture in thestate (e.g., designation of a lead agency, existing

laws, regulations and policies). We wereparticularly interested in what state officialsconsider the best features of their state’sapproach to marine aquaculture, what theythought could be done to improve policy, andtheir views on federal policy for aquaculture inthe EEZ beyond state jurisdiction.

In Chapter 6, we examine the policyexperiences of other countries which haveestablished offshore aquaculture industries,notably Norway, the United Kingdom, Ireland,Canada, Chile, Australia, New Zealand, andJapan. All of these countries have extensiveexperience with the management of offshoreaquaculture located some distance from shoreand a number of them have developed policyapproaches to address offshore aquaculturewhich suggest some lessons for possibleapplication in the United States. In this chapter,we examine, as well, the guidance that has beenprovided by international entities such as theU.N. Food and Agriculture Organization on howto conduct marine aquaculture operations on anenvironmentally sound and sustainable basis.

Chapter 7, the final chapter, presents aproposed policy framework for U.S. offshoreaquaculture. This chapter first presents a set ofcriteria for evaluating policy options forgoverning offshore aquaculture, and thenpresents our recommendations for a policyframework for offshore marine aquaculture.The recommendations are organized accordingto the various stages involved in locating andoperating a marine aquaculture facility inoffshore waters: planning, permitting,operation, monitoring, and abandonment offacilities. Recommendations are also presentedfor establishing or modifying agency roles andresponsibilities in order to provide a moreeffective framework for offshore marineaquaculture.



Chapter 2

REVIEW OF PAST STUDIESON MARINE AQUACULTURE

INTRODUCTION

A variety of reports, studies, and articleshave addressed issues relevant to offshoremarine aquaculture. Most of these sources haveaddressed aquaculture generally, while asmaller number have addressed issues related tomarine aquaculture and still a smaller numberhave addressed issues related to offshore marine

aquaculture.

In this chapter, we first provide a briefoverview of a number of efforts which haveaddressed issues related to offshore marineaquaculture and then discuss in greater detailfindings and recommendations of these efforts inrelation to the three major themes we identifiedin Chapter 1: 1) Absence of an explicit policyframework, 2) Environmental impacts, and 3)Public trust issues and impacts on other users.

HISTORICAL OVERVIEW OF MAJOR STUDIES

In this section, we present a brief overviewof major past efforts to address policy issuesrelated to the development of offshore marineaquaculture in the United States. We begin withan examination of several early studies(1992-93), which set the foundation foraddressing marine aquaculture issues in theUnited States. We continue with a review ofstudies focusing on two importantconsiderations: 1) the technological prospects

for offshore marine aquaculture in the UnitedStates and 2) environmental concerns. Weconclude by noting several attempts to documenttoday’s complex regulatory framework andexamining policy development initiatives since1995. Each of the references discussed below issummarized in Table 2.1, which provides: the

date, title, author and sponsor, major themes

addressed, extent to which marine aquaculture

is addressed, extent to which offshore marine



aquaculture is addressed, major findings, and

major recommendations.

�Laying the Policy Groundwork

The Marine Board’s landmark study (1992)

One of the first major systematic efforts toexamine issues associated with marineaquaculture was made by the National ResearchCouncil’s Marine Board in 1992. Thecommittee worked to define the national interestin marine aquaculture, to assess the state ofpractice of marine aquaculture in the UnitedStates, to identify opportunities, establishrequirements, and recommend strategies for theadvancement of marine aquaculture in theUnited States. In addition to identifyingresearch and development needs, the reportaddressed the barriers that were frustratingdevelopment of marine aquaculture andrecommended legal and administrative reforms.With respect to offshore marine aquaculture, thestudy highlighted the problems involved in theabsence of a federal framework to manage theleasing of offshore submerged lands and watersfor marine aquaculture and noted the following:

A framework is needed to provide anorderly process for the leasing and conductof marine aquaculture operations to reducethe uncertainty that industry now faces infuture planning activities. A managementframework should have an environmentalimpact assessment requirement wherebypotential environmental impacts can beidentified and addressed; it should be aimedat identifying potential impacts on otherusers and evaluating appropriate strategies;it should provide a fair return to the publicfrom the use of public waters, in the form oflease payments, royalties, and rents (NRC1992, p. 87).

Review of water quality laws and the public

trust doctrine (1992)

The same year that the Marine Board studywas issued, a thorough legal review by theMarine Law Institute (1992) examined twocritical issues that remain important today indeveloping a federal framework for offshoremarine aquaculture: the role of environmental/water quality laws and the public trust doctrine.This report was among the first to bring to theattention of policy makers, aquaculturists, andconcerned citizens the legal doctrines and bodyof law pertaining to marine aquaculture. Inreviewing the application of the public trustdoctrine and analyzing the implications ofriparian rights, the authors concluded that 1)marine aquaculture uses do not enjoy the sameprivate property rights as agricultural users,whose land-based property rights arewell-established, and 2) coastal states will needto address use conflicts, licensing and leasecriteria, and expectations of adjacentlandowners in overseeing development ofmarine aquaculture. In examining the legalissues related to water quality, the authorspointed out the need for measures to protectaquaculture from effects of non-point sourcepollution as well as to regulate waste dischargesfrom aquaculture operations.

Regulatory guide (1993)

One year after the Marine Law Institute’sreview of legal issues, a guidebook, Issues in

Aquaculture Regulation (Rubino and Wilson1993), addressing the full range of regulatoryissues for the aquaculture industry waspublished. Its intended purpose was to serve as acommon reference for state and federal resourcemanagers, policy makers and legislators, public



and private aquaculturists, and representativesof citizen, fishing, environmental, and farmgroups. The report identifies key environmentalregulatory issues for aquaculture and reviewsoptions and recommendations for regulatorypolicy. It also warns that states that do notaddress problems with current regulatoryapproaches may lose aquaculture developmentopportunities to other states and countries.Although not explicitly addressing marineaquaculture, the guide covers a range of issuesthat are relevant for an offshore aquaculturefacility, including water column use, wastedischarge, protection of wild species,introduction of non-indigenous species, aquaticanimal health, and use of drugs and chemicals.

Marine aquaculture policy workshop (1993)

Also in 1993, the Policy Center for MarineBiosciences and Technology at the University ofMassachusetts, Dartmouth hosted a workshop,Aquaculture and the Marine Environment: The

Shaping of Public Policy (Halvorson 1993),which brought together experts from diversefields to focus specifically on issues related tomarine aquaculture policy. The goal of theworkshop was to formulate an interdisciplinaryapproach to making policy for the expansion ofmarine aquaculture in the United States. Thereport of the workshop pointed out that there wasa tremendous opportunity for the United Statesto develop marine aquaculture, and identifiedthe major hindrances as the lack of a nationalpolicy, confusing regulatory controls, failure touse modern scientific techniques to improveefficiency, and failure to adequately addressenvironmental concerns

�Assessing the Technological

Prospects for Offshore

Aquaculture

The OTA study (1994)

In 1994, the Offshore AquacultureCommittee prepared one of the first in-depthreviews of the technological and policy issuesassociated with offshore marine aquaculture. Ina draft report submitted to the Office ofTechnology Assessment, Offshore Aquaculture:

Technology and Policy Issues (OTA 1994), thecommittee points out the numerous advantagesof moving aquaculture offshore (potentiallyfewer use conflicts, better dispersal of wastes,etc.) and the identifies the range of constraintsthat need to be addressed before the offshoreaquaculture industry can mature. Based on itsfinding that environmental impacts are reducedby moving aquaculture operations offshore, thestudy recommends a simplified permittingprocess for offshore projects.

Gulf of Mexico feasibility study (1998)

In 1998, a study commissioned by theNational Oceanic and AtmosphericAdministration examined the feasibility ofestablishing offshore finfish maricultureoperations in the northern Gulf of Mexico(Waldemar 1998). Based on analyses across arange of issues (economics, environmentalimpact, regulatory), the study found that anoffshore marine aquaculture industry could beestablished using existing technology. Inaddition to identifying two candidate species(red drum and striped bass), the report indicatedadequate availability of oil industry platformsfor potential use as centers of farmingoperations. Capital costs for an independent



operation not associated with oil and gasproduction were estimated in the range of $6million, with annual costs of $3 million. For asingle, large operation, both socioeconomic andenvironmental impacts (water quality, nativefish stocks, protected species) were notconsidered significant. The study also suggestedstatutory and regulatory revisions to addressfisheries management issues, security of tenure,and platform abandonment and liability issues.

Blueprint for developing sea scallop

aquaculture (1999)

In 1999, the Second Sea Scallop Summitexamined the prospects for sea scallopaquaculture in New England, including thepotential for the industry at offshore sites. Withthe New England scallop fishery seriouslythreatened by overfishing (6,000 square miles ofthe most productive bottom is closed andpressures on inshore areas may lead to moreclosures), the stage has been set for the“evolution of an open sea shellfish growoutindustry to develop as a viable component forthe nearshore fisheries” (Halvorson et al. 1999,p. 3).

�Environmental Perspectives

Balancing initiatives to identify and removeunnecessary regulatory barriers to thedevelopment of the aquaculture industry in theUnited States are studies highlighting not onlythe environmental impacts of individual projectsbut also the cumulative impacts of aquaculturedevelopment on carrying capacity andecological systems.

The Environmental Defense Fund’s Murky

Waters Report (1997)

A major report by the EnvironmentalDefense Fund, a well-respected environmentalorganization, identifies environmental problemscaused by aquaculture and recommendsapproaches to establishing an environmentallyand economically sound aquaculture industry(Goldburg and Triplett 1997). The reportconsiders open ocean aquaculture potentiallyless polluting than near-shore operations, andrecommends a federal government effort, underthe direction of the National Marine FisheriesService, to develop a regulatory framework foropen-ocean aquaculture that includes strongenvironmental protections.

An ecological perspective (2000)

In a respected scientific journal, Nature, ateam of scientists reviewed the ecological linksbetween aquaculture and wild fish stocks, andcautioned that the use of wild fish to feed farmedfish puts direct and indirect pressure on fisheriesresources (Naylor et al. 2000). The indirectpressures come from habitat modification, foodweb interactions, introduction of exotic species,etc. The article recommends that thegovernment support research and developmenton environmentally sound aquaculture systems,eliminate subsidies for ecologically unsoundpractices, and establish/enforce regulatorymeasures to protect coastal ecosystems.

�Documenting the Current Policy

Framework

Increasing interest in marine aquaculture andthe recognized complexities of the currentregulatory framework prompted the need for



reliable information on a range of state andfederal regulatory requirements.

Congressional Research Service report (1997)

The Environment and Natural ResourcesPolicy Division of the Congressional ResearchService, which supports the U.S. Congress,compiled information on Aquaculture and the

Federal Role (Becker and Buck 1997). Itstresses the role of federal agencies anddepartments in promoting as well as regulatingaquaculture industry development.

Aquaculture in the Gulf of Maine: A

Multijurisdictional Compendium (1999)

One of the areas in which the marineaquaculture industry is fairly well-established isin the Gulf of Maine, which straddles the borderbetween the United States and Canada. The Gulfof Maine Council on the MarineEnvironment—which includes representativesfrom Nova Scotia, New Brunswick, Maine, NewHampshire, and Massachusetts—focuses oncommon issues within each jurisdiction,including the impacts of aquaculture on the Gulfof Maine ecosystem. As part of its mission togain a better understanding of aquaculture-environmental interactions, the Council’sAquaculture Committee commissioned a studyof the laws, regulations, policies, protocols andissues pertinent to each of the jurisdictionsrepresented by the Gulf of Maine Council. TheCompendium (Brennan 1999) gives theCommittee a common base of knowledge aboutaquaculture in each member’s jurisdiction.However, it does not evaluate differentmanagement regimes or their effectiveness.

Offshore aquaculture permitting in the Gulf

of Mexico (2000)

The Gulf of Mexico Offshore AquacultureConsortium (see Chapter 3) is conducting afederally funded research and demonstrationproject in an exposed area of the ocean off thecoast of Mississippi. This project includes alegal/regulatory component to develop a guideto the range of state and federal permits requiredfor operations in the Gulf of Mexico. In supportof the project’s efforts to obtain the necessarypermits from state and federal agencies, theMississippi-Alabama Sea Grant Legal Programcompiled a detailed listing, Offshore

Aquaculture Permitting Process in the Gulf of

Mexico (Fletcher and Weston 2000), examiningthe regulatory structure for placing offshoreaquaculture facilities in the Gulf of Mexico.

�Policy Development

Acting on the results of earlier policy studies,government agencies have begun to considerstrategies for dealing with the barriers andregulatory constraints for the development of amarine aquaculture industry. Summarizedbelow are a state level initiative inMassachusetts, a regional study for the NewEngland Fisheries Management Council, and aworkshop considering specific policyalternatives for aquaculture in the open ocean.

The Massachusetts White Paper (1995)

Acting on the behalf of the Governor ofMassachusetts, the Massachusetts ExecutiveOffice of Environmental Affairs initiated a studyto identify how the state can further the status ofaquaculture (Massachusetts Coastal ZoneManagement 1995b). The purpose of the paperwas to review the biological, technical, andlegal/regulatory status of aquaculture in the



state. Based on this review, the state developed astrategy for state action, including a coordinatedpermitting process.

A study for the New England Fishery

Management Council (1995)

Faced with growing interest in marineaquaculture development in fishery areas it wasresponsible for managing, the New EnglandFishery Management Council funded a study,Background Information and Recommendation

for New England Fishery Management Council

Development of an Aquaculture Policy and

Management Strategy (Brennan 1995), toprovide better information on its legalauthorities and policy options with respect toaquaculture in the Exclusive Economic Zone(EEZ). In response to this study, the Council hastaken the lead in developing a coordinatedpermit review process among federal agencies inthe region.

Ocean and Coastal Law Journal special issue

(1997)

A special issue of Ocean and Coastal Law

Journal in 1997 featured several paperspresenting alternative approaches and additionalconsiderations for managing aquacultureoperations in federal waters. These optionsincluded:

• State-based management with federaloversight (Rieser 1997)

• Modifications to make the existing federalregulatory framework more protective tothe environment and less burdensome toopen ocean aquaculture developers(Hopkins et al. 1997)

• A role for regional fisheries managementcouncils and possible management optionsunder the Magnuson Sustainable FisheriesAct (Brennan 1997)

• Special sensitivity to potential impacts ofaquaculture operations affecting certainareas, such as essential habitat areas ofNational Marine Sanctuaries (Barr 1997)

A recent assessment (1999)

At a 1999 workshop on Trends and FutureChallenges for U.S. National Ocean and CoastalPolicy, a member of our project team summedup the current policy situation with respect tooffshore marine aquaculture:

...while recent evaluations of marineaquaculture suggest that offshore locationsmay represent a viable alternative (NRC1992), no formal policies have beendeveloped to manage aquaculturedevelopments in the U.S. ExclusiveEconomic Zone. As a result, federalpolicies vary from one agency to another(and may even differ among divisionswithin the same agency) and the permittingprocess can be time-consuming,complex,and costly (DeVoe 1999).



31

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33

Tab

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Su

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34

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Su

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35

Tab

le2.1

Su

mm

ary

of

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rp

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36

Tab

le2.1

Su

mm

ary

of

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rp

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uacu

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Su

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FINDINGS AND RECOMMENDATIONSOF PAST STUDIES ON THREE MAJOR ISSUES

In this section, we review the relevantfindings and recommendations of past studies onthe three major themes we identified in Chapter1 as problem areas in the development ofoffshore marine aquaculture: 1) Absence ofpolicy framework, 2) Environmental impacts,and 3) Public trust issues and impacts on otherusers.

�Absence of Policy Framework

The coastal ocean has always been viewedas public property, and by its very nature has ahigh degree of interaction between oceanresources and marine processes, and between theusers of those resources and the health of theocean (NRC 1992). Aquaculture represents anexclusive use of the water column (and/orsubmerged lands), having the potential to

conflict with commercial and recreationalfishermen, oil operators, marine transportation,military operations, and scientific research.Unfortunately, there is an absence of a policyframework to govern marine aquaculture, whichcauses this lack of a policy framework to beaddressed by many of the studies examined.

This issue receives special emphasis in theMarine Board’s report, Marine Aquaculture:

Opportunities for Growth (NRC 1992). Thecomplexity of the aquaculture industry requiresthe involvement of numerous federal, state, andlocal agencies responsible for the advocacy,conduct, and regulation of marine aquaculture.The Marine Board report stresses the need foraquaculture to be addressed explicitly within acoordinated and coherent policy framework infederal, regional, and state ocean and coastal



Table 2.1 Summary of major past studies relevant to marine aquaculture (Continued)

Extent to whichmarine aquacultureis addressed

Addresses marine aquaculture in the context of scientific and biological information

Extent to whichoffshore marineaquaculture isaddressed

Offshore marine aquaculture is not explicitly mentioned

Major findings • Feed requirements for some types of aquaculture systems place a strain on wild fish stocks, for example, fishmeal, fish oil, etc.

• The use of wild fish to feed farmed fish puts direct pressure on fisheries resources and indirect pressurethrough habitat modification, food web interactions, introduction of exotic species, etc.

Major recommen-dations

• The aquaculture industry should prioritize the following goals:– expansion of the farming of low trophic level fish– reduction of fish meal and fish oil inputs in feed– development of integrated farming systems– promotion of environmentally sound aquaculture practices and resource management• There needs to be a shared aquaculture vision between public and private sectors• The government should support research and develop on environmentally sound aquaculture systems,

eliminate subsidies for ecologically unsound practices, and establish/enforce regulatory measures to protectcoastal ecosystems

Source: Prepared by Danielle Tesch, Center for the Study of Marine Policy, University of Delaware, 2000.

planning activities. Additionally, the reportstresses “the need for such a framework willbecome very apparent in the future whenadvances in technology allow marineaquaculture operations to go further offshore”(NRC 1992).

The report contains severalrecommendations for solving this issue, whileemphasizing the necessity for a framework toprovide an orderly process for the leasing andconduct of marine aquaculture operations toreduce uncertainty (NRC 1992). Themanagement framework should have anEnvironmental Impact Assessment requirementto identify and address environmental impactsand potential impacts on other users. TheMarine Board also states the need for apredictable and orderly process that ensures fairreturns to the operator and to the public for theuse of public resources (NRC 1992). On theCongressional level, Congress needs to create alegal framework to foster appropriatedevelopment, to anticipate potential conflictsover proposed uses, to assess potentialenvironmental impacts of marine aquaculture, todevelop appropriate mitigation measures forunavoidable impacts, and to assign fair publicand private rents and returns on such operations.Aquaculture must also be explicitly included incoastal zone plans and within the Coastal ZoneManagement Act.

Becker and Buck (1997, “Summary”) raise aquestion in their report as tho whether thegovernment faces “an inherent conflict when itattempts both to promote the [aquaculture]industry, and also to regulate its impacts onaspects of public health and the environment.”This report, done for the CongressionalResearch Service (CRS), presents two opposingviews about the regulatory responsibilities of thefederal government. One view is that many of

the government’s regulatory responsibilitiescould be ceded to the private sector, possiblyusing an existing or establishing a new industrybody for internal regulation. This plan revolvesaround industry cooperation and consultationwith the federal government rather than solelyfollowing rules set by the government. Theother view argues that the integrity of theindustry is preserved through the rigorousgovernment oversight in the areas of food safety,product quality, and environmental protection(Becker and Buck 1997).

The lack of a harmonious national policy onaquaculture impedes its developmentdrastically, and there is a need for awell-designed and well-informed nationalaquaculture policy. Halvorson (1993) andHalvorson et al. (1999) assert that to create anopportunity for a strong and competitiveaquaculture industry, regulations must bestreamlined and harmonized and a single processfor aquaculture permitting in the EEZ must beestablished. In conjunction with thestreamlining of regulations, the respective rolesof federal and state agencies need reconciliationand clarification. Expanding on this idea,DeVoe (1999) argues the JSA should design thestreamlined planning and permitting frameworkfor marine aquaculture in the coastal zone, anddevelop a coordinated management andregulatory framework for offshore aquacultureactivities, in consultation with all relevantfederal and state agencies.

Rubino and Wilson (1993) provide severalregulatory framework recommendations, whichcan act as a summary of the recommendationspreviously mentioned in this section. Theserecommendations include: defining aquacultureas agriculture in state and federal laws;identifying a lead agency in each state tocoordinate aquaculture relations; streamlining



the permitting process; including aquaculture ingovernment planning; formulating regulationsin consultation with representatives ofaquaculture industry and other affectedconstituencies; encouraging adoption of bestmanagement practices (BMPs); and expandingand supporting research, education, andextension efforts.

The Murky Waters report (Goldburg andTriplett 1997) also supports the need for aregulatory framework for open-oceanaquaculture, but suggests any federal frameworkneeds to include strong environmentalprotections, which will be discussed further inthe following section.

�Environmental Issues

The aquaculture industry relies heavily uponthe quality of the environment to produce highquality products. It also involves some degree ofimpact or manipulation of the environment(Rubino and Wilson 1993). A diversity ofconcerns and impacts exist, including: wastesfrom cages or ponds, introduction ofnon-indigenous species or disease, geneticalterations of wild stocks through escapement ofcultivated animals or intentional releases forstock enhancement, and the presence ofinfrastructure associated with culture operationsin public waters (discussed in the next section)(NRC 1992). The severity of impacts depend ontwo categories of factors: 1) size of the facility,intensity of culture, type and efficiency offeeding, amount of water recirculation, and typeof water treatment; and 2) the relationship of theoutput to the depth, volume, flow rates/current,temperature, and geographic location ofreceiving waters (Rubino and Wilson 1993).

To preserve existing natural habitats and toprotect human and environmental health,

governments have enacted increasingly strict airand water quality regulations on natural resourceusers, including aquaculturalists (Rubino andWilson 1993). General regulatory programs fornatural resources and specific aquacultureregulations affect the industry. Theseregulations can be beneficial (reducingindustrial wastes), but the permitting process istime consuming, costly and confusing becauseof the lack of a coordinated framework (asdiscussed in the previous section). One of theoften cited reasons for moving aquaculture tooffshore sites is that environmental impacts fromthe facility on native species can be reduced; thedispersal of nutrients released from fish andshellfish farms is enhanced in offshore sites(OTA 1994).

Environmental issues are addressed in a widenumber of studies and receive special attentionin the Murky Waters report (Goldburg andTriplett 1997). One of the environmentalconcerns addressed in this report is theintroduction of unwanted non-native species tonatural ecosystems. Introduction ofnon-indigenous species increases the possibilitythat introduced species will: compete with nativeorganisms for existing ecological niches; alterthe food web; modify the environment;introduce new diseases; and dilute native genepools through interbreeding, hybridization, orecological interaction (NRC 1992; Rubino andWilson 1993; Brennan 1999; Goldburg andTriplett 1997; Naylor et al 2000).Environmental groups call for avoiding raisingnon-native species unless there is compellingevidence that escaped fish cannot establish wildpopulations. This recommendation is echoed inthe OTA report (1994) which recommendsavoiding the use of exotic species in offshoreaquaculture. Unfortunately, we lack thenecessary information about long and short termconsequences of introducing species to a habitatto which they are not native (NRC 1992).

Another major environmental issue discussedin Murky Waters is pollution, with an emphasis



on preventing or reducing the production ofpollutants, by employing “source reduction” ofnutrient, synthetic, chemical or biologicalpollutants. Aquaculture facilities can produceand discharge a large volume of effluents tosurface waters, and are faced with growingenvironmental regulatory scrutiny (NRC 1992).The report cites several techniques that can beutilized to achieve this goal of reducingpollutants:

• employ feeds with low fishmeal contentwhich lessen aquaculture’s pressure onwild fisheries

• utilize feeds with nutritional value andother characteristics that help aquacul-turists minimize feed wastes

• raise different species together (such asfinfish with hydroponic vegetables or withmollusks) in order to make optimum use ofwater and nutrients and to minimize farmwastes

• collect and treat wastes from containedaquaculture systems such as ponds andtanks

• minimize the use of aquaculture drugs bystocking fish free of pathogens andparasites, minimize stresses on fish, andvaccinate fish against disease (Goldburgand Triplett 1997).

Aquaculture and the Marine Environment:

The Shaping of Public Policy (Halvorson 1993)also looks at the environmental concerns ofwaste management and the introduction ofexotic species. Concerning the possible effectsof waste pollution from aquaculture sites,enhanced programs need to be established toprovide guidance and assistance to producersworking to optimize site production through

Best Management Practices, health caremanagement, etc. (Halvorson 1993).Concerning the introduction of exotic species,current regulations are loosely adapted fromregulations designed for agricultural operations.The use of native stocks would be preferableover the use of non-native stocks. If there is aneed for the use of non-native stocks, soundscientific-based risk assessment protocolsshould be used to evaluate the merit ofnon-indigenous stock introduction (Halvorson1993).

The Murky Waters report provides severalrecommendations, for both the private sectorand for the government. In the private sector:

• Aquaculturists should adopt managementstrategies and technologies that makeaquaculture environmentally sound.

• The aquaculture industry should moveaway from raising finfish in netpens due toproblems with fish waste and fish escapes.

• Fish farmers should preferentially chooseto raise, and consumers should prefer-entially choose to purchase, fish thatrequire little fishmeal in their diets. Theseinclude catfish, tilapia, crawfish, clams,oysters, mussels, scallops and herbivorousspecies and exclude highly carnivorousspecies such as shrimp, trout and salmon.

• Organic certification and potentially other“eco-certification” programs should beestablished that empower consumers tochoose aquaculture products grown in anenvironmentally sound manner and thatgive aquaculturists incentives to produceproducts which can bring higher prices(Goldburg and Triplett 1997).



In the government:

• The U.S. Environmental ProtectionAgency (EPA) should implement theClean Water Act for aquaculture bydeveloping effluent limitations. In theabsence of federal standards, limitations onthe discharge of fish sewage varyconsiderably by state (and may benon-existent).

• The federal government should develop acomprehensive oversight framework forintroduction of potential biologicalpollutants from aquaculture and otherhuman activities. The current approach isat best piecemeal, and may result inecological harm.

• The federal government should develop aregulatory framework for open-oceanaquaculture that includes strongenvironmental protections. This effortcould be led by the National MarineFisheries Service (NMFS).

• Government research and other supportprograms for aquaculture shouldemphasize environmental protection andthe development of aquaculture operationsthat provide long-term social andeconomic benefits to economicallydistressed communities (Goldburg andTriplett 1997).

The scientific community suggests otherenvironmental reforms:

• Expansion of the farming of low trophic

level fish with herbivorous diets. Morescientific research is needed on feedrequirements of herbivores and omnivores

to lessen the impetus to add fish meal andfish oil to their feeds.

• Reduction of fish meal and fish oil inputs in

feed. Feed is the largest production cost forcommercial aquaculturists. Partialsubstitution of fish oil with cheapervegetable oil is widely accepted within theindustry.

• Development of integrated farming

systems. An integrated farming systemefficiently utilizes available food andwater resources of the ecosystem, therebyreducing costs and increasing productivity.

• Promotion of environmentally-sound

aquaculture practices and resource

management. Unfortunately, there is alarge difference between the technologythat is on the shelf and what is beingutilized in the field (Naylor et al. 2000).

Hopkins et al. (1997) and the Murky Waters

report (Goldburg and Triplett 1997) argue thatthe National Marine Fisheries Service (NMFS)is very well suited to assume the lead role to begenerally responsible for protecting theenvironment from impacts of open oceanaquaculture operations. These authors arguethat NMFS should use its authority under theMagnuson Act to develop regulations requiringapproval of open ocean aquaculture facilities byNMFS through a fishery management plan(FMP) using the same broad criteria as used incapture fishery FMPs. In these authors’ view,NMFS has adequate authority to consider allpotential environmental impacts of open oceanaquaculture facilities in determining whether toapprove a facility, and in drafting specific FMPconditions on the siting, construction andoperation of a particular facility.



�Public Trust and Conflicts Issues

The public trust doctrine

Traditionally, the navigable waters of theUnited States have been free and open to all, andthe land beneath navigable waters as well as theliving resources inhabiting those waters havebeen owned by the state in trust for the benefit ofthe public. Under the public trust doctrine, a setof common law principles originating in Romanlaw and embodied in U.S. property law, “thepublic has the right to use and enjoy trust lands,water and resources for a variety of uses”(Marine Law Institue 1992, p.6). The mostcommon uses of public water are navigation,commerce, and fishing, but the public trustdoctrine is not necessarily limited to these uses.

The public trust doctrine has three basicprinciples:

(1) all tidelands and lands under navigablewaters were owned by the originalthirteen states at the time of the AmericanRevolution, as successors in sovereigntyto the English Crown, and eachsubsequent state was endowed withsimilar ownership rights at the time of itsadmission into the Union; (2) the statesown these lands subject to a ‘public trust’for the benefit of their citizens withrespect to certain rights of usage,particularly uses related to maritimecommerce, navigation, and fishing; and(3) all lawful grants of such lands by astate to private owners have been madesubject to that trust and to the state’sobligation to protect the public interestfrom any use that would substantiallyimpair the trust. Moreover, any suchconveyed lands must be used by theirprivate owners so as to promote the public

interest and so as not to interfere undulywith the public’s several rights under thepublic trust doctrine (Archer 1994, p.3-4).

In its legal review of the public trust doctrinewith respect to aquaculture, the Marine LawInstitute (1992) indicates the public trustdoctrine would apply in two situations: whenaquaculturists seek exclusive rights to use apublicly owned intertidal or submerged site forcultivation of finfish or shellfish, and whenaquaculturists seek use of fishery resources fromthe public domain. They recommend that leaseprovisions for aquaculture be developedconsistent with public trust responsibilities(Marine Law Institute 1992, p. 25-30).Aquaculture-specific leasing laws are preferableto generic leasing laws. The leasing law shouldallow other uses to the extent they do notunreasonably interfere with aquacultureoperation, but ensure the aquaculturist maintainsan exclusive right to the cultured organisms. It isappropriate to prohibit leasing on certain landswhich should remain in the public domain.

With respect to legal mechanisms forconveying security of tenure to an aquaculturist,Rieser (1997) points out that the lease formconveys greater security than other alternatives,such as a license. However, “public propertyrights...prevent the conveyance of exclusiveprivate use rights to submerged lands or water inperpetuity,” and the aquaculturist’s use remains“subject to public and private riparian rights andto government oversight” (Rieser 1997, p. 213).She includes in her list of elements in animproved government framework foraquaculture several measures to protect both theaquaculturist and the public interests, such asenforceable legal remedies to protect theaquaculturist’s investment and administrativeprocedures that balance the due process rights of



leaseholders with the public right ofparticipation in decisions affecting publicresources.

Application of the public trust doctrine doesnot preclude the government from granting theright to use public resources to a privateindividual or entity. It does, however, obligatethe government to manage these publicresources for the greatest benefit of all.Therefore, it implies an expectation that theprivate user of public land, water, or otherresources provide some form of compensation tothe public in return for this right. As noted byBarr (1997) and others, lease programs will haveto be developed to guarantee the public fairreimbursement for the use of these commonresources.

Conflicts with other users

Given the location of marine aquaculture intraditionally public areas of the ocean, conflictswith other users are inevitable, and policy formarine aquaculture should include provisions

for minimizing and adequately addressinganticipated conflicts.

Leasing programs for submerged landsshould include criteria to establish prioritiesamong aquaculture applicants competing for thesame site (Marine Law Institute 1992).Programs should also include criteria toestablish priorities among non-aquaculture usescompeting with aquaculture applicants for thesame site (Marine Law Institute 1992). Alongthe same lines, a lease should identify otherpublic or private uses that will potentially beaffected by aquaculture activities (Rieser 1997).Hopkins et al. (1997) suggest that the NationalMarine Fisheries Service, through its regionalfishery management councils, is uniquelypositioned to address user conflicts associatedwith any proposal to set aside, for the exclusiveuse of one entity, a large area of the sea surface,water column, and possibly the seabed.

CONCLUSION

The findings and recommendations from thestudies examined in this chapter provide awealth of information on which to base ourcurrent effort to develop a policy framework foroffshore marine aquaculture in the 3-200 mileU.S. ocean zone. With these valuable insights,

we can move forward in taking a closer look atthe experiences with offshore marineaquaculture in the United States, identifying andassessing policy options, and putting together aproposal for consideration by federalpolicy-makers.



Chapter 3

ANALYSIS OF PAST AND CURRENTEFFORTS TO ESTABLISH AND OPERATEMARINE AQUACULTURE FACILITIES IN

THE UNITED STATES

EXPERIENCES WITH OFFSHOREMARINE AQUACULTURE

A review of past efforts to conduct marineaquaculture in open waters in the United Statesprovides examples of both the types ofchallenges involved in the efforts and variousstrategies for addressing these challenges (bothsuccessful and unsuccessful). This discussionincludes projects in state waters that are locatedin open waters and therefore face the same typesof challenges (both physical and regulatory) asthose located in federal waters 3 or more milesoffshore.

There has been an active interest in openocean aquaculture in the United States for about12 years. In retrospect, the first private sectorproject may be described as both bold andblind—bold in the sense that the project waslarge-scale and ambitious (proposing to occupynearly 50 square miles of public waters in a

physically challenging location more than 25miles offshore); blind in the sense that neitherthe project’s sponsors nor the federal regulatoryagencies knew what to expect or demand interms of applicable regulatory requirements andthe regulatory review/approval process.

The projects that followed (both private,public, and in combination) proceeded morecautiously, taking a more research-orientedapproach with a focus on species selection,production methods and processes, anddemonstration of commercial feasibility. Indoing so, they continued to raise importantquestions about the regulatory framework thatshould be applied to their endeavors and proddedthe responsible government agencies for action.Today, there are three federally funded openocean aquaculture demonstration projects



underway to demonstrate the biological,technological, economic, and social feasibilityof offshore marine aquaculture; each of theseprojects, in the process of obtaining all of thenecessary state and federal permits, isaddressing the regulatory challenges as well andproviding additional details on specific aspectsof the regulatory framework.

Four major types of projects are examinedhere:

1. A large-scale, private sector salmonproject (American Norwegian FishFarm, Inc.)

2. A federally funded experimental seascallop project (SeaStead)

3. A seafood/oil industry venture based onan offshore platform in the Gulf ofMexico (SeaFish Mariculture)

4. Federally sponsored demonstrationprojects in open waters off New

Hampshire, Hawaii, and in the Gulf ofMexico (open ocean demonstration

projects)

These projects are summarized in Table 3.1and discussed in greater detail in the rest of thischapter.

�American Norwegian Fish Farm,

Inc.

On November 25, 1988, AmericanNorwegian Fish Farm, Inc., a private company,filed an application with the Army Corps ofEngineers (Corps) for a Section 10 permit underthe Rivers and Harbors Act of 1899 (33 U.S.C.§403) to locate a 47 square mile aquaculturefacility in federal waters 27 miles due east ofCape Ann, Massachusetts. The proposed facilitywould consist of 90 floating salmon pens (eachmeasuring 90 feet in diameter and 90 feet deep)attached to 9 moored barges (10 per barge), in



Table 3.1. Summary of Offshore Aquaculture Projects in the United States

Project Sponsor Location Timing Technology Species Status

Am. Norwegian Private company27 m. east ofCape Ann(MA)

1988-1994 Net pens Salmon Projectabandoned

SeaStead University/private(federally funded)

12 m. SW ofMartha’sVineyard (MA)

1994- Bottom culture andsuspended nets Scallops Active

Open Ocean Demo(NH) NOAA

1.3 m s. of Islesof Shoals (6 m.from mainland)

1997- Submersible cagesand rafts

Flounder

MusselsActive

SeaFish Joint venture withShell Oil

34 m. offshoreTexas 1998-1999 Net pens attached to

gas platform Red drum Ended1999

Open Ocean Demo(HI)

OceanicInstitute/NOAA

2 m. off EwaBeach 1999- Submerged cage

Pacificthreadfin(moi)

Active

Gulf of Mexicoconsortium NOAA

22 m. s. ofPascagoula,MS

2000- Submersible cageRedsnapper orcobia

Active

Source: Prepared by Susan Bunsick, Center for the Study of Marine Policy, University of Delaware, 2000

which the company planned to raise 46.8 millionpounds/year of Atlantic salmon (see Figure 3.1).On February 8, 1989, the Corps gave notice ofpublic hearing.

A permit (#198803500-R-90) was issued onDecember 14, 1990. On the same date, theCorps issued an Environmental Assessment*under Section 102 (2) (C) of the NationalEnvironmental Policy Act (42 U.S.C. § 4332 (2)(C), which found “no significant impact on theenvironment.” However, because the siteoriginally proposed was considered to be a veryproductive fishing area, the permit relocated thesite further offshore (37 miles due east of CapeAnn, in 600-800 feet of water).

Thus, the first permit for an offshore marineaquaculture facility in federal waters was issuedabout 2 years after application, following anenvironmental assessment by the Corps ofEngineers. However, it was withdrawn 9months later, after the Navy raised concernsabout submarines in the area and anenvironmental group took the Corps to courtover the issuance of the permit.

On February 5, 1991, the Conservation LawFoundation of New England filed suit in UnitedStates District Court for the District ofMassachusetts (Conservation Law Foundation

of New England v. United States Corps of

Engineers, No. 91-10488-WD) charging that, inissuing the permit, the Corps 1) violated theNational Environmental Protection Act, Councilon Environmental Quality regulations, and

Section 706 of the Administrative ProceduresAct; 2) violated the public trust obligations ofthe United States; and 3) violated theAdministrative Procedures Act by issuing apermit in the absence of regulations, an actionconsidered to be “arbitrary, capricious, and anabuse of discretion.” A key concern expressedby the Conservation Law Foundation was theCorps’ failure to prepare an EnvironmentalImpact Statement (EIS). The Corps did notconsider the granting of the permit to be a majorFederal action significantly affecting the humanenvironment. The suit summarized thereservations and concerns expressed byenvironmental groups and the commercialfishing industry (see Table 3.2), as well aswritten comments by federal agencies involvedin the review of the permit application.

Before filing its suit against the Corps, theConservation Law Foundation had providedwritten comments as part of the review processfor the permit application (CLF, 4/14/89). Inthese comments, CLF cited the need forcomprehensive regulations or a programmaticEIS that would:

1) Consider legal and policy implicationsof closing off or restricting public useof large areas of public waters for thebenefit of a single private user withoutcompensation to the U.S.

2) Explore the cumulative long rangeimpacts of multiple facilities of thisnature and scale on both the naturalenvironment and on existing users ofoffshore waters; and



* An Environmental Assessment is less detailed than an Environmental Impact Statement (EIS). An EA provides evidence

and analysis for determining whether to prepare an EIS or to issue a finding of no significant impact. An EA includes a brief

discussion of the need for the proposal, alternatives to the proposal, environmental impacts of the proposal and alternatives

considered, and a listing of agencies and persons consulted. An EIS means a detailed written statement as required by section

102(2)(C) of the National Environmental Policy Act (NEPA).

3) Consider in depth the criteria for sitingany such facilities in public waters.

In its lawsuit filed after the permit was issued,the Conservation Law Foundation summarizedthe comments filed with the Corps by variousfederal agencies, including:

• Coast Guard - “It is not in the publicinterest to exclude the mariner from such alarge area" and to “effectively reserve 49square miles of navigable waters to theexclusive use of one commercialoperation” (First Coast Guard District,2/24/89).

• Fish and Wildlife Service - Expressedconcerns about the potential environ-mental impacts, and recommended thephased-in establishment of the Facility,combined with a monitoring program(New England office, FWS, 5/10/89).

• National Marine Fisheries Service -Suggested reducing the project size orpreparing a programmatic EIS; developingmonitoring programs to determine adverseenvironmental impacts and the extent ofhardship on the fishing industry; amoratorium on the acceptance of furtherapplications pending the evaluation of theresults of the monitoring programs (NERegional Office, NMFS, 6/1/89 and1/25/90).

• New England Fishery Management

Council - Expressed concern over con-sideration of the application in the absenceof any federal statutory framework togovern siting, user conflicts andenvironmental impacts; exclusion offishermen from traditional offshore fishingareas; and privatization of public waterswithout a thorough review of the broader



Figure 3.1. Example of a netpen/barge configuration



Table 3.2

Issues Raised by the Conservation Law Foundation in a

Suit Against the American Norwegian Fish Farm, Inc. Permit

Public trust“The Permit does not require ANFF to pay any compensation to the United States for the right to occupation,for an indefinite period, of a major area of public navigable waters.”

Nature of project

“The proposed facility is unprecedented in United States waters in terms of its size, its production capacityand its offshore location in federal waters outside of state jurisdiction.”

Legal/regulatory uncertainty

“At the federal level, there is no specific statutory framework for regulating aquaculture in general or theraising of finfish in particular. There are no regulations governing the licensing of aquacultural projects bythe Corps or any other federal agency. Based on information and belief, neither the Corps nor any otherfederal agency has ever prepared a programmatic environmental impact statement with respect toaquaculture.”

Public participation

“Based on information and belief, the Corps, in issuing the Permit, has relied solely on internal ‘guidelines’that seek to ensure the submission of data that the Corps deems adequate for evaluating a specific project ona case-by-case basis. These guidelines were developed in consultation with certain agencies selected by theCorps, with minimal opportunity for input from the public.”

Environmental concerns

“The Corps made an inadequate evaluation of the environmental impacts of the Facility and made no attemptto address the cumulative impacts of other similar facilities that can be reasonably anticipated. Indeed, theCorps in effect rejected the need to consider cumulative impacts by asserting that each permit applicationwill be considered on the basis of ‘case by case review of project specific data.’”

Harm to community

CLF members, who live in the Cape Ann region, “will be directly harmed by the Corps’ failure to prepare anEIS by being denied the opportunity to fully scrutinize the plans for the Facility, to examine and contest thesupporting environmental analyses and studies, to examine and comment on ANFF’s alternatives to theFacility and mitigation analyses, and to comment knowledgeably about the full range of actual and potentialimpacts

Harm to commercial fishermenInterests of owners and crews of commercial fishing boats that operate in the Gulf of Maine and other NewEngland waters, together with their families…will be directly affected by the adverse impacts of the Facility,and of similar facilities that can reasonably be anticipated following the precedent of the Permit, upon theexercise of their traditional public rights of navigation and fishing in the public offshore waters of the UnitedStates.”

Source: Conservation Law Foundation of New England v. United States Army Corps of Engineers (United

States District Court for the District of Massachusetts, 91-10488WD, filed February 5, 1991)

implications of such a decision.Recommended a programmatic EIS or asignificant reduction in the scope of theproject and the development of aregulatory framework (New EnglandFishery Management Council, 5/19/89).

• Environmental Protection Agency –Recommended an EIS to address thepotential impacts, including the effects onthe commercial fishing industry and onmarine mammals (EPA, Region 1,7/18/89).

In 1994, American Norwegian Fish Farm,Inc. submitted an application for a prototypeversion of its original project, consisting of onlyone barge with 10 pens attached in an area evenfurther offshore (47 nautical miles ENE of CapeAnn). The company’s plan was to eventuallyexpand the facility to the originally proposed 90pens if environmental, structural, andconflict-of-use concerns were satisfied by theprototype. The Corps issued a public noticeabout the application on April 26, 1994. Nopermit for this scaled-down facility was everissued, however, due to the Corps’ reservationsabout the structural integrity of the mooringsystem. The Corps was concerned about thepotential navigational hazard if the system wereset adrift during a storm, and required theapplicant to develop a mooring system that couldsurvive the hazards associated with the offshoreenvironment. The project’s sponsors haveapparently abandoned their efforts.

The American Norwegian Fish Farm, Inc.proposal was the first attempt to establish amajor offshore aquaculture project in the UnitedStates. Neither the project planners nor thegovernment agencies involved appear to havebeen ready to deal with the range of concernsthat needed to be addressed given the project’s

large size, remote location, and exposure toharsh physical conditions. As a result, theapplication for a Section 10 permit triggered anafter-the-fact effort by federal agencies todetermine powers and responsibilities (see, forexample, Brennan 1995). For a variety ofreasons, including both physical and regulatorychallenges, the project was never built.

�SeaStead Project

In September 1994, representatives of theSeaStead project (a federally funded, 18-monthexperimental sea scallop project under NOAA’sSaltonstall Kennedy grant program) applied tothe Corps for a permit to locate their operation ina 9 square mile area 12 miles southwest ofMartha’s Vineyard, Massachusetts (see Figure3.2). The facility would consist of bottom culturegrowout plus a growout array of nets suspendedfrom buoys, in waters averaging about 100 feetdeep. The purpose of the project, a collaborativeeffort between scientists and the sea scallopfishing industry, was to develop anddemonstrate the technology to enhance seascallop production, on a sustainable andenvironmentally sound basis, using the existingNew England fishing industry andinfrastructure.

The Corps’ permit was issued in January1995, following: 1) a finding by the Corps thatthe project would not unduly interfere withnavigation and that the gear placed in the waterwould not fail and become a risk to navigationand 2) a review by the National Marine FisheriesService (on biological and marine mammalissues), the U.S. Fish and Wildlife Service (onbiological impacts), the U.S. EnvironmentalProtection Agency (on water quality/NPDES),the U.S. Coast Guard (on aids to navigation), theDepartment of Defense (on naval activities), the



Department of State (on international treaties),and the Department of the Interior (on mineralsmanagement). The relative ease with which thepermit was obtained is largely attributed to theuse of a native, filter-feeding species(Smolowitz and Goudey undated). Thiseliminated several major concerns expressed inconsidering finfish aquaculture projects, such asthe American Norwegian Fish Farm, Inc. projectdiscussed above—namely, the environmentalimpacts from the accumulation of feed and wasteand the potential genetic consequences ofescaped fish.

This project, however, faced another majorhurdle due to its location in an active fishing areaof the ocean and the production of a speciesregulated under an existing fishery managementplan. The Corps’ permit only authorized the

placement of structures in public waters; it didnot guarantee the holders of the permit wouldhave exclusive use of the 9 square mile area.Even before filing the Corps’ permit application,the project team had approached the NewEngland Fisheries Management Council aboutthe need to protect the seeded bottom (August1994). Although the Council did not raiseserious objections to this request, it had noexperience in regulating aquaculture, and therewere no relevant examples to follow from otherregions. However, the Council felt that a simple“relaxing” of existing fishery regulations and thegranting of an experimental fishing permitwould not be adequate. Instead, based onguidance from NOAA’s General Counsel, theCouncil required an amendment to the AtlanticSea Scallop Fishery Management Plan. Thepurpose of this amendment was to prohibittrawling, gillnetting, and non-project dredgingwithin the site’s boundaries. The Council askedthe project team to draft the amendment.

The approval process took over 2 years (seeTable 3.3), with the delays attributed to thecomplex process the Council followed under theFishery Conservation and Management Act(now the Sustainable Fisheries Act) as well asthe competing demands on the Council’s timeand resources for conducting its primaryresponsibilities related to the management ofcommercial fishing in the region. In addition,the amendment approved by the New EnglandFishery Management Council had to beapproved by the National Marine FisheriesService and published in the Federal Register

for comment prior to the publication of a finalrule. Thus, the project could not begin until thefinal rule was implemented in February 1997.

One noteworthy outcome of the reviewprocess, however, was the identification of atrawling “hot spot” in the middle of the proposedsite, based on track plotter sheets fromcommercial draggers. In addition, lobstermen inthe area feared the sea scallop experiment would



SeaStead

Martha'sVinyard

Nantucket

Cape Cod

New Bedford*

Woods Hole*

Boston

Figure 3.2. Location of SeaStead Project

Source: Goudey and Smolowitz (undated)

attract fish, which in turn would attractfishermen using dredges—creating potentialgear conflicts with the lobstering activities. Theimportance of the proposed site to thecommercial fishery was not revealed in NMFSdata (which is aggregated to blocks of 10 minutelatitude by 10 minute longitude, or over 75square miles). Through meetings withfishermen on Martha’s Vineyard and in New

Bedford, a consensus was reached for movingthe site 5 miles to the west of the originalproposal. Because the Corps’ permit had beenbased on the original site, it was necessary tohold a second public hearing. Although noobjections were raised, the project was set back 2months.



Table 3.3

Events Associated with the Permitting Process for the SeaStead Project

1994

August Apply to New England Regional Fishery Management Council (Council)for area closure

September Apply to Army Corps of Engineers for Section 10 permitPresentation to Council

October Presentation to Council’s Scallop CommitteeNovember Presentation to Council’s Interspecies CommitteeDecember Council vote

1995

January Receive Section 10 permit (Army Corps of Engineers)February Submit Amendment 6 Draft to CouncilJune Presentation to Council’s Aquaculture CommitteeDecember Council vote on Amendment 6

1996

January Council public hearing, Woods Hole, MAFebruary Council voteApril Industry meeting, Martha’s Vineyard, MA

Industry meeting, New Bedford, MACouncil vote on site relocation

May Second public hearing, Wareham, MAPresentation to Council’s Scallop Committee

June Council vote on site relocationAmendment submitted to NMFS

November Review complete, publish proposed ruleDecember Federal Register comment period closed

1997

January Publish final rule in Federal Register

February Implementation date (begin project)

Source: Smolowitz, Ronald and Clifford Goudey, “Obstacles to Offshore Sea Scallop Culture in New

England Waters,” undated.

The 30-month process required for approvalof an experiment designed to be conducted overa much shorter, 18-month period, appearsdisproportionate. But when one considers thenovelty of the process and the plethora of issuesthat needed to be addressed, the lengthy processis not so surprising.

Project sponsors have since completed the18-month experiment at the site, which wasmarked by large lighted yellow buoys. This wasthe first site to involve floating containmentsystems designed for full exposure to the rigorsof the Northwest Atlantic Ocean, whichincluded large waves and strong currents. Inaddition to their scientific accomplishments(which are beyond the scope of this discussion),the project report highlights the project’sregulatory and social accomplishments:

The biggest obstacles the project hasovercome, and with great success, wereregulatory and social. The project was inpart responsible for (a) the formation ofthe Sea Scallop Working Group inMassachusetts, (b) the formation of anAquaculture Committee within the NewEngland Fishery Management Council,(c) developing scallop industry awarenessof enhancement/area managementstrategies, and (d) establishing the firstworking aquaculture site in federal waters.(Smolowitz et al. 1998, p. 2).

The SeaStead project has been awardedfollow-up funding for the continuation ofresearch at the site under the Sea GrantTechnology Program. The project team isseeking a long-term designation for the site andanticipating another amendment to the SeaScallop Management plan in January 2001(Goudey and Smolowitz 2000).

�SeaFish Mariculture

In 1998, the first aquaculture facilityassociated with an offshore oil industry platformin the Gulf of Mexico began operations off theTexas coast (Lutz 1999). The facility, entirely aprivate investment in a commercial operation,grew red drum in cages attached to an unusednatural gas production platform owned by ShellOil, 34 miles offshore (Kaiser and Achnee2000). The permitting challenges for this projectwere significantly less than for the two NewEngland projects described above, owing largelyto the association with an existing structure—theaddition of cages to the platform did notsignificantly increase threats to navigation orinterference with fishing or other uses. Theplatform was staffed in rotation by two, 2-personteams who lived on the platform and weretransported to and from the platform viahelicopter service supplied by Shell Oil.

The biggest challenge for this project wasthe frequency of hurricanes in the Gulf ofMexico. The staff would be evacuated alongwith Shell’s oil personnel during storms for theirpersonal safety, but the cages and fish were lostor damaged. The arrangement ended when Shelldecided to develop a nearby natural gas well, andneeded the platform once again for its mainbusiness. However, this project provides a goodexample of the potential association ofaquaculture with the offshore oil and gasindustry. In this case, the facility provided aninterim use of a platform and delayed the needfor the oil company to make a decision onabandonment. Additional possibilities mayarise from use of platforms slated forabandonment by the oil companies, providedagreement could be reached on the liabilityquestion.



�Open Ocean Demonstration

Projects

The National Oceanic and AtmosphericAdministration is currently supporting openocean aquaculture demonstration projects offNew Hampshire and Hawaii and in the Gulf ofMexico. The New Hampshire and Hawaiiprojects have obtained all of the necessarypermits, and have already stocked submersiblecages. The Gulf of Mexico project just gotunderway in early 2000; it has obtained permitsfor the site, but has not yet obtained all of thepermits to stock fish.

University of New Hampshire open ocean

aquaculture demonstration project

This 5-year project, which started up in 1997,is the first pen culture in the open ocean of theUnited States. It is a cooperativeuniversity/industry effort, involving theUniversity of New Hampshire, Great BayAquafarms, and the Portsmouth Fishermen’s

Cooperative. The project’s goal is “todemonstrate the biological, technological,engineering and economic feasibility ofculturing fish and shellfish in unprotected,oceanic environments” and “to do so in anenvironmentally responsible manner”(University of New Hampshire 2000b). A keyobjective is to establish a fully permitted,pilot-scale demonstration site (see Table 3.4 forsite selection criteria). The project has obtainedfederal and state permits for a commercialoperation in open waters off the Isles of Shoals, 6miles from the mainland (see Figure 3.3).

Species of interest to date include bothsummer flounder and blue mussels, so separatefinfish and shellfish permits were necessary.Although the finfish and shellfish growoutactivities are both physically within the boundsof the project site, they are being developed asseparate operations. According to a project teammember, it took an estimated 200 hours tocomplete the necessary applications, plusadditional hours spent meeting with relevantofficials. The process (see Table 3.5) extendedover a 2-year period—1 year of preparation and



Table 3.4

Site Selection Criteria for New Hampshire Open Ocean Aquaculture

Demonstration Project

� Representative of open ocean site in the Gulf of Maine (fully exposed, deep water)� Sufficient water movement� Well-mixed water column� Sufficient primary productivity� Proper bottom substrate (not too firm, not too soft)� Relatively easy access from port� Minimal multiple use conflicts (navigation, fishing)� No insurmountable environmental issues

Source: University of New Hampshire, “Open Ocean Aquaculture Project

Overview,” 2000.

another year between application and approval.Numerous surveys were performed in collectingdata for the applications, at an estimated cost ofmore than $100,000 (Langen 2000b).

Permits obtained were:

• U.S. Army Corps of Engineers: Section10 permit (plus biological assessment,requested by the National MarineFisheries Service, emphasizing marinemammal entanglement)

• New Hampshire Fish and GameDepartment: Marine aquaculture license($750/acre x 30 acres = $22,500/year)(Tuohy 1999).

• New Hampshire Department ofEnvironmental Services: Wetlandspermit

• U.S. Coast Guard: Private aids tonavigation permit



Figure 3.3. Location of University of New Hampshire Project

Source: University of New Hampshire Open Ocean Aquaculture Demonstration Project home page:

http://www.ekman.sr.unh.edu/AQUACULTURE/PRESENTATIONS/OVERVIEW/sld10.htm

• New Hampshire Coastal Program:Federal consistency review

Agencies consulted in the permit processincluded:

• U.S. Environmental Protection Agency

• U.S. National Marine Fisheries Service

• U.S. Fish and Wildlife Service

• U.S. Coast Guard

• New Hampshire Governor’s Office

• New Hampshire Office of State Planning

• New Hampshire Port Authority

• New Hampshire Department ofEnvironmental Services/Water Supplyand Pollution Control Division

• Atlantic States Marine FisheriesCommission

• New England Fishery ManagementCouncil

• Executive Councilor, Portsmouth, NewHampshire



Table 3.5

Permitting Process for New Hampshire Project

Steps Taken

� Initiated one year prior to submitting applications� Met with regulatory agencies prior to submitting applications� Met with stakeholders� Synthesized all data on the site, and on proposed activities� Wrote and submitted required permits� Responded to comments and inquiries� Public hearings

Issues Raised

� Entanglement of endangered whales and turtles� Potential impacts of biodeposition of fish waste and uneaten food on seafloor� Potential increase in dissolved nutrients� Seal attraction and predation� Escapement of fish from cages� Vessel navigation� Commercial and recreational fishing

Source: University of New Hampshire, “Open Ocean Aquaculture Project

Overview,” 2000.

In obtaining the permits, the project teamargued that:

• Moorings and cages do not represent anyknown entanglement threat to whales andsea turtles

• Environmental impacts are minimal (e.g,there is good waste dispersion andpredator mitigation; cage is stocked withfirst generation offspring of wild species)

• The area is mostly barren of commercialspecies.

In reflecting on the permitting process, thedirector of the Jackson Estuarine Laboratory atthe University of New Hampshire listed thefollowing needs (Langen 2000b):

• One central regulatory contact point thatcoordinates with all agencies

• An information package that identifies allthe issues and required information

• One application that is shared with andsatisfies all agencies

• An aquaculture advocate on the staff ofthe lead permitting agency.

The 30-acre site, which is located 6 miles offthe mainland (1.3 miles south of White Island,Isles of Shoals), is marked by yellow buoys,including a flashing navigational buoy. It alsoincludes an environmental monitoring buoypowered by photovoltaic panels. In the summerof 1999, two Ocean Spar Sea Stations(submersible cages) were deployed in watersaveraging 178 feet deep and stocked withsummer flounder (see Figure 3.4).

To date, the shellfish component of thisproject (mussels) has been more successful interms of production than the finfish effort

(flounder), which experienced problems withfeeding, fish mortality, and slow growth rates.The first finfish were harvested in December1999, and the first shellfish in spring 2000. Theproject is considering additional species forfuture years, including cod, haddock, winterflounder, sea scallops, and European oysters.

Hawaii

This project, a collaboration between theHawaii Sea Grant College Program and theOceanic Institute, is Hawaii’s first experiment inopen-ocean aquaculture. The project site is 2miles off Ewa Beach (in the state waters ofHawaii). An Ocean Spar SeaStation 3000 (50 x80 foot biconical sea cage, fully submerged todepth of 40 feet with no navigational markers)was deployed in April 1999 in 100 feet of waterand stocked with 70,000 indigenous Pacificthreadfin (Polydactylus sexfilis, locally knownas moi). Because the cage is fully submerged, afeeding tube is used to deliver food to the cage.The tube, which is attached to the cage, must be



Figure 3.4 Ocean Spar Sea Station

Source: Ocean Spar web page:

http://www.oceanspar.com)

brought to the surface by divers for each feeding(Figure 3.5).

The permitting process for this project took 4months from a complete application to approvalof all agencies. This relatively quick approval isrelated to the nature of the project: short-termgovernment research using a native species, andtherefore determined not to require anEnvironmental Assessment. The process wasfacilitated through scoping meetings, agencyinput into the experimental design, and agencydecisions to issue administrative approvals (theeasiest form of approval available). The highlevel of agency interest in learning about openocean aquaculture from the project contributedto the decision-making process (Corbin 2000).

The project is reporting good results in termsof system operation and fish production. The

first fish were harvested after 4 months (¾-1½pounds each) and marketed outside Hawaii, soas not to compete with local small-scaleaquaculture ventures. Based on these results, theproject is considered to be feasible andeconomically viable, without adverseenvironmental impacts to the water column, seafloor, or nearby reefs (Hawaii Sea Grantundated). Phase II of the cage research resultedin additional fish harvests in 2000.

Gulf of Mexico

This university/industry project, funded bySea Grant and involving input from federal andstate agencies, is in its first year. The projectplans to deploy two cages offshore Mississippi:one in “deep” federal waters off Horn Island



Figure 3.5. Tube Used in Stocking Sea Cage in Hawaii (similar tube used in feeding)

Source: Hawaii Sea Grant home page (http://www.soest.hawaii.edu/SEAGRANT/special_projects.html)

(50-100 feet deep) and another in “shallow” statewaters off the Gulf Coast Research Laboratoryin Ocean Springs (<50 feet deep). Its approach isto address engineering and environmental issuesbefore moving on to a study of fish productionmethods for offshore waters in the Gulf ofMexico. Its goal is to use the best availabletechnology—defined as socially andenvironmentally acceptable and economicallyfeasible. Target species include red snapper orother warm water species.

A key concern is the survivability of cages inthe shallow, hurricane-prone waters of the Gulf.For this reason, the project may delay stockingfish for production until preliminary engineeringtests are completed. The project assumes that itwould be impossible for fish in cages to survivea Class 5 hurricane; therefore, its engineeringgoal is to minimize hardware losses and risks toothers by designing a way to preserve the cageand net and prevent the movement of thecage/mooring system.

As part of the project, the Mississippi-Alabama Sea Grant Legal Program is compilingexisting applicable federal and state regulations,and surveying agencies for information onpolicies and protocols. The project plans toproduce a regional guide to permitting offshoreaquaculture. It will also work towards theestablishment of offshore aquaculture zones inthe Gulf of Mexico and a “one stop shopping”leasing process.

In February 2000, the consortium held aworkshop of regional and national experts andnatural resource stakeholders to further defineproblems and opportunities associated withoffshore aquaculture.

The project has obtained the necessarypermits to place an offshore cage (a 30x49 footSeaStation cage manufactured by Ocean Spar)adjacent to a Chevron natural gas platformapproximately 22 miles due south ofPascagoula, Mississippi (the cage will not beattached to the platform) (Bridger 2000).

LESSONS LEARNED

�Army Corps of Engineers

Permitting

Worth noting in each of the cases for whichpermitting information was available is that thespecific purpose of the Section 10 permit (toavoid interference with navigation and potentialnavigational hazards) is straightforward. Theadministrative and regulatory challenge has todo with the extension of the review process toincorporate a review by other federal agencieswith a host of much broader concerns(environmental, economic, etc.). For example,

the SeaStead project, if located at the siteoriginally proposed, was not considered by theCorps to be a navigational hazard; nevertheless,in the process of receiving approval from theNew England Fishery Management Council, itwas found to interfere with commercial fishingoperations in the area and eventually relocatedfollowing two public meetings. The muchbroader concerns raised in the Conservation LawFoundation’s lawsuit against the Corps after itissued a permit to American Norwegian FishFarm, Inc., however, would take more than a fewpublic meetings to resolve. Past experience,



therefore, does not indicate a serious problemwith the Corps’ process for determining whetheran aquaculture project would interfere with orcreate a hazard to navigation; it does, however,suggest that the Corps may not be theappropriate agency for decision-making on thebroader issues of concern (at least not ascurrently formulated).

�Fishery Management Council

Approval

The detailed information provided by theparticipants in the SeaStead project documentsthe difficulties of continuing the ad hoc approachto regulating offshore aquaculture. To getapproval for an 18-month experiment,participants had to prod the regional Council,push the limits of its authority, and take an activepart in creating an ad hoc regulatory mechanismto provide the scientists with exclusive use of thearea for which they had already obtained a CorpsSection 10 permit. While the New EnglandFishery Management Council may be lauded forbreaking new ground—it created anAquaculture Committee, supported the project’sefforts to amend the scallop fishery managementplan, and spearheaded an effort to coordinate theapplication process for future projects seeking aCorps Section 10 permit—the process waslengthy and at times unwieldy. In addition, theCouncil’s authority is less clear with respect tospecies for which there is no FisheryManagement Plan (Smolowitz and Goudeyundated).

Clearly, there is a need for national levelguidance to all of the regional fisherymanagement councils in dealing with futureproposals for aquaculture facilities in federalwaters. The SeaStead project, as agovernment-funded research effort, was able to

delay its start-up until the appropriate approvalshad been obtained. For a private firm seekingfinancing for a commercial project, however, a30-month application process makes it difficultor impossible to proceed in a way that preservesthe prospects for obtaining a loan orcommitments from potential investors.

� Integration with Other Uses:

Research

The SeaStead project and the three federaldemonstration projects now underwayincorporate a host of data collection efforts, onenvironmental, economic, and social impacts aswell as on engineering and productiontechniques directly related to the aquacultureoperation itself. Collection of this type ofdata—whether by an agency of the federalgovernment, university or other researchers, aprivate firm, or the aquacultureoperator—should be a component of futureprojects as well. Such information will serve toreduce the scientific uncertainties that underliemany of the current conflicts over whetherdevelopment of an offshore aquaculture industryis in the public interest.

� Integration with Other Uses:

Commercial Fishing

The SeaStead project and the more recentdemonstration projects in New Hampshire andHawaii directly involve the commercial fishingindustry. The approach appears to be successfulin terms of identifying potential conflicts,relocating a site if necessary, and providingalternative employment for commercialfishermen, boats, and gear. It provides a positivefoundation to build a new industry on theexisting resource base of a region traditionallydependent on commercial fishing.



In an attempt to gauge the potential supportfor aquaculture from the commercial fishingsector in northern New England, a survey offishermen conducted by the University of NewHampshire identified the following concerns: 1)who has the right to open ocean leases; 2)restrictions in traditional fishing methods,places, and times; 3) the possible dominance oflarge corporations over the individualentrepreneur; and 4) regulations on the industry.While many commercial fishermen were willingto consider potential opportunities in marineaquaculture, they felt they would be left out if theindustry were dominated by large industries.Nearly 9 out of 10 fishermen wanted to keepdoing what they were doing (Robertson et al.2000).

�Synergy with Other Uses:

Offshore Oil and Gas Production

The SeaFish Mariculture project providesseveral lessons: First, the benefits in terms ofease of site approval from associating anaquaculture project with an existing use of oceanspace; second, an alternative to oil platformabandonment—either permanent or temporary;third, the remaining engineering challenges ofmaintaining aquaculture facilities in areasfrequently prone to storm damage. While thestructure on which the aquaculture operationwas based survived some storms, the cages andfish were lost on several occasions in a relativelyshort time span. This raises concerns overescaped fish as well as hazards from the cagesset adrift by a storm.

�Moving Ahead: Federal Open

Ocean Demonstration Projects

Current efforts are building on pastexperience and seeking to address the range of

concerns identified in early projects. Each ofthese projects obtained, or plans to obtain, all ofthe necessary permits under existing laws andregulations. The New Hampshire project hasdocumented its efforts, the Hawaii project iscompiling state and federal regulations, and theGulf of Mexico consortium includes alegal/regulatory guide as one of its planned workproducts. The amount of time and effort put intothis activity by professional researchersconsumes a large share of project resources.Based on this experience, the burden placed on aprivate business under the current regimeappears excessive. Even with well-prepared anddocumented guides, such as that underway forthe Gulf of Mexico region, the process willremain complex and costly for potentialinvestors.

�The Big Gaps: Addressing the

Security of Tenure, Public Trust,

and Environmental Issues

None of the federal agencies involved in thepast efforts to approve offshore aquaculture infederal waters has the authority to address thepublic trust issue beyond the ability to adviseagainst a particular project. As a result, projectshave been issued permits to operate atdesignated offshore sites, but no leases. Eventhe “closed fishing area” designation for theSeaStead project did not exclude transit over thearea or fishing with special permits issued aftertaking account of the potential for interferencewith the experimental sea scallop projectunderway at the site. Although there are nopurely commercial offshore projects inoperation today, successful completion of thevarious research and demonstration projectsunderway could produce significant interest infuture projects. Before this occurs, the federalgovernment needs to decide 1) how future



projects should be granted security of tenure(i.e., private property rights) and 2) how theseprojects should compensate the public for theexclusive right to operation in an area of theocean previously open to all users. The variouscomponents of such a system (lead agency;lease/rent/royalty payments; designation ofareas open to aquaculture; conditions onoperations, such as insurance, bonds,environmental monitoring requirements) areexamined in detail elsewhere in this report.

The other major gap relates to howenvironmental impacts are addressed. These arenot dealt with systematically under the currentframework.

�The Bottom Line: No Active

Commercial Projects in the

3-200 Mile Ocean Zone

More than 12 years after the first permitapplication by American Norwegian Fish Farm,Inc., there are no fully commercial aquaculturefacilities operating in open waters of the EEZunder federal government control. TheAmerican Norwegian proposal raised concernsand prompted government responses, which areonly now beginning to coalesce in a coordinatedeffort to devise a system for governing this newocean industry.



Chapter 4

THE FEDERAL FRAMEWORK FORADMINISTRATION OF OFFSHORE

MARINE AQUACULTURE

INTRODUCTION

As interest in establishing an offshoremarine aquaculture industry in the United Stateshas developed, federal agencies haveincreasingly assumed regulatory andpromotional roles based on existing authorities.These authorities pre-date any aquacultureindustry in open ocean waters, and do notexplicitly address the particular types ofaquaculture facilities and operations that are ofconcern in this study. In the absence of morespecific legal guidance, federal agencies haveattempted—with varying degrees of success—toapply their existing regulatory authorities tovarious aspects of open ocean aquaculturefacilities and operations (in state waters as well

as in federal waters beyond the limits of statejurisdiction). On the promotional side, they havemade a variety of research, extension, financing,and other programs open to offshore aquacultureinterests.

In this chapter, we first provide an overviewof federal legislation and activities to stimulatethe development of the aquaculture industry(freshwater and marine). We then address morespecifically federal roles and legislativeauthorities related to the management ofoffshore aquaculture.



THE FEDERAL GOVERNMENT AND AQUACULTURE*

�The National Aquaculture Act and

the Joint Subcommittee on

Aquaculture

The major piece of legislation for the U.S.aquaculture industry is the National AquacultureAct of 1980 (PL 96-362), as amended (16 U.S.C.2801 et seq.), which promotes privatedevelopment in aquaculture due to its potentialfor reducing the trade deficit, augmentingcommercial and recreational fisheries, andmeeting future food needs. Although the lawdoes not explicitly address marine aquaculture,it is an important initiative because: 1) itestablished that the development of a U.S.aquaculture industry is “in the national interest”and 2) it provided a mechanism for makingaquaculture development part of the nationalpolicy, through the establishment of the JointSubcommittee on Aquaculture (JSA) as acoordination group for federal governmentactivities relating to aquaculture (see Table 4.1).The JSA’s mission is “to increase the overalleffectiveness and productivity of Federalaquaculture research, technology transfer, andassistance programs” (see the JSA’s worldwideweb site: http://ag.ansc.purdue.edu/aquanic/jsa/).

The JSA is part of the National Science andTechnology Council (NSTC) within the Officeof Science and Technology Policy in the Officeof the Science Advisor to the President. Itreports to the NSTC’s Committee on Science,one of five research and development (R&D)committees that prepare coordinated R&Dstrategies and budget recommendations for

accomplishing national goals. The Secretariesof the three departments with the mostaquaculture-related responsibilities (i.e.,Agriculture, Commerce, and Interior) make upthe JSA’s Executive Committee. Initially, theseagencies rotated responsibility for chairing theJSA, but the National Aquaculture ImprovementAct of 1985 established the Secretary ofAgriculture as the JSA’s permanent chair.

The primary task for the JSA was to developa National Aquaculture Development Plancovering about 30 programs in 12 federalagencies, which was completed in 1983. Itsmajor innovation was the creation, within theDepartment of Agriculture, of a NationalAquatic Information Center and a network ofRegional Aquaculture Centers. The plan alsoidentified the major problems facing theindustry: inadequate credit, diffused legaljurisdiction, lack of management information,lack of supportive government policies, and lackof reliable supplies of feed stocks. To date,inadequate resources have been directed towardsaddressing these issues, and they remainconcerns for the industry today.

A revised National Aquaculture Develop-ment Plan was drafted in 1996, with stakeholder(including industry) input, but has not yet beenformally adopted. The draft Plan seeks todevelop a framework dealing with 12 majorissues, including the federal regulatoryframework (Table 4.2). Its vision is:

To develop a highly competitive, sustainableaquaculture industry in the United States tomeet consumer demand for cultivated



* This section is adapted from Bunsick 1998.

aquatic foods and products that are ofhigh quality, safe, competitively priced,and nutritious and are produced in anenvironmentally responsible manner withmaximum opportunity for profitability inall sectors of the industry (JointSubcommittee on Aquaculture 1996).

The plan leaves principal responsibility forfuture development to the private sector, andidentifies actions the federal government couldtake over the next 3-5 years to supportdevelopment of the industry. The principal goalis to improve international competitiveness andsustainability of the U.S. aquaculture industry.

�Current Programs

Most federal funding of aquaculture todaysupports two main program areas: research andthe operation of fish hatcheries. Of particularinterest to marine aquaculture are the NationalOceanic and Atmospheric Administration’s SeaGrant Program and the Department ofAgriculture’s Cooperative State Research,Education, and Extension Service.

The National Sea Grant College Programfunds research on aquaculture production and



Table 4.1 Joint Subcommittee on Aquaculture

Executive Committee

Secretary of Agriculture (permanent chair)Secretary of CommerceSecretary of Interior

Members

Secretary of EnergySecretary of Health and Human ServicesAdministrator, Environmental Protection AgencyChief of EngineersAdministrator, Small Business AdministrationAdministrator, Agency for International DevelopmentChair, Tennessee Valley AuthorityDirector, National Science FoundationGovernor, Farm Credit AdministrationHeads of other Federal Agencies, as appropriate

Task Forces and Working Groups

Aquaculture Information & Technology Transfer TaskForce

Aquatic Animal Health Task ForceBird Depredation Task ForceShrimp Virus Task ForceWorking Group on Aquacultural Statistics and

EconomicsWorking Group on Quality Assurance in AquacultureProductionAquaculture Effluents Task Force

Source: JSA Web site (http://www.ag.ansc.purdue.edu/aquanic/jsa/,

accessed 6/13/00)

Table 4.2 Major Issues Addressed in the National Aquaculture Development Plan

Research and technology development Product quality, safety, and variety

Technology transfer Federal regulatory framework

Education, extension, and training Marketing and international trade

Information systems Statistics and economics

Sustainability and environmental compatibility Financial services and incentives

Aquatic animal health Coordination and partnership

Source: JSA, National Aquaculture Development Plan (1996 draft)

species, including policy studies such as thisone, aimed at meeting the present needs of theaquaculture industry. Sea Grant aquacultureresearch is conducted in many areas: genetics,biotechnology, endocrinology, physiology,pathology, engineering, nutrition, policy,economics, and others. The Sea Grant ExtensionService utilizes a corps of area agents andspecialists to provide public education,technology transfer, and demonstration projectsin aquaculture. The Program developsinformation generated by Sea Grant and otherresearch, for use by groups in the private sectorto develop marine aquaculture.

The Department of Agriculture’sCooperative State Research, Education, andExtension Service operates similar types ofprograms aimed at all types of aquaculture,including marine aquaculture. Research effortsemphasize aquaculture systems; integratedaquatic animal health; reproduction, growth, andnutrition; genetics; product quality; marketingeconomics; and other areas. In addition, theagency operates five Regional AquacultureCenters and coordinates all federal researchprograms in aquaculture.

A summary of fiscal year 1998appropriations and the fiscal year 1999 budgetrequest for the three major agencies(Agriculture, Commerce, and Interior) isprovided in Table 4.3. A more complete list of

aquaculture activities is provided in Table 4.4,which summarizes information compiled by theJoint Subcommittee on Aquaculture in the Guide

to Federal Aquaculture Programs and Services

(see JSA worldwide web site: http://ag.ansc.purdue.edu/aquanic/jsa/federal_guide/Federal%20Guide.htm). The JSA’s guide is agood start toward identifying the wide range ofaquaculture-related activities in which thefederal government is involved, and itdemonstrates the extent to which programresponsibilities and activities are scatteredacross various government agencies. Inaddition, the absence from the list of the ArmyCorps of Engineers (which serves on the JSAand has become involved in the issuance ofpermits for offshore aquaculture facilities) andthe National Oceanic and AtmosphericAdministration’s Office of Ocean and CoastalResource Management (which deals withaquaculture in the context of state coastalmanagement plans) indicates the list is far fromexhaustive.

Although a full discussion of each of theseprograms is beyond the scope of this report,three features are worth noting: 1) severalagencies play major roles in particular areas,such as research and hatchery programs; 2) nosingle agency has the lead responsibility for theoverall direction of aquaculture programs andpolicies; and 3) regulatory programs are notaimed specifically at aquaculture, but at broaderenvironmental, health, and safety concerns.

THE FEDERAL GOVERNMENT AND THE MANAGEMENTOF OFFSHORE MARINE AQUACULTURE

Issues related to the management of offshoreaquaculture—the need for clarification ofagency roles, coordination of the regulatory

process, and additional regulatory authority to

fill in the gaps�were common themes in thecritiques of early attempts by federal agencies to



regulate offshore aquaculture, as discussed inChapter 2. As illustrated in Chapter 3, the effortsof federal agencies to regulate offshoreaquaculture have been, by necessity, ad hoc innature. As the different agencies interpreted andexerted their authorities with respect to offshoremarine aquaculture, several concerns soon

arose: 1) regulatory requirements oftenoverlapped; 2) agency roles were sometimesconflicting; and 3) regulatory gaps becameapparent.

In this section, we discuss the currentframework for offshore marine aquaculture.



Table 4.3. Federal Funding for Aquaculture, Selected Agencies

Department/Agency Program/Activity FY1998 Appropriation FY1999 Request

Agriculture:

Cooperative StateResearch, Education, andExtension Service(CREES)

Regional aquaculturecenters

$4.0 million $3.9 million

North Carolinamariculture

$150,000 —

Gulf Coast shrimpaquaculture

$3.4 million —

National AgriculturalStatistics Service

Census of aquaculture – $0.5 million

Agricultural ResearchService (ARS)

Research funding $11.7 million $9.6 million

Animal and Plant HealthInspection Service

Pest and diseasemanagement

$568,000 $583,000

Commerce:

National Oceanic andAtmosphericAdministration/OAR

Regional Open OceanAquaculture (NewEngland)

$1.7 million —

Mariculture initiative – $1.6 million

National Marine FisheriesService (NMFS)

Colombia RiverHatcheries


Interior:

Fish and Wildlife Service National Fish HatcherySystem


Snake River Hatchery(reimbursed by BonnevillePower Administration )


Note: According to recent estimates, CSREES funding totaled $17.5 million in FY 1998 and $20.2 million in FY99, ofwhich about 50 percent is invested in marine species. ARS funding is about $19.5 million (Broussard 2000). NMFSprovides additiona l support for marine aquaculture under the Saltonstall-Kennedy Act, the Fisheries Finance Program,and work at its research laboratories (Rhodes 2000).

Source: Worldwide web site: http://www.cnie.org/nle/mar-19.htm.



Table 4.4. Aquaculture-Related Programs in the Federal Government

Department Agency or Program Activities

DepartmentofAgriculture

Agricultural Research Service National Agricultural Library. Includes AlternativeFarming Systems Info. Center and Water QualityInfo. Center. National aquaculture centers(Stonevill, MS; Stuttgart, AR; Leetown, WV) forintramural research.

Cooperative State Research, Education, andExtension Service

Coordinates all Federal research programs inaquaculture; includes 5 Regional AquacultureCenters. Extramural research, extension,education, including technology transfer.

Farm Service Agency Loans for facilities and operations

Agricultural Marketing Service Marketing, financial, technical support

National Agricultural Statistics Service Industry surveys; Aquaculture Situation andOutlook Report

Foreign Agricultural Service Export opportunities and trade

Animal and Plant Health Inspection Service Animal and plant health protection

Federal Crop Insurance Information Insurance, loans, disaster assistance

Departmentof Commerce

National Marine Fisheries Service Research laboratories, resource management,financial assistance for research and structures,Fishery Management Councils

Office of Oceanic & Atmospheric Research:National Sea Grant College Program;National Undersea Research Program

Research grants, extension services, education

National Ocean Service: Office of Oceanand Coastal Resource Management

Technical products, coastal resource management,state grants

Economic Development Administration Community planning, technical assistance,economic assistance to distressed areas

Technology Administration: NationalInstitute of Standards and Technology -Advanced Technology Program

Assist industry in development of technology toimprove product quality, reliability, modernize,commercialize

Minority Business Development Agency Support for creation, growth and expansion ofminority-owned businesses

International Trade Administration Encourage exports, fair competition, equal accessto foreign markets

Departmentof Interior

Fish and Wildlife Service Hatcheries, technical/scientific advice

Geological Survey Data on ground and surface water

Departmentof Health andHumanServices

Food and Drug Administration Animal drugs, feeds (Center for VeterinaryMedicine) and seafood safety (Center for FoodSafety and Applied Nutrition)

Other

Environmental Protection Agency Water quality programs, effluent dischargestandards and permits, waste/nutrients, wetlandsprotection, pesticide registration

Agency for International Development R&D projects in developing countries

National Research Support Project No. 7 Shortage of minor use animal drugs

Source: JSA, Guide to Federal Programs; updated (based on Mieremet 2000 and Broussard 2000).

(http://ag.ansc.purdue.edu/aquanic/jsa/federal_guide/Federal%20.html)

Tab

le4.5

.A

gen

cies

wit

ha

Role

inO

ffsh

ore

Mari

ne

Aq

uacu

ltu

re

Fed

eral

Reg

ion

al

Sta

te

JS

AA

gri

cult

ure

Com

mer

ceIn

teri

or

DO

DD

OT

EP

AF

DA

Oth

er

FisheryManagementCouncils

InterstateFishery

ManagementCommissions

Coastalagency

Environmentalagency

Otheragencies

APHIS

CSREES

NOAA/NMFS

NOAA/OCRM

SeaGrant

FWS

MMS

ArmyCorpsofEngineers

CoastGuard

Reg

ula

tion

Sit

ing/p

erm

itti

ng

XX

XX

XX

XX

XX

Oper

ati

ons

XX

Envi

ronm

enta

lim

pact

sX

XX

X

Use

rco

nfl

icts

XX

XX

XX

X

Spec

ies

XX

XX

XX

Food

safe

tyX

XX

X

Mon

itori

ng/s

urv

eill

an

ceX

XX

X

Indu

stry

Ass

ista

nce

XX

XX

X

Res

earc

hX

XX

XX

Advi

sory

role

XX

XX

XX

Inte

r-agen

cyco

ord

inati

on

X

Sourc

e:C

om

pil

edby

Susa

nB

unsi

ck,C

ente

rfo

rth

eStu

dy

of

Mari

ne

Poli

cy,U

niv

ersi

tyof

Del

aw

are

,2000.

Table 4.5. Agencies with a Role in Offshore Marine Aquaculture

Federal

Regional

State

JSA

Agriculture

Commerce

Interior

DOD

EPA

FDA

Regulation

This is important because it will allow us, in latersections, to assess the components of currentpolicy in order to identify which features shouldbe preserved, which should be modified, andwhat needs to be added or reorganized in order tocreate a fair and effective governing frameworkfor a sustainable aquaculture industry in federalwaters out to the 200 mile limit of the ExclusiveEconomic Zone. This discussion has benefitedfrom work done at the University of Mississippiin conjunction with the Gulf of MexicoConsortium project discussed in Chapter 3 (seeFletcher and Weston 2000).

�Overview of Federal Agency Roles

Table 4.5 lists the range of responsibilities thatconstitute the federal role in the management ofoffshore marine aquaculture, and the agencieswe have identified in our study as currentlyinvolved in fulfilling each responsibility. Thefederal role goes beyond the regulatory role,which was the primary focus of the studiesreviewed in Chapter 2 of this report, to includeadditional roles such as monitoring andsurveillance, industry assistance, researchsupport, advisory roles in the regulatory process,and interagency coordination.

Regulatory role

The regulatory role is by far the mostimportant one to the aquaculture industry as wellas to environmentalists, commercial fishermen,the shipping industry, recreational ocean users,consumers, state and local officials, and anyoneelse with an interest in what goes on in publicwaters. This is because federal agencies havethe authority to delimit the location of anaquaculture facility, the types of operations andpractices allowed at that location, and thespecies that may be grown there. An important

element within this role is the ability to addressthe environmental impacts of aquacultureoperations and to resolve conflicts betweenaquaculture and other users of federal waters.The federal government also plays an importantrole in ensuring that the fish and shellfishproduced from an aquaculture operation meetfood safety standards.

As many as 11 federal agencies are directlyinvolved, and another 10 agencies are indirectlyinvolved, in regulating aquaculture under 120statutory programs; about half of theseprograms require direct compliance (DeVoe1999). Of course, the actual number of statutesaffecting a particular aquaculture operationdepends on its size, location, species cultivated,and other factors. For offshore aquaculture, theregulatory role encompasses:

• Siting and permitting of facilities

• Operation of facilities (including use offeeds and drugs)

• Environmental impacts (including waterquality and broader impacts on ecologicalsystems)

• Resolution of conflicts with other users

• Approval and monitoring of species(including non-native, hybrid, andtransgenic species)

• Animal health (including the import andexport of live species)

• Food safety approval

Seven federal agencies, which are discussedlater in this chapter, have regulatory programsthat directly affect the marine aquacultureindustry:



• Army Corps of Engineers

• Environmental Protection Agency

• Fish and Wildlife Service

• Food and Drug Administration

• Department of Agriculture

• National Marine Fisheries Service

• Coast Guard

Monitoring/surveillance role

This role is highly related to the regulatoryrole described above. It encompasses a broaderrange of concerns, however, in that it addressesthe cumulative impacts of aquaculturedevelopment and the interaction with otheruses—for example, monitoring water qualityand fish habitat in or near areas of aquaculturedevelopment or observing changes incommercial fishing activity and navigation inresponse to the location of an aquaculturefacility.

Industry assistance role

This role relates to government efforts aimedat fostering the development of an aquacultureindustry in offshore marine waters. It is clearlydistinct from the regulatory role. Although thetype of aquaculture supported by federalagencies should be one that complies with allregulatory requirements for the industry, themain concern for a mission oriented towardsindustry assistance is providing incentivesaimed at establishing the offshore aquacultureindustry. Incentives could be offered toinvestors, employers, businesses, state and local

government, and consumers in a variety offorms—grants, loans, in-kind support, trainingprograms, extension and outreach programs, fishhealth services, marketing campaigns, tradepromotions, tax breaks, etc.

Research role

The federal government role with respect toaquaculture is probably the best established inthe area of research support. In fact, the catfishaquaculture industry (the largest single sector inthe U.S. aquaculture industry) owes it existencelargely to research support received throughagricultural research and extension programs(Tiddens 1990).

Advisory role

A number of federal agencies without directregulatory authority or programs directlytargeted at the offshore marine aquacultureindustry do have an interest in activities that takeplace in the waters of the United States. As such,they are (or can be) consulted before makingregulatory decisions or funding major researchprojects or industry promotion activities.

Inter-agency coordination role

Given the range of activities that come underthe U.S. offshore marine aquaculture policyumbrella, interagency coordination is a criticalelement for effective policy planning andimplementation. Although this project seeks toclarify agency roles and streamline regulatoryprocesses, we must start from the realisticassumption that it may be neither feasible nordesirable to consolidate all of the roles into asingle federal agency. For example, combiningregulatory and industry assistance roles in asingle agency could create internal conflicts



72

Tab

le4.6

.S

tatu

tory

Au

thori

ties

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rth

eR

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lati

on

of

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shore

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expli

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reta

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gen

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statu

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auth

ori

ties

cite

dm

ay

not

nec

essa

rily

apply

tooff

shore

mari

ne

aquacu

lture

.Sourc

e:P

repare

dby

Susa

nB

unsi

ck,C

ente

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rth

eStu

dy

of

Mari

ne

Poli

cy,U

niv

ersi

tyof

Del

aw

are

,2000.

making it difficult to fulfill either roleeffectively.

�The Key Agencies Currently

Involved in Marine Aquaculture

The following two sections discuss the roleof each of the agencies identified in Table 4.5.First, we will look at agencies whose role isprimarily regulatory in nature. Then, we willlook at agencies that play a mixed role inoffshore marine—i.e., they regulate the industryas well as provide industry assistance.

Table 4.6 summarizes the major laws thatfederal agencies have cited as their authority forgoverning offshore marine aquaculture. Theseare discussed below in the context of each of thefederal agencies that have regulatory authorityunder the statute.

In reviewing this section, it is important tokeep in mind that each agency is basing itsinvolvement in aquaculture, for the most part, onlegal authorities that were not “written orestablished with aquaculture in mind, andconsiderable uncertainty exists as to whether theagencies’ assertions of jurisdiction over openocean aquaculture under these statutes,principles and protocols will withstand legalchallenge” (Hopkins et al. 1997).

�Regulatory Agencies

U.S. Army Corps of Engineers

The Corps of Engineers has a majorregulatory role under the current policyframework for offshore marine aquaculture, byvirtue of its authority over the navigable watersof the United States. Given that offshore

aquaculture is by definition located in open areasof the ocean, all offshore projects are subject toreview and approval by the Corps.

Section 10 permits. The primary authorityfor the Corps’ regulatory role is Section 10 of theRivers and Harbors Act of 1899 (33 U.S.C. §403), as extended to the outer continental shelfunder the Outer Continental Lands Act (43U.S.C. §§ 1331-1356, see especially § 1333(e)).A Section 10 permit is required for activities inor affecting the navigable waters of the UnitedStates, including installations and other devicespermanently or temporarily attached to theseabed, erected for the purpose of exploring for,developing or producing resources from theouter continental shelf.

In response to an application for a Section 10permit, the Corps considers a broad range ofpotential environmental and other impacts, inconsultation with other federal, state, and localagencies. These include:

• Effects and cumulative impacts upon waterquality

• Effects of the facility or structure onrecreation, fish, and other wildlife

• Pollution

• Economic factors

• Safety

• Aesthetics

• Protection of navigational integrity

• Accurate charting of any structures



The process includes a “public interestreview” (33 C.F.R. § 320.4(a)(1)), which seeksto balance all reasonably expected benefits anddetriments to the public interest, includingenvironmental, economic, aesthetic, navigation,property rights, and international interests(Rieser 1997).

The Corps has authority to issue generalpermits rather than individual permits, in certaincases (33 C.F.R. §325.5(c)). General permitsmay be issued for a class of regulated activitiesthat are substantially similar in nature and causeonly minimal individual and cumulative impacts(33 C.F.R. § 322.2(f)). There are three types ofgeneral permits: regional (33 C.F.R. §325.2(c)(2)), nationwide (33 C.F.R. § 330.1),and programmatic, including StateProgrammatic General Permits (61 Fed. Reg.18,575 (1996)). Where a general permit isavailable, a letter of permission from the Corpsserves as the permit for an individual project.

Any permit issued is conditioned oncompliance with Coast Guard regulationsrequiring the marking of all structures. Pilingsand anchoring devices constitute “permanentanchorage” and are subject to Corps and CoastGuard regulations for marking (see below).

If a structure does not interfere withnavigation, a permit may not be required;instead, a letter of permission may be granted.Scientific research may be conducted underexisting nationwide permits and general permits.

Other permits. Depending on the particularactivities involved in a specific project, offshoreaquaculture facilities may need to obtainadditional permits from the Corps of Engineers.These include:

• A permit for the discharge of dredged orfill material in waters of the United States,

under Section 404 of the Clean Water Act(33 U.S.C. § 1344).

• A permit for the transportation of dredgedmaterials for purposes of dumping it intoocean waters, under Title I and II of theMarine Protection, Research andSanctuaries Act (16 U.S.C. 1401 et seq.).

NEPA responsibilities. As the lead agencyfor issuing the permits listed above, the Corpsissues a determination on environmentalimpacts, under the National EnvironmentalPolicy Act (42 U.S.C. § 4332(2)(C)). As part ofits review process, the Corps decides whether afull environmental impact statement is requiredfor a particular project, or whether a lessextensive environmental assessment issufficient. This decision would depend onwhether the project is considered to besignificant and controversial.

A permit application requiring preparation ofan EIS requires public notice at several key stepsin the review process: 1) a notice of intent toprepare an EIS, which solicits input during thescoping process by which substantive issues areidentified; 2) a notice of the availability of a draftEIS, which solicits public comments on theNEPA document and on the proposal itself; 3) anotice of public hearing, which may berequested by the public or initiated by the Corpsdecision-maker; 4) a notice of availability of thefinal EIS; 5) a notice of the availability of anyEIS supplement; and 6) a notice of theavailability of the decision-maker’s record ofdecision (see Corps’ web site: http://www.usace.mil/inet/functions/cs/cccwo/reg/oceover.htm).

Environmental Protection Agency

The Environmental Protection Agency hasan important regulatory role by virtue of its



authority to protect the natural resources of theUnited States.

NPDES permit. EPA has statutory authorityto require point source pollution permits fordischarges into navigable waters of the UnitedStates, under the Clean Water Act (33 U.S.C. §1342). The purpose of these permits is to ensurethat point source discharges do not impair thenation’s water quality. EPA may apply thisauthority to offshore aquaculture facilities to theextent they are considered concentrated animalfeeding operations (i.e., point sources ofpollution) requiring a National PollutantDischarge Elimination System (NPDES) permit,under Section 402 of the Federal Water PollutionControl Act (40 C.F.R. § 122.28).

EPA has asserted its authority over openocean aquaculture, but it is not clear whether theClean Water Act mandates these permits(Hopkins et al. 1997). In the early 1990s, forexample, EPA did not require permits forsalmon farms in Maine because the permitsissued by the Army Corps of Engineers and thestate Department of Marine Resources wereconsidered adequate; however, EPA is nowreconsidering its position (Hewitt 2000). InApril 2000, the U.S. Public Interest ResearchGroup (PIRG) gave notice that it intended to filea lawsuit asking the United States District Courtin Bangor to ensure legally enforceable limitsare imposed on three salmon farms in Maine fordischarging wastes without an EPA permit(National Environmental Law Center 2000).

EPA has the authority to issue generalpermits under the National Pollutant DischargeElimination System (NPDES) permit program(40 C.F.R. § 122.28). These have not yet beendeveloped, but EPA plans to issue effluentlimitation guidelines for the aquacultureindustry. A draft rule is scheduled to be issued inJune 2002, and a final rule in June 2004. The

guidelines will identify best availabletechnologies and/or best management practicesthat are economically achievable. Theguidelines are to be based on science,technology, economic achievability, and otherfactors as identified under Section 304 of theClean Water Act. The scope of these guidelinesincludes land-based and marine environmentoperations (EPA 2000).

Section 404 permit. In conjunction with theCorps of Engineers, EPA implements the CleanWater Act Section 404 Wetlands ProtectionProgram aimed at protecting natural wetlandsfrom the impacts of dredging and filling. It hasissued guidelines for reviewing of 404 permitsby the Corps under 40 C.F.R. 230.10-80 and isalso authorized to veto Corps permits anddisposal sites under § 404(C) of the Clean WaterAct.

Ocean discharge permit. Depending on thetype and amount of waste from an aquaculturefacility, an Ocean Discharge Permit from theEPA may be required, under the MarineProtection, Research and Sanctuaries Act (33U.S.C. §§ 1401-1445, see especially § 1412(a)regarding the selection of dumping sites). EPAis also authorized to promulgate criteria used byboth EPA and the Corps in evaluating whetherparticular dumping proposals “unreasonablydegrade” the environment.

Pesticide registration. Chemicals and othermaterials to be used in aquaculture are subject topesticide registration by EPA prior to marketingto the user.

Environmental monitoring. EPA isconcerned with the proper management ofeffluents and residual wastes of aquaculturesystems in assuring the protection of theenvironment. EPA sets water quality criteria



and monitors shellfish waters and effluentdischarge standards for assuring the protectionof the nation’s waterways and water supplies.EPA has determined that it has authority to setocean disposal criteria and review environ-mental effects of aquaculture projects underSection 403(c) of the Clean Water Act (Brennan1999).

Coast Guard

The Coast Guard has a role in offshoreaquaculture by virtue of its authority to ensurethe safety of vessels and their navigation.Because offshore facilities will be located inareas that have traditionally been open torecreational and commercial navigation, theappropriate marking of structures and equipmentis essential.

Private aid to navigation permits. TheCoast Guard requires aquaculture-relatedstructures located in navigable waters to bemarked with lights and signals to ensure safepassage of vessels. The Coast Guard hasoversight authority to ensure that an aquaculturefacility complies with requirements for theinstallation and maintenance of these markings,which may be included as stipulations forpermits issued by the Corps of Engineers or theEnvironmental Protection Agency.

Vessel documentation. U.S. vessels,including barges, that support aquaculturefacilities and measure 5 net tons or larger mustobtain Coast Guard documentation.

Minerals Management Service

The Minerals Management Service hasauthority over mineral lease sites on the outercontinental shelf, under the Outer Continental

Shelf Lands Act. Although this authority doesnot extend to aquaculture leasing, MMS willneed to be consulted for projects near or attachedto an oil or gas platform. In addition, MMSrequires a permit for platform removal ortransfer of ownership.

Food and Drug Administration

FDA has primary Federal responsibility for the

assurance of seafood safety and regulates

aquaculture drugs, feeds, and veterinary medical

devices.

Seafood safety. The Center for Food Safety andApplied Nutrition (CFSAN) is the primary Federaloffice with the responsibility for the assurance ofseafood safety. The Center houses a wide range ofprograms devoted to the research and management ofseafood, including aquaculture products. The FDAderives its authority for such programs primarilythrough two statutes: 1) the Federal Food, Drug, andCosmetics Act (FFDCA: 21 U.S.C. 301 et seq.), and2) the Public Health Service Act (PHSA:42 U.S.C.262, 294 et seq.). Under the FFDCA, the FDA isassigned responsibility to ensure that seafoodshipped or received in interstate commerce is “safe,wholesome, and not misbranded or deceptivelypackaged.” Under PHSA, FDA is empowered tocontrol the spread of communicable diseases fromone State, territory, or possession to another.

Animal drugs and feeds. The Center forVeterinary Medicine (CVM) is responsible forthe regulation of animal drugs, animal feeds, andveterinary medical devices. CVM’sinvolvement in aquaculture is concentrated infour main areas:

• Approval of animal drugs and feeds underthe Federal Food, Drug and Cosmetic Act,including support for the development ofnew animal drugs for minor species andminor uses (including aquacultural).



• Surveillance and compliance programsrelating to the distribution and use ofanimal drugs, animal feeds, and otherveterinary medical matters

• Biological and chemical research tosupport the food safety of new animaldrugs and feeds

• Initiatives with the industry to developquality assurance programs andeducational materials to assist producers inusing drugs and chemicals safely in animalproduction systems

State Agencies

Federal consistency certification. Statecoastal zone management agencies have theauthority to review any federal license or permitfor activities affecting any land or water use ornatural resources of the coastal zone, under theCoastal Zone Management Act (16 U.S.C. §§1451-1464, see especially state consistencyreview at 16 U.S.C. § 1456(c)(3)(A)). The statemay reject an offshore aquaculture facility’sconsistency certification (required to be filedwith its application for the federal permitsdiscussed above) if the proposed activityconflicts with an enforceable law or policyincluded within the state’s approved coastalzone management program. To take fulladvantage of this authority, several states haveindicated they plan to assert consistency reviewover offshore aquaculture proposals—forexample, Massachusetts (Rieser 1997).

Water quality certification. State environ-

mental protection agencies have the authority to

certify that the discharge from federal or federally

permitted activities into navigable waters complies

with state water quality standards under § 401 of the

Clean Water Act (33 U.S.C. § 1341(a)).

�Agencies with Mixed Roles

National Oceanic and Atmospheric

Administration (NOAA)

The National Oceanic and AtmosphericAdministration has an important role in offshoremarine aquaculture by virtue of itsresponsibilities relating to the conservation,management, and wise use of the nation’s livingmarine resources, including the utilization offish as food. Two agencies within NOAA haveresponsibilities that are of particular relevancefor offshore marine aquaculture. The NationalMarine Fisheries Service (NMFS) hasmanagement and regulatory authority by virtueof its authority to conserve, restore, and protectthe fishery resources of the United States and toprotect marine mammals and endangeredspecies. The Office of Ocean and CoastalResource Management (OCRM) has theauthority to coordinate activities in federalwaters with state officials, by virtue of its role inmanaging the coastal zone managementprogram.

Aquaculture policy. In 1998, NOAA adoptedan agency-wide aquaculture policy designed toprovide a context for agency activities over thenext 10-20 years. It purpose is to help fostersustainable economic development andenvironmentally friendly technologies, createemployment opportunities, reduce the tradedeficit in fish products, reduce fishing pressureon living marine resources, and rebuild depletedstocks. The policy points out NOAA’s strongstatutory basis for the promotion and regulationof marine aquaculture by NMFS, the NationalOcean Service, and the Sea Grant Program. Thepolicy addresses the dual public need foraquaculture development and environmentalprotection. It provides that a successful NOAAprogram will focus on : research, development,



and technology transfer; financial assistance tobusinesses; environmental safeguards, includingregulatory and permit procedures; andcoordination.

The Department of Commerce, NOAA’sparent agency, has also adopted adepartment-wide aquaculture policy promoting:1) the development of a code of conduct forresponsible aquaculture; 2) increasing exports ofU.S. aquaculture goods and services; 3) nationaland regional meetings with aquacultureconstituents to inventory resources, identifyissues, and set priorities; 4) an efficient andtransparent permitting process for aquaculture;and 5) an information clearinghouse anddissemination system. Its vision for U.S.aquaculture is:

To assist in the development of a highlycompetitive, sustainable industry in theUnited States that will meet growingconsumer demand for aquatic foods andproducts that are of high quality, safe,competitively priced and are produced in anenvironmentally responsible manner withmaximum opportunity for profitability in allsectors of the industry (Department ofCommerce 1999a).

Fishery management. NMFS hasregulatory authority to manage commercialfishing operations under the Magnuson-StevensFishery Conservation and Management Act (16U.S C §§ 1801-1882), as amended by theSustainable Fisheries Act (Public Law 104-297,110 Stat. 3559). NOAA has interpreted theAct’s broad definition of “fishing” as theharvesting of fish or activities likely to result inthe harvesting of fish, thereby extending thisauthority to aquaculture (50 C.F.R. § 229.2).NOAA’s Office of General Counsel, in amemorandum relating to the American

Norwegian Fish Farm, Inc. project (see Chapter3), concluded that the proposed farm constituted“fishing” under the Magnuson Act because itinvolved the harvesting of fish from the EEZ byU.S. vessels (Rieser 1997).

Based on NOAA’s interpretation of currentlaw, the eight Regional Fishery ManagementCouncils established under theMagnuson-Stevens Act have the authority tomanage aquaculture in the EEZ and, under thecurrent framework, need to amend fisherymanagement plans to accommodate aquaculture.Although permits may not be necessary, at leasttwo regional councils (New England and theGulf of Mexico) have developed aquaculturepolicies. The Councils comment on proposedfacilities, especially in relation to potentialimpacts on Essential Fish Habitat and thepossible need to amend fishery managementplans. For example, in 1997, the New EnglandFishery Management Council closed an area tosome commercial fishing to prevent conflictsbetween commercial fishermen and a sea scallopaquaculture research project (SeaStead, seeChapter 3).

NMFS includes a growing, environmentallysound marine aquaculture industry as one of itsthree long-term goals of its plan forimplementing the U.N. Food and AgricultureOrganization’s Code of Conduct forResponsible Fisheries (see Chapter 6). Withrespect to aquaculture, the agency plans to: 1)promote the commercial rearing of seven newspecies; 2) reduce the time and cost of permittingenvironmentally sound marine aquacultureventures; 3) provide financial assistance; 4)identify suitable areas in the EEZ foraquaculture; and 5) develop and implementenvironmentally sound marine aquaculturetechnologies and practices.



Marine mammal protection. NMFS hasstatutory authority to administer the MarineMammal Protection Act (16 U.S.C. §§1361-1421h). As such, it has the authority toreview and approve any facility whose operationmay endanger critical habitat of marinemammals or migratory paths for whales, orotherwise result in the taking of protected marinemammals. Marine mammals are knownpredators of the fish and shellfish being raised inaquaculture facilities, and would be attracted tothe aquaculture operation by the concentrationof prey.

Endangered species protection. The NationalMarine Fisheries Service shares responsibilitywith the U.S. Fish and Wildlife Service inadministering the Endangered Species Act (16U.S.C. 1531 et seq.). As part of itsresponsibilities under this Act, NMFS may holdconsultations and review aquaculture permits toassure that such activities do not jeopardizethreatened and endangered species or recoveryprograms under ESA.

Permit reviews. NMFS acts as a reviewagency under Section 10 of the Rivers andHarbors Act, the Fish and Wildlife CoordinationAct, and the National Environmental Policy Act.As such, the agency may review and commenton Corps or EPA permits (33 C.F.R. §§ 320.4(c),325.3(d); 40 C.F.R. § 124.59(b))

Federal consistency review. The OfficeOcean and Coastal Resource Managementrequires a consistency determination withapproved state coastal zone managementprograms for federally permitted activities thataffect land, water, or natural resources of thecoastal zone, under the Coastal ZoneManagement Act (16 U.S.C. 1451 et seq.).Although the affected state makes the initialdetermination, the Secretary of Commerce has

the authority to reverse the state decision (15C.F.R. pt. 930) (Rieser 1997).

Industry research and assistance. As notedearlier in this chapter, NMFS operates salmonhatcheries, funds research on the cultivation ofmarine species, and provides internationalmarketing assistance for U.S. aquacultureproducts.

Fisheries finance. NMFS operates theFisheries Finance Program, which providesdirect loans to finance aquacultural facilitiesconstruction, reconstruction, reconditioning,and acquisition. For fiscal year 2000, marineaquaculture was identified as a priority lendingpurpose to compete for a share of the $23.7million loan ceiling available under Title XI ofthe Merchant Marine Act of 1936, as amended.

Department of Agriculture

The Department of Agriculture has animportant coordination and research role, byvirtue of its designation as the permanent chairof the interagency Joint Subcommittee onAquaculture and its long history of agriculturalresearch and extension services. It also hasregulatory responsibilities relating to animalhealth.

Federal coordination. As noted earlier inthis chapter, the Department of Agriculture is thecoordinating federal agency for aquaculture andthe Secretary of Agriculture is the permanentadministrative chair of the Joint Subcommitteeon Aquaculture, under the National AquacultureAct of 1980, as amended (16 U.S.C. §§2801-2810). This role encompasses thecoordination of Federal interagency programsand policies, dissemination of nationalaquaculture information, encouraging andcoordinating efforts for the aquaculture industry,



and continually monitoring and assessing theindustry.

Research, information and extension

activities. The Department of Agricultureprovides research support and a variety ofservices, including:

• Regional aquaculture centers, whichprovide technology transfer and extensioneducation on behalf of aquacultureproducers

• Animal and plant health

• Export promotion and assistance

• Credit

• Marketing and economic analysis

• Disaster assistance

• Information and statistics, including theAquaculture Information Center of theNational Agricultural Library and a censusof aquaculture

• Purchase and distribution of surpluscommodities (7 U.S.C. 612)

Animal health. The Animal and PlantHealth Inspection Service (APHIS) establishesimport requirements for aquatic plants to preventthe importation and dissemination of plant pestsand diseases and noxious aquatic weeds (PlantProtection and Quarantine Program), and assistsproducers with facility damage and depredationby migratory birds and other animals. APHISlicenses veterinary biologics (vaccines,diagnostic kits, etc.) for prevention, diagnosis,and/or treatment of diseases of animals,

including aquatic animals; several fish vaccinesare presently licensed by APHIS through their

Center for Veterinary Biologics. An increasingly

important role relates to international fish health

regulations and negotiations related to imports and

exports.

Fish and Wildlife Service (Department of Interior)

FWS has responsibilities for restoringdepleted fish populations, preservingendangered species, mitigating the impacts ofFederal water development on fish populations,and managing fish resources on Federal lands.

Species introductions. The Fish and WildlifeService has the authority to regulate theintroduction of exotic species into the UnitedStates, under the Lacey Act Amendments of1981 (16 U.S.C. §§ 3371-3378). Thus, anyaquaculture facility interested in raisingnon-native species would require permissionfrom the FWS.

Review and approval. FWS may also reviewand comment on Corps or EPA permits (33C.F.R. §§ 320.4(c), 325.3(d); 40 C.F.R. §124.59(b)) under:

• Fish and Wildlife Coordination Act (16U.S.C. § 661-666) (general to all species,including plants)

• Endangered Species Act

• Marine Mammal Protection Act

Research and other industry support. FWSoperates hatcheries, fish health centers, fishtechnology centers, and fishery research centers.





Table 4.7. Explicit References to Aquaculture in Current U.S. Statutes

National Aquaculture Act of1980, as amended

• This law is the only law specifically directed at aquaculture. However, it is apromotional rather than regulatory statute—focusing primarily on planning andinteragency coordination. Its applicability to the regulation of the industry islimited to calls for a Regulatory Constraints Study and preparation of a plan “toremove unnecessarily burdensome regulatory barriers to the initiation andoperation of commercial aquaculture ventures” (16 U.S.C. 2808).

• Statutes governing agricultural research, extension, and teaching include aseparate subchapter dealing with aquaculture (7 U.S.C. §§ 3321-3324).

Federal Crop Insurance Act of1980, as amended

“Agricultural commodity” has been explicitly defined to include aquaculturalspecies (7 U.S.C. §1518), and the inclusion of aquaculture is explicit in statutesgoverning many USDA farm and commodity programs, including emergencyloans.

Clean Water Act of 1977, asamended

EPA had explicit authority “to permit the discharge of a specific pollutant orpollutants under controlled conditions associated with an approved aquacultureproject under Federal or State supervision” (33 U.S.C. § 1328).

Coastal Zone Management Actof 1972, as amended

NOAA has explicit statutory authority to assist states in coastal zone managementactivities relating to aquaculture, by providing:

• Assistance to support comprehensive planning, conservation, and managementfor living marine resources, including “planning for the siting of … aquaculturefacilities within the coastal zone” (16 U.S.C. 1452).

• Resource management improvement grants for “the development of acoordinated process among State agencies to regulate and issue permits foraquaculture facilities in the coastal zone” (16 U.S.C. 1455a).

• Coastal zone enhancement grants for the “adoption of procedures and policies toevaluate and facilitate the siting of public and private aquaculture facilities in thecoastal zone, which will enable States to formulate, administer, and implementstrategic plans for marine aquaculture” (16 U.S.C. 1456b).

Nonindigenous AquaticNuisance Prevention andControl Act of 1990, asamended

Aquaculture is included under aquatic nuisance prevention and control statutes,both as an activity to be protected and as a potential source of non-indigenousspecies:

• “Aquatic nuisance species’ means a nonindigenous species that threatens thediversity or abundance of native species or the ecological stability of infestedwaters, or commercial, agricultural, aquacultural or recreational activitiesdependent on such waters”(16 U.S.C. 4702).

• “Unintentional introduction’ means an introduction of nonindigenous speciesthat occurs as the result of activities other than the purposeful or intentionalintroduction of the species involved, such as the transport of nonindigenousspecies in ballast or in water used to transport fish, mollusks or crustaceans foraquaculture or other purposes” (16 U.S.C. 4702)

Coast Guard Authorization Actof 1993, as amended

Laws governing Atlantic coastal fisheries cooperative management excludeaquaculture from the definition of “fishing” (16 U.S.C. 5102). The Secretary ofCommerce may exempt “fish which have been produced in an aquacultureoperation” from bans on possession and use during a moratorium on fishing (16U.S.C. 5106).

Note: Based on search for the word “aquaculture” in each Title of the U.S. Code maintained online by the Legal

Information Institute, Cornell Law School (http://www4.law.cornell.edu/uscode/, accessed 6/14/2000)

Source: Prepared by Susan Bunsick, Center for the Study of Marine Policy, University of Delaware, 2000.

CONCLUSIONS: PROBLEMS AND GAPSTHAT NEED TO BE ADDRESSED

�Limitations of Existing Statutory

Authorities: Few Explicit

References to Aquaculture

Of the statutory authorities cited above, onlya few are based on explicit references toaquaculture, and none address the specific issuesassociated with offshore marine aquaculture.Table 4.7 shows the instances in which the word“aquaculture” is found in a search of each Titleof the U.S. Code. With few exceptions, federalagency statutory authority over offshore marineaquaculture is based on agency interpretation ofstatutory authority over particular aspects of anaquaculture operation.

In some cases, such as the Army Corps ofEngineers Section 10 permitting authority withrespect to the placement of aquaculturestructures in navigable waters, the application ofgeneral laws to aquaculture is fairlystraightforward and generally accepted as anappropriate exercise of the agency’s statutoryauthority.

In other cases, such as NMFS’ assertion ofauthority over aquaculture under theMagnuson-Stevens Act, the extension of generalregulatory authority to the regulation of theaquaculture industry is less clear. AlthoughNOAA’s General Counsel found thataquaculture falls within the definition of“harvesting” for purposes of the Act, the lawgoverning the Atlantic States FisheriesCommission specifically excludes aquaculturefrom its definition of “fishing” (16 U.S.C. 5102).

Finally, the authority of the one agency withextensive experience in managing resources on

the Outer Continental Shelf, MMS, is largelyconfined to mineral resources only.

The absence of explicit statutory authority isnot uncommon for new activities, such asoffshore marine aquaculture, that could not havebeen foreseen at the time existing law wasenacted. Although beyond the scope of thisanalysis, transgenic organisms present similarchallenges for government regulation. The Foodand Drug Administration has asserted authorityover genetically modified organisms (GMOs) bytreating GMOs as a new drug subject to itsstatutory authority under existing law.

The absence of explicit statutory authoritycan have important implications for thecredibility and effectiveness of agency actionswith respect to the management of offshoremarine aquaculture, as suggested by thefollowing examples:

• An agency’s interpretation of its statutoryauthority may be challenged in the courts.Environmental groups have challenged thepublic review process for Army Corps ofEngineers permits for a range of projects,and questioned the appropriateness of itsrole as the lead agency for assessingenvironmental impacts of aquaculture andother projects (e.g., see Chapter 3).

• An agency may have insufficient resourcesor expertise to fulfill responsibilities theyassume based on the application of generalstatutes to aquaculture. For example, EPAhas only recently begun to acquire agencyexpertise in various types of aquacultureoperations and associated impacts in orderto develop draft standards for the industry.



Similarly, the Coast Guard often does nothave sufficient resources to policerestricted areas. The FDA’s capability toassess potential environmental impacts ofGMOs has been questioned by somegroups. According to a senior scientist atthe Union of Concerned Scientists, “theF.D.A. is not qualified to evaluate theecological risks of engineered fish…Weshould be concerned that the environmentwill be at risk” (Yoon 2000). In aneditorial several days later, The New York

Times added: “Unfortunately, the F.D.A.is ill-equipped to deal with environmentalquestions. Its scientists are not trained inthat field and its interests do not lie in thatdirection” (The New York Times, May 14,2000).

�Conflicts

Industry assistance v. regulation in agencies

with mixed roles

The three Departments that make up theexecutive committee of the Joint Subcommitteeon Aquaculture (USDA, Commerce, andInterior) include both regulatory agencies andagencies that assist with the development of theaquaculture industry, which could result ininternal conflicts within the organization.Critics of the current framework also point outthat “federal policies…may even differ amongdivisions within the same agency” (DeVoe1999, p. 88). Within NOAA, for example,organizations supporting development of anoffshore marine aquaculture industry faceinevitable conflicts with other parts of theorganization representing the interests of usesthat may be in conflict with aquaculturedevelopment (marine mammal protection,commercial fishing, etc.). While the

representation of these different perspectiveswithin a single organization may be beneficial interms of keeping other policy priorities in mindin the process of promoting the development of anew ocean industry, internal organizationalconflicts could frustrate the ability of any singlepart of the organization to fulfill its mission in anefficient way.

Conflicts between different regulatory

agencies

Without a lead agency for offshore marineaquaculture, conflicts between differentregulatory agencies are inevitable. For example,the National Environmental Policy Act requiresthe lead federal agency to assess theenvironmental impacts of federally approvedprojects and determine the need for thepreparation of an Environmental ImpactStatement. It is conceivable, therefore, that theArmy Corps of Engineers might determine that aless in-depth environmental assessment issufficient for a particular aquaculture project,based on an analysis of the potential forinterference with navigation and recreationaluse, while the Environmental Protection Agencymight conclude that the project’s level ofnutrient waste discharges requires that it besubject to a full EIS review process.

Conflicts between regulatory agencies and

agencies assisting the industry

Under the current framework, no singledepartment has a role that is purely orientedtowards assisting the industry; however,individual agencies within departments mayfocus on industry development quasi-independently of the regulatory agencies withintheir department. For example, research,extension, and training programs within theDepartment of Agriculture are organizationally



distinct from the Department’s regulatoryagencies such as the Animal and Plant HealthInspection Service.

�Major Gaps

No statutory authority to issue aquaculture

leases in federal water

Current statutory authority is limited to theissuance of permits for the siting and operationof aquaculture facilities in federal waters. Theclosest thing to a lease is the designation of“closed areas” by a regional fishery managementcouncil, which may be used to restrict access toan area of the ocean.

The lack of a mechanism for issuing leasesshortchanges both the industry and the public.The industry suffers because operations andfinancing are more difficult without the ability toacquire the right to exclusive use of an area ofthe ocean. The public is also deprived of apotential source of revenue from industrypayment (of fees, royalties, etc.) in return for theright to exclusive use of ocean space.

Some types of aquaculture may avoid

regulation under current authorities

The aquaculture industry is examining a range of

new technologies and practices that may “fall

through the cracks” under a governing framework

based on statutory authorities that have already been

stretched to include aquaculture at all. For example,

future practices may include mobile operations not

tethered to the bottom in a single location. Such an

operation may not be deemed a potential threat to

navigation, and therefore may not require a Section

10 permit from the Army Corps of Engineers.

No lead agency

As noted above, the National EnvironmentalPolicy Act requires an environmentalassessment be performed by the lead agencyprior to the issuance of a permit by a federalagency. However, for offshore marineaquaculture, there are currently at least two“lead” permitting agencies—the Corps and theEPA—in addition to the “lead” coordinatingagency under the National Aquaculture Act(USDA). The lack of a single lead agency foroffshore marine aquaculture has implications forthe overall effectiveness of federal agencyprograms aimed at industry promotion,monitoring, research, etc. With each agencypaying attention to different aspects of offshoremarine aquaculture, it is difficult to gain anoverall understanding of the impacts (bothpositive and negative) of industry activities.



Chapter 5

RELEVANT EXPERIENCESFROM THE U.S. COASTAL STATES

INTRODUCTION

Although there has been little practicalexperience with offshore marine aquaculture infederal waters of the United States, several U.S.coastal states support active marine finfish andshellfish aquaculture industries within their statejurisdictional waters (e.g., salmon netpens andoyster production in New England and thePacific Northwest). This chapter reviewsrelevant policy experiences in U.S. coastal statesto identify features that may be desirable toincorporate in an overall policy framework forthe U.S. EEZ. Of particular interest are policiesdirectly addressing the issue of leasing in openocean waters, streamlining the permittingprocess, handling environmental/biologicalimpacts, and integrating aquaculture into coastalzone management.

A number of U.S. coastal states have beenengaged in commercial-scale marineaquaculture development in state waters for anumber of years. Maine and Washington are themost important states in the production ofsalmon, the primary food fish produced by the

U.S. marine aquaculture industry. The mainshellfish species for the U.S. aquacultureindustry are oysters, clams, shrimp, and mussels.Shrimp are grown mainly in the south (Texas,South Carolina, Florida). Mollusks (clams,oysters, mussels) are produced in the northeast,Pacific Northwest, and the South, withConnecticut, Florida, and Washington amongthe largest producers.

State aquaculture operations have, in anumber of instances, proven very controversial,and significant conflicts between aquacultureoperations, environmental groups, fishinggroups, and coastal property owners have takenplace. For example:

• There has been opposition to oceanranching of Pacific salmon since it beganin the 1970s, both because of its unknownecological effects across state andinternational boundaries, as well asanticipated socioeconomic impacts. Al-though there is an established



ocean-ranching industry in Oregon,opposition by conservationists, commer-cial fishermen, and others has kept theindustry from expanding into other states.In 1979, for example, California'slegislature defeated a bill that would haveallowed a large corporation (Weyerhauser)to establish a commercial salmon-ranchingoperation in Humboldt Bay (Berg 1981).

• In Washington, where salmon are grown innetpens, property owners have opposedexpansion of the industry on aesthetic aswell as environmental grounds.

• Concerns over the impacts of fish escapeson wild stocks and the overall ecologicalbalance have been raised by recent studiesindicating that the farmed fish may have agreater ability to survive in the wild,compete with wild stocks for food, andreproduce than originally estimated.

• In Washington, this concern is heightenedbecause some of the fish that have escaped

are non-native Atlantic salmon, and manystocks of the native Pacific salmon havebeen listed as threatened or endangered.

• In Maine, the issue has taken on greatersignificance since 1999, when NMFS andFWS recommended that Atlantic salmonpopulations from several rivers be listed asendangered.

In response to such problems and in effortsto provide an appropriate policy framework formarine aquaculture, several states have madeextensive efforts to develop policies andregulations for the conduct of marineaquaculture operations. For example, Maine hasestablished a Salmon Aquaculture AdvisoryCouncil, and is reviewing its leasing system.Some states have made improvements throughbetter coordination or consolidation of stateprograms, or by incorporating aquaculture intheir coastal zone management plans. Usefullessons can be learned from these experienceswith potential application to the federal level.

SUMMARY OVERVIEW OF STATE AQUACULTURE POLICIES

For this project, we sent a briefquestionnaire to aquaculture coordinators ineach of the coastal states asking about the currentstatus of the industry and government policytoward marine aquaculture in their state (seeAppendix 2). Questions focused specifically onthe leasing/permitting requirements and theoverall framework governing marineaquaculture in the state (i.e., designation of alead agency; existing laws, regulations, andpolicies). We were particularly interested inwhat state aquaculture coordinators consideredthe best features of their state’s approach, whatthey thought could be done to improve thepolicy, and their views on federal policy for

aquaculture in the EEZ beyond state jurisdiction.The survey was conducted in the period May toJune 2000. Twenty-three out of twenty-fivequestionnaires were returned (a 92% responserate).

Table 5.1 summarizes the overall status ofaquaculture policy in each coastal state. Itindicates whether or not there is a marineaquaculture policy in place, where the policy isfound, when it was implemented and whichagencies play a lead role. It also indicates anypending proposals for new or revised policymeasures. Note that only seven states (Maine,



87

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New Hampshire, Massachusetts, Connecticut,Texas, Hawaii, and Alaska) indicated anyexperience with open ocean aquaculture inwaters under their jurisdiction.

�Designation of a Lead Agency for

Marine Aquaculture

States have followed several differentstrategies in terms of the designation of a leadagency for aquaculture. The lead agency may bea state coastal/marine agency (Maine, RhodeIsland, Virginia, Mississippi), a state departmentof agriculture (Massachusetts, Connecticut,Maryland, Florida, Hawaii, Puerto Rico), a statefish and wildlife agency (Delaware, Louisiana,California), a natural resources agency(Alabama, Alaska, Virgin Islands), or anenvironmental agency (New Jersey). In onestate (Oregon), the Department of Fish andWildlife and the Department of Agricultureshare the lead role. Only four states (New York,South Carolina, Georgia, and Texas) indicatedthere is no lead agency for aquaculture.

Several states delegate the leadership forparticular aspects of the aquaculture industry.For example, in Maryland, where theDepartment of Agriculture has the overall leadfor aquaculture, the Department of NaturalResources is in charge of permitting andregulation. Alaska, where the Department ofNatural Resources is the lead agency, has amulti-agency program involving two other stateagencies (Fish & Game, and Conservation). Insome states, marine-related responsibilities(including aquaculture) are found withindepartments with broader responsibilities. Forexample, Massachusetts has a division of marineresources within its Department of Food andAgriculture; Alabama has a marine resourcesdivision within its Department of Conservationand Natural Resources.

�Current Leasing Policy

Twenty of the states responding to the surveyoffered some type of marine aquaculture lease(the exceptions are New Hampshire, Puerto Ricoand the Virgin Islands). The most common typeof lease is a bottom lease. Excluding theterritories, all but three of the responding statesoffered bottom leasing, the only exceptionsbeing Georgia (where shellfish harvesting isallowed under other mechanisms), NewHampshire (whose respondent cited the need forthe state to provide long-term leasing options),and South Carolina (which offers water columnleases). Twelve states offer water columnleases. These results are summarized in Table5.2.

�Administrative Requirements

Our survey asked state aquaculturecoordinators about the permit/lease applicationprocess and the types of fees the state requiresaquaculture operations to pay. The results aresummarized in Table 5.3.

As indicated in Table 5.3, a public hearing andan environmental review for an aquacultureapplication are either required, or could berequired, in most states. Only Connecticut andDelaware do not require any public hearing, andonly Delaware and Alaska do not require anenvironmental review. Alaska does notcurrently offer leases for finfish, and theaquaculture operations found in both Delawareand Connecticut almost exclusively produceshellfish rather than finfish.

Annual fee payments varied between statesand also within states, depending on theoperation or location. Where a per-acre amountwas indicated, these ranged from a low of $1.50per acre per year in Virginia to a high of $500 per



acre for shellfish and $700 per acre for finfish inNew Hampshire. Texas charges a fixed fee of$10,000 per year. Royalties are only required infour of the responding states (ME, MA, MS, andPR) and may be required in three other states

(NY, CA, and OR). Bonds are more common instate policy—they are mandatory in 6 states(ME, SC, TX, AK, HI, and PR) and may berequired in 7 others (MA, RI, NY, MD, MS, CA,and OR). Performance bonds provide a form ofinsurance against damages for which theaquaculture operation may be liable in thefuture. In Maine, administrative require- mentsmay be relaxed for small-scale or low impactprojects.

�States’ Critiques of Current Policy

Framework

Best features of current policy at the state

level. Asked about the best features of thecurrent approach to marine aquaculture in theirstate, aquaculture coordinators mentioned:

• Flexibility (RI, MA); unwritten policy iseasy on shellfish aquaculture developmentin productive areas (SC)

• Consolidation- One lead agency (CT, FL)- A single application for four agencies:Fish & Game, Environmental Conserva-tion, Coastal Management Program, andNatural Resources lease (AK)- Good agency coordination (OR)

• Industry involvement- Encouraging industry involvement inpolicy development (CT)- Stimulates voluntary industry compli-ance and cooperative research efforts (ME)- Responsive to industry needs (OR)

• Raising traditional products thatcomplement traditional product name andresources (VA)

• Consideration of a range of concerns in theapproval process- Economic impacts, conflicting interestsamong users, and environmental



Table 5.2. Types of marine aquaculture leases

offered in state waters

Bottom leaseWater column

lease

Maine X X

New Hampshire 1-year permits 1-year permits

Massachusetts X

Rhode Island X X

Connecticut X

New York X

New Jersey X X

Delaware X

Maryland X X

Virginia X X

*North Carolina

South Carolina X

Georgia Shellfishharvesting leaseonly

Florida X X

Alabama X

Mississippi X X

Louisiana X

Texas X

California X X

Oregon X X

*Washington

Alaska X X

Hawaii X X

Puerto Rico

Virgin Islands

* Did not respond to survey

Source: University of Delaware survey of state aquaculturecoordinators, 2000

protection and enhancement (MS)- Protection of wild fisheries resources aswell as operating shellfish farm (MA)- Slow, deliberative program weighs theinterests of applicants, non-coastalresidents, other users, environment (ME)

• Aquaculture products considered farmproducts (CA)

• Marine aquaculture encouraged as abeneficial activity (CA)

• Water column activity restricted to privatewaters (LA)



Table 5.3. State permitting/leasing requirements for marine aquaculture

Public hearing Environmentalreview

Bonds Royalties Annual fees

Maine Mandatory Mandatory Mandatory Mandatory Mandatory

New Hampshire Mandatory Mandatory Not required Not required Mandatory

Massachusetts Mandatory May be required May be required Mandatory Mandatory

Rhode Island May be required May be required May be required Not required May be required

Connecticut Not required May be required Not required Not required Mandatory

New York May be required Mandatory May be required May be required May be required

New Jersey Don’t know Don’t know Don’t know Don’t know Don’t know

Delaware Not required Not required Not required Not required Mandatory

Maryland Mandatory Mandatory May be required Mandatory

Virginia May be required May be required Not required Not required Mandatory

*North Carolina

South Carolina May be required Mandatory Mandatory -- Mandatory

Georgia May be required May be required Not required Not required Don’t know

Florida May be required Mandatory Not required Not required Mandatory

Alabama May be required May be required Not required Not required Mandatory

Mississippi Mandatory Mandatory May be required Mandatory Mandatory

Louisiana Don’t know Mandatory (finfish) Don’t know Don’t know Mandatory

Texas Mandatory Mandatory Mandatory Don’t know Mandatory

California Mandatory May be required May be required May be required May be required

Oregon May be required Mandatory May be required May be required Mandatory

*Washington

Alaska May be required Not required Mandatory Not required Mandatory

Hawaii Mandatory Mandatory Mandatory Mandatory

Puerto Rico May be required Mandatory Mandatory Mandatory Don’t know

Virgin Islands May be required Mandatory Don’t know Don’t know Don’t know


Source: University of Delaware survey of state aquaculture coordinators, 2000

• Pre-determining existing use profiles;negotiated exclusivity concept; economicunit concept (HI)

• Balances environmental stewardship withsustainable utilization of renewable marineresources (ME)

How current state policy may be improved.

Areas which state aquaculture coordinators feltneeded improvements included:

• Increase financing/funding/staffing orincentives; provide proactive stateassistance (ME, NH, RI, NJ, FL, MS, TX,PR)

• Streamline, simplify, or coordinatepermitting process (CT, MD, SC, CA, LA)

• Develop NPDES requirements/environ-mental BMPs for aquaculture (NY)

• Complete new regulations toauthorize/revitalize small-scale shellfishleasing (NY)

• Develop or improve state plan orframework for aquaculture (GA, AL, TX)

• Eliminate unreasonable conditions orregulations (MD, VA, NJ)

• Designate zones for aquaculture ( MA, SC,

HI)

• Provide long-term leasing options withrealistic permit/lease fees (NH)

• Increase industry involvement (CT)

• Reduce sediment in water column (DE)

• Establish disease diagnostic researchcapacity (NY)

• Increase activity at local level (MA)

• Provide more general information onwebsite (AK)

• Promote more aquaculture for coast (PR)

• Use marine culture to improve stocks offish and shellfish (PR)

• Require an informational communitymeeting prior to adjudicatory publichearing (ME)

• Allow explanations and rebuttals at publichearings (ME)

What features should be included in

federal policy framework. Suggestions for whatto include in a national policy for offshoremarine aquaculture in federal waters spanned arange of concerns, summarized in Table 5.4.Three states did not agree on the need for afederal policy on offshore aquaculture, becausecurrent policies (EPA, Corps, MMS, FWS,NMFS) seem adequate (TX), or offshore marineaquaculture is not expected to be an issue (DE,OR).





Address organizational concerns

– Clearly define multi-agency interests and designate a lead agency (CT)– Keep it simple; one shop for issuing leases (NH)– Need a “national champion,” i.e., a proactive agency (NH)– Need a single agency contact (FL)– Remove “kingdom” mentality of federal agencies (MD)– One-stop permitting (ME, HI)– Policies should be favorable and not unduly burdensome (VI)– Direct, reasonable, stable leasing/regulatory program (ME)

Apply laws and regulations suited to the aquaculture industry

– Don’t govern by fisheries laws devised to protect wild stocks (MA)– Voluntary compliance, cooperative research (ME)

Involve the states

– Cooperation/consultation with relevant states (MA, NY, HI)

Learn from international and state experience

– Look to Norway, Japan, Greece, Spain, etc. for guidance (MD)– Use Maine as a model (ME)

Address fishery-related concerns

– Protect wild ocean stocks (GA)– Native present species only (HI)– Restrict use of non-indigenous species (LA)– No non-indigenouse species/genetic strains (NY)– Study impacts on local fisheries (HI)

Address environmental and ecological concerns

– Support sustainable marine aquaculture that is economically and ecologically responsible (GA)– Water quality standards and discharge regulations no less protective than the states (NY)– Environmental protection (MS)– Monitor impacts on water quality and benthic habitats (LA)– Determine carrying capacity for area (HI)

Address concerns about use of public waters by private entities

– Private entities using federal waters should pay a fair lease value (GA)– Pay attention to competing uses (SC, MS, AL)– Zoning (SC, HI)– Bonds for removal (SC)

Consider economic aspects

– Economic enhancement (MS)– Recognize aquaculture as a beneficial activity if no significant environmental impacts are demonstrated (CA)

No policy needed

– Not an issue (DE)– Pacific Ocean is too rough, too cold, very high risk (OR)– Current policy adequate; problems in state waters, not federal (TX)

Source: University of Delaware survey of state aquaculture coordinators, 2000

Table 5.4. Suggestions for Federal Offshore Marine Aquaculture Policy

LEARNING FROM THE STATES: EXAMPLESOF GOOD PRACTICES IN U.S. COASTAL STATES

�State Policy for Aquaculture

Leases/Permits in Open Waters

In reviewing U.S. coastal state experience,we were particularly interested in stateinitiatives directly addressing the issue ofaquaculture leases or permits in open waters (asopposed to traditional shellfish leases thattypically cover areas down to the low tide line).

Hawaii. Hawaii has had a marineaquaculture policy in place since 1979, and anocean leasing policy since 1986 (Ocean andSubmerged Lands Leasing Act, Chapter 190D,HRS). Commercial ocean leasing, however,only became possible with the amendment ofstate law in 1999. The state awards bottomleases, water column leases, and non-exclusiveeasements. The leasing process involves amandatory public hearing, environmentalreview, the posting of a bond, and an annualrental payment. Several features of the state’sapproach , as described by the state aquaculturecoordinator and discussed in a December 1999report to the Hawaii state legislature (HawaiiDepartment of Land and Natural Resources andDepartment of Agriculture 1999) are worthnoting here:

1. Pre-determining existing use profile - Theapplicant for a lease is required to studyexisting uses thoroughly and provideinformation to decision-makers.

2. Negotiated exclusivity concept - Thedegree of exclusivity and public access to asite will be determined during thepermitting/leasing process by those who

participate in the process. The negotiatedexclusivity will take into account the needsof the aquaculture business and the needs ofthe public. The law also mentionsestablishing clear property boundaries andlanes so boats can pass without interferingwith lessee operations. The final degree ofexclusivity will be subject to the approval ofthe Board of Land and Natural Resources(BLNR). Of particular concern are nativeHawaiian gathering rights.

3. Economic unit concept - State law definesthe water surface, water column andsubmerged lands beneath them as oneeconomic unit, which is used in calculatingthe lease rent (essentially, a 3-dimensionalrather than the traditional 2-dimensionalapproach).

4. Public input in siting - Obtaining a leaseinvolves a two-step process: 1) aConservation District Use Permit (CDUP)and 2) a lease disposition from the BLNR.Each step requires public notice and apublic meeting. The CDUP also requires apublic hearing.

5. Environmental concerns - Anenvironmental assessment is required foreach project/site. Lessees must be bonded,and there are strict penalties for violationsof lease terms and conditions.

Rhode Island. Rhode Island CoastalResources Management Program regulations(Section 300.11) include requirements that arerelevant to the siting of open ocean aquaculturefacilities. Applicants must:



1. Describe the location and size of the areaproposed

2. Identify the species to be managed orcultivated within the permitted area and theorganisms over which the applicant shallhave exclusive right

3. Describe the method or manner ofmanage- ment or cultivation to be utilized,including whether the activities proposedare experimental, commercial, or forpersonal use

4. Provide such other information as may benecessary for the Council to determine:

• The compatibility of the proposal withother existing and potential uses of thearea and areas contiguous to it, includingnavigation, recreation, and fisheries

• The degree of exclusivity required foraquacultural activities on the proposedsite

• The safety and security of equipment,including appropriate marking of theequipment and/or lease area

• The projected per unit area yield ofharvestable product

• The cumulative impact of a particularaquaculture proposal in an area, inaddition to other aquaculture operationsalready in place

• The capability of the applicant to carryout the proposed activities

• The impact of the proposed activities onthe scenic qualities of the area.

The regulations require the aquaculturist torestore the area to pre-existing conditions within90 days of the revocation, termination, orexpiration of a permit or lease. To encourage thedevelopment and testing of new gear ortechniques, a 2-year experimental permit isavailable for up to 3 sites (per applicant) not toexceed a total area of 1,000 square feet. Fines

and penalties are provided for anyone whowillfully destroys, vandalizes, or disruptsaquaculture operations.

Florida. Florida statutes specificallyaddress the leasing of submerged land and thewater column for the conduct of aquacultureactivities and granting exclusive use of thebottom and water column to the extent requiredfor aquaculture activities. The statutes coverboth commercial and experimental aquaculture.The leasing program is administered by theDivision of Aquaculture’s Bureau ofAquaculture Development within the FloridaDepartment of Agriculture and ConsumerServices.

The application process involves four steps:

1. Applicant identifies a lease site, describesthe proposed activity, and develops abusiness plan.

2. Comprehensive review (4-6 weeks), in-cluding site inspection (additional fieldsurveys and site inspections may benecessary to modify initial site boundaries).

3. Notice to local entities

• County may file objection within 30 daysof the first publication of notice

• The county objection is based on amajority vote of its county commission

• A county may object to an aquacultureproject located in a proposed lease areathat would lie within the county if itsboundaries “were extended to the extentof interest of the state.”

4. Approval of lease by the Governor andCabinet in their role as the Board ofTrustees of the Internal Improvement TrustFund



Alaska. Alaska offers leases for shellfish andaquatic plants, but not for finfish. A leaseapplication period is scheduled at least everyother year from January 1 – April 30, with apublic review and comment period on thepreliminary best interest finding in thesubsequent fall. There is a multi-agencyapplication form that includes an Alaska CoastalManagement Program certification form. Theapplicant’s site plan and installation schedule areconsidered a development plan, which mustresult in commercial use of the site beginning nolater than the fifth year and continuing throughthe rest of the lease term. “Commercial” isdefined as annual sales of aquatic products of atleast $3,000 per acre, or $15,000 per farm(whichever is less). The development plan mustbe approved before the lease is issued.

State law requires regulations for:

1. Establishing criteria for approval or denialof leases

2. Limiting the number of sites in an area inorder to protect the environment and naturalresources.

3. Considering upland management policies

4. Considering whether the proposed use ofa site is compatible with the traditional andexisting uses of the area

Criteria that may be considered in making a“best interest finding” include: compatibilitywith land management policies applicable to thefarmsite and nearby upland; conflicts withexisting or pending uses; ensuring public accessto and along public waters; protection ofinterests served by the public trust doctrine; theneed for special lease provisions or othermeasures to mitigate conflict; and othersignificant social, economic, and environmentaleffects.

The regulations specify certain provisionsthat must be included in the lease. For example:“A lessee shall operate so as to cause nosignificant damage to land, public trustresources, and public uses of public trustresources.”

Maine. Leases awarded in Maine must meeta set of conditions specified in state law (12M.R.S. § 6072). These are:

1. Will not unreasonably interfere with theingress and egress of riparian owners.

2. Will not unreasonably interfere with nav-igation.

3. Will not unreasonably interfere withfishing or other uses of the area taking intoconsideration the number and density ofaquaculture leases in an area.

4. Will not reasonably interfere with theability of the lease site and surroundingareas to support existing ecologicallysignificant flora and fauna.

5. The applicant has demonstrated that thereis an available source of organisms to becultured for the lease site.

6. The lease does not unreasonably interferewith public use or enjoyment within 1,000feet of municipally owned, state owned orfederally owned beaches and parks ormunicipally owned, state owned orfederally owned docking facilities.

The state’s site evaluation requirementsinclude baseline fieldwork to collect informationon temperature, dissolved oxygen, salinity, pH,and depth profiles, as well as a SCUBA diversurvey to observe/videotape the bottom



topography and composition of flora and faunawithin the boundaries of the proposed site.

State law also includes a set of conditionsgoverning the use of the leased area andlimitations on the aquaculture activities, in orderto:

• Encourage the greatest multiple,compatible uses of the leased area

• Address the ability of the lease site andsurrounding area to supportecologically significant flora and fauna

• Preserve the exclusive rights of thelessee to the extent necessary to carryout the lease purpose.

Leases may be granted on a conditionalbasis until all necessary federal, state and localpermits have been acquired. Leases requirecertification from the Department ofEnvironmental Protection that the project willnot violate the standards ascribed to thereceiving waters classification.

The lessee must record the lease, publish anotice, mark the lease site, and submit an annualreport of seeding and harvesting in the precedingyear and plans for the coming year.

Marine organisms cultivated on the leasedarea are exempt from any minimum/maximumsize or length requirements (12 M.R.S. § 6073).A special license is available that exemptsaquaculture from marine resource laws as to thetime, place, length, condition, amount andmanner of taking or possessing a marineorganism (12 M.R.S. § 6074).

Leases are monitored annually, and may berevoked if no research or aquaculture has beenconducted within the preceding year or if it has

been conducted “in a manner substantiallyinjurious to marine organisms” or violated anylease conditions.

Two types of leases are available: a standardlease covering up to 150 acres for a 10-yearperiod and an experimental lease for up to 2acres for a 3-year period. In addition, emergencyleases may be issued to allow relocation of anaquaculture operation when there is a threat toshellfish health and safety.

�State Efforts to

Coordinate/Streamline

Aquaculture Permitting Process

Florida. The Department of Agricultureand Consumer Services is the lead agency foraquaculture in Florida. In 1999, a new Divisionof Aquaculture was created within theDepartment as a “one-stop” office for bothsaltwater and freshwater aquaculture. TheDivision of Aquaculture merged the regulatoryactivities of the Bureau of Marine ResourceRegulation and Development (previously in theDepartment of Environmental Protection) andthe Aquaculture Certificate of RegistrationProgram.

Florida’s Aquaculture CertificationProgram identifies aquaculture producers andaquacul- tural products and entitles theaquafarmer to the same benefits as otheragricultural producers. It also exempts theaquafarmer from certain requirements ofwild-harvested species, offers tax advantages,and reduces the number of permits required fromother regulatory agencies. In signing the annualcertification, the aquafarmer agrees to abide byBest Management Practices for Aquaculture(BMPs), under a program created by thelegislature in 1998. The Department of



Agriculture and Consumer Services is currentlydeveloping BMPs, in concert with each segmentof the aquaculture industry, and plans site visitsat each certified facility. Certified aquaculturistswho comply with BMPs will be presumed to bein compliance with state groundwater andsurface water standards as well as regulations forthe culture of non-native species. The BMPs aredesigned to eliminate cumbersome, duplicativeand confusing environmental permitting andlicensing, thereby allowing the aquafarmer toconcentrate finances and time on producing amarketable product.

Maine. Maine has adopted one-stoppermitting for leasing and environmentalreview. The one-stop permit process includesthe application and review process for theSection 10 Army Corps of Engineers permit.

The state has also established an aquaculturepolicy/ombudsman position within theDepartment of Marine Resources to: 1)coordinate state policy on the culture of allaquatic species, 2) respond to inquiries on atimely basis from aquaculturists and interestedparties, 3) coordinate the InteragencyCommittee on Aquaculture and staff anAquaculture Advisory Committee, 4) collect,maintain and distribute data on the State’saquaculture-related activities, 5) develop aproactive aquaculture development program thatpulls together and focuses the various resourcesthat exist at the state and federal level for whichaquaculture businesses might be eligible, and 6)advocate the State’s interests to regional andnational aquaculture agencies.

Mississippi. The Mississippi AquacultureAct of 1988, as amended, specifies a one-stoppermitting procedure. The MississippiDepartment of Agriculture and Commercecoordinates requests for Cultivation/Marketing

Permits with all state and federal agencies thathave related regulatory responsibilities. Theaquaculturist submits a single form (“Miss-issippi Aquaculture Activities Application forAquaculture Permits”), and the Department ofAgriculture and Commerce conducts acoordinated review with all applicable state andfederal agencies. The Commissioner ofAgriculture and Commerce makes the decisionon the issuance of the permit.

� Institutional Bodies Created to

Address Aquaculture Issues

Maine. Maine has a 4-member SalmonAquaculture Advisory Council, consisting of thestate marine resources commissioner and 3industry members. The Council makes recom-mendations on expenditures from the state’sSalmon Aquaculture Monitoring, Research andDevelopment Fund.

Florida. Florida has established anAquaculture Interagency Coordinating Councilto serve as a forum for the discussion and studyof governmental regulation relating toaquaculture. The council consists of anaquaculture coordinator from five departments(Agriculture and Consumer Services,Commerce, Community Affairs, andEnvironmental Protection), the Fish andWildlife Conservation Commission, thestatewide consortium of universities under theFlorida Institute of Oceanography, FloridaAgricultural and Mechanical University, theInstitute of Food and Agricultural Sciences at theUniversity of Florida, the Florida Sea GrantProgram, and each water management district.The chair of the Council serves on theAquaculture Review Council, which alsoincludes the chair of the State AgriculturalAdvisory Council and seven members



representing industry. State law requiresrepresentation by an alligator farmer, a food fishfarmer, a shellfish farmer, a tropical fish farmer,an aquatic plant farmer, a representative of thecommercial fishing industry, and arepresentative of the aquaculture industry atlarge.

�State Policies to Address

Environmental/Biological Risks

New Hampshire. State permitting policyincludes criteria for “unacceptable risk,” and forreporting of an “unusual event.” In determiningwhether a particular risk is acceptable or not, thefollowing criteria are considered:

• the proposed species (life cycle, lifehistory, reproductive habits, habitatrequirements)

• genetics of the individual wildlife

• interaction with competing species

• food/habitat competition with indigenousspecies

• other factors relating to the proposedoperation, such as types of system (closedor controlled) and screened outlets or otherenclosures.

An unusual event is any event related to theaquaculture operation that might have a negativeimpact on the environment.

No aquaculture license is granted if anyportion of the aquaculture operation wouldadversely impact the state’s aquatic or marineresources or would impose unacceptabledisease, ecological, environmental, health,safety or welfare risks to persons, theenvironment, or aquatic or marine species.

Maine. Maine has an aquaculture monitoringprogram for establishing and maintaining acomprehensive information base pertaining toall aspects of the siting, development andoperation of finfish aquaculture facilities (12M.R.S. § 6077). At a minimum, information iscollected on the following site-specificcategories:

• Geophysical site characteristics, includingcurrents and bathymetry

• Benthic habitat characteristics and effects,including changes in community structureand function

• Water column effects, including waterchemistry and plankton

• Feeding and production data sufficient toestimate effluent loading

• Smolt and broodstock introduction andtransfer data

• Disease incidence and use of chemicaltherapeutics

• Other ancillary information, as deemednecessary.

The state has a Salmon AquacultureMonitoring, Research and Development Fund,(12 M.R.S. § 6078) financed by the collection ofa fee of one cent per pound of whole fishharvested. This fund is used to develop effectiveand cost-efficient water quality licensing andmonitoring criteria, analyze and evaluatemonitoring data and process lease applications(12 M.R.S. § 6079).

Growers are required to give advance notice ofthe application of any antibiotic, includinginformation on the dosage, timing, and durationof the treatment

Mississippi. Mississippi prohibits cageculture of exotic species and organisms that are



genetically modified by means other thanbreeding and crossbreeding. Endangered,threatened and protected species can be culturedwith an approved Cultivation/Marketing Permit.Natural stocks from other states can also becultured in Mississippi provided they are alsonative to Mississippi and they are not known tobe a different genetic sub-population.

� Incorporating Aquaculture in State

Legislation and Regulation

South Carolina. South Carolina providesan example of the magnitude of the effortrequired to incorporate aquaculture withinexisting legal and regulatory frameworks, andthe shortcomings of such a policy strategy.

Since aquaculture began to emerge as a viableindustry in South Carolina in the early 1980s, thestate legislature has been responsive to the needto amend state statutes in order to facilitate thedevelopment of marine aquaculture operations.In 1985, the South Carolina General Assembly,using language similar to that in the NationalAquaculture Act of 1980, declared it was in thestate’s interest to encourage the development ofaquaculture (Title 2, Chapter 22, Amendments,S.C. Code of Law). Subsequently, the statelegislature enacted a series of initiatives tofacilitate aquaculture development. As noted inan earlier study (see Devoe 1997), the GeneralAssembly:

• provided exemptions from seasonal andminimum size regulations to the hard clamaquaculture industry (1986 and 1989)

• legalized the culture of hybrid striped bass(passed in 1988 after 4 years of verydifficult negotiations)

• declared that all fish, shellfish, crustaceansand plants grown in bona fide aquaculture

operations remain the private property ofthe culturist until sold or traded (1989)

• provided for significant penalties(including fines and imprisonment) foranyone convicted of causing damage toaquaculture facilities or stealing culturedfish and shellfish (1989)

• developed an importation policy for theuse of non-native penaeid shrimp speciesin culture operations (1990)

• began considering coastal zone regulationsthat allow for the use of the state’s watersand tidal bottoms for aquaculture nearpopulation centers (proposed in 1996)

Despite the inclusion of aquaculture on thestate’s legislative agenda over a 10-year period,the state still lacks an overall framework foraddressing aquacultural issues. As noted byDeVoe:

South Carolina has obviouslydemonstrated a willingness to deal withconstraints to aquaculture developmentthrough legislative and regulatory reform,but it has done so in a reactive,crisis-management mode. This becomesextremely clear when examining the StateCode of Laws—statutes directly affectingaquaculture are spread throughout theCode Book. As a result, there is nooverall state framework for aquaculture inSouth Carolina (Devoe 1997, p. 14).

Washington. Washington provides anexample of state agency and industrycollaboration to call for greater regulation ofaquaculture. So far, they have not beensuccessful.



Over the past several years, there have beena number of large fish escapes from salmonnetpens, at the same time that seriousenvironmental concerns were being raised aboutthe impact of such escapes. The state’saquaculture policy designated the statedepartment of agriculture as the lead agency foraquaculture, but—according to the industry andthe state Department of Fish andWildlife—regulations and programs forpreventing and responding to fish escapes areinadequate. The Department of Fish andWildlife is advocating the development of acomprehensive code of scientific salmonaquaculture practices, coordination ofaquaculture policy with industry andneighboring British Columbia, use ofnon-reproducing Atlantic salmon, adequatefunding for management of the salmon industry,and re-establishment of its authority (or anotheragency’s) to regulate aquaculture. Regulatoryauthority would encompass which species couldbe raised, inspections of aquaculture operations,educational opportunities for aquaculturists, andan Atlantic Salmon Watch program as a focalpoint for gathering data (WashingtonDepartment of Fish and Wildlife 1999). Thesalmon industry in Washington is supportinglegislation that would put a moratorium onsalmon farm expansion and improve methods ofpreventing escapement of farmed salmon intothe wild, and is considering independent actionto catch escaped fish and establish a SalmonWatch program. However, some of theindustry’s proposed responses, such as usingcommercial fishing gear to catch escaped fish,also require changes in state regulations.(IntraFish.com 2000).

� Integration of Marine Aquaculture

in State Coastal Zone Management

As an important, or potentially important,use of state coastal waters, marine aquaculture isbeing addressed in some state coastal zonemanagement plans. NOAA’s Office of Oceanand Coastal Resource Management (OCRM)provides assistance to state coastal planningprocesses (see chapter 4). Table 5.5 summarizesthe results of a survey on state aquaculture plans,which identified 13 coastal states that have anaquaculture plan. (Nelson et al. 1999). Seven ofthese coastal states have also included anaquaculture component in their state coastalzone management (CZM) plans, and anadditional three states (which have noaquaculture plan) address aquaculture in theirCZM plans. For example:

• Connecticut’s CZM laws recognizeaquaculture as a “water dependent”priority.

• Massachusetts’ Ocean Resource Policyincludes support for “the development ofenvironmentally sustainable aquaculture,both for commercial and enhancementpurposes.”

• Rhode Island’s CZM plan addressesregulations and permitting of aquacultureoperations.

The study notes that several states(Connecticut, Maine, and South Carolina)reference aquaculture as a special enhancementarea, eligible to receive federal funds underSection 309 of the federal Coastal ZoneManagement Act. The authors note the resultsof a recent assessment by NOAA’s Office ofOcean and Coastal Resource Management



indicating three states have identifiedaquaculture as a high priority in their CZMprogram.

• Rhode Island would use federal funding todevelop a management plan.

• Maine and Virginia (which has not yetincorporated aquaculture in its state CZMplan) would use federal funding to improvestate leasing regulations and address waterquality issues.



Table 5.5. Relationship of aquaculture to state coastal zone management plans

States withaquaculture

component inCZMP

States withaquaculture

plan

Contents of state aquaculture plans

Agencyjurisdictions

Legislativestrategies

Education,R&D

Marketing &promotion

Maine X X n.d. n.d. n.d. n.d.

New Hampshire * * * * * *

Massachusetts X X X X X X

Rhode Island X X X X — —

Connecticut X X n.d. n.d. n.d. n.d.

New York * * * * * *

New Jersey X X

Delaware * * * * * *

Maryland X X X X X

Virginia X X X X

North Carolina X X

South Carolina X X X X X X

Georgia X X X X

Florida X X X X

Alabama X X X X X

Mississippi

Louisiana X

Texas * * * * * *

California X

Oregon * * * * * *

Washington* * * * * * *

Alaska X

Hawaii X X X X

Puerto Rico * * * * * *

Virgin Islands * * * * * *


Source: Adapted from Nelson et al. 1999, tables 2, 6 and 9.

In Massachusetts, the state coastal zonemanagement agency played a lead role indeveloping a strategic plan for aquaculture . Theagency is also funding development of the

Massachusetts Ocean Resources InformationSystem, which will be used to identify existingand screen for potential aquaculture sites alongthe Massachusetts coast.

APPLICABLE LESSONS FROM COASTAL STATE EXPERIENCES

Based on our survey and other sources ofinformation on the experience in U.S. coastalstates, several elements emerge as likelycandidates for inclusion in a federal policy foroffshore marine aquaculture in the 3-200 mileU.S. ocean zone.

�Planning

• A lead agency helps promote the industryand reduces regulatory burdens, but careshould be taken so as not to sacrificeregulatory enforceability in the process.

• Designation of aquaculture zones shouldbe considered as a way of dealing withsiting concerns.

• Public and industry input are critical.

• Designation of lease conditions andcriteria for reviewing applications forleases should be included in legislation.

• New institutional authorities may need tobe created.

�Permitting/Leasing

• Regulatory flexibility, consolidation ofprograms, and streamlined application

processes are desirable features for afederal policy.

• Public reviews and environmentalassessments are common elements in thesiting of aquaculture in state waters, soshould be included in federal policy as amatter of standard practice.

• Performance bonds are commonlyrequired for aquaculture operations in statewaters, so industry is not likely to opposebond requirements in federal policy,provided the amounts were consideredreasonable.

• The degree of exclusivity for anaquaculture project may be negotiable.

• Experimental and research leases withshorter terms and smaller areas thancommercial leases should be considered.

�Operations

• The aquaculture industry in the UnitedStates is not used to paying royalties whenoperating in state waters, so someresistance to such payments in federalwaters should be anticipated.

• Monitoring and incident reportingrequirements should be included in thepowers of the leasing authority.



• Best Management Practices (BMPs)should be considered as a regulatoryapproach.

• Different standards may be needed fordifferent types of species (shellfish v.finfish; native v. non-native v. hybrid v.transgenic organisms).

�Termination

• Performance bonds should be required inan amount sufficient to cover the costs forremoving structures and cleaning up thesite should the operator abandon thefacility.

CONCLUSION

In general, based on state experience,comprehensive legislation targeted at regulatingand managing marine aquaculture offers the bestpromise of success, both in terms ofenvironmental protection and industry

assistance. Achievement of this goal willtypically require extensive coordination amongcompeting agencies, industry and the public, aswell as legislative action.



Chapter 6

POLICY DEVELOPMENTON OFFSHORE AQUACULTURE:

LESSONS FROM THE INTERNATIONAL ARENA

As is well known, marine aquaculture hasdeveloped more rapidly in a number of othernations than in the United States. Hence, in thischapter we review the experiences in othernations with industries and policy/regulatoryframeworks that could help inform the U.S.policymaking process regarding offshoreaquaculture in the U. S. EEZ.

While no nations appear to have yetdeveloped an explicit regulatory policyframework for their EEZs, several have hadconsiderable experience with the managementof aquaculture operations located in nearshorecoastal waters or in other cases some distancefrom shore. A majority of these have worldleading or expanding marine aquacultureindustries producing Atlantic salmon and related

species. Most also have shellfish industries thatare either well established or have significantpotential for future development. Shortsummaries of the current policy and regulatorysituations in eight coastal nations withsubstantial marine aquaculture activities arediscussed in this chapter: The experiences ofNorway, United Kingdom, Ireland, Canada,Chile, Australia, New Zealand, and Japan.

Important guidance on carrying outaquaculture operations in a sustainabledevelopment manner may also be drawn fromthe work of various international organizationssuch as the UN Food and AgricultureOrganization (FAO) and the InternationalCouncil for the Exploration of the Seas (ICES).The second part of this chapter reviews thenature and implications of this work.



THE EXPERIENCES OF OTHER NATIONSWITH OFFSHORE MARINE AQUACULTURE

�Norway

Farmed salmon is Norway’s leading seafoodproduct. Norway is the world’s largest producerand exporter of Atlantic salmon with productionexceeding more than 390,000 tons valued atNOK 10 billion (US$667 million) in 1998(Norwegian Institute of Marine Research 2000).During 1999, farmed salmon and troutrepresented more than 30 percent of seafoodexports valued at NOK 29.9 billion (US$3.4billion) to leading markets in Japan, Denmark,France and Germany (IntraFish 2000).

With its highly indented shoreline, shelteredfjords, and rich deep coastal waters, Norway iswell suited for aquaculture . Most of its marineaquaculture is done in net pens in the relativelysheltered waters of fjords and embayments. Noevidence could be found that Norwegian fishfarms are yet sited more that 12 nautical milesfrom the shoreline—that is in the NorwegianEEZ, nor could we find policies or regulationsthat apply explicitly in their EEZ. Nonetheless,some of the experience gained in Norway asmarine aquaculture has developed over the last30-40 years, is, we believe, relevant to our study.

This is especially true on theintergovernmental/institutional side but it is alsoof interest to see what kinds of siting,environmental, and biological issues (carryingcapacity, diseases, etc.) have dominatedNorwegian policy-making activities. First, onthe intergovernmental/institutional side, even inthe nearshore coastal waters, Norwegian federalministries have jurisdiction. Thus, the Ministryof Fisheries, the Ministry of Environment, the

Ministry of Agriculture, and the Ministry ofLocal Government and Labor are all involved inthe regulation of marine aquaculture. Thismulti-jurisdictional situation parallels, ofcourse, what we have in the U. S. EEZ, where atleast five agencies may have some form ofjurisdiction (Corps of Engineers, EnvironmentalProtection Agency, NOAA/NMFS, regionalfishery councils, U. S. Coast Guard, etc.).Hence, the way the Norwegians have arrangedtheir regulatory review process will be ofinterest. Also, the extent to which one agency,the Ministry of Fisheries, plays the leadagency/coordinating role is relevant.

The regulatory framework governingmarine aquaculture in Norway is largely basedon national legislation entitled the Act Relating

to the Breeding of Fish, Shellfish, Etc. togetherwith the regulations issued to implement thislegislation. A thorough discussion of theregulatory framework for salmon farms is alsosummarized in The Salmon Aquaculture Review

Final Report, Volume IV - Part C, II. Norway.

developed by the British ColumbiaEnvironmental Assessment Office (1998a).Participating government ministries/agenciesand their respective role(s) in the regulatoryframework discussed below are derived fromthis publication.

The Directorate of Fisheries (of the Ministryof Fisheries) issues the licenses for fish farmsafter consultation with the Ministry of theEnvironment, the Ministry of Agriculture, andthe Ministry of Local Government and Labor, totake account of the views of interested localgovernments. The Act states that a license willnot be issued if the proposed facility:



• will cause the risk of the spread of diseaseamong fish or shellfish,

• will raise the risk of pollution,

• will cause conflicts with other activities inthe surrounding environment, lawfultraffic, and other exploitation in the area.

The Pollution Control Authority (of theMinistry of the Environment) issues permitsrequired for waste discharges including thoseassociated with marine aquaculture operations.This authority operates under the terms of thePollution Control Act and the regulations issuedin connection with that legislation. RegulationsRelating to the Establishment and Operation ofFish Farms have explicit rules regarding thecleaning of fish, the storage and handling of deadfish, and many other aspects of the aquacultureoperation. The Waste Treatment Regulationsissued by the Ministry of Agriculture under theInternal Fish Diseases Act contain approvedmethods for the destruction of dead fish andwastes and the treatment of effluents from fishfarms to prevent the spread of an infection.Ministry of Agriculture regulations also requirethat fish farms keep records for at least five yearsof:

• all incoming and outgoing live aquaticorganisms,

• slaughter and loss of aquatic organismsthrough escape or mortality,

• health certificates accompanying liveorganisms entering the fish farm.

It is the responsibility of the fish farmer todemonstrate that a farm will not causeunacceptable pollution effects and that there is

an adequate plan for handling wastes, such asfish mortalities, prior to establishing orexpanding a fish farm. If it is unclear togovernment authorities that the receiving waterswill be suitable (to adequately assimilate thedischarge), the government authorities willrequire that a monitoring program be undertakenprior to the leasing of the proposed operation orthe expansion of that operation.

Given the rapid growth of the industry, thesiting of fish farms has attracted substantialattention in Norway. In 1987-90, a nationalassessment of the suitability of the Norwegiancoastal zone and rivers for aquaculture(LENKA) was established. Its aim was todevelop an overview of the potential foraquaculture along the coast and to provide abasis for the systematic development of theindustry. This was a joint undertaking of theMinistry of Fisheries, the Ministry of theEnvironment, and the Ministry of LocalGovernment and Labor. The following sitingselection criteria are used:

• the expansion of fish farming is permittedonly in salt water with good waterexchange and where there are no problemsor tendencies toward eutrophication,reduced oxygen concentration, or theaccumulation of sediments under theculture systems;

• the expansion of fish farming in freshwater is not permitted; and

• fish farming close to rivers important towild salmon populations is prohibited.

As a part of LENKA, a procedure was alsoestablished for estimating the gross availablecapacity for aquaculture production in LENKAzones. The main steps in the development of thecapacity assessment are:



• an assessment of the maximumpermissible organic loading of thewaterbody of the marine area; and

• an assessment of the space available foraquaculture development arrived at bysubtracting all unsuitable areas and allareas already occupied from the total areaof the zone.

The Norwegian Planning and Building Acthas been amended to include sea areas. Spacingrequirements for salmon aquaculture farmsinclude the following:

• the distance between each fish farm is to beat least one kilometer;

• the distance between a salmon grow-outfarm in the sea and a broodstock farm is tobe at least three kilometers.

Other issues which seem to have dominated

the time of both the private farmers and the

Norwegian government, noted in a recent

Norwegian paper (Hjelt 2000), are listed below:

• Production and market crisis

• Freezing program

• Collapse and bankruptcy

• Restructuring and integration

• New organization of marketing

• Control of diseases

• Accusations of dumping

• Regulation by feeding quotas

• “Understanding” with the EU

• Economic crises in Russia/Asia

It can be seen that economic issues (such asproduction, marketing, etc.) dominate the list.Only two of the issues—control of diseases andregulation by feeding quotas are not in thiscategory. Thus, the great preoccupations on thepolicy side of Norwegian offshore aquaculturein the last several decades appear to have beenthe questions of marketing, overproduction, andrelated economic concerns.

�United Kingdom (Scotland)

Marine finfish aquaculture in Scotland datesback to the 1960s with the introduction of netpen farming of Atlantic salmon in coastalwaters. While growth of the salmon farmingindustry has been slow, the industry experienceda rapid expansion during the last decade.Production increased from 32,000 metric tons in1990 to 110,000 metric tons in 1998, valued at£260 million. Other marine fin fish species withdemonstrated commercial value or the potentialof such include halibut, sea trout, turbot and cod.

Salmon farming is the most economicallyimportant sector of the marine fish farmingindustry and Scotland is the predominant localefor finfish aquaculture in the United Kingdom.Salmon farms are located throughout Scotlandbut the industry is most concentrated inrelatively isolated, rural locations along thenorthern and western coasts. While these farmsoperate in protected nearshore waters, there isinterest among the industry to develop offshoresites largely due to advances in gear andproduction technology and environmental



considerations. These include the relative lackof new inshore sites, concerns about carryingcapacity and eutrophication, and losses toInfectious Salmon Anemia (ISA) disease. TheScottish government is supportive of industryexpansion into open ocean sites. However,downward trends in European market prices,international competition from Norway and therelatively higher capital and operating costs foroffshore operations have limited the addition ofnew offshore fish farms.

Shellfish farming in Scottish coastal waters,valued at approximately £2 million, principallyinvolves four species of bivalve molluscs:mussels, native oysters, Pacific oysters, and kingand queen scallops. Shellfish farms, utilizingprotected nearshore or intertidal waters, are alsolocated in largely rural areas. Future increases inScottish shellfish production are expected to bemoderate but steady and no offshore or openocean shellfish farms are currently in operation.

The development of the marine aquacultureindustry, particularly during the last 10 years,has had important social and economicimplications for rural Scottish coastalcommunities. The Scottish governmentestimates that 330 salmon farms and supportingindustries provide approximately 6,500 jobs torural communities and that the shellfish industryemploys 350 people, mostly on a part-time basis.

The Scottish Executive publicationLocational Guidelines for the Authorisation of

Marine Fish Farms in Scottish Waters (1999)provides a detailed description of the currentregulatory framework for marine fish farms inScotland. Participating government ministries/agencies and their respective role(s) in theregulatory framework discussed below arederived from this publication. The Scottishregulatory framework for salmon farms is also

summarized in The Salmon Aquaculture Review

Final Report, Volume IV - Part C, III. Scotland

developed by the British ColumbiaEnvironmental Assessment Office (1998b).

The Crown Estate (CEC)

The CEC is responsible for the managementof the territorial seabed and most of the foreshorebetween the high and low water mark. Anyonewishing to establish a marine fish farm mustapply to the CEC for a lease of the seabed (andforeshore where appropriate) within which themarine fish farm will operate. The CECmonitors marine fish farm operations to ensurecompliance with lease conditions. It alsomaintains a register of marine fish farm leasesand is able to supply non-commercialinformation on request.

The Scottish Executive Development

Department (SEDD)

Following devolution SEDD has assumedresponsibility for ensuring that works in tidalwaters do not constitute a hazard to navigation(previously administered by the Department forthe Environment, Transport and the Regions).Under the Coast Protection Act 1949, consentfor the installation of marine fish farmingequipment in sea areas must be obtained fromSEDD.

Scottish Environment Protection Agency

(SEPA)

SEPA has a duty to promote the cleanliness ofScotland’s tidal waters and to conserve so far aspracticable, its water resources. SEPA is alsorequired to promote the conservation of flora andfauna dependent on the aquatic environment.This includes the safeguarding of water qualityand the condition of the sea bed in the vicinity of



fish farms. Under the Control of Pollution Act1974, consent is required for the discharge ofeffluent from marine fish farms to coastal watersfrom SEPA. An application for dischargeconsent is advertised by SEPA in the appropriatelocal newspaper and the Edinburgh Gazette.SEPA consults other regulatory authorities andis a relevant and competent authority under theConservation (natural habitats and conservation)Regulations 1994. If SEPA agrees to thedischarge, it will inform any objector who canthen have 21 days within which to request theSecretary of State to call-in the application forhis own determination. Conditions designed tominimize adverse environmental effects may beattached to discharge consents. SEPA isresponsible for ensuring that appropriatemonitoring of the aquatic environment isundertaken and this is achieved by applyingspecific consent conditions and by its own auditmonitoring. Consents may be subject to a reviewafter a period of 4 years or sooner with theagreement of the discharger.

The Scottish Executive Rural Affairs

Department (SERAD)

SERAD is responsible for statutorymeasures under the Diseases of Fish Acts 1937and 1983 and related EC Fish Health legislationto prevent the introduction and spread of seriouspests and diseases of fish and shellfish whichmay affect farmed and wild stocks. All marinefish farms must be registered with theDepartment for disease control purposes.Certain diseases must be notified to theDepartment and there are procedures laid downfor the treatment and disposal of infected stock.SERAD’s Marine Laboratories carry out a widerange of basic marine fish farm research andoffer advice on production methods andequipment. The Department also has wider

responsibilities in relation to the protection offish, fisheries and the marine environment. Itadvises the Crown Estate on the implications fordisease control, existing fishing interests and theinshore marine environment of applications formarine fish farm leases, and is consulted bySEPA on discharge consent applications.

Local Authorities

Local authorities have the lead role inadvising the Crown Estate on marine fish farmproposals under the interim arrangementspending the transfer of control to them underproposed changes to land use planninglegislation. Local authorities, however, controlfish farm developments above the low watermark. Thus, for freshwater fish farms, alldevelopment requires planning consent, as doany onshore facilities associated with marinefish farming.

Harbour Authorities

Harbour authorities, in designated harbourareas, issue licences for the operation of marinefish farms. Applications for works licences mustbe advertised and are subject to consultationprocedures. Applicants consult their localharbour authority on the particular procedureswhich apply.

The Health and Safety Executive (HSE)

Under the terms of the Health and Safety atWork Act 1974, HSE inspects installations andfacilities at marine fish farms. HSE has issuedadvice on minimum health and safety standardsfor the construction and use of floating fish farminstallations used for fin fish in inshore waters.



Shetland and Orkney Islands Councils

In Shetland, under the Zetland CountyCouncil Act 1974, the Council has powers tolicence works in coastal waters which itexercises in conjunction with its powers asplanning authority. Under these powers, theCouncil has developed policies for thedevelopment and regulation of salmon andshellfish farming. Anyone wishing to undertakemarine fish farm development within theShetland coastal waters must obtain a workslicence from the Council. All applications forworks licences must be advertised and theCouncil consults widely. Applicants andobjectors enjoy the right of appeal to ScottishMinisters against the Council’s decision. Underthe Orkney County Council Act 1974, theCouncil exercises works licensing powerswithin certain designated harbour areas. In theevent a Works licence is granted the applicantmust also apply to the Crown Estate for a lease inthe usual manner.

Shetland Islands salmon farmers aremanaging their operations in accordance with arecently developed Code of Best Practice. TheCode contains guidelines or best managementpractices designed to mitigate a range ofenvironmental concerns related to stockingdensities, husbandry, fish health and wastemanagement. Provisions of the Code are beingincorporated into the works license administeredby the Shetland Islands Council. Regulatorycompliance is monitored and managed by theShetland Marine Aquaculture ConsultationAgency (SMACA), a new organizationestablished by the Council that will also providetechnical assistance to industry (Holmes 2000)

.

Scottish Natural Heritage (SNH)

Scottish Natural Heritage is responsible forsecuring the conservation and enhancement ofthe natural heritage—wildlife, habitats andlandscapes—and for promoting itsunderstanding and enjoyment by the public. Inaddition the Natural Heritage (Scotland) Act1991 states that SNH “shall have regard to thedesirability of ensuring that anything done,whether by SNH or any other person in relationto the natural heritage of Scotland is undertakenin a manner which is sustainable.” Whenconsulted on aquaculture applications, SNHtakes into account the proximity to and potentialimpact on wildlife, habitats and landscape. Thefactors considered, in no order of priority,include :

• areas designated for natural heritagepurposes;

• species protected by legislation,including the Wildlife and CountrysideAct 1981 and Habitats and SpeciesDirective (Annexes ll, lV and V);

• impact on general environmental qualityand biodiversity;

• impact on natural heritage interest ofpharmaceutical and other compoundsused in aquaculture;

• possible conflicts with potential predatorspecies arising from proximity to sealhaul-out areas, and otter and fish-eatingbird populations;

• the risk of introducing alien species andthe likely consequences for wild animaland plant communities;



• the risk of genetic contamination ofnative stocks, particularly of Atlanticsalmon;

• visual and landscape implications; and

• the potential impact on remote or wildland qualities.

SNH would also point out the proximity of aproposed site to any Marine Consultation Areas.This is a non-statutory designation intended tohighlight areas which have been identified asdeserving of particular distinction in respect tothe quality and sensitivity of their marineenvironment and where the scientificinformation available substantiates their natureconservation importance.

District Salmon Fishery Boards

Salmon fisheries management in Scotlandhas been devolved to district salmon fisheryboards under the terms of the Salmon Act of1986. These boards may do such acts, executesuch works and incur such expenses as mayappear to them to be expedient for the protectionor improvement of salmon fisheries, the increaseof salmon and the stocking of the waters of thedistrict with salmon. In order to fulfil theirfunctions, they may appoint a clerk and waterbailiffs. It is an offence for a person intentionallyto introduce salmon or salmon eggs into inlandwaters in a salmon fishery district for whichthere is a board unless he has the writtenpermission of the board or the waters constituteor are a fish farm within the meaning of theDiseases of Fish Act 1937, as amended.

West Coast Fisheries Trusts

A number of Fishery Trusts, which arecharitable organisations, have been set up topromote and undertake research to provide

scientific advice on the fisheries resourcesparticularly in the west and north of Scotland.The Trustees are drawn from, among others,local owners of fishing rights and the fishfarming industry. Support is provided by anumber of organisations including SNH, SEPAand the Scottish Executive through theFreshwater Fisheries Laboratory, Pitlochry.

Ministry of Defence

Fish farming is one of a number of activitieswhich are excluded under bylaws from Ministryof Defence controlled areas which are usedextensively by the UK, NATO and Alliednations for training purposes. The mostsignificant of these areas include the DockyardPorts of The Gareloch, Loch Long, Loch Goil,the Holy Loch and Rosyth. Similar prohibitionsalso exist at the British Underwater Test andEvaluation Centre (BUTEC) and the Rona NoiseRange. Details of these prohibited areas can befound in the relevant sections of the West ofScotland Pilot and are normally indicated on thelarge scale Admiralty Charts. In additionMinelaying and Minehunting operations aroundmilitary facilities on the west coast and thepresence of submarine exercise areas militateagainst the provision of fish farm moorings insome areas. It is therefore important that MOD isconsulted to ensure that fish farm developmentsdo not constitute a hazard to navigation.

The Scottish regulatory framework placescontrols on marine fish farms with regard tositing, disease transmission, therapeutants,escapement, effluent discharges, marinemammal interactions, environmental monitoringand reporting. The Scottish Office coordinatesindustry regulation and has responsibility forincorporating relevant European Unionlegislation under Scottish law. Leaseapplications and reviews for marine fish farms



are coordinated by the Crown Estate, whichconsults with other government agencies havingstatutory jurisdiction (see agency descriptions),non-governmental organizations and the publicfor comment with regards to navigation, fisheryconflicts, and a broad range of environmentalconsiderations. The Crown Estate issues andadministers fish farm leases and determines thelease fee based on the farm’s production level.Under current Scottish law, a separate license isnot required to operate the farm on an approvedlease site. Lease applications not approved bythe Crown Estate due to objections raised bystatutory agencies involved in the reviewprocess are referred to a Fish Farming AdvisoryCommittee (FFCA) established by the Secretaryof State for resolution. Since its establishment in1988 only three cases have been referred to theCommittee.

The regulatory framework currently in place,however, is subject to significant revision by theScottish government. With initial establishmentof marine fish farms and the need to lease theseabed, the Crown Estate reluctantly assumedresponsibility for coordinating statutoryregulatory authority on an interim basis. Overtime, significant concerns and objections to theCrown Estate’s conflict of interest as owner ofthe seabed vs. its regulatory role in thedevelopment of marine fish farms plus theagency’s own desire to be relieved of theseregulatory responsibilities have prompted theScottish Office to consider alternatives. Oneapproach receiving widespread considerationinvolves transferring overall coordination dutiesto the Scottish Environmental ProtectionAgency (SEPA) and to increase the involvementand responsibility of local governments withregard to siting and operation of fish farms.

A November 1997 government publicationMarine Cage Fish Farming in Scotland:

Regulation and Monitoring. A Compendium of

Responses to SEPA’s Consultation Paper

(Scottish Environmental Protection Agency1997) summarizes stakeholder responses to keyregulatory and environmental/natural resourceissues pertaining to sustainable industrydevelopment. These include proposed changesto the legislative framework to insurecompliance with Environmental QualityStandards (EQSs) and the incorporation of BestManagement Practices (BMPs); methods toimprove the use, control and environmentalmonitoring of medicines and chemicals;avoidance of potential conflicts with shellfishfarms; determination of allowable limits fornutrients, impact zones and organic wastes andmanagement practices to reduce inputs;improved siting based on biomass andhydrographic and carrying capacity models;encouragement for siting new farms in opencoastal sites with greater water exchange;avoidance of disease transmission and geneticmixing among wild and farmed stocks; andexclusion of fish farm development fromenvironmentally sensitive, historicallysignificant and/or other such designated waters.

While the report summarizes different viewson issues it includes four points on which therewas broad consensus:

• there is a rightful place for fish farming inthe economy of the Highlands andIslands;

• industry has a direct interest in protectingthe environment upon which it depends;

• there is a need to base the industry and itsregulation upon sound science; and

• procedures for regulation and monitoringmust be clear, fair and open.

The report goes on to conclude that “in marinecage fish farming, as in other sectors of the foodindustry, product image is important and may beenhanced by public perception of well regulated



and responsible operators. Industry couldtherefore be said to require regulation andmonitoring to ensure and demonstrateenvironmental protection. There is noquestion...that the future of the Scottish fishfarming industry is dependent on its being seento be controllable, environmentally sensitive andeconomically and politically sustainable.”

� Ireland

The seafood industry is a major contributor tothe coastal and national economy, and theheritage of the island nation of Ireland. During1997, landings from commercial fisheries andaquaculture were valued at over IRL£300million and provided employment estimated at15,720 jobs in production and support services.Over the past 25 years, aquaculture productionof marine fin fish and shellfish has graduallyincreased from approximately 5% of totalseafood landings to 30% (IRL£58.5 million).Industry growth is largely attributed to theexpansion of Atlantic salmon farms during thelast decade and to a lesser extent, increasedproduction of commercially important shellfishsuch as Pacific oysters and mussels. Farmedsalmon production during 1998 was valued atIRL£38.8 million (14.9 tons). Total 1998shellfish production (oysters, mussels, clams,scallops) of 23.2 tons was valued at IRL£13.3million. Other species currently undercommercial production or entering intoproduction in Irish coastal waters include seatrout, halibut, and abalone.

As with marine aquaculture industries in othercountries, conflicting use of the coastal zone,environmental degradation, uncertainty withregard to the biological impacts of fish farms oninshore fisheries and the health and diversity oflocal marine communities are issues of concern(MacDubhghaill 2000a). As a part of Ireland’s

commitment to sustainable management of itsmarine resources, the government is initiating a£21 million survey out to the 200 mile limit ofthe Irish EEZ. Information from mapping theseabed and its resources will help to determinethe best use of coastal and offshore waters for arange of potentially conflicting activities such asfisheries, aquaculture, oil, natural gas andmineral resource exploration and commercialtransport (MacDubhghaill 2000b). The salmonindustry is evaluating the technical andeconomic feasibility of siting future operationsat more exposed offshore sites. Ocean Sparsubmersible sea cages capable of producing 600metric tons of fish are being tested at twodeepwater sites on the west coast of Ireland. Thefirst 20,000 cubic meter sea cage, installedduring 1999, has successfully completed twoproduction cycles and a second unit has beenrecently deployed for trial operations (Smith1999; Sackton 2000).

The results of strategic planning by the Irishgovernment on the future directions andopportunities for the Irish aquaculture industryare reviewed in a recently released reportcommissioned by The Department for theMarine entitled Irish Aquaculture—the Future.The report cites the aquaculture sector as havinghigh growth potential in comparison to othersegments of the Irish Sea fishing industry.Increased farm production and value addedprocessing, and international exports areidentified as areas for future governmentinvestment and development. The positiveeconomic and social benefits of aquaculturedevelopment in coastal and island communitiesare also an important part of the developmentstrategy. The report, which recommends that thegovernment invest IRL£60 million over a 4 yearperiod (2000-2004) to improve the industrysupport infrastructure, projects a productionincrease over the next 15 years of up to 160,000



tons per year valued at IRL£450 million. Thislevel of industry expansion would support anadditional 6,000 new jobs in the aquacultureindustry and 3,000 jobs in support industries(Ireland Department of the Marine and NaturalResources 2000).

Administrative and regulatory control ofcommercial aquaculture in Ireland is centralizedunder the Department of the Marine. TheDepartment’s broad ranging and diverseregulatory responsibilities also includecommercial shipping and port services,fisheries, forestry, marine coastal zonemanagement, minerals and hydrocarbonsexploration, marine tourism, emergencyresponse, and research and technologydevelopment. Under the Fisheries Act, theDepartment has authority for development andimplementation of policies and programs formanagement of commercial aquaculture ininland, coastal and offshore waters. Divisionswithin the Department having an aquacultureregulatory function are discussed below.

Inland Fisheries/Aquaculture Policy Division

The duties of the Division applicable tomarine aquaculture support development ofsustainable Coastal Zone Management throughnew policies, plans and legislation The Divisionis responsible for licensing (leasing) andcontrolling developments on foreshore (seabottom) and reclaimed foreshore in accordancewith the requirements of the 1933 and 1992Foreshore Acts and the 1954 State Property Act.It also issues and administers licenses for theaquaculture industry based on environmentaland technical standards in accordance with theprovisions of the 1959 - 1997 Fisheries Acts.

Sea Fisheries Policy and Development

Division

The overall responsibility of Sea FisheriesPolicy and Development Division is negotiationand implementation of European Union andnational policy with regard to sea fisheries(including aquaculture). The Division also hasresponsibility for overseeing and monitoring theoperations, activities and finances of the IrishSea Fisheries Board (Bord Iascaigh Mhara orBIM).

The Irish Sea Fisheries Board (BIM)

The BIM’s mission rather than beingregulatory, is “to promote the sustainabledevelopment of the Irish seafish and aquacultureindustry both at sea and ashore and thediversification of the coastal economy so as toenhance the employment, income and welfare ofcoastal regions and their contribution to thenational economy.” The BIM aquacultureresearch and development program assistsindustry with business planning, modernizationof facilities and equipment, new species, anddevelopment of cost effective production andwaste treatment methods.

The Department of the Marine also overseesthe activities of 7 Regional Fisheries Boards.Each Board has responsibility for enforcementof aquaculture licensing regulations andenvironmental protection at the local level.Legislation to protect and maintain the quality ofthe environment is implemented by localauthorities such as the Regional FisheriesBoards and by the Environmental ProtectionAgency. The Agency promotes and implementsstandards for environmental protection andmanagement.



Licensing Requirements

Two licenses are required by theDepartment of the Marine to establish a fish farmin coastal waters: A foreshore license (or a lease)and an aquaculture or fish culture license. Aforeshore license (or lease) gives permission touse and occupy a particular area of the Stateforeshore which is defined and delineated on amap. The license describes the specific detailsrelated to use of the site for moorings, fish cages,and other equipment related to fish or shellfishproduction. Foreshore licenses are generallyissued for a 10 year period for a fee of IRL£50per year for finfish irrespective of area andIRL£50 per year for up to 5 hectares for shellfishcultivation. The aquaculture license or fishculture license regulates fish husbandry andother operations on the site leased under theForeshore Act 1933.

The Department of the Marine requiresfarms with annual production exceeding 100tons to submit an environmental impactstatement (EIS). The EIS calls for detailedtechnical information and assessment related tositing, standing stocks and feed input;operational practices and preventative measureswith regard to disease treatment, escapementand waste discharges; environmental, waterquality and biological monitoring; and recordkeeping, reporting and inspections pursuant toissuance of an operating license. A publicdisclosure and comment period is also part of thelicensing requirement for larger farms.

�Canada

Commercial marine aquaculture in Canadadates back to the 1970s, with the developmentand gradual expansion of salmon farms in NewBrunswick in the east, and British Columbia on

the west coast. Marine finfish and shellfishfacilities operate on both coasts with significantor growing industries located in coastal waters ofNewfoundland, Nova Scotia, Prince EdwardIsland, New Brunswick, and British Columbia.British Columbia, rated as the world’s 4thlargest producer of farmed salmon, is the leadingCanadian province with 1998 total productionvalued at CAN$238 million or approximately55% of the Canadian aquaculture industryoutput. Ranked second is Atlantic salmonproduction in New Brunswick. During 1998,farmed salmon was valued at CAN$106 millionand represented 93% of all aquacultureproduction in that province (Statistics Canada1999; Canadian Aquaculture Industry Alliance,CAIA, 2000). Atlantic salmon accounted for85% of farmed salmon production with westcoast production of Coho and Chinook salmonrepresenting the remaining 14% Other marinefinfish in commercial production or underconsideration include black cod in BritishColumbia and Atlantic cod, flounder, haddockand halibut in the Maritime Provinces (CAIA2000).

Commercially important marine shellfishand invertebrate species cultivated in coastalwaters of the Maritime provinces and BritishColumbia include Pacific, American andEuropean oysters, manila clams, sea scallops,geoduck clams, abalone, sea cucumbers and seaurchins. During 1998, shellfish production wasvalued at CAN$48 million. Mussel culture,established in Atlantic Canada also during the1970s, has emerged as Canada’s largest shellfishindustry. During 1998 mussel production wasvalued at CAN$19 million with Prince EdwardIsland as the leading province. Over the last 30years the aquaculture industry has grown invalue (1998 value: CAN$550 million) tobecome a significant contributor to the Canadian



economy and national seafood supply. As is thecase in other countries, farms and employmentopportunities are most often located in ruralcoastal areas. Estimates of direct employmentwithin the aquaculture industry (production andsupply/service sectors) range between7,000-8,000 jobs (Department of Fisheries andOceans, DFO, 2000b; CAIA 2000).

Between 1997 and 1998 a 19% annualincrease in national commercial aquacultureproduction was primarily attributed to highersalmon harvests in British Columbia. The NewBrunswick salmon industry experienced asignificant production decrease due to lossesfrom Infectious Salmon Anemia (ISA).International exports (primarily to U.S. markets)of value added (processed) products increased24% and were valued at CAN$425 millionduring 1998. Farmed salmon exports accountedfor 93% of this total. In the near term, estimatesof Canadian farm production and exports areexpected to continue to increase but at a slowerrate. This is attributed to the limited availabilityof additional protected inshore sites withsuitable conditions to meet environmentalsafeguards and government limitations placedon establishment of new farms on both coasts.Uncertainty with regard to future investmentcapital, future ability to compete effectively inglobal markets, and inherent risks and higheroperating costs for offshore farming operationsare contributing factors. Accordingly, Canadianproduction is not expected to keep pace withexpanding U.S. markets for processed salmonand other marine aquaculture products. In thelonger term, the Canadian Aquaculture IndustryAlliance (CAIA) predicts a doubling of finfishproduction and a quadrupling of shellfishproduction by the year 2005 (DFO 2000a).

The Canadian aquaculture industry isregulated at the federal and provincialgovernment level. The scope of federalinvolvement includes 17 departments and

agencies that deliver programs and services tothe industry. These programs address the fieldsof research, extension, education, planning anddevelopment, financing, regulatory frameworks,fish and shellfish health, and others gearedtoward achieving environmental quality andindustry sustainability. The Department ofFisheries and Oceans (DFO), which has primaryresponsibility for Canada’s fishery and oceanresources, is also the coordinating federalagency for aquaculture. In 1995, the DFOpublished a strategic planning document,Federal Aquaculture Development Strategy,describing the federal government’s role tosupport industry growth and development:

• to provide a framework for integratedfederal support for aquaculturedevelopment;

• to advance aquaculture in a manner thatcomplements traditional, recreationaland Native fisheries, and is consistentwith federal responsibilities for publichealth and the environment;

• to help position the industry in a mannerthat supports the realization ofsustainable competitive advantages whileminimizing resource use conflicts

The Office of the Commissioner forAquaculture Development (OCAD) wasestablished in 1998 to implement the FederalAquaculture Development Strategy. TheCommissioner reports to the Minister ofFisheries and Oceans and is responsible forcoordinating federal government resources withthe provinces and the industry to instituteregulatory reforms and advance industrydevelopment.

Under the Fisheries Act, the DFO has a longestablished precedent for delegating regulatory



responsibilities for commercial fisheries to theindividual provinces. As aquaculture hasdeveloped as an industry, a similar arrangementis facilitated via Federal-Provincial Memorandaof Understanding (MOUs). The MOUs specifyshared federal and provincial responsibilitiesbased on the needs of the local aquacultureindustry. The individual provinces have theprimary responsibility for administration,licensing and regulation of aquaculture facilitieswithin their jurisdictions.

Other federal programs relevant to marineaquaculture include Agriculture and Agri-FoodCanada (AAFC); Canadian EnvironmentalAssessment Agency (CEAA); Canadian FoodInspection Agency (CFIA); Canadian Heritage;Canadian International Development Agency(CIDA); Department of Finance Canada;Department of Foreign Affairs and InternationalTrade (DFAIT); Environment Canada; FarmCredit Corporation (FCC); Health Canada[Bureau of Veterinary Drugs; Pest ManagementRegulatory Agency (PMRA)]; HumanResources Development Canada (HRDC);Indian and Northern Affairs Canada (INAC);Industry Canada (Atlantic Canada OpportunitiesAgency (ACOA)); Canada EconomicDevelopment for Quebec Regions; FederalEconomic Development Initiative in NorthernOntario (FedNor); National Research CouncilCanada (NRC); Institute for MarineBiosciences; Western Economic DiversificationCanada (WD)]; Natural Resources Canada(NRCan); and Statistics Canada (DFO 2000b).

The present regulatory framework used foraquaculture originated from policies applied tothe management of fishery resources.Regulatory policies for aquaculture,administered via 17 federal programs and localprovincial governments, are widely considered

to be ill suited for addressing current andemerging issues related to rapid expansion ofsalmon farming, particularly during the lastdecade. Dissatisfaction with the currentregulatory system is attributed to several factors.These include the complexity of the system;broad distribution of regulatory authority;inability to keep pace with industrydevelopments and to anticipate and effectivelymanage new problems; and controversy withpolicies, guidelines and procedures used forsiting, environmental monitoring andoperational issues such as waste discharges,wild/farmed fish interactions, therapeutants andother chemicals, and disease transmission(Conley 1999, CCG Consulting andPricewaterhouseCoopers 2000).

Widespread dissatisfaction among theindustry and other stakeholders such asenvironmental groups, aquatic resource users(commercial and Native fisheries, tourism, etc),and federal and provincial government officialshas led to an ongoing extensive review of theregulatory framework for aquaculture. The goalof this review is to develop a consensus amongthese stakeholder groups to achieve acomprehensive, modern day policy frameworkthat will support sustainable growth of theindustry while protecting and conservingenvironmental quality and coastal resources(Conley 1999).

�Chile

Ocean aquaculture has shown remarkablegrowth in Chile. In less than two decades (since1986), the nation went from virtually noproduction of farmed salmon and trout tobecome the second largest producer in the world,after Norway. Chilean salmon varieties includeCoho, Atlantic, and Chinook. Salmon exports



were valued at US$625.0 million in 1999, a 19.5percent increase over 1998. Chile suppliedapproximately 54.0 percent of the salmon sold inJapan and 40 percent of the fresh-farmed salmonproducts sold in the United States valued atUS$217.5 million in 1999 (Chilean TradeCommission 2000).

Conditions in Chile, especially the fjord-likeregions along the central and southern coasts,offer many good sites for marine aquaculturealthough the limited infrastructure (roads,towns, utilities, etc.) along the remote parts ofthe southern Chilean coast will makedevelopment in this region expensive. However,with labor costs in Chile lower than those incompetitive nations such as Norway, Canada,Ireland, and the UK, it can be expected that thegrowth of marine aquaculture activities willcontinue.

Several factors have contributed to thisremarkable growth. They include:

• an extensive coastal area with very suitableenvironmental conditions for fish farming

• pollution- and virus-free coastal waters

• long hours of sunlight during the southernsummer

• ready access to quality feeds such asfishmeal

• low labor costs

As of the 1990s, there were approximately 90companies involved in salmon and trout farmingin Chile. These companies possessed about 370farming concessions (leases) authorized by thegovernment. In addition, approximately 100“resolutions” (applications) were pending but

not yet authorized. About 185 fish farms hadbeen authorized (licensed) to operate, althoughonly about 80 of them were actually operating.The area covered by operating farms wasapproximately 4,700 hectares (British ColumbiaEnvironmental Assessment Office 1997).

Aquaculture in Chile is regulated under theGeneral Law of Fisheries and Aquacultureenacted in 1991. The regulatory frameworkcreated by the law involves the issuance of bothleases and licenses. A lease (which is also calleda “concession”) grants the use of a particulararea of the coastal waters for aquaculturepurposes and is applied for and granted first. Alicense (also called an authorization) is thenrequired to develop an aquaculture facility. Inapproving a license, the government isapproving an operating plan to culture aparticular species on a specific site in a certainmanner.

Agencies implementing this law areauthorized to issue regulations to complementthe general provisions in the law. Regulationsissued so far deal with:

• granting concessions (leases) andauthorizations (licenses)

• setting up a national registry of aquacultureoperations

• establishing the number and size ofcultivation structures

• outlining procedures for importingaquaculture species

• setting requirements for certifying thatimported species are disease-free

• applying for importation of species for thefirst time



In Chile, marine aquaculture is regulated bythree agencies—the Sub-Secretary for MarineAffairs of the Ministry of Defense, theSub-Secretary for Fisheries in the Ministry ofEconomics, and the Secretariat General of thePresident’s National EnvironmentalCommission (CONAMA). The role of eachagency is briefly described below.

1. Sub-Secretary for Marine Affairs of the

Ministry of Defense—This sub-secretaryhas control and enforcement powers over allof the Chilean coast and coastal waters. Ithas the exclusive power to issue permits forusing coastal waters for any activity,including aquaculture. Hence, it is theSub-Secretary for Marine Affairs thatapproves applications for aquaculture leases(concessions) after review by theSub-Secretary for Fisheries. Leases aregranted for an indefinite period and can betransferred, sub-leased, or sold.

2. Sub-Secretary for Fisheries of the

Ministry of Economics—The Sub-Secretaryfor Fisheries is responsible for themanagement and preservation of the livingmarine resources of the rivers and the sea. Italso manages aquaculture activities in Chileincluding the culture systems, the speciesunder cultivation, and the introduction ofnon-indigenous species. Thus, in an areaspecified as “suitable for aquaculture” (see“siting of facilities” below) and for which alease (concession) has been obtained, a fishfarmer can apply for a license(authorization) from the Sub-Secretary forFisheries to develop an aquaculture facility.When a farmer receives an aquaculturelease or license, he is required to register itwith the National Aquaculture Registeroperated by the National Fisheries Service

(of the Sub-Secretary for Fisheries) beforebeginning operations.

3. Secretariat General of the President’s

National Environmental Commission

(CONAMA)—This agency determinesenvironmental policy with respect to allactivities that can impact the country’snatural resources and environment. One ofits major tools is the environmental impactassessment (EIA) system, which it oversees.CONAMA, as a part of a national policy forrenewable natural resources management(issued in January 1999), describesaquaculture as one of the most dynamic andproductive areas of natural resource use.Three specific environmental concerns arementioned: degradation of coastal waters;impact on natural species, and effects ofhigh intensity salmon culture on some waterbodies. The policy document also describesthe need for the enactment of “rules foraquaculture” that regulate theenvironmental impact of this activity inChilean waters. CONAMA has alsodeveloped guidelines for environmentalimpact assessments involving the culture ofliving marine resources (Guidelines for EIAfor Hydrobiological Resources Culture andProcessing Plants).

4. Siting of aquaculture facilities—In Chile,siting conflicts have most often occurredbetween aquaculture and tourism, small-scale fishery interests, and other users ofrivers and coastal areas. Conflicts typicallyinvolve maritime traffic in the channels ofports and bays, maritime safety issues, theuse of harbor space, and the conservationand protection of natural areas.



In an effort to reduce conflicts, a processcalled “Determining Areas Suitable forAquaculture” was established. The purpose ofthe process was to determine areas suitable foraquaculture in each of Chile’s nine coastalregions. Commissions were set up in eachregion and information was collected from allinterested parties. Based on this information,maritime and fishery authorities made draftdecisions concerning the areas suitable foraquaculture with the final decisions enacted intoExecutive Decrees by the Ministry of Defense(Sub-Secretary of Marine Affairs). Finaldecrees are now in place for six regions but havenot yet been issued for three other regions wheredifferences of opinion apparently exist betweenthe Sub-Secretary for Fisheries and theSub-Secretary for Marine Affairs (the Navy).

It is likely that marine aquaculture willcontinue to be aggressively pursued in Chile.Environmental problems and conflicts withother users have been encountered but seem tobe addressed. As mentioned above, there remainmany good locations for marine aquaculture,especially in the southern area of the coast, butadequate infrastructure will have to be created tosupport the new activities. Like Norway,Chilean fish farmers have faced charges of“dumping” on the U. S. market with penaltiesand tariffs of up to 40% being imposed on 10Chilean aquaculture companies. Nonetheless, itwould appear that the future growth of theindustry will depend on the level of world pricesand the continued profitability of the productsproduced by marine aquaculture in Chile.

�Australia

Marine aquaculture is a growing activity inAustralia with 85 percent of total productionoccurring in coastal waters. Marine and

freshwater aquaculture production was valued atA$491 million (US$278.5 million) in 1998.Leading industry species include pearl oysters,Southern Bluefin Tuna, and Atlantic salmon.Pearl production from tropical WesternAustralia and the Northern Territories represents30-50 percent of the total industry value.Southern Bluefin Tuna production based oncoastal net pen holding/fattening operations forexport of sashimi grade tuna to Japan was valuedat approximately A$130 million (US$74million) in 1999. Atlantic salmon productioncentered in Tasmania using coastal net pens wasvalued at A$63.6 million (US$36 million in1998 (Department of Agriculture, Fisheries andForestry-Australia 2000; Allan 1999). Othermarine species cultivated in coastal watersinclude Pacific and Sydney rock oysters,mussels, scallops, abalone and seaweed. Inaddition to these species, marine shrimp,barramundi, crocodiles, and aquarium fish arealso under aquaculture and experimentation istaking place with a number of other species.

Interestingly, the Commonwealth government(the national government of Australia) does notseem to have had a significant role in marineaquaculture. An agreement in the 1980s gavethe six states and the Northern Territory controlover their coastal areas and the marine resourcescontained therein. The Commonwealthgovernment, of course, is responsible for theconduct of the foreign policy of Australia and, assuch, enters into various internationalagreements and treaties, some of which couldhave implications on marine aquacultureactivities. Also, the Commonwealthgovernment has, from time to time, providedfunding for various kinds of coastal planning,management, and development activities.

Since marine aquaculture is presentlyregulated at the state (or territorial) level, thereare substantial differences in the regulatory



frameworks presently in use. By way ofexample, the regulatory process of twostates—Tasmania and South Australia—arebriefly described below. The other four statesand the Northern Territory follow somewhatsimilar approaches.

Tasmania

The major aquaculture species undercultivation in Tasmania are Atlantic salmon andPacific oyster, with a smaller volume ofactivities involving native oysters, blue mussels,scallops, abalone, and seaweed. New speciesunder development include striped trumpeterand flounder.

The Division of Sea Fisheries of theDepartment of Primary Industry and Fisheries isthe lead agency for aquaculture in Tasmania.Also involved are the Department ofEnvironment and Land Management, localmarine boards, the Department of Tourism,Sport and Recreation, and the MunicipalAssociation of Tasmania. The principalenabling legislation is the Fisheries Act of 1959,the Fisheries Amendment Act (marine farming)of 1982, and the Crown Lands Act of 1970.

The regulatory framework involves leases,permits, and licensees. A marine farm lease forshallow water (including the use of the seafloor)or permit (for deep water, not including the useof the sea floor) provides tenure for up to 20years. The holder of such a lease or permit isable to apply for a marine farm license whichgoverns the operational use of the leased (orpermitted) area (Anutha and O’Sullivan1994).

Upon receipt of a marine farm application,the Division of Sea Fisheries consults with anumber of other agencies using a mechanismcalled the Marine Farm Management

Committee. This committee meets on a monthlybasis and consists of representatives of thefollowing agencies:

• Division of Sea Fisheries

• Department of Environment and LandManagement (Tasmania Property ServicesGroup, Planning Division, Division ofEnvironmental Management, Parks andWildlife Service)

• Department of Tourism, Sport andRecreation (Tourism Division)

• Marine Board of Hobart

• Municipal Association of Tasmania(representing local governments)

If a proposal raises problems and is likely tohave a major environmental impact, the Divisionof Sea Fisheries can recommend to theDepartment of Environment Control that aDevelopment Proposal and EnvironmentalManagement Plan (DEMP) be required.

Rent and license fees are charged on anannual basis. Rents are based on sea acreageleased and license fees are related to the speciesbeing cultivated. In 1993, salmon farmers paidA$1750 base rent plus A$100 per hectare of arealeased. The salmon license fee was A$1500. Atypical shellfish farmer paid $100 base rent plus$25 per hectare and a $1500 license fee.

Typically, salmon net cages are located outto a maximum distance of 3-4 kilometers fromthe shoreline. Farms operated by differentoperators must be located at least one kilometerapart. In some circumstances (e.g., net cagescontaining large amounts of fish), videosurveillance of the seafloor along set transects



under the cages takes place every six months.Cages are required to be moved from time totime to allow the benthos to recover.

South Australia

It appears that South Australia has a rapidlygrowing aquaculture industry based on theintertidal culture of Pacific oysters and, morerecently, the growout of southern bluefin tuna insea cages. In addition, being tested are the greenlip and black lip abalone, cage culture ofsnappers, and the southern rock lobster.

Until recently, the regulatory framework hasbeen fragmented between a number of stateagencies. Overlapping responsibilities existedin the area of leasing and licensing, resourceallocation, environmental management, anddeveloping planning. Now an AquacultureCommittee has been established as asubcommittee of the South Australia PlanningCommission and it has been delegated authorityto approve the issuance of leases and licensesand to give development approval.

The new Aquaculture Committee consists ofrepresentatives of the Department of PrimaryIndustries, the Department of Environment andNatural Resources, the Department of Housingand Urban Development (HUD), theConservation Council of South Australia, andthe South Australian Fishing Industry Council.The Committee is supported by an AquacultureTechnical Advisory Group.

A single coordinated application form can belodged with the nearest planning authority orwith HUD to start the policy process ($35license fee). The application is circulated forcomment to interested government agencies,local governments and industry groups. The

development application is then advertised forpublic comment over a two-week period ($150fee). The Aquaculture Technical AdvisoryGroup (ATAG) assesses the application againstthe Aquaculture Development Guidelines,approved aquaculture management plans, andrelevant legislation and government policytogether with any objections received, andwrites a report to the Aquaculture Committee forconsideration at its next monthly meeting. TheAquaculture Committee considers thecomments of the ATAG and other factors andmakes a decision. The process can take as littleas six weeks but normally takes from three to sixmonths with appeals adding up to 12 months tothe overall process.

Environmental impact statements (EIS) arerequired for significant developments in SouthAustralia. Other things being equal, thedevelopment of the Port Lincoln tuna farmingproject (see below) would seem to have requiredthe preparation of an EIS but, in this case, theexistence of a Port Lincoln AquacultureManagement Plan done in 1993 appears to havemet the requirements of an EIS. Indeed,aquaculture management plans have become animportant method for allocating marine andcoastal resources since 1987. There is now asystem of aquaculture management plans inplace or near completion for all of the existingmajor aquaculture areas in the state(REFERENCES).

In terms of rent and fees, the government ofSouth Australia endeavors to recover the cost ofadministration and management of aquaculturein the state. Fair market value is charged forlicenses and leases. A fully developed oystersite of 10 hectares, harvesting about 90,000dozen bushels per year, would pay about $5000annually in fees and rents.

As mentioned above, one of the newdevelopments in South Australia involves the



southern bluefin tuna. A substantial aquacultureoperation involving bluefin tuna is beingdeveloped out of Port Lincoln. Juvenile tuna arecaught in purse seines, moved to “tow” cages,and then towed up to 400 kilometers (over a oneto two week period) to the vicinity of PortLincoln where they are again transferred, thistime to “growout” cages. These cages are up to40 meters in diameter and 15-17 meters in depth.They are typically located in water depths of18-25 meters and are up to 7.5 kilometers fromthe mainland. Growout cages can occupy nomore than 30% of the site and must be at leastone kilometer from both the shoreline and otheraquaculture sites. Because of concerns overaesthetics, operators are tending to locate newsites at least four kilometers from the shoreline.As they move to more exposed sites,aquaculturists estimate that they will need cagesthat can withstand from five to six meter seas.Of course, quotas are required to take the tuna inthe first place since southern bluefin tuna inAustralia are under an ITQ system.

�New Zealand

The waters of the Southern Pacific Oceansurrounding New Zealand and its offshoreislands support commercial fisheries for 32species of marine fish and shellfish withlandings valued annually at between NZ$1.1 toNZ$1.5 billion (New Zealand Seafood IndustryCouncil, NZSIC, 2000). Significant expansionof the fishing industry to offshore and deepwaterlocations occurred following establishment of anExclusive Economic Zone (EEZ) in 1978. TheEEZ extends to 200 miles offshore andencompasses 1.2 million square nautical milesof clean, highly productive waters ideal for bothcommercial fisheries and aquaculture. In 1986,the government of New Zealand introduced aQuota Management System (QMS) to conserve

major fisheries stocks and improve the economicefficiency of the industry by adopting anintegrated, ecosystems management approach(NZSIC 2000).

Marine aquaculture, valued at NZ$149.2million during 1998, is a relatively small but fastgrowing sector of the fishing industry. Theseafood industry (including aquaculture)supports an estimated 10-11,000 jobs, themajority of which are located in rural coastalcommunities (NZSIC 2000). Fisheries andaquaculture development have also contributedto social cohesion via increased businessparticipation and employment opportunities formembers of native indigenous tribes (Maori andIwi). Besides the economic value derived fromcommercial fishing and aquaculture, thesuperior quality of New Zealand’s coastal watersand diverse aquatic habitats are also highlyvalued for ecotourism, recreation and aesthetics.

The two principal products of New Zealandmarine aquaculture industry are Greenshellmussels and Pacific (King) Salmon. Othershellfish species commercially produced in NewZealand but on a much smaller scale includePacific Oysters, blue mussel and Paua orabalone. All species are farmed in relativelyprotected nearshore coastal waters. Salmon areproduced in floating cages located in rivermouths or in coastal ocean waters ofMarlborough Sounds and Stewart Island. During1998, the salmon industry was valued atNZ$31.5 million. Japan (76%) and Australia(10%) are the largest markets for foreign exportsof frozen, chilled and processed (smoked)salmon products (NZSIC 2000).

Greenshell mussels, which are native to NewZealand, are produced utilizing Japanese longline technology on farms moored along the coastin open waters of Marlborough Sounds, theCoromandel Peninsula, and Stewart Island. The



mussel industry, valued at NZ$118 millionduring 1998, includes more than 600 farmsoccupying 2,850 hectares of coastal waters. Theindustry has expanded rapidly (>490%) since1988 when exports were valued at NZ$24million. Live, chilled, frozen and processedproducts are exported to 55 countries. Recentadvances in gear technology may allow futureindustry expansion into less protected offshoresites. Continuing and bright prospects for futuregrowth of the mussel industry are attributed toinnovative improvements in the areas ofproduction, harvesting and processing and closeattention to maintaining environmental andproduct quality. The industry, with governmentparticipation and support, has developed andinstituted an Environmental Code of Practice(ECOP) that specifies best managementpractices that are both environmentallyresponsible and cost effective. The industryenvironmental policy stresses the “5R”principles of waste management – reduction,reuse, recycling, recovery and residualmanagement (New Zealand Greenshell Mussels2000).

The Ministry of Fisheries (Mfish),established in 1995 as a stand-alone agency, hasstatutory authority under the Fisheries Act forconservation and management of all marine andfreshwater commercial and recreationalfisheries including marine and freshwateraquaculture. The Ministry is not subsidized bythe government and develops its operatingbudget based on fees and other administrativecharges to resource users. The Ministry hasresponsibilities for:

• providing for the utilization of fisheriesresources, while ensuring sustainabilityand contributing to the health of the wideraquatic environment;

• minimizing risks to the marineenvironment from unwanted organisms;

• developing frameworks and managingprocesses that ensure the Crown delivers toMaori on its Article 2 (Treaty of Waitangi)fisheries obligations; and

• ensuring the integrity of fisheriesmanagement systems(see http://www.fish.govt.nz/).

In cooperation with Mfish, the Ministry forthe Environment and the Department ofConservation consult with fisheries stakeholders(including aquaculturists) to developsustainability plans for managing NewZealand’s fisheries resources that incorporateenvironmental, cultural, economic and socialfactors.

Aquaculture, as a sub-sector of commercialfisheries, falls under the jurisdiction of theMinistry of Fisheries. The Ministry requires allfarms to have a fishing permit for the removal or“harvest” of aquatic organisms from Statewaters. Regional and District Councils areresponsible for application review and issuingleases and operating licenses for aquaculturefacilities. Cultural, economic, and social andenvironmental factors, and the opportunity forpublic comment are considered in the granting ofa marine farming lease or license. A feestructure (referred to as Aquaculture Levies andTransaction Charges) is applied to all holders ofpermits, leases or licenses to recoverenforcement and research costs related toaquaculture.

As part of its mission for “developingframeworks and managing processes that willcontribute to the efficient use of resources acrossthe fisheries sector,” the Ministry of Fisheries, in1998, authorized a review of the 1996 FisheriesAct. The resulting report Fishing for the

Future—Review of the Fisheries Act 1996



examined the existing legislative framework forcommercial fisheries management in NewZealand and recommended changes to improvethe use of commercial fisheries resources (seeHartevelt 1998). With regard to the overall scopeof the Fisheries Act, the review recommended:

• a fundamental realignment of the roles ofGovernment and fisheries stakeholders andthe implementation of transparent con-sultation and decision-making processes;

• a simplified and less prescriptive operatingregime than exists under the Fisheries Act1996; and

• devolving to fisheries rights holders theresponsibility for fisheries management atthe discretion of the Minister.

Among the review’s conclusions andrecommendations were several related toaquaculture. In part, the review concluded thatlegislation regulating aquaculture in NewZealand is fragmented and outdated. A numberof issues face the aquaculture industry as aconsequence. These include:

• a lack of certainty over rights andresponsibilities of aquaculturists;

• aquaculture’s relationship to wildfisheries; and

• overlapping regulatory regimes for themanagement of environmental effects.

To address these issues, the reviewrecommended that aquaculture provisionsshould be included in the Fisheries Act to:

1) Appropriately define Aquaculture - byamending the Act to define aquaculture asany activity that occupies land or the aquatic

environment and/or uses structures for thepurpose of exclusive possession and controlof aquatic life.

2) Exempt Aquaculture from theRequirement to Have a Fishing Permit—byretaining provisions in the Act exemptingaquaculture from the requirement to obtaina fishing permit.

3) Require an Authorization for Spat Collec-tion—by amending the Act to require thatspat collection have an authorization underthe Act. This authorization could be in theform of a Fishing Permit and be regulatedunder the quota management systemprovisions of the 1996 Act.

4) Introduce a Marine Farming Section tothe 1996 Act—by amending the Act toinsert aquaculture provisions as a new Partto the Act. The suggested provisionsspecifically address such issues as marinefarming occurring in a quota managementarea or fisheries management areas; therelationship of a marine farmingauthorization to coastal permits issuedunder the Resource Management Act(1991); restrictions for granting of newmarine farming authorizations to currentleaseholders; consideration of environ-mental, economic, social and culturalimpacts of marine farming; publicnotification and comment to marine farmingapplications; arbitration procedures forcontentious applications; terms of marinefarming authorizations including mo-dification, cancellation, duration, tran-sferability, and environmental monitoring.

5) Limiting Overlap with the ResourceManagement Act 1991—provision should



made in the Marine Farming Section of theAmended Act to allow for equivalency ofResource Management Act 1991 provisionson the regulation of adverse effects ofmarine farming on the aquatic environment.

� Japan

The Japanese diet has six times more of itsprotein coming from seafood than the Americandiet. Hence, the Japanese have long had a verylarge and active fisheries industry. When wildcapture fisheries began to decline in the 1970s,the Japanese naturally moved towardaquaculture to fill the gap. As a result, Japannow has a substantial set of aquacultureactivities involving shellfish (especially scallopsand “cupped” oysters), sea algae, salmon,yellowtail, bluefin tuna, amberjack, and others.Aquaculture provided 15% of Japan’s fish andseafood landings of 7.4 million metric tons in1997. At the present time, most of the seafarming in Japan is devoted to the culturing ofsea algae and shellfish of one type or another.With the exception of “sea ranching” of salmon,aquaculture activities in Japan at present are allconducted in sheltered coastal waters or inlandseas.

While the enabling legislation for fisheriesmanagement including aquaculture (the Law ofFisheries) has been adopted at the national level,the brunt of the administration of the regulatoryframework is conducted at the prefecture (state)or local level. Japanese coastal aquaculture,which is conducted in public waters, is legallyprotected by an “aquaculture right” (AR). Theprefecture governor is formally responsible forthe administration of fishing rights, includingaquaculture rights, but this is delegated to theDivision in charge of fisheries in the prefecture

government. Under Japanese federal law (theLaw of Fisheries), only groups of fishermen,organized into fisheries cooperative associations(FCA, henceforth, cooperatives) can apply foran aquaculture right. However, because of thelarge investments typically involved, pearlfarmers can apply for an aquaculture right on anindividual basis.

Applications for an aquaculture right mustinclude information on the species to becultured, the type of facility to be constructed,sea area involved, seasonal nature of the activity,and other aspects of the proposed operation. Theprefecture governor determines the precise areaover which the right is to be granted and theconditions and limitations to be applied, afterreceiving advice from the Prefecture FisheriesCoordination Committee. This committee isresponsible for overall planning with respect tofisheries and for establishing all fishing rightsthroughout the prefecture. Once granted, theaquaculture right is valid for five years and isrenewable upon application to the prefecture.

The aquaculture right is divided into anumber of lots each of which is assigned to amember of the responsible cooperative whowants to engage in aquaculture. The cooperativeis required to create an AR managementcommittee, which has the duty of developingrules on how to use the aquaculture right for thebenefit of the participating fishermen. Theserules apply to:

• fair allocation of lots

• the size of aquacultural facilities to beconstructed

• the number of facilities to be allowed perunit area



• the stocking ratios, etc.

This approach to the regulation of aquaculturehas the following advantages:

• The aquaculture right grants an exclusiveuse to a specific sea area for aquaculture sothat fish farmers have the right to reject anyperson who may come into theiraquaculture grounds with the potential fordisturbing their activities.

• Fish farmers can maintain a harmoniousorder for the use of sea areas foraquaculture and it is unlikely there will bedisputes among themselves.

• Maximum sustainable yield can beachieved if all of the participating fishfarmers observe the rules established bythe cooperative (Yamamoto 19—).

Two examples of aquaculture that havereceived considerable emphasis in Japan in thelast several decades—“sea ranching” andscallop culture—are briefly discussed below.

Sea Ranching

This is a resource enhancement system inwhich the target species are produced andnurtured at protected areas, then, when able tosurvive on their own, are released into the opensea and are finally, on their return, recapturedeither by the general public or the group offishermen who are involved in the earlieractivities of fingerling or seed production and/orthe nursing of the target species. Sea ranching inJapan currently involves chum salmon, “hokkai”shrimp, and red seabream. The nationalgovernment invested more than 500 billion yenbetween 1976 and 1994 in activities promotingthe development of sea ranching in various partsof Japan.

Scallop Culture

In contrast to the situation in the UnitedStates where fishermen rely almost entirely onthe wild harvest and the natural recruitment ofspat (tiny scallops that settle on the seafloor afterspawning) and on the wild harvest of matureanimals, the Japanese scallop industry is entirelybased on a directed effort to collect spat from thewater and the growout of spat into marketablescallops using hanging nets, hanging lines, andon the bottom. In 1997, fishermen from Japan’stwo most northern prefectures, Hokaido andAomori, harvested 460 thousand metric tons(live weight) of scallops, meat weight of 88thousand metric tons (or 195 million pounds).Careful scientific studies permit theaquaculturist to accurately predict when thespawning of scallops in particular bays is goingto occur. Special mesh bags containing oldpieces of gill net are hung on long lines with thetopmost line 5-10 meters below the surface andlowest bags 10-15 meters off the bottom. Whenthe spat reach a shell size of about 10millimeters, they are transferred to larger meshbags (called pearl nets because they are similarto those used in the pearl culture) to facilitatefurther growth. These nets (shaped into anenclosure) are hung two-three feet apart from along line which is supported just below thewater’s surface. Six to eight months later, whenthe juveniles reach a size of about 2-l/2 inches,the scallops are moved to the final growoutphase, either by suspending them on longvertical lines using “ear” hanging (small holesdrilled in the “ears” of each half of the scallopshell) or in “lantern nets” or in bottom culturedscallop beds. Subsequently, the mature scallopsare harvested and processed. In 1997, 56 percentof the scallops were boiled, 27 percent werefrozen, about 8 percent were dried, 6 percent



were canned, and only 3 percent were sold asfresh product (Rappaport 1999).

Issues Currently Facing Japanese

Aquaculture

1. More work is needed to develop hybridspecies with higher growth rates (like thetilapia hybrid).

2. Too much of Japan’s aquaculture industrydepends upon fresh sardine as its food

source causing seawater pollution problemsand disease of the fish being cultured. Redtides are also associated with uneaten feed.Mass production of pellet type feeds isurgently needed.

3. Coastal areas suitable for aquaculture arebeing exhausted. Hence, rather thanextensive horizontal development, greateruse will have to be made of the watercolumn and seafloor and of areas furtheroffshore.

POLICY GUIDANCE FROM INTERNATIONAL ENTITIES

In addition to the experience of individualnations in the management of marineaquaculture, we can also, increasingly, look tointernational agencies to provide guidance onhow aquaculture operations may be conducted inan environmentally sustainable fashion.

The UN Food and Agriculture Organization(FAO), addresses aquaculture as part of itsmission relating to world food production. FAOhas sought to apply principles of sustainabledevelopment to world fisheries, which includeaquaculture. The result has been the issuance ofa Code of Conduct for Responsible Fisheries,with companion guidelines that explicitlyaddress application of the code of conduct toaquaculture development. In the United States,the National Marine Fisheries Service is nowadapting FAO’s Code of Conduct.

This section (drawn from Bunsick 1998)examines the guidelines provided by FAO,which incorporate guidance by the broaderinternational environmental organizations aswell as more detailed guidance from theInternational Council for the Exploration of theSeas (ICES). The chief guidance from thebroader international environmental community

relates to the application of a precautionaryapproach to aquaculture. The ICES guidelinesare mainly concerned with an international codeof practice with respect to genetic resources.

�FAO Code of Conduct for

Responsible Fisheries

The Code of Conduct for ResponsibleFisheries was adopted unanimously by FAOmembers (including the United States) onOctober 31, 1995. The Code is considered “softlaw” in that countries voluntarily adopt it andthere is no legal enforcement mechanism torequire implementation. A key purpose of theCode is to provide overall guidance to individualcountries as they develop their nationallegislation.

Article 9 of the Code of Conduct contains themajor provisions for aquaculture (Figure 6.1).The Code focuses on areas of nationaljurisdiction, and includes specific guidance forthree concerns: Transboundary ecosystems,genetic resources, and production-levelconsiderations.



National jurisdiction. Article 9.1 concernsthe need for an overall legal and administrativeframework for aquaculture, as well as amanagement approach based on advanceevaluation using the best scientific informationavailable and strategies/plans for industrydevelopment. Specific consideration needs to begiven to local community livelihood and theneed to maintain access to fishing grounds.Specific procedures are needed forenvironmental enforcement and monitoring andrisk reduction (i.e., minimize adverse ecologicaland related socio-economic changes).

Transboundary ecosystems. Article 9.2emphasizes the need to consider impacts ofindustry development on neighboring

jurisdictions. Natural ecosystems do not respectartificial political boundaries established bynations, and aquaculture facilities operatingwithin one national jurisdiction could haveimpacts in other jurisdictions. Nations thereforeneed to include protection for suchtransboundary ecosystems in making decisionson which species to grow, where to locate anaquaculture production facility, and how tomanage such facilities. Monitoring and datacollection is especially important for operationsin transboundary ecosystems; databases need tobe maintained, and relevant information sharedwith neighboring countries. In particular,nations should consult with neighboringjurisdictions prior to authorizing non-indigenousspecies in transboundary ecosystems.



FAO Code of Conduct for ResponsibleFisheries--Aquaculture Development (Art. 9)

National Jurisdiction (Art. 9.1)

• Legal/administrative framework

• Development/management basis: advanceevaluation, best scientific info available

• Strategies and plans

• Local community livelihood; access tofishing

• Procedures specific to aquaculture– Environmental assessment & monitoring

– Minimize adverse ecological & relatedsocio-economic changes

Transboundary Ecosystems (Art. 9.2)

• Protect ecosystem

• Species, siting, management choices

• Consult on non-indigenous species

• Databases, information networks

• Monitoring mechanism

Genetic Resources (Art. 9.3)

• Conserve genetic diversity– Minimize effect of escapes

• Int’l codes of practice (e.g. ICES)

• National codes to minimize risk ofdisease transfer, etc.

• Broodstock, eggs, fry, larvae

• Endangered species

Production Level (Art. 9.4)

• Support rural communities, producers

• Participation

• Feeds, additives, fertilizers

• Therapeutics, hormones, antibiotics

• Regulate chemicals

• Waste disposal

• Food safety

Figure 6.1. FAO Code of conduct contains the major provisions for aquaculture

Genetic resources. Article 9.3 emphasizesthe need to conserve genetic diversity byminimizing escape of cultured stock. The Codeencourages states to voluntarily implement theCode of Practice on the Introduction andTransfer of Marine Organisms developed by theInternational Council for the Exploration of theSeas (ICES, discussed later in this chapter) andto establish national codes to minimize the riskof disease transfer, etc. Impacts on geneticresources need to be considered in provisionsrelating to all livestock (including broodstock,eggs, fry, and larvae), with particular attention toeffects on endangered species.

Production. Article 9.4 considers social aswell as practical aspects of aquacultureproduction. Aquaculture development shouldsupport rural communities and producers, andshould involve public participation. Specificoperational aspects must also consider impactsthat may result from the everyday use of feeds,additives, and fertilizers and in the varioustherapeutics, hormones, and antibioticsadministered to the stock to fight disease,promote growth, etc. Specific regulatoryprovisions are needed for the use of chemicals,disposal of waste, and food safety concerns (forexample, requiring sufficient time for any drugs,etc. to leave the livestock prior to harvesting forsale on the market).

�FAO Aquaculture Guidelines

According to FAO’s technical guidelines,aquaculture development and support planningshould: 1) Encompass all relevant aspects ofsupport and management of the industry; 2)consider existing plans and efforts aimed at foodsecurity, sustainable agriculture and ruraldevelopment; and 3) be a collaborative effortamong those concerned. For aquaculture to be

considered an appropriate and responsible use ofland and water resources, approved locationsmust meet certain criteria (e.g., suitable forsustainable production and income generation;economically and socially appropriate; preventor minimize conflict with other users; avoidundue externalities; respect nature reserves,protected areas, and critical or especiallysensitive habitats). Relevant zoning or siteregulations should conform with requirementsof plans for regional development, river basin orcoastal management, and their respectiveauthorities. To achieve appropriate, sustainabledevelopment in the public interest, nations willneed to build institutional capacity andstrengthen linkages to agriculture, ruraldevelopment, irrigation, engineering, and waterdevelopment. Figure 6.2 presents the types ofquestions that need to be asked in evaluatingcompliance with FAO guidelines.

�The Precautionary Approach

FAO’s Code of Conduct for ResponsibleFisheries incorporates a precautionary approachbased on Principle 15 of the Rio Declaration ofthe 1992 United Nations Conference onEnvironment and Development (UNCED, seeFigure 1.2 in Chapter 1). The precautionaryprinciple refers specifically to threats of seriousor irreversible damage and provides a guidingprinciple for managing resources underscientific uncertainty. FAO’s precautionaryapproach specifically addresses the conservationof species (both target and non-target) and theirenvironment, while the UNCED definitionrefers more generally to environmentaldegradation.

FAO has provided guidance for applying theprecautionary approach to species introductions.Overall, there is a need to consider future





Figure 6.2. A Questionnaire based on the FAO Code of Conduct for Responsible Fisheries--Article 9

9.1 Areas under national jurisdiction� Has the best available scientific information been used?� Are the effects on genetic diversity and ecosystem integrity evaluated in advance?� Is there allowance for the rational use of resources shared with other activities?� Are there negative impacts on livelihoods of local communities and their access to fishing grounds?� Are there aquaculture-specific procedures for environmental assessment and monitoring?� Are these procedures aimed at minimizing adverse ecological changes and related economic and social

consequences?

9.2 Trans-boundary aquatic ecosystems� Do existing aquaculture practices protect transboundary aquatic ecosystems?� Does the management system ensure responsible choices of species, siting, and activities which could

affect transboundary aquatic ecosystems?� Is there a transboundary consultative process for introductions of nonindigenous species?� Are there mechanisms to facilitate cooperation at the national, subregional, regional and global level

(e.g., databases, information networks)?

� Is there a mechanism to facilitate cooperation in the monitoring of impacts?

9.3 Use of aquatic genetic resources� Are there management measures that conserve genetic diversity and maintain integrity of aquatic

communities and ecosystems?� Are there efforts to minimize the harmful effects of introducing non-native species or genetically altered

stocks? Is special attention given to transboundary ecosystems?� Are steps to minimize adverse genetic, disease and other effects of escaped fish promoted?� Is there a mechanism for cooperation toward elaboration, adoption and implementation of international

codes of practice and procedures?� Are risks of disease transfer and other adverse effects on wild and cultured stocks minimized in the

genetic improvement of broodstocks, introduction of non-native species, and the production, sale, andtransport of eggs, larvae or fry, broodstock or other live materials?

� Are procedures for selecting broodstock and producing eggs, larvae, and fry appropriate?� Is research and development to protect, rehabilitate and enhance endangered species while conserving

genetic diversity promoted?

9.4 Production level� Do aquaculture practices support rural communities, producer organizations, and fish farmers?� Is active participation of fish farmers and their communities promoted? Is community input

incorporated?� Are there efforts to promote improved selection and use of feeds, additives, and fertilizers?� Do farm and fish health management practices favor hygienic measures and vaccines?� Are therapeutants, hormones and drugs, antibiotics and other disease control chemicals used safely,

effectively, and minimally?� Is the use of chemicals hazardous to human health and the environment regulated?� Is waste disposal (offal, sludge, dead or diseased fish, excess veterinary drugs, hazardous chemicals)

hazardous to human health and the environment?� Is food safety of aquaculture products ensured?� Is maintenance of product quality promoted (through care before harvesting as well as during

harvesting, on-site processing, storage, and transport)?

*These questions have been selected and modified from “Sustainable Aquaculture Certification: A

Questionnaire Based on the FAO Code of Conduct for Responsible Fisheries” (Sproul).

generations and to avoid changes that are notpotentially reversible. Undesirable outcomes, aswell as measures to avoid/correct anticipatedproblems, should be identified in advance.When problems occur, corrective measuresshould be initiated immediately and problemsshould be corrected within 2-3 decades. Whereimpacts are uncertain, priority should be given toconserving the productive capacity of theresource. Harvesting and processing capacityshould be commensurate with sustainable levelsof the resource. Fisheries management shouldbe linked with general environmentalmanagement.

An important element in FAO’sprecautionary approach is the appropriateplacement of the burden of proof (i.e.,responsibility for providing relevant evidence).FAO’s precautionary approach reverses theburden of proof by assuming 1) all fishingactivities have environmental impacts and 2) it isnot appropriate to assume that these arenegligible until proved otherwise. However, theguidelines state that this does not imply that nofishing (and presumably no aquaculture) cantake place until all impacts have been assessedand found negligible. It does require allactivities be subject to prior review andauthorization, with appropriate managementplans and measures for assessing, monitoring,and addressing impacts. The standard of prooffor decisions (i.e., the criteria used to judgeevidence) should be commensurate with thepotential risk to the resource, while also takinginto account the expected benefits of theactivities.

The key points in FAO’s technicalguidelines for implementing a precautionaryapproach are:

1. Changes in fisheries systems are onlyslowly reversible, difficult to control, notwell understood, and subject to changingenvironment and human values.

2. Aquaculture species introductions shouldbe treated as a purposeful introduction intothe wild, based on the assumption thatanimals will usually escape (even fromclosed quarantine or hatchery facilities).

3. Escapes could produce irreversible,unpre- dictable impacts (e.g., changes inspecies distribution/abundance). Althoughthese impacts usually cannot be eradicated,it may be possible to mitigate undesirableeffects.

4. In implementing precautionary manage-ment, it is necessary to explicitly considerundesirable and potentially unacceptableoutcomes and make contingency plans toavoid or mitigate these outcomes.

5. Nations should adapt ICES procedures tonational law.

� ICES Code of Practice

The Code of Practice on the Introductionand Transfer of Marine Organisms developed bythe International Council for the Exploration ofthe Seas (ICES) is cited by FAO as a model forindividual nations to modify, adapt, andimplement in addressing problems stemmingfrom the difficulty of reversing an introductionand its adverse effects. The ICES Code providesa procedure for assessing the risks of intentionalintroductions on fisheries, including arequirement for research activities in advance ofan introduction (as noted above, FAO guidelinestreat all aquaculture introductions as intentional



based on the assumption that fish will escapefrom aquaculture enclosures). Pre-introductionresearch should include 1) a desk assessment ofthe biology and ecology of the intendedintroduction; 2) detailed analysis of potentialenvironmental impacts (hazard assessment); and3) examination of the species within its homerange. A prospectus based on this research,including detailed analysis of potential impactson the aquatic ecosystem (ecological, genetic,disease), should be submitted to ICES forapproval. Procedures for introductions shouldinclude 1) brood stock quarantine; 2) limitedintroduction of first generation progeny to assessinteractions with native species in open waters;3) sterilization of all hatchery effluents; and 4)continuing study of the introduced species in itsnew environment.

ICES distinguishes between introduced ortransferred species which are part of currentcommercial practice and the release ofgenetically modified organisms (GMOs), withthe latter subject to more stringent precautionarymeasures. ICES encourages regulatory agenciesin member countries to use the strongest possiblemeasures to prevent unauthorized or unapprovedintroductions.

�Sustainable Development

Underlying FAO’s guidelines onaquaculture development is the concept ofsustainability. According to the BrundtlandCommission, sustainable development is“development that meets the needs of the presentwithout compromising the ability of futuregenerations to meet their own needs” (WorldCommission on Environment and Development1987). Clearly, the precautionary approach is

consistent with this definition, since it impliesthe need to preclude development that has thepotential to inflict irreversible harm (whichobviously will affect future generations). TheBrundtland Commission’s definition has beenadopted in the United States by the President’sCouncil on Sustainable Development.

The definition of sustainable developmentadopted by FAO (FAO Council, 98th Session,1988) focuses on its mission with respect toresource conservation and management: “Themanagement and conservation of the naturalresource base, and the orientation oftechnological and institutional change in such amanner as to ensure the attainment andcontinued satisfaction of human needs forpresent and future generations.” Because thisdefinition focuses specifically on technologicaland institutional change, it has somewhat moredirect applicability as a criterion for assessingpolicy options for an overall policy frameworkfor the development of offshore marineaquaculture. Additional FAO guidance providessome possible ways to operationalize thesustainable development definition.Specifically, does the policy option beingconsidered promote aquaculture developmentthat:

• Conserves land, water, plant, and geneticresources?

• Is environmentally non-degrading?

• Is technologically appropriate?

• Is economically viable?

• Is socially acceptable?



LESSONS LEARNED RELEVANT TO THE POLICYAND REGULATORY FRAMEWORK

FOR AQUACULTURE IN THE U. S. EEZ

The experience from other nations discussedearlier in this chapter suggests some lessons forthe United States as it develops the policyframework for aquaculture in federal waters andin the EEZ.

First, several general points. Fish farmerseverywhere want to see less complex and bettercoordinated regulatory processes. This isespecially true where a number of federal or stateagencies all have regulatory authority. Theestablishment of an interagency committeeconsisting of all of the agencies with a regulatoryrole with a lead agency overseeing the processhas been found to be useful in several countries(such as Australia and Japan).

Second, aquaculturists apparently typicallyfeel that government policies and regulatoryprocesses do not keep up with advancingtechnology and the changing needs of theindustry, implying that some flexibility needs tobe built into the regulatory process and that thegovernment agencies involved need to have welltrained and technically competent people ontheir staffs.

On a more detailed level, severalobservations can be made:

1. A two-step approach where a lease for aportion of the ocean (or seabed) is appliedfor and issued first, followed by applicationfor a license to operate a specificaquaculture facility (in the leased area)seems to be a workable approach.

2. One of the major problems in all of thenations studied involve conflicts between

the siting of fish farms and other uses ofcoastal waters such as maritime traffic,capture fisheries, tourism, and theprotection of natural areas. It appears to beimportant, then, to develop a set of sitingcriteria for aquaculture to minimize thechances of such conflicts emerging later. Inseveral nations (such as in Chile, Norway),a formal process of determining “areassuitable for aquaculture” was undertakenearly in the regulatory process.

3. The “capacity” of specific aquaculturesites (and net cages) in terms of number anddensity of fish to be safely allowed has alsoproved controversial. Criteria fordetermining capacity should be developedas a part of the formulation of the overallregulatory process (such as in Norway).

4. In areas having considerable promise foraquaculture, the development ofaquaculture management plans in advanceof a time when individual firms apply forleases and licenses has been found to bebeneficial (such as in Australia).

5. In several national cases (such asAustralia), the establishment of aninteragency process, linking andsynchronizing the actions of variousgovernment agencies involved inaquaculture management has played animportant role in achieving a more efficientmarine aquaculture siting and monitoringprocess.



With regard to the guidance for aquaculturedevelopment being provided by internationalorganizations such as FAO and ICES, theserightly emphasize, in our view, a precautionaryapproach to aquaculture development; set forththe appropriate questions that must be asked ofsuch development (e.g., does it conserve land,water, plant, and genetic resources? Is it

environmentally non-degrading? Is it tech-nologically appropriate? Is it economicallyviable? Is it socially acceptable?); and puts theresponsibility for providing evidence onpotential impacts on the parties proposing thedevelopment and on the governmental agenciesmanaging the development.



Chapter 7

PROPOSED POLICY FRAMEWORK FOROFFSHORE MARINE AQUACULTURE

INTRODUCTION

In this chapter, we propose a policyframework for managing offshore marineaquaculture, building on the analysis of issuesidentified in earlier reports and on actualexperiences with offshore aquaculture practicesin U.S. coastal states and in other nations. Wefirst briefly review the major issues that need tobe addressed and present a set of criteria forguiding the choice of a policy approach. Wethen present our own recommendations for apolicy framework for managing offshore marineaquaculture building on past studies andexperiences. We address marine aquacultureutilizing native/locally present species andhybrids. However, we do not address marineaquaculture involving the introduction of newspecies or utilizing genetically modifiedorganisms (including transgenic species), asconsideration of this issue was beyond the scopeof our study.

With regard to federal agencyresponsibilities in a policy framework foroffshore marine aquaculture, we concentrate onnovel processes and additional agencyresponsibilities that we think will be necessary toestablish a new system to manage the siting,leasing, operation, and monitoring of marineaquaculture operations in the EEZ. With regardto the variety of existing federal agencyresponsibilities concerning aquaculturepromotion, research, and development, we donot address these explicitly in the recommendedframework. It is our assumption that theseresponsibilities should remain in the variousagencies with continued coordination by theJoint Subcommittee on Aquaculture through theleadership of the USDA.



SUMMARY OF ISSUES RAISED IN PAST STUDIESAND EXPERIENCES AND CRITERIA FOR EVALUATION

Our review of past studies and reportsrelated to offshore marine aquaculture, offederal authorities over marine aquaculture, andof previous and ongoing efforts to actuallyestablish offshore marine aquaculture facilitiesin federal waters, has revealed a consistent set ofthree major common themes that work to hinderthe development of this industry in the UnitedStates:

• the absence of a well-defined andefficient policy framework which fulfillspublic trust responsibilities in publicwaters while offering a predictablereview, permitting, leasing, andmonitoring process to the marineaquaculture industry

• concern with environmental impacts, theabsence of a well-defined system ofenvironmental review of offshoreaquaculture projects, and the need toadopt strategies for avoiding andmitigating such impacts

• the importance of granting exclusiverights to particular ocean areas formarine aquaculture operations, whileaddressing impacts on other ocean usersand other public trust responsibilities

More specifically, our review of past workin this area, of federal statutory authorities, andof past efforts to create aquaculture facilitiesunderscores several points. First, few federalstatutory authorities address aquaculture directlyand none address the specific issues associatedwith offshore marine aquaculture. With fewexceptions, federal agency statutory authorityover offshore marine aquaculture is based on

agency interpretation of statutory authority overparticular aspects of an aquaculture operation(Chapter 4). This results in the industry havingto meet many different requirements fromfederal (and state) agencies in a process that isnot clearly intelligible and is often subject tolegal challenge (Chapter 3). Without a leadagency for offshore marine aquaculture, too,conflicts between regulatory agencies frequentlyoccur (Chapter 3). Environmental reviewrequirements for offshore aquaculture are ad hocand often insufficient, frequently incurring legalchallenge (Chapter 3, Chapter 2). There is noestablished process for assessing the impacts ofoffshore aquaculture on other ocean uses, and noestablished mechanisms for obtaining publicinput on offshore aquaculture developmentproposals (Chapter 2, Chapter 3). There is noestablished system of offshore aquacultureleasing to give the aquaculture operator securityof tenure and an exclusive right of operation,including also obligations for compensation tothe public for the use of public waters (Chapter2). There are no established Aquaculture BestManagement Practices which can serve asguidance to operators and government agenciesalike (Chapter 2).

Our review of relevant experiences in theU.S. coastal states (Chapter 5) reveals a numberof lessons applicable to offshore aquaculture inthe EEZ. First, most of the U.S. coastal statesactive in aquaculture have designated leadagencies for this purpose. Most of the U.S. stateshave some type of marine aquaculture leases(involving some form of payment, e.g., fees,bonds), and most require public hearings andenvironmental review for aquacultureapplications. In a number of U.S. coastal states



(e.g., Florida, Maine, Mississippi, Alaska), thepermitting process for aquaculture developmenthas been streamlined into a single multi-agencypermit which includes certification by the state’scoastal zone management program. In a numberof states (e.g., Maine, Florida), an inter-agencycommittee for aquaculture management hasbeen formally designated. A number of states,such as Florida, have created Best ManagementPractices for Aquaculture, which includecompliance with clean water standards as well asregulations for the culture of non-native species.Several states (e.g., New Hampshire, Maine,Mississippi, Hawaii) have created very detailedprocedures for environmental assessment andmonitoring, including, for example, in NewHampshire, criteria for “unacceptable risk” andfor reporting of “unusual events.” Ten coastalstates have addressed aquaculture in their coastalzone management plans.

Our review of the policy frameworks presentin other nations active in offshore aquaculture,and of the policy guidance offered byinternational organizations such as the FAO(Chapter 6), also suggests a number of lessonsand echoes many of the themes evoked bypractice in the U.S. coastal states. One of thethemes emphasized in other nations is, as inHawaii, the importance of a formal planningprocess for the designation of areas suitable (ornot suitable) for aquaculture development (forexample, in Norway and Chile) and the use ofstrict siting selection criteria, including spacingrequirements between farms. In a number of theforeign nation cases (e.g., Australia, Japan),streamlined inter-agency processes have beencreated and a lead agency has been named, andaquaculture development plans have beenprepared. In addition, the internationalexperience stresses the precautionary approach,for example, in the FAO guidelines, and inrequirements in effect in Norway—where it isthe responsibility of the fish farmer todemonstrate that a farm will not cause

unacceptable pollution effects, and wherecriteria for determining capacity, in terms ofnumber and density of fish to be safely allowed,have been developed.

In our proposed policy framework, which wepresent in the next section, we seek to combinevarious features of approaches suggested in paststudies and of lessons learned from theexperiences of the coastal states and of othernations. We first present a statement of thecriteria guiding our recommended policyframework.

�Criteria Guiding Recommended

Policy Framework

In our view, the orientation of the policyframework for offshore marine aquacultureshould be neither unduly promotional norarbitrarily restrictive. While recognizing thatthe development of aquaculture has beendeclared to be in the national interest (see theNational Aquaculture Act of 1980), theframework seeks to ensure that marineaquaculture activities that occur in the U.S.Exclusive Economic Zone take place in anenvironmentally safe and sensitive manner withdue respect for the legitimate interests andactivities of others. Also, in view of the fact thatlittle meaningful information on the possibleimpacts of offshore aquaculture is yet available,the framework must be adaptive in nature,

evolving over time as additional data andinformation are obtained.

Our development of the framework is guidedby the following criteria:

1. Encourages responsible open oceanaquaculture in the US EEZ.

2. Promotes a decision-making process thatis efficient, coordinated, and predictable.



3. Employs a precautionary approach toavoid and minimize environmental impactsand promote integration into the ecosystem.

4. Applies separate criteria to native andnon-native species.

5. Is consistent with existing U.S. laws andagency responsibilities.

6. Is equitable and fair to offshoreaquaculture and to other U.S. users of theEEZ.

7. Is consistent, to the maximum extentpossible, with the coastal, water,environmental, and aquaculture policies ofadjacent coastal states.

8. Is consistent with U.S. obligations underinternational agreements.

9. Will fit within the context of an overallframework for sustainable development ofthe U.S. EEZ.

10. Produces a fair return to the public forthe use of federal ocean space.

11. Is conducted in a transparent mannerwithopportunities for public involvement.

12. Is adaptive and promotes opportunitiesforinnovation, data collection, and learning.

PROPOSED POLICY FRAMEWORK

The draft policy framework for thedevelopment of an economically sustainable andenvironmentally sound aquaculture industry inthe U.S. EEZ is first discussed in outline termsand then more specifically according to thevarious stages involved in locating and operatinga marine aquaculture facility in federal waters(for definitions of “economically sustainable”and “environmentally sound,” please seeChapter 1, Figure 1.1).

�Outline of Major Features of the

Proposed Policy Framework

The proposed policy framework shouldincorporate the following major features:

• Offshore aquaculture regulations should bestreamlined and harmonized and a singlemulti-agency permit for aquaculture in the

EEZ should be established. In conjunctionwith the streamlining of regulations, therespective roles of federal and stateagencies should be reconciled andclarified.

• Appropriate planning to identify suitable(and not suitable) areas for offshoreaquaculture, avoiding projects that damageenvironmentally sensitive areas andavoiding undue interference with otherusers (navigation, national defense,fishing, recreation, etc.) should take placebefore areas are offered for aquacultureleasing.

• A leasing system which, on the basis of apreliminary plan provided by theaquaculture firm, gives the firm exclusiveright (of limited time duration) forexploration and further development of an



operational plan should be established.Lease provisions should be consistent withpublic trust responsibilities and preferenceshall be given to firms which demonstratean approach that prevents and reduces theproduction of pollutants and limitsescapes. There should be an expectationthat private users of public waters providesome compensation to the public in returnfor the exclusive right.

• A thorough environmental review processto assess the potential environmentalimpacts of the project and appropriatemitigation measures should be put in place.

• The leasing, permitting, and environ-mental review processes should beconducted in an open and transparentmanner with opportunities for partici-pation by the public and by affectedinterests.

• A monitoring process, which may involveconditions on operations such as insurance,bonds, or environmental monitoringrequirements, should be put in place toinsure the safety of operations, and, in thecase of termination of operations, theremoval of structures and the return of thearea to its previous state.

• A lead federal agency for overseeing themanagement of offshore aquaculture in theEEZ should be named.

Our more detailed discussion of theproposed framework is organized according tothe various stages involved in locating andoperating a marine aquaculture facility inoffshore waters:

1) Planning (including site selection, scope,and compatibility with other uses)

2) Permitting/leasing (including environ-mental review, conflict resolution,determination of permit/lease conditions)

3) Operation and monitoring of facilities andenforcement of permit/lease conditions

4) Termination of operations (including siterestoration, liability).

�Planning

This is no doubt the least developed aspectof the offshore marine aquaculture managementprocess—in practice, little has been done todetermine which areas offshore are best suitedfor marine aquaculture development, areenvironmentally appropriate and are least likelyto interfere with endangered species and marinemammals, and with other uses of offshorewaters.

This is not the fault of the aquaculture industrynor of the agencies regulating offshoreaquaculture, but it is due, instead, to the lack ofan overall plan for the management,development, and conservation of the U.S. EEZ.This gap has been discussed in a number ofbooks and reports (e.g., NRC 1997, Cicin-Sainand Knecht 2000), and there is growingconsensus that such an effort should beundertaken, in the near future, as a jointfederal-state activity. As part of this effort, it islikely that a set of ecologically-based marineregions will first be delimited and, usinggeographic information system tools, oceanfeatures, processes and conditions, oceanresources, and ocean uses will be mapped. Thisprocess should reveal what areas are best suitedfor marine aquaculture, in terms of therequirements of the marine aquaculture activityitself, and in terms of avoidance ofenvironmental risks and of conflicts with otheruses.



The imperative of planning for appropriatemarine aquaculture siting has been emphasizedrepeatedly both in actual practice and in theliterature, since examples abound around theworld of aquaculture operations failing andincurring significant environmental impactsbecause of improper siting (which in most casesis due to the absence of appropriategovernmental guidance). As Hawaii’saquaculture manager, John Corbin, notes:“Proper siting is the sine qua non of aquacultureoperations; that is why in Hawaii we have,through planning efforts, identified and mappedappropriate land sites for firms to consider anduse and now we are applying the same approachto offshore aquaculture” (Corbin 2000). Asimilar approach is proposed by theConservation Law Foundation which advocatesthe development of a zoning plan for the U.S.EEZ that will identify areas that need to beprotected, areas for heavy industrial use, andareas for recreation (CLF 2000).

We recommend that the Congress developlegislation to provide an overall plan for themapping, management, development, andconservation of the U.S. Exclusive EconomicZone that will address the needs we haveidentified above. In the interim, some stepstoward systematic analysis of EEZ resources anduses can be taken through executive action andprovide assistance, on a timely basis, inidentifying areas particularly suited for offshoremarine aquaculture and areas not suited for suchoperations.

Capacity for undertaking this type of activity(but not the explicit mandate to do so) iscurrently present at NOAA and at the U.S.Department of Interior. Three NOAA officeshave special expertise in this regard: TheNational Ocean Service’s Special ProjectsOffice (which has done considerable work on

ecosystem-based mapping and planning); theCoastal Services Center in Charleston which hasbegun the process of mapping, using GeographicInformation Systems, ocean processes,resources, and uses using the Southeast region asa model; and the Office of Ocean and CoastalResource Management (which administers thecoastal zone management program) which canserve as an effective bridge to state-based work.At the Department of Interior, three agencies areparticularly relevant: the U.S. GeologicalSurvey which has the mandate to assess thepublic lands resources of the United States; theMinerals Management Service with authorityover offshore mineral resources and with muchexperience in the study of ocean resources andprocesses in the U.S. EEZ; and the U.S.Biological Survey with its mission to assess thenation’s biological resources. For this work tooccur, of course, these agencies would need to begiven an explicit mandate—either throughadministrative action or through newcongressional action on aquaculture. It isimportant that this planning process take placeon a timely basis; otherwise, the development ofthe industry will be significantly hindered.

While these planning efforts are underway,proposals for offshore aquaculture operationswill need to continue to be considered on thebasis of the available information. The planningprocess could begin by identifying a limitednumber of areas, with expansion into additionalareas occurring only after development has beendemonstrated to be able to meet strictenvironmental and social criteria. It could alsoinclude the designation of zones foraquaculture--for example, for raising a particularspecies, employing a particular technology, or apilot program designating specific areas of theocean as aquaculture parks.

The process of planning we have sketchedabove would result in the timely identification ofareas particularly suited for offshore aquacultureand those which are not, and would lead to the



next step—leasing/permitting. The planningprocess itself may include pre-permitting of sitesbased on the preparation of a MasterEnvironmental Assessment (EA) or MasterEnvironmental Impact Statement (EIS) and afirst approximation of the carrying capacity (i.e.,roughly how many farms may be supported in aparticular area).

Recommendation on Planning

• Develop legislation to provide an

overall plan for the mapping,

management, development, and

conservation of the U.S. Exclusive

Economic Zone.

• In the interim, through executive

action, provide an explicit mandate to

NOAA and DOI to develop assessments

of EEZ areas suitable for various uses

(including aquaculture) through

mapping and analysis.

�Permitting/Leasing

One of the most important findings thatclearly emerges from past studies of theobstacles facing marine aquaculturedevelopment is the difficulty the industryencounters in obtaining permits from multiplefederal and state agencies. To get a sense for thisproblem, one need only peruse the list of stateand federal agencies from which the industrymust obtain permits found in the aquaculturelegal project conducted by theMississippi-Alabama Sea Grant Legal Program(found on the web at http://www.olemiss.edu/orgs/masglp/offshore.htm). Similarly, the readershould recall the estimate of how long it tookindustry to obtain permits in the SeaSteadexperimental sea scallop project offshoreMassachusetts (3 years). This is a central

problem that must be addressed in a newmanagement scheme for offshore aquaculture.

The development of offshore oil projects offCalifornia (governed by the federal MineralsManagement Service) in the 1980s also faced asimilar set of problems, especially the conduct ofseparate environmental review processes forlarge offshore projects by the federalgovernment and subsequently by the state/localgovernments. This issue was addressed bycombining the separate environmental reviewprocesses into a “joint review process” whichworked very well in achieving interagencycoordination, a streamlined decision-makingprocess, budget savings, and more predictabilityfor industry.

Such a joint review process has beendeveloped, in some states, for aquaculture instate waters offshore combining the permitrequirements of the Army Corps of Engineersunder Section 10 of the Rivers and Harbors Act,the EPA under section 402 of the Clean WaterAct (NPDES permit), the state discharge andwater quality classification standards, the state’saquaculture laws, and the state’s coastal zonemanagement laws, and involving a single permitapplication and information requirements. Thestandard permit restrictions and conditions of allreviewing agencies are combined into one jointapplication, employing a common baselinesurvey and a uniform environmental monitoringprogram.

Building on these experiences, we propose apermitting and leasing process for offshoremarine aquaculture involving the followingcomponents:

• joint federal/state permitting coordinatedby the U.S. Army Corps of Engineers

• environmental review of impacts on thenatural and human environments and



adoption of measures to avoid andmitigate such impacts

• the awarding of two types of leases toindustry applicants:- short-term provisional leases to allowapplicants to develop the project conceptand test its feasibility- longer-term leases, after permits havebeen granted, to operate in an ocean areawith exclusivity rights for a definedperiod of time

• the creation of a new NOAA Office ofOffshore Aquaculture to oversee theleasing and monitoring of offshoreaquaculture operations, coordinate theseactivities with the permitting process, andserve as a facilitator for the developmentof offshore marine aquaculture.

Joint permitting

We propose a system of joint federal/statepermitting for offshore aquaculture facilities thatwould involve the major federal and stateagencies with a role in regulating aquacultureoperations and/or related roles (noted below).While each agency would award a permit on thebasis of its own statutory requirements, the jointreview process would insure that the followingpermits are co-terminus and involve a singleapplication and review process.

• the Army Corps of Engineers (section 10of the Rivers and HarborsAct)

• the EPA under section 402 of the CleanWater Act (NPDES permits)

• NOAA using several authorities:- review by the regional fisherymanagement councils for impacts oncommercial and recreational fisheries,

and on essential fish habitat- review, together with the U.S. Fish andWildlife Service, of impacts on marinemammals and endangered species- review of consistency of proposedaquaculture operations with state coastalzone management plans (by OCRM afterstate federal consistency determinations)

• the state(s) coastal management agencyfor federal consistency with the state’sfederally approved coastal zonemanagement plan

• the state(s) aquaculture agency

• the state(s) water quality agency (statecertifications under section 401 of theClean Water Act)

Given that the authority of the U.S. ArmyCorps of Engineers over navigation in U.S.waters under Section 10 of the Rivers andHarbors Act is of key importance in determiningwhether structures can be established innavigable waters of the United States, werecommend that the U.S. Army Corps be thecoordinating agency to oversee the jointpermitting process, in consultation with a newNOAA Office of Offshore Aquaculture(discussed later) which would oversee theleasing process as well as the operation,monitoring, and abandonment of offshoreaquaculture facilities.

In terms of implementation of this approach,it would be preferable, in our view, to establishsuch a joint permitting process through newfederal legislation on offshore marineaquaculture. In the interim, however, such anapproach could be started by executive action,through a memorandum of understandingamong the agencies concerned.



Recommendation on Permitting:

• A joint federal/state permitting process

for offshore marine aquaculture should

be established under the coordination

and leadership of the U.S. Army Corps

of Engineers in consultation with the

(new) NOAA Office of Offshore

Aquaculture, first through executive

action using an inter-agency

memorandum of understanding, and

ultimately in new congressional

legislation on offshore marine

aquaculture.

• The joint federal/state permitting

process shall involve the use of one

comprehensive application form and

procedure to meet the application

requirements of all agencies involved,

that would involve the submission of a

proposed operational plan.

Environmental reviews

The joint review process should establish aprocess for evaluating environmental impactsthat takes into account the level of riskassociated with a particular project. Small orlow impact projects would have a simpler, morerapid review process than larger projects withpotentially greater impacts. Such a reviewshould include compliance with the NationalEnvironmental Policy Act, and call for thepreparation of environmental assessments orenvironmental impact statements. In addition,criteria must be established for makingpermitting decisions that address impacts on thenatural environment and the human environment(i.e., impacts on other ocean users) based uponthe precautionary approach. Such decisionsshould take into account factors/considerationssuch as those noted below.

Factors related to the natural environment:

• impacts of chemical and biologicalpollutants and nutrient wastes on thebenthic environment, water column, andthe organisms that inhabit them

• effects of introduction of non-nativespecies to natural ecosystems (this mayinclude a risk assessment)

• interactions with marine mammals,endangered species, and birds

• impacts on essential fish habitat (EFH)

• the prevention of harmful geneticinteraction with wild stocks, throughcareful siting, use of non-reproductivestocks, minimization of escapes, promptrecapture of escaped fish, etc.

• the siting of offshore finfish aquacultureoperations in areas with strong currentsor tides that flush wastes

• the use (when feasible and appropriate)of feeds that minimize the degradation ofthe environment, such as those with lowfishmeal content which lessenaquaculture’s pressure on wild fisheries,and with high nutritional value and othercharacteristics that help minimize feedwastes

• the desirability (when feasible andappropriate) of raising different speciestogether (such as finfish with mollusks)in order to make optimum use of waterand nutrients and to minimize wastes

• minimization of the use of aquaculturedrugs by stocking fish free of pathogensand parasites, minimization of stresses on



fish, and vaccination of fish againstdisease

Factors related to the human environment:

Assessment of the effects of the aquacultureoperations on other major uses of the marineenvironment, e.g.,

• commercial fishing

• recreational fishing

• marine transportation

• water-based recreation, includingecotourism

• marine sanctuary areas

• offshore oil development

• offshore sand and minerals exploitation

• scientific uses

• military uses

• submarine cables and pipelines

• artificial reefs

• underwater cultural resourcesand historic sites

• marine biotechnology activities

Public participation in the environmental

review process

Adherence to the requirements of the NationalEnvironmental Policy Act will ensureappropriate opportunities for public review andcomment.

Recommendation on Environmental Review

and Public Participation:

• Review of offshore marine aquaculture

projects should employ the precautionary

approach, adhere to the environmental

review requirements of the National

Environmental Policy Act, and consider

mitigation measures to address adverse

impacts on other ocean uses.

• A set of special standards related to the

impact of offshore aquaculture operations

on the natural and human environments

should be taken into account in the

environmental review process.

• In general, an environmental assessment

should be performed as part of the leasing

process, and Environmental Impact

Statements should be prepared for

individual projects. The extent of the

review process should reflect the risks

associated with the project under

consideration.

• The leasing, permitting, and

environmental review processes should be

conducted in an open and transparent

manner with opportunities for

participation by the public and by

affected interests.

Leases

The process of awarding leases to particularaquaculture companies should be guided by a setof principles, such as the following (suggested inEichenberg and Vestal 1992):

• Leasing laws should integrate broadpublic trust criteria



• Submerged lands leasing programsshould include criteria to establishpriorities among aquaculture applicantscompeting for the same site (e.g., highestand best use, or most sustainable useincorporating economic, environ-mental, and social concerns, etc.)

• Aquaculture leasing laws should includeprovisions granting lessees not onlyspecified rights to occupy the site, butshould also grant exclusive rights to thecultured organisms

• Leasing laws should contain provisionsprohibiting leasing of certain lands whichshould remain in the public domain

An offshore leasing program should alsoinclude consideration of the following elements(DeVoe 2000b):

1. Scope - bottom, water column and/orsurface leases

2. Size and duration - The lease term shouldprovide the culturist time to start andestablish the operations and at the sametime provide the regulatory agencies withenough flexibility to reassign or terminateleases for just cause.

– A lease term of ten years, renewableevery five years, would, in our view,provide an appropriate balance.

– The size of each lease should benegotiated based upon the amount ofacreage available and the capabilities ofthe culturist. Consideration, however,needs to be given to the cumulativeimpacts of offshore aquaculture facilitiesand spacing guidance needs to bedeveloped.

– Two types of leases can also beconsidered: a short term experimental (orinterim) lease (for 2-3 year period for asmall area) to encourage the developmentand testing of new gear or techniquesand/or to develop further the facility’soperational plan, and the longer-term(about 10 year lease) for an applicant witha more developed operational plan.

3. Exclusivity - Public lands leasingprograms should include requirements forthe agency to assess the extent to which theapplicant needs exclusive use of the site,and to the maximum extent possible, shouldreserve to the public the right to use theleased lands for all public trust purposes thatwill not unreasonably interfere with theculture operation.

4. Costs - Costs associated with the lease(e.g., fees, bonds, royalties, etc.) should beestablished at the outset and remain stablethrough the lifetime of the lease.

Recommendation on Leasing:

• Leases (short-term or long-term) giving

the aquaculturist exclusive rights to

occupy the site and exclusive rights to

the cultured organisms should be

developed. Such leases should be

guided by a set of principles relevant to

public trust responsibilities and should

specify the scope, size, duration, and

other terms of the lease.

• The degree of exclusivity will be

negotiable, and some form of compen-

sation to the public for the exclusive

rights granted will be expected.



• Rents collected should be used to

establish a special fund to support

offshore aquaculture management and to

provide revenue-sharing to states for

potential impact mitigation.

Administration and Oversight of the Leasing

Process

There should be one agency and office whichis charged with oversight and implementation ofthe leasing arrangements, and of subsequentmonitoring and eventual abandonment ofaquaculture facilities. We suggest that a newoffice be created for this purpose and be locatedat NOAA, the agency which already hassignificant responsibilities over the offshoremarine environment. We suggest thatconsideration be given that this office, theNOAA Office of Offshore Aquaculture, belocated organizationally near the NOAAAdministrator’s office to facilitate inter-agencyinteraction with the requisite federal and stateagencies, and to facilitate interaction among allthe relevant internal NOAA offices (NationalMarine Fisheries Service, National OceanService, and Sea Grant).

Recommendation on Administering Agency:

• The creation of a new NOAA Office of

Offshore Aquaculture (OOA) is

recommended to facilitate the

development of offshore marine

aquaculture. Its primary mission will be

to oversee and implement the leasing,

environmental review, and subsequent

monitoring of offshore aquaculture,

including the eventual abandonment of

offshore aquaculture facilities (the

permitting process is an inter-agency

process led by the Army Corps of

Engineers).

Sequence of permitting and leasing processes

Different U.S. coastal states and nationalgovernments conduct the permitting/leasingprocess in different ways, e.g., some provide alease up front, and then, after environmentalreview and consideration of impacts on otherusers, provide a permit; some provide a lease andpermit simultaneously after conducting theenvironmental review; others determine areassuitable for aquaculture initially, then provide alease to companies meeting certain criteria—thecompanies develop a detailed plan fordevelopment, an environmental review isconducted, and then a permit is awarded.

In our proposed approach, we stress theimportance of first determining suitable areas foraquaculture; offering these areas for leasing(either longer term—such as 10 years, orshort-term such as for two years) making aninitial determination of environmental effectsand effects on other users (i.e., a program-levelenvironmental assessment); followed by acoordinated interagency permitting andenvironmental review process (i.e., a project-level environmental impact statement); and thesubsequent awarding (or not awarding) of anoperating permit. The permit/lease may includeseveral sites, so that the farm may use one site fora few years, then move cages to another site toallow the earlier site to recover.

�Operation and Monitoring of

Facilities

Several U.S. coastal states have detailedprograms in place for monitoring aquacultureoperations. For example, Maine has anaquaculture monitoring program for establishingand maintaining a comprehensive informationbase pertaining to all aspects of the siting,development, and operation of aquaculture



facilities. The following types of informationare collected for each site:

• Geophysical site characteristics, includingcurrents and bathymetry

• Benthic habitat characteristics and effects,including changes in community structureand function

• Water column effects, including waterchemistry and plankton

• Feeding and production data sufficient toestimate effluent loading

• Smolt and broodstock introduction andtransfer data

• Disease incidence and use of chemicaltherapeutics

• Other ancillary information, as deemednecessary.

Recommendation on Operations and

Monitoring:

• Monitoring should be done by the

aquaculture business, with periodic

verification by the new NOAA Office of

Offshore Aquaculture.

• In addition to establishing a monitoring

program, procedures should also be

developed for ensuring and reporting

enforcement of permit/lease conditions,

including legal penalties for

non-compliance. This may include permit

bond.

�Abandonment of Facilities

Management of this phase of the offshoredevelopment process can draw lessons from theexperience of the Minerals Management Servicein administering its responsibilities under theOuter Continental Shelf Lands Act.

Recommendation on Abandonment:

• All projects will be required to post a

performance bond prior to placing

structures or equipment in public waters

as a form of insurance that such

structures and equipment will be properly

removed from the site upon the

termination of the marine aquaculture

operation and the site returned to a state

substantially similar to what it was before

the operations began.

With regard to offshore oil productionplatforms, MMS regulations provide that allstructures shall be removed from a lease withinone year after lease termination. Lessees areobligated to verify site clearance for an areawider than the facility (for platforms, it is a1,320-foot radius circle centered on theplatform). For structures located in water depthsof greater than 300 feet, the requirement for siteclearance verification is a sonar search of thelocation; for waters depths of less than 300 feet,100% of the area must be trawled in twodirections, bringing up and disposing of allobjects caught in the trawl (Waldemar 1998).The important aspect here is to establishrequirements for aquaculture operators toremove all facilities and return the leased area toits original state.



CONCLUSION

The draft policy framework discussed aboveis offered for the consideration of interestedparties in the Administration, Congress,industry, environmental, and academiccommunity for discussion and deliberation. Nodoubt parts of the proposed framework will needto be revised and changed, other parts fleshedout, other parts dropped entirely. There may bealternative ways of accomplishing the goals anddirections we have suggested. We do think,

however, that the broad directions we have putforth on the basis of our review of the issuespresent in this area, of past work, and of theexperiences of coastal states and other nations,are the appropriate directions toward which weshould move in order to develop aneconomically sustainable and environmentallysound offshore marine aquaculture industry inthe United States.



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Appendix 1

LIST OF ADVISORY COMMITTEE MEMBERS

Charles Chesnutt U.S. Army Corps of Engineers

John Corbin Hawaii Dept. of Agriculture

Tom Ellis National Association of State Aquaculture Coordinators

Jean Flemma House Resources Committee

Rebecca Goldburg Environmental Defense

Betsy Hart National Aquaculture Association

Roger McManus Center for Marine Conservation

Luke Nachbar Office of Senator Gregg (New Hampshire)

Pietro Parravano Pacific Coast Federation of Fishermen’s Associations

Jeff Peterson U.S. Environmental Protection Agency

David Redlin Office of Senator Roth (Delaware)

Ed Rhodes National Marine Fisheries Service

Louise Scura World Bank

Margaret Spring Senate Commerce Committee

Boyce Thorne-Miller SeaWeb

Ken Turgeon Minerals Management Service



Appendix 2

STATE : ____________________________

Questions for Coastal State Aquaculture Coordinators

1. How would you describe the current status of the marine aquaculture industry in your state?

_____ Little or no interest in marine aquaculture

_____ Mainly experimental or research projects

_____ Some commercial activity

_____ Significant commercial activity

2. What types of marine aquaculture facilities currently operate in your state?

(Please check all that apply)

_____Hatcheries

_____Shellfish culture

_____Net pens

_____Cages

_____Plant culture

_____Other

Specify: _________________________

3. Are any of these facilities located in open ocean waters (i.e., offshore)?

_____ Yes

Describe: ______________________________________________

Please indicate how far offshore: ___________________________

_____ No



4. What types of leases does your state currently offer for marine aquaculture in state waters?

(Please check all that apply)

_____Bottom leases

_____Water column leases

_____ Exclusive easements

_____ Non-exclusive easements

_____Other

Specify: __________________________

_____None

5. Please indicate which of the following are required as part of the current process for siting marine aquaculture

operations in your state:

Mandatory May be required Not required Don’t Know

Public hearing

Environmental review

Bonds

Royalty payments*

Annual fees*

*If there are any royalty payments or fees, please specify the amount or formula used:

Royalty payments _______________________________

Annual fees ____________________________________

6. Is there a lead agency for marine aquaculture in your state?

_____Yes

Specify: ____________________________

_____No


7. Does your state currently have a policy in place for marine aquaculture?

_____Yes

Date implemented:___________________

_____No (SKIP TO QUESTION 9)

8. Where is your state’s policy for marine aquaculture specified? (Please check all that apply)

_____Coastal zone management plan

_____General aquaculture strategy/plan

_____Marine aquaculture strategy/plan

_____Fisheries management strategy/plan

_____Economic development strategy/plan

_____Other

Specify:__________________________

9. If you answered “no” to Question 7, are there currently any efforts to develop a policy for marine aquaculture in your

state?

_____Yes

Describe:______________________________________

_____No

10. In your opinion, what are the best features of your state’s current approach to marine aquaculture?

___________________________________________________________________________

___________________________________________________________________________

11. What would you recommend to improve the current approach to marine aquaculture in your state?

___________________________________________________________________________

___________________________________________________________________________



12. What is your opinion with respect to the policies that should guide marine aquaculture in federal waters (i.e., beyond

the limits of your state’s jurisdiction)?

___________________________________________________________________________

___________________________________________________________________________

13. As part of our project, we are compiling references on marine aquaculture leasing laws, regulations, and policy

statements. If possible, can you please send us a copy of the relevant documents for your state?

Mail to: Center for the Study of Marine Policy

Graduate College of Marine Studies


301 Robinson Hall

Newark, DE 19716

THANK YOU FOR YOUR HELP ON THIS PROJECT!

Biliana Cicin-Sain and Robert W. Knecht

Center for the Study of Marine Policy

Graduate College of Marine Studies


301 Robinson Hall, Newark, DE 19716

(302) 831-8086 - Phone

(302) 831-3668 - Fax

PLEASE FAX COMPLETED QUESTIONNAIRE TO (302) 831-3668 BY MAY 15, 2000


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