Plenty of Fish in the Sea?

Assessing the environmental efficacy of The National Sustainable Offshore Aquaculture Act of 2011

Contents:

Section One: Assessing the Existing State of Aquaculture Policy3Introduction3Environmental Problems with the NSOAA4Depletion of Forage Fish5Disease Treatment6Fish Escapement 6Waste7Reasons for the Establishment of Aquaculture in the EEZ 7Actors Involved8Government Involvement9Current Regulatory Structure9Conclusion10

Section Two: Getting Environmentalists on Board, Policy tools in the NSOAA Introduction 12 Policy Tools of the NSOAA 12Disclosure 13 Scientific Research 15 Environmental Impact Statement 16Permit System17Conclusion 20

Section Three: Filling Holes in the NSOAAIntroduction 20Gaps in the NSOAA Bill21Power Vested in the Secretary of Commerce21Specifying Provisions23Penalites for Repeated Violations of Environmental Regulation26EIS Every Ten Years 26Conclusion 27 Sources27

Section One: Assessing The Existing State of Aquaculture Policy in the U.S.

Introduction

The world production of fish has risen sharply in the last fifty years. Global Per capita food fish supply increased from an average of 9.9 kg in the 1960s to 18.4 kg in 2009. On the 31 of January 2011, the UN reported that global fish consumption had reached an all time high, and that more people than ever are employed in or depend on the fisheries sector. The US, third-ranked for fish consumption behind China and Japan, had an estimated per capita consumption of 15.8 pounds 2010, eighty percent of which was imported (UN FAO. 2012). To reduce dependence on foreign imports and to meet the growing demand for fish, the Bush administration proposed the National Offshore Aquaculture Act, sponsored by senator Ted Stevens [R-AK] in 2005. The bill directed the Secretary of Commerce to establish a site and permit system for the establishment of offshore aquaculture fisheries in the U.S. exclusive economic zone. The bill was voted down due to environmental concerns, but in 2011, representative Lois Capps [D-CA23], introduced a modified version called the National Sustainable Offshore Aquaculture Act of 2011 (Ocean Conservancy, 2011). The Bush proposal required the Secretary of Commerce to establish an Office of Sustainable Offshore Aquaculture under the National Marine Fisheries Service at The National Oceanic and Atmospheric Administration (NOAA) headquarters as well as satellite offices in each of NOAAs regional fisheries offices. Other provisions included: maintaining an Office of Aquaculture database, making the database publically available while protecting proprietary information of owners and operators of offshore aquaculture facilities, requiring the Secretary to assess application and annual fees with respect to the aquaculture permits that were sufficient to pay the costs of issuing, monitoring, and enforcing the permits, and the imperative that the Secretary establish and conduct a scientific research program designed to inform and guide the sustainable development of offshore aquaculture (United States Congress, 2005). The 2011 version includes all these provisions, with the addition of a multitude of incredibly in depth environmental provisions. The new bill has yet to pass through congress, so the question as to whether or not the newest version adequately addresses environmental concerns still remains. This paper seeks to outline these issues as well as provide an overview of the political actors involved, their positions on the issues, the current regulatory regime, and history of political involvement with aquaculture. The controversy over the bill involves three primary political actors. Those in favor of the bill are generally existing aquaculture businesses that wish to expand operations in the EEZ. Environmentalists and wild catch fishing groups are the two groups that are actively opposed to the bill. While the ultimate interests of these two groups do not exactly align, both groups are concerned with the same environmental hazards because they primarily affect stocks of wild fish.

Environmental Problems

1.) Depletion of wild stocks of forage fish to feed carnivorous farmed fish.

2.) The necessity of using various drugs and antibiotics to prevent the spread of disease among farmed fish (which contributes to the waste problem, and potentially harms consumers).

3.) The escapement of farmed fish that may compete with and interbreed with wild stocks.

4.) Waste excretion into the surrounding environment, causing algae blooms and subsequent oxygen depletion of the ocean (eutrophication).

Each of these problems will be discussed in more detail below, along with a recapitulation of any previous political efforts to address them.

Depletion of Forage Fish Valuable carnivorous fish like salmon, tuna, tilapia, grouper, and sea bass must be fed on smaller fish like herring, mackerel, sardines, and anchovy. These kinds of fish (especially salmon and tuna) also command a very high market price and are therefore some of the most lucrative fish to farm. Unfortunately, the widespread employment of carnivorous fish farms is incredibly inefficient because it requires between two and five kilos of wild fish to grow one kilo of farmed fish. The fish used for feed are wild-caught to reduce harmful genetic mutations that could result from feeding farmed fish a diet of farmed fish. Harvesting wild fish for farm fish feed depletes the stock of small wild fish for larger carnivorous wild fish, and sacrifices stocks of nutritious but less valuable fish for the production of these expensive high value fish. Zeke Grader, executive director of the Pacific Coast Federation of Fishermens Associations asks the question What are we trying to accomplish, if we are grinding up food to satisfy the palates of the wealthiest nation? (Politico, 2007) It appears as though there is very little formal legislation that addresses this issue. The EPAs compliance guide for concentrated Aquatic animal production includes two provisions: that aquaculture firms employ efficient feed management and feeding strategies that limit feed input to the minimum amount reasonably necessary to achieve production goals and sustain targeted rates of aquatic animal growth, and that they minimize accumulation of uneaten feed beneath the pens through active feed monitoring and management strategies approved by the permitting authority. (EPA, 2006) The guide also provides examples of best practice techniques and technologies that facilitate these guidelines. It is possible that the thin legislation regarding feed sourcing stems from the fact that private aquaculture firms already have the incentive to search for alternatives. Commercial fishing is expensive, so many firms are turning to soybean, algae, flax, or barley based feeds for their carnivorous aquaculture operations. Many also use the trimmings from commercial fish processing plants (Lescin-Hoar, 2012). Rick Barrows, a lead scientist and nutritionist with the USDA Agricultural Research Service notes that five years ago, the farmed-salmon diet was 40-50 percent fish meal. Today its in the teens somewhere. (Leschin-Hoar, 2012)

Antibiotic Use Diseases and parasites spread quickly in fish farms, since the populations are condensed so closely together. Fish diseases have cost the global aquaculture industry tens of billions of dollars over the last 20 years. The worlds shrimp industry has suffered losses from white spot virus and infectious myonecrotic virus on the order of US$10 billion since 1990 and new diseases emerge on a regular basis. Vietnam alone reports losses due to disease of US$1 billion per year on average. The Chilean salmon farming industry is in the process of recovering from a severe outbreak of infectious salmon anemia, which began in 2007 and cost 350-400 thousand tons of fish, US$2 billion of revenue and some 30,000 jobs (FAO, 2012). These diseases are usually controlled with heavy doses of antibiotics and other drugs. Untreated diseases can spread to the wild populations outside of the farm, especially if farmed fish escape (a problem that will be discussed in further detail below). This is the grievance of wild catch fishing groups who suffer severe economic losses when diseased fish escape and contaminate wild stocks. Other concerns lie on the consumer side, with many wary of the health effects of consuming drug-laden food. This area also suffers from a lack of formal legislation. It is simply an unfortunate simple fact that the production of farmed fish requires the use of drugs.

Escaped Fish

Escaped farmed fish destroy the genetic integrity of wild fish because being raised in a hatchery reduces fitness and impairs instinctual migration patterns. A study comparing the behavior and mating success of wild salmon verses released farmed salmon indicated that the farmed salmon had only 20% the mating success of the wild salmon. The farmed salmon also made fewer spawning beds, displayed unsuitable spawning behavior, and had fewer roe that were smaller in size and had lower survival rates than the wild roe. Descendants of the farmed salmon were smaller and had irregular migration patterns (Fleming et al, 2001). The science-based Norwegian environmental organization Bellona estimates that that the percentage of escaped farmed fish that make up fish populations in the ocean can be up to 50% in some places (Bellona, 2008). Waste

Finally, Fish farms are sources of huge and concentrated amounts of fish excrement and carcasses. This kind of organic waste emission spreads large quantities of phosphorous and nitrogen into the surrounding ocean. Phytoplankton feed off of these nutrients and bloom in large populations around areas with these kinds of organic emissions. The phytoplankton blooms subsequently leech oxygen out of the ocean, a process known and eutrophication, creating a biological dead zone in the area surrounding an aquaculture facility (Nola, 2011). It is estimated that, for every ton of fish, aquaculture operations produce between 42 and 66 kilograms of nitrogen waste and between 7.2 and 10.5 kilograms of phosphorus waste (Strain and Hargrave, 2005).

Reasons for the Establishment of Aquaculture in the EEZ

Those in favor of the bill contend that the farms are necessary because the demand for fish is too high to be met with wild catches alone. The wild catch industry is rife with problems of overfishing and oft needed moratoriums to replenish stock size (UN FAO. 2012). Many fisheries in New England and Alaska have experienced considerable struggle in terms of population collapses and emergency moratoriums on fishing (Layzer, 2012). Political efforts to sustainably manage fisheries inevitably mean that less fish can be caught at one time, which is why aquaculture has been deemed necessary to supplement the worlds overall supply of fish. It is interesting then, that despite the fact that the development of aquaculture is meant to relieve pressure on wild stocks of fish to meet growing demand, all the of the environmental concerns associated with aquaculture primarily threaten the very same wild stocks of fish it is meant to save. This is a major flashpoint between pro and anti-aquaculture groups. Both sides contend that their position is better for wild fish, and it is a difficult empirical question whether aquaculture hurts wild fish stocks more than it helps. Besides being an obvious solution to the growing demand for fish, aquaculture is a potentially lucrative domestic market. Currently, over eighty percent of fish consumed in the U.S. is imported from China, Canada, Thailand, Ecuador, Chile, and Mexico (ENS, 2005). Proponents of the aqua culture bill argue that the countries that export fish to the U.S. have dicey environmental regulations concerning aquaculture, and that U.S. aquaculture would promote more environmentally sound fish farms as well as domestic jobs. The proposed bill also stipulates that the farms would be located more than 3 miles offshore where currents are stronger than coastal waters. Stronger currents are theoretically better at sweeping away and diluting pollution from aquaculture. The locations are also further away from recreational beaches (ENS, 2005).

Actors Involved Environmental interests that express concern over the bill are mostly ocean-specific environmental advocacy organizations like The Ocean Conservancy, as well as numerous wild catch fishing businesses, most of which are members of The Wild Fish Network (Politico, 2007). The Ocean Conservancy was staunchly against the 2005 legislation but is currently more sympathetic to the 2011 revision (Ocean Conservancy, 2011). The Alaska Marine Conservation Council is skeptical of the argument that the bill would create jobs since the high cost of tending fish far from shore means facilities will likely be automated. Other concerns environmental groups have with the bill include the lack of specific environmental standards, the exclusive control given to the Secretary of Commerce, the allowance for multi-national and foreign corporations to lease the sites, and the lack of provisions prohibiting genetically modified species (AK Marine FAQ). While these concerns still remain in regards to the 2011 version of the act, other concerns with the 2005 version have been addressed. These previous concerns included: the absence of a EIS, the exemption of projects from the authority of the Magnuson-Stevens Act and regional fishery management councils, and the lack of standards requiring species-specific aquaculture that would not compete economically or biologically with wild stock.

Government Involved The bill has yet to get past congress and become law. Thus, the courts have little involvement since they havent a law to interpret. The executive branch, however, has been considerably more active. On July 19, 2010 president Obama signed an executive order establishing a national policy for the stewardship of the ocean, coasts, and great lakes. The policy includes a set of rules and principles for management decisions regarding U.S. oceans, and considers marine spatial planning as a top priority (Exec. Order 13547). The initial legislation in 2005 was also the product of an executive order. On December 17th, 2005, George W. Bush released an executive order calling for the establishment of a committee on ocean policy chaired by the chairman of the council on environmental quality. Bush also submitted a response to the final report of the U.S. Ocean commission on policy with a U.S. Ocean Action Plan that outlined provisions for the initial offshore aquaculture bill (NOAA Magazine, 2006). Congressional action was limited in terms of the 2005 bill. The bill was introduced in the senate by senator Ted Stevens and cosponsored only by senator Daniel Inouye [D-HI]. It was read twice and referred to the Senate Committee on Commerce, Science, and Transportation but the committee chair tabled the bill so it was not voted on (United States Congress, 2005). Rep. Louis Capps of Santa Barbara introduced he 2011 version of the bill. There are currently no co-sponsors. It was introduced on June 24th, 2011 and has since been referred to the House Committee on Natural Resources. The bill has yet to be passed by the committee (United States Congress, 2011). Current Regulatory Structure

The current regulatory structure regarding aquaculture in the U.S. is extremely weak. It consists primarily of fragmented policies that exist only at the state level. The heavy opposition to large-scale aquaculture from environmentalists, and wild fishing groups has made it extremely difficult to get anything passed in congress, as demonstrated by the demise of the 2005 National Offshore Aquaculture Act. The National Aquaculture Act of 1980 established aquaculture as a unique industry, and one that was necessary to wean the U.S. off of dependence on foreign fish imports. While the NAA establishes clear objectives for the development of the aquaculture industry as well as means by which to adapt these objectives, there is currently no specific organization charged with the authority over creation or enforcement of such polices. Many different organizations have therefore assumed the regulatory role through extension of their authority in a related industry (Arsenault et al. 2002). The formation of a complicated authority web has compounded the difficulty in passing more effective regulation policy. The Joint Subcommittee on Aquaculture is charged with the role of examining future concerns with the aquaculture industry but has no regulatory authority. It consists of twelve members and is headed by a representative of the Department of Agriculture. The members of the JSA include representatives from the Department of Commerce, the Department of Agriculture, the Department of the Interior, the Department of Health and Human Resources, the EPA, the National Science Foundation, and the Farm Credit Administration. Currently, the JSA evaluates the status of all federal programs related to aquaculture, endeavoring to increase their effectiveness and productivity through research in technology and other federal programs. The Department of Commerce has become increasingly involved with the aquaculture industry largely because of the impact that seafood imports have on the U.S. economy (Arsenault et al. 2002). The policies that guide the aquaculture industry are thus far a hodgepodge of laws that are already in place for other industries. The National Oceanic and Atmospheric Administration (NOAA) is a subdivision under the DOC. The National Marine Fisheries Service is a subdivision of the NOAA. Currently, the NMFS has assumed the regulatory role over aquaculture in the Exclusive Economic Zone, which is the area in question regarding the National Sustainable Offshore Aquaculture Act of 2011. Since there is no legislation that issues direct control over the aquaculture industry, the power granted to the NMFS to regulate aquaculture is merely an extension of regulatory law over other fishing industries that are structurally different from offshore aquaculture. For example, the regulation of fishing is defined within the Magnuson-Stevens Fishery Conservation and Management Act of 1976 (amended in 1996) but is interpreted to cover aquaculture because of the use of the word harvest. Juvenile fish place into a cage culture have the same size restrictions as those captured by fishermen under Magnuson-Stevens. By this logic, all aquaculture in the EEZ would be considered illegal unless the site has received an exemption from the NMFS (Arsenault et al. 2002). In short, organizational rulemaking is currently the name of the game in terms of aquaculture regulation. In 2002, a code of conduct for responsible aquaculture development in the EEZ was released in October of 2002. It consists of a more concrete regulatory framework directed towards aquaculture. Other organizations concerned with aquaculture regulation include the National Ocean Service, which works with state governments to evaluate coastal areas for potential aquaculture sites (Arsenault et al. 2002).

Conclusion Given the myriad of environmental problems associated with aquaculture, and the severely fragmented and ill-fitting regulatory structure that currently governs the aquaculture industry, it is clear that legislation is necessary. Having defined clearly exactly what problems are associated with aquaculture, it would be useful to see a regulatory structure in the draft of the bill that addresses these problems in turn. Whether or not or not the current bill for such reform will be deemed acceptable by the strong oppositional forces against the expansion of aquaculture remains to be seen.Section 2: Getting Environmentalists on Board, Policy Tools in the NSOAA

Introduction

The National Sustainable Offshore Aquaculture Act of 2011 (NSOAA) is a unique policy proposal from an environmental perspective because it is a response to the serious environmental problem of wild stock depletion, but it comes with its own myriad of environmental problems. The 2011 proposal employs a number of different policy tools to ensure the level of environmental protection established by the Secretary of Commerce that the original act proposed in 2005 lacked. The lengthy additions to the 2011 version mostly include oft-used policy tools that the federal government has traditionally used in other areas of environmental regulation. The additional environmental provisions to the bill are meant to appease the concerns of both environmental groups and fishing interests that both ecosystems and wild stocks will suffer from the large scale commercial establishment of aquaculture facilities offshore. Aside from also establishing a scientific research program, the environmental requirements in section 5 of the 2005 bill were mostly vague and entirely left up to the discretion of the Secretary of Commerce (NOAA, 2005). This was the primary reason previous grievances with the 2005 bill.

Policy Tools of the NSOAA

1.) Public disclosure of the aquaculture database, which shall include information on research, technologies, monitoring techniques, best management practices, and recommendations of the Sustainable Offshore Aquaculture Advisory Board (NSOAA, 2011).

2.) A scientific research program involved with the development of aquaculture technologies that reduce or mitigate the harmful environmental effects of aquaculture.

3.) Regional Programmatic Environmental Impact Statements every ten years

4.) A much more detailed permit system including a long list of specific environmental standards and rules for environmental protection, with much less decision-making power left up to the Secretary of Commerce.

Each of these policy tools is a different avenue with which to approach the sustainable management of offshore aquaculture, by addressing the following problems:

1.) escaped fish2.) generating enough feed for farmed carnivorous fish while maintaining an adequate wild stock of feed for wild carnivorous fish3.) oxygen depletion of the surrounding ocean due to waste 4.) controlling disease while limiting the use of antibiotics and chemicals consumers and environmentalists find unfavorable

The policy tools above are employed to reach these ends by either prohibiting the entry of environmentally irresponsible firms or to develop technologies that aid in reaching these goals, both of which are ex ante ways to achieve environmental goals (i.e. before the establishment of an aquaculture facility).

DisclosureDisclosure can be a powerful information tool that informs stakeholders about the environmental impact of aquaculture and the latest updates on how these problems are addressed. The availability of this kind of information empowers interested parties to mobilize. Since the establishment of the Emergency Planning and Community Right-to-Know Act (EPCRA) was established in 1986, The EPA and the States are required to collect data annually on the release of certain toxic chemicals from industrial facilities under section 313 of the EPCRA. The data is then made publically available on the Toxics release Inventory website. The idea behind it is simple: if the public has easy access to easily understood information regarding behavior by firms that negatively affect the environment, those firms are more likely to engage in more responsible environmental practices for fear of gaining a negative reputation among consumers. For this reason, public disclosure also provides the incentive for engaging in research and development for technologies that help solve environmental problems. Since the establishment of the inventory, toxic releases have declined substantially since the first inventory of chemicals was published in 1988Among the reasons most often cited for corporate reactions to the initial TRI reports are the negative publicity the companies now faced over their newly visible chemical releases, community pressure from affected residents located near their facilities, pressure from organized environmental and other community groupsor local officials, concern from newly created local emergency planning organizations, and threats of additional regulation form state regulatory officials. (Kraft et al. 2011). The evidence suggests that information disclosure is a viable policy tool for maintaining some level of environmental standards in the case of the TRI. This is the primary reasoning behind the public disclosure of the aquaculture database, which enables interested parties like environmental groups and fishery cooperatives to monitor the development and management of sustainable aquaculture. For information disclosure to be an effective policy tool, however, it is imperative that the information is accessible and easily understood by the public, or in this case, the environmental and wild catch fishing groups that are concerned with the development of aquaculture in US waters. This means presenting relevant information in terms that arent too technical for these individuals to understand. Since the relevant stakeholders are those that are involved with fisheries in the first place, some level of technicality is likely appropriate as these groups are already involved with fisheries and likely understand the technical language to an extent. More specifically, for the information to be relevant to the environmental problems listed above, there must be established mechanisms for the measurement and provision of information regarding environmental quality. For example, in Washington State, aquaculture fisheries are required to have reporting and recapture plans that involve marking hatchery finfish such that they are individually identifiable. In Maine, each aquaculture facility must report known or suspected escapes of more than 50 fish with an average weight of at least 2 kg each within twenty-four hours (Naylor et al. 2005). Mechanisms such as these can ensure that public information disclosure on escaped fish is a streamlined and easy to understand process. Other relevant sources of information include: the sources of feed for carnivorous fish, anti-biotic use and disease outbreak notification, oceanic oxygen levels and nutrient loading, and marine wildlife mortality rates around the facility. The reporting of information regarding these issues is made explicitly mandatory under section 5 of the NSOAA permit requirements.

Scientific ResearchScientific research can act as a capacity building tool as well as a learning tool. The continual development of technology that reduces environmental harm caused by the aquaculture industry is important for the industry to remain environmentally and economically viable in the long run. While information disclosure to the public induces individual firms to engage in researching sustainable practices, communication between firms could reduce duplicative efforts. The establishment of a scientific research program would consolidate both funds and information regarding best practice technology, and would reduce the negative effects associated with competition like trade secrecy and patent litigation. Scientific research programs are frequently used environmental policy tools that provide a collaborative framework for private, public, and educational research institutions to communicate and access valuable information. For example, The US Global Change Research program (formerly the Climate Change Science program), was established in 2005 by president Bush as a database by which all manner of climate change researchers can document and access relevant information. Hard scientific facts that inform policy are incredibly effective tools with which the government can impose regulations (Keller, 2009). In the former case, scientists who provide increasingly robust evidence that anthropogenic greenhouse gas emissions are causing climate change enable policymakers to establish climate regulation with arguably less opposition. The scientific research program for the NSOAA of 2011 similarly acts as a central database to facilitate the collaboration among private, public, and academic research facilities to establish norms for best practice technologies and methods. Already, the numerous studies on the (extremely negative) impacts of escaped farmed fish into the wild, scientific research into alternative feeds, technological advancements in pen architecture, and research into antibiotics has been and integral part of shaping the evolution of the growing aquaculture industry. It is interesting to note that, unlike the wild catch fishing industry, which has been historically resistant to scientific advancements in sustainable management, the aquaculture industry is relatively new, and by itself very harmful to the environment, which arguably renders the industry much more receptive of environmentally improving advancements in technology (Layzer, 2012). The provisions for the NSOAA research program involve:

(1) identify environmental factors, aquaculture technologies, and practices that address the permit terms and conditions required (discussed later)(2) assess and mitigate the cumulative impacts of multiple offshore aquaculture facilities;(3) analyze potential socioeconomic impacts of offshore aquaculture on fisheries and communities that are dependent on such fisheries;(4) evaluate financial, public policy, and market incentives for sustainable development of offshore aquaculture

There are a number of technologies developed to facilitate the sustainable practice of offshore aquaculture that minimize the impact on the surrounding environment. These are discussed in more depth under the Permit System section.

Environmental Impact Statement The environmental impact statement has been a powerful tool of environmental policy since its establishment under NEPA in 1969. It has historically been a decision making tool on the policymakers side that helps decide whether or not to implement a policy on the basis that the costs of environmental harm may be higher then is worth it. Here, it acts as more of an informational tool designed to monitor the cumulative impact aquaculture has on the marine environment. As its nomenclature suggests, the EIS is designed to assess the impact that any policy will have on the surrounding environment, as well as provide a list of possible alternatives. It additionally provides policymakers interested in passing environmental legislation with political fodder for resisting opposing interests to the legislation in question. As long as preserving the ecosystem remains a top priority in this case, the EIS will provide sound evidence against any opposition to costly provisions in the permit requirements that act to reduce environmental harm. The act dictates that an EIS will be performed every ten years for all sites in which an aquaculture facility is already built or where construction is pending.

Permit System The permitting system for allowing private entities to establish facilities in the EEZ acts (in theory) as a filtration device for firms who for whatever reason cannot comply with environmental standards. Permits are frequently used policy tools to this end. There are innumerable permit systems operating in the US to drill oil, log, and mine on federal lands. The NSOAA is no different, allowing private parties to obtain a permit to commercially farm species of fish in federal waters. As the act dictates, the regulations shall be based on the best scientific information available. (NSOAA, 2011). Acquisition of a permit necessitate the interested party to provide the following information for consideration: (i) size;(ii) depth;(iii) water conditions, including currents;(iv) substrate;(v) preliminary habitat and ecological community assessment data;(vi) distribution and composition of species;(vii) proximity to other offshore aquaculture facilities; and(viii) proximity to other uses;(B) the proposed operation to be developed under the permit;(C) the marine species to be propagated or reared, or both; and(D) design, construction, and operational information as may be specified in the regulations under this section;(2) demonstrating that the location is sufficient to avoid or minimize adverse effects on resources and other resource users;

Another interesting feature of the permit requirements that reduces entry and promotes environmentally sound practices is the provision that the secretary shall give priority to issuance of permits for activities to be conducted using technologies and practices that will substantially exceed compliance with the permit terms and conditions required. The Permit system includes annual fees that cover the cost of monitoring and enforcement as well as annual reviews backed by facility inspections. The acts provisions for enforcement involve both announced and unannounced inspections of facilities to ensure compliance with the provisions of acquiring a permit. Noncompliance is met with a fee and a mandate for compliance. Repeated noncompliance warrants revoking the permit and mandating that the offender remove all structures immediately (by risk of court subpoena) (NSOAA, 2011). Besides the provisions listed above, obtaining a permit also requires that the firm comply with all best practice technologies and regulatory methods that address the environmental problems associated with aquaculture. These are listed below.

ProblemPossible solution and tool typeIs there a Provision in NSOAA?

Escaped fish1.) tagging and tracking (information tool)2.) impermeable facilities (technological tool)1 and 2

Feed depletion of wild stocks for carnivorous fish1.) artificial feed (technological)2.) source from sustainably caught stocks with ecosystem-based management and whose population biomass are at max sustainable yield (purely regulatory)-3.) use trimmings from fish processing facilities (regulatory)2 and 3

Waste management1.) low phytate feeds less phosphorous (technological)2.) efficient feed less waste(purely regulatory/technological)3.) filtration and collection machinery to concentrate waste (and possibly resell as agricultural fertilizer) (technological)4.) maximum concentration levels in surrounding water (purely regulatory)

3

Controlling disease1.) transgenic fish (i.e. genetic engineering, technological)2.) antibiotics (only in instance of disease outbreak)2 (1 is specifically outlawed)

Reducing impact on migration and surrounding species behavior1.) no use of entangling equipment or underwater acoustic deterrent devices (regulatory)2.) no killing of wildlife unless human safety is immediately threatened (regulatory)3.) non-lethal deterrents as primary course of action (regulatory)1, 2, and 3

Preserve the market for wild-caught fish1.) consultation with coastal states (learning)2.) no permit for rearing a species for which there is in effect a fishery management plan under The Magnuson-Stevens act (regulatory)3.) no permit to rear a species in an area within jurisdiction of a regional fishery management council unless authorized by council (regulatory)4.) placement of facilities away from existing fisheries (regulatory)5.) issue a receipt to coastal states for each facility built offshore, allow state to prohibit (information)

1,2,3,4,5

Conclusion

The provisions in the NSOAA are indeed extensive, and cover a large range of standards designed to target all the primary environmental concerns with Aquaculture. The idea behind the long list of rules in the permitting system is to garner support from both environmental groups and fishing groups that protested the original bill in 2005 for reasons having to do with environmental harm or encroachment upon the fishing industry. The permitting system, the EIS, the scientific research program, and public disclosure of all of the above should be potent policy tools that help amass support from those previously opposed to offshore aquaculture in the U.S. exclusive economic zone.

Section Three: Filling Holes in the NSOAA

Introduction The National Sustainable Offshore Aquaculture act of 2011 is the most recent of three iterations on aquaculture policy. Both the 2005 and 2009 versions died in their respective committees because both left environmental impact largely up to the discretion of the secretary of commerce, and both lacked the lengthy list of specific environmental standards specified in the newest version. In essence, the 2011 version is the answer to a deluge of backlash both from environmentalist and wild-catch fishing groups. While the regulatory tools established in the act are detailed and cover a large swath of environmental problems associated with offshore aquaculture, there remains considerable room for improvement.

Gaps in the NSOAA Bill1.) Concentrated decision-making power in the hands of the secretary of commerce

2.) A lack of specific provisions in areas that could be easily legally subverted

3.) Lenient non-criminal penalties for repeated violations of environmental standards

4.) Conducting the EIS at arbitrary Intervals

The first three issues are fairly straightforward and typical of U.S. environmental regulation. Currently there exist no rules written to address these issues, but it is quite possible that the evolution of the NSOAA will yield progress in the rule-making area. Until then, it is useful to clearly define where specific rules are necessary, which is the goal of this paper. The last problem is an interesting new component of environmental policy. The bill features a novel and unique way of executing the environmental impact statement on a regular basis as opposed to once at the outset of implementation. This opens up discussion to how the EIS can be better used to foster the continual refinement of managing aquaculture sustainably. Power Vested in the Secretary of Commerce The primary complaint of the 2005 version of the aquaculture act was the astounding amount of discretion left up to the secretary of commerce. The only environmental provisions in the 2005 bill are found in the following passage:

The Secretary shall consider risks to and impacts on natural fish stocks, marine ecosystems, biological, chemical and physical features of water quality, habitat, marine mammals, other forms of marine life, birds, endangered species, and other features of the environment, as identified by the Secretary in consultation as appropriate with other Federal agenciesthe Secretary shall consult as appropriate with other Federal agencies to identify the environmental requirements applicable to offshore aquaculture under existing laws and regulations. (NOAA, 2005)

While the 2011 bill has a remarkably more detailed list of specific environmental regulations, with much less left up to the complete discretion of the secretary, it still lacks a system of checks and balances with members from both environmental and aquaculture business advocacy groups. Specifically, the 2011 bill dictates that members of the advisory board shall be appointed by the secretary for a term of two years. (NSOAA, 2011) If the board of advisees to the secretary is appointed by the secretary, there is plenty of opportunity for strategic appointment of individuals with particular agendas. The advisory board has a very powerful role in the implementation of the NSOAA. It oversees the periodic EIS, the implementation of the entire permitting and regulatory program, the collaboration with all interested stakeholders (fishery management councils, conservation organizations, etc.), the administration of the research program, as well as outreach, education, and training. Other areas in which there is concentrated power in the hands of the secretary include the natural resource damage assessment in which the secretary assess(es) natural resource damages resulting from the conduct of offshore aquaculture other than as authorized under federal or state law, as well as the provision that all cultured fish shall be marked, tagged, or otherwise identified as belonging to the permittee in a manner determined appropriate by the Secretary, unless the secretary determines that identifying cultured fish is unnecessary for protecting wild fish stocks, the marine environment, or other ocean uses(emphasis added). (NSOAA, 2011) In the former case, the definition of damage is left up to the secretary, leaving considerable room for lenient interpretations. In the latter case, identifying whether or not tagging the fish is necessary is also a decision left entirely up to the secretary. Environmental and fishing interests are both groups in which tagging fish is seen as a very important measure for tracking escaped fish to assess genetic damage that farmed fish have done to wild stocks. There are three options that might help spread the huge amount of oversight allocated to the secretary and the appointed advisory: 1.) allowing a third party to appoint at least half of the board, 2.) stipulations as to what kind of interested parties must serve on the board, or 3.) making publically available the background and credentials of the advisors with the option for comment

Any of these would help mitigate the potential for nepotism and iron triangles between the advisory board and powerful lobbyists. If partial decision-making power was spread between the secretary and other parties that equally represent important stakeholders then a fair definition of damage as well as a fair assessment of the necessity of fish tagging could be more attainable. This could come from any of these three options, although each has their individual merits and drawbacks. The third party option, while easy to implement, is less likely to achieve the goal if the third party is subject to the same political influences that the Secretary is. The second option is administratively difficult (what kind of credentials qualify as environmentalist, fishing interests, etc,) but would ensure that all relevant interests have decision-making power more so than any other option. The last possibility is both easy to implement, and would reach the goal of making sure all interested parties had the ability to provide input in the decision-making process as long as the information was easy to obtain and comments were taken seriously. Specifying ProvisionsThere are a number of areas in the NSOAA bill where the lack of specificity invites subversion from those with permits (which, given the costs of the permit applications, capital-intensive technological requirements, and annual fees, are likely to be large scale corporate producers). Most notable are following provisions:

1.) The Secretary shall require offshore aquaculture facilities to be designed, located, and operated to prevent the incubation and spread of disease and pathogens and ecosystem impacts from disease and pathogen introduction;2.) The Secretary shall include in the statement under subsection (a) for a region identification of(1) areas of the region that are not appropriate locations for the conduct of offshore aquaculture; and2) areas of the region that may be appropriate locations for the conduct of offshore aquaculture.

3.) Nothing in this Act shall be construed to displace, supersede, or limit the jurisdiction, responsibilities, or authorities of any Federal or State agency, or Indian tribe or Alaska Native organization, under any Federal law or treaty.

4.) The Secretary, in consultation with Regional Fishery Management Councils, shall ensure that offshore aquaculture permits under this Act do not interfere with access to commercial and recreational fish stocks. Most of these provisions also suffer from the large amount of discretionary power left up to the Secretary of Commerce. However, like most of the additions to the 2011 bill, this can be at least partially corrected by providing specific ex-ante regulations in the bill before it is implemented. The first and second provisions could be modified to include specific standards for best practice knowledge of both location and design that minimizes the spread of pathogens and general waste to the surrounding ecosystem. Information regarding what type of habitat is most sensitive to oxygen depleting algae blooms from fish waste as well as information on what areas are breeding grounds for keystone species is useful in this area. Spatially mapping out areas that are suitable for aquaculture sights can be done using quickly developing satellite technology that can provide a wealth of data on waves, sea-surface temperature and ocean colorall highly useful for planning where to establish new fish farms. (ESA 2011) Establishing suitable sights before implementation also ensures that organizational issues of overcrowding and where to put new sights are streamlined such that the length of time necessary for the permitting process is minimized. Further, researching and establishing designated areas where facilities cannot be built help mitigates the risk of ex-post litigation that can occur when an interested party is told they cannot build a facility they were planning on building due to concerns about wildlife habitat. Under this suggested scenario, these kinds of specifications would already be outlined in the application.The third and fourth provisions can be further specified to include exactly the distance from existing fisheries, protected wildlife areas, and designated native areas necessary to ensure that waste and escaped fish do not encroach upon and wreak havoc on these politically and/or environmentally sensitive areas. Ex-ante information on currents and sediment dissipation would be useful to establish a meaningful standard for such a distance. Lastly, and most glaringly, is the lack of specific provisions for waste management. This particular area is tough because it is much more difficult to control waste dissipation from aquaculture facilities in the deep sea than it is onshore. The absence of a base on which a facility could be built makes it exceedingly difficult to install filtering and water-recycling technology that effective captures waste. The most clear-cut provisions for waste management are:

(A) The Secretary shall: establish appropriate numerical limitations of nutrient inputs into the marine environment from offshore aquaculture facilities(i) in consultation with the Administrator of the Environmental Protection Agency;(ii) at a local or regional level as necessary to protect the environment; and(iii) taking into account cumulative and secondary impacts of such inputs at the local and regional level from the expansion of offshore aquaculture; and(B) shall require each permittee under this Act to prevent discharges of pollutants into ocean waters to the maximum extent practicable.

The phrase maximum extent possible leaves a less than comfortable amount of discretion up to the permitee. An entire host of possible legal disputes comes to mind. For example, one can easily envision a scenario in which the sudden imposition of some costly technology that ensures maximum population levels of a minute uncharismatic species under the Endangered Species Act would be cause for legal action on the side of the permitee. If terms like these arent defined ex-ante, then a sudden imposition of rules from the secretary could cause all manner of costly and wasteful legal battles. It would behoove the drafters of the bill to include: a.) specific provisions as to what the best practice technologies are in areas of environmental protection and that they must be installed, b.) what species are being specifically protected, either for reasons having to do with their keystone roles in the ecosystem, or because they are protected under the ESA (like most stocks of wild salmon, which are especially sensitive to aquaculture due to extraction of forage fish) and, most importantly, c.) that technological mandates are to be updated with scientific discovery. Rules like these would warn permitees of the costly regulations for building a facility, specifics as to where they can and cannot build, and that they are subject to continual updates as to best practice technology before a permit is even obtained. Finally, the provision that the Secretary establish numerical limitations of nutrient emissions into the ocean in consultation with the administrator of the EPA poses the possibility of a cap and trade system, which would help achieve the goal under section seven of market incentives for sustainable development of offshore aquaculture. (NSOAA, 2011) If the Secretary established an overall numerical cap on nutrient loading, permitees could allocate permits among themselves according to who values the emission of waste the most. There are, however, significant drawbacks to the cap and trade system in general. Firms who are more highly capitalized and can afford more permits are (generally) the very same firms that can more easily afford to mitigate waste emissions, while undercapitalized firms are forced out of business. A possible solution to this problem would be to hand out permits for free as opposed to auction them off, but then the office of aquaculture misses out on potential revenue. In short, the costs and benefits of the cap and trade system would have to be carefully weighed before implementation, which might be a feet more costly to administer than it is worth. In this case, given the fees and capital requirements for an offshore aquaculture permit, it is more likely that the firms involved will be more homogenous in terms of their net worth and level of capitalization, which would render both broad mandates and a market system more or less equally effective. If so, it is likely less costly all in all to simply impose individual nutrient emission quotas. Penalties for Repeated Violations of Environmental Regulation Section 10 outlines what constitutes criminal activity and penalties. Criminal activities include: acts meant to intimidate inspection officers, lying, failing to remove equipment if a permit is suspended or revoked, and anything else that prevents inspection. Interestingly enough, violating an environmental permit requirement is not defined as criminal. Acts like these only lead to the suspension or denial of a permit renewal, and only after repeated offenses (and their subsequent citations). There exists then, the perverse incentive (however unlikely) for a firm to farm cheaply and unsustainably for a short period of time while ignoring certain permit requirements, and then just moving operations once the permit has been revoked. Such a scheme would give ample time to make a profit if inspections were infrequent and there was room for repeated citations before shutdown. Overall cost of violation is the probability of being caught (ranging from 0 to 1) multiplied by the cost of the penalty. Either increasing the probability of being caught or increasing the penalty cost would make overall cost of violation higher and would thus increase the deterrent effect. Increasing the severity of punishment, however, is less costly than increasing the frequency of inspection. Thus, it would be prudent for the drafters of the bill to increase the severity of the punishment (i.e. possible criminal sanctions under the ESA, heavy fines, or zero tolerance policies) rater than increase the probability of inspection. Any of these would have a greater deterrent effect on breaking environmental provisions then are currently in the bill.

EIS Every Ten YearsThe Environmental impact statement is typically only done once at the outset of policies that might have an impact on the environment. The fact that the EIS for the NSOAA is to be performed on a reoccurring basis is entirely novel. It is certainly more sensible to perform the EIS after the establishment of aquaculture facilities in order to accurately assess their impact on the surrounding ecosystem. It is even more sensible to do so more than once such that cumulative impacts can be taken into account. The question remains then, as to whether or not ten years is an adequately short period of time to ensure that no more than what is deemed to be safe levels of nutrient loading is released into the ocean. It is entirely possible that harmful levels of aquaculture waste would be released in a period of even one or two years, causing costly or even irrevocably harmful levels of oxygen depleting algae blooms in the surrounding water. Unless the scientific research program performs supplemental monitoring of the surrounding marine environment (not specifically outlined in the bill as of yet), shortening the period between environmental impact statements to a scientifically informed period that accurately prevents waste accumulation would be necessary. It is currently not at all clear that the ten-year mark isnt completely arbitrary.

Conclusion The 2011 National Sustainable Offshore Aquaculture Act is already an incredibly detailed revision of its two predecessors. The sheer depth and breadth of the environmental stipulations renders it almost three times as long as the 2005 draft. Nonetheless, as with most environmental regulations, there still exist areas of vagueness where legal subversion and loopholes can be found. The suggested provisions above can help close these loopholes by limiting the power of the secretary, providing specifics where specifics are lacking, increasing the penalties for environmental infractions, and shortening the period between the EIS.

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