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Offshore Aquaculture Permitting and Legal Considerations

Offshore Aquaculture Permitting and Legal Considerations. Bob Rheault Executive Director East Coast Shellfish Growers Association bob@moonstoneoysters.com www.ECSGA.org. The Rationale for Aquaculture. 80% of US seafood is imported 50% of that is cultured $8 Billion seafood trade deficit.

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Offshore Aquaculture Permitting and Legal Considerations

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  1. Offshore AquaculturePermitting and Legal Considerations • Bob Rheault • Executive Director • East Coast Shellfish Growers Association • bob@moonstoneoysters.com • www.ECSGA.org

  2. The Rationale for Aquaculture • 80% of US seafood is imported • 50% of that is cultured • $8 Billion seafood trade deficit

  3. Why offshore? • Fewer user conflicts • Lots of available area • Reduction in environmental impacts Buoy for holding and dispensing fish feed

  4. U.S. Exclusive Economic Zone

  5. USA Norway Spain Spain Sweden

  6. “I am convinced that the United States must explore the potential of offshore aquaculture to help meet the growing demand for seafood in this country and to create jobs and economic opportunity for coastal communities. • To support that, we are making the National Offshore Aquaculture Act of 2005 a priority for this department and this country. We need to create this opportunity now.” • – Carlos Gutierrez, U.S. Secretary of Commerce • February 13, 2006

  7. Challenges • Engineering and technical • Regulatory and legal • Socio-political – user conflicts • Financial – competing with near-shore producers and multi-nationals

  8. Legal and Regulatory Issues • No leasing authority – questionable ownership of fish • Piecemeal regulatory scheme • ACOE defacto lead agency - Rivers and Harbors Act – consultations w/ EPA, NOAA, F&W • EPA CWA § 402 requires permits for the discharge of pollutants • CZMA – State consistency review

  9. Recent Offshore Aquaculture Initiatives • New England Council – draft plan 1998 • Sea Grant – UDel Marine Policy efforts

  10. Policy Framework (2000-2001) • Biliana Cicin-Sain • Susan M. Bunsick • M. Richard DeVoe • Tim Eichenberg • John Ewart • Harlyn Halvorson • Robert W. Knecht • Robert Rheault

  11. Part 2 June 2005 • Biliana Cicin-Sain • Susan M. Bunsick • John Corbin • M. Richard DeVoe • Tim Eichenberg • John Ewart • Jeremy Firestone • Kristen Fletcher • Harlyn Halvorson • Tony MacDonald • Ralph Rayburn • Robert Rheault • Boyce Thorne-Miller http://dspace.udel.edu:8080/dspace/handle/19716/2506

  12. UDel Recommendations on: • Governance and Regulatory Authority • Leasing (rent) and Permitting • Environmental Review • Planning and Site Assessment • Operations and Monitoring • Decommissioning and removal • Enforcement, Bonding and Compliance http://dspace.udel.edu:8080/dspace/handle/19716/2506

  13. Offshore Aquaculture Initiatives • Sea Grant – UDel Marine Policy efforts • US Commission on Ocean Policy • Pew Oceans Commission • US adopts FAO Code for Responsible Aquaculture • Offshore Aquaculture Act (s) • RegionalFisheries Councils

  14. National oceans agency and regional ocean governance councils limit negative effects EPA enforces water quality standards Research ecologically sustainable aquaculture Halt expansion until standards implemented Halt use of GMOs until sustainability determined The U.S. should work to encourage ecologically sustainable marine aquaculture internationally Pew Oceans Commission on Marine Aquaculture

  15. NOAA implements a national marine aquaculture policy via a new Office of Sustainable Marine Aquaculture Balance development and environment Coordinate across government and uses Include rent collection to public trust Use a multi-agency permit application Require aquaculture facility bonding Develop best management practices U.S. Commission On Ocean Policy on Marine Aquaculture

  16. Congress should increase funding for expanded marine aquaculture research, development, training, extension, and technology transfer programs The United States should work with the UN Food and Agriculture Organization to facilitate worldwide adherence to the aquaculture provisions of the Code of Conduct for Responsible Fisheries U.S. Commission On Ocean Policy on Marine Aquaculture

  17. Support legislation giving Commerce Department clear regulatory authority over offshore aquaculture Support EPA authority to regulate aquaculture effluents Support sustainable aquaculture in the Americas 2004 U.S. Ocean Action Plan

  18. June 2007AquacultureSummit

  19. July 2008 NOAA Symposium and Economic Analysis

  20. Gulf Council Aquaculture FMP • Draft EIS, Public comment – Fall of 2008 • Passed January 2009 • Goes to Secretarial Review Process • NOAA comment 60d, Secretary decision in 30 days • If approved goes to rule making • Questions on legal authority • Questions on regulatory authority • Questions on environmental impacts

  21. Alternative Approaches to Regulation of Offshore Aquaculture • Case-by-case approach Example: Hubbs project, NE mussels • Regional approach Example: Gulf of Mexico FMP • National approach Example: National legislation

  22. Legislative Approach • Offshore Aquaculture Act of 2003, 04, 05, 07, 08…. • Substantially revised in an attempt to address charges of vague environmental standards • Finally Introduced in 2008 – never voted on.

  23. Parallels Between Aquaculture and Wind Power Permitting • Private use of a public resource • New users in a crowded resource • Need to start with the premise that these new users have a valid place in the ocean. • Relegating new users to totally unused areas is to doom them to failure.

  24. Similarities between Permitting Offshore Wind and Aquaculture • Naysayers uniformly praise wind and aquaculture as long as they cannot see it. • NIMBYs rise specter of environmental damage when actual evidence is weak. • Supporters are placed in the position of proving a negative. • Unknowns cause paralysis in regulators.

  25. Fishing Conflicts • Fishermen are not limited by the amount of available area – they are quota limited. • Some small reduction in available grounds will not impact their ability to fill their quota. • The amount of area needed for wind and aquaculture is a tiny fraction of the EEZ. • Only need to protect critical habitat and best fishing areas.

  26. Considerations • Efforts to block culture of carnivorous fish are hampering efforts to develop sustainable shellfish culture. • We will never be able to answer the questions of critics to their complete satisfaction until we try it. (case for adaptive management) • Despite intensive monitoring we have not been able to detect environmental impacts of any deep water fish farms.

  27. New Zealand Mussel Farmsproduction goal $1 Billion by 2025

  28. We can grow it ourselves or buy it from Taiwan

  29. Resources • Udel Sea Grant projects I and II http://seagrant.oregonstate.edu/sgpubs/onlinepubs.html#w08001 http://darc.cms.udel.edu/sgeez/sgeez2final.pdf • Firestone et al. Columbia Law Review http://www.ocean.udel.edu/cms/jfirestone/WindAquaRegCJP.pdf • NOAA Offshore Aquaculture economics report http://aquaculture.noaa.gov/news/econ.html • NOAA 2007 Marine Aquaculture Summit http://aquaculture2007.noaa.gov/agenda/welcome.html

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