NOAA offers offshore aquaculture legislation

by Stephen Rappaport

WASHINGTON, DC – It had to happen eventually.

Early in June, the National Oceanic and Atmospheric Administration (NOAA) announced with great fanfare that it was submitting a long-awaited offshore aquaculture bill to Congress.

A day later, in an unusual bipartisan display, Senate powerhouses Ted Stevens (R-AK) and Daniel Inouye (D-HI) introduced the bill known as the National Offshore Aquaculture Act of 2005 in the upper chamber.

The bill will now be referred to the Senate Committee on Commerce, Science, and Transportation for review.

Just how much resemblance the product that eventually emerges from the Congressional sausage factory bears to the original NOAA bill remains to be seen.

Within hours of NOAA’s announcement, the environmental community weighed in, voicing familiar objections to offshore aquaculture in general and castigating the new legislation in particular.

Even the Senate co-sponsors made clear that they introduced the legislation primarily to insure that it wouldn’t have any adverse impact on their home states.

Criticism notwithstanding, the emergence of a NOAA aquaculture bill had to be considered encouraging.

Dr. William Hogarth, director of NOAA Fisheries and the National Marine Fisheries Service (NMFS) was optimistic about the bill’s prospects.

“I think this Congress will pass it. That’s my hope,” Hogarth said at the announcement press conference.

For the best part of a decade, NOAA has promoted itself as the logical agency to oversee the development of marine aquaculture in the nation’s exclusive economic zone (EEZ), the federal waters located 3-200 miles from the coast.

For almost that long, NOAA has been promising to introduce legislation that would map out a comprehensive process for regulating offshore aquaculture and give the agency the power to implement that process. As with so many promises made in Washington, fulfillment seemed to be a long time in coming.

During the past two years, though, the rumblings from NOAA about offshore aquaculture legislation began to resemble the sound of summer thunder, growing a little bit louder with each hearing.

In 2003, NOAA named one of its long-time senior scientists, Dr. Conrad Mahnken, as its “matrix manager for aquaculture” and as NOAA fisheries aquaculture coordinator.

During his relatively brief tenure before retirement, NOAA appeared to adopt a more active, or at least more public, posture on its vision of being the regulator of the nation’s nascent offshore aquaculture industry.

Then, after Michael Rubino became NOAA’s new aquaculture coordinator last fall, the volume went up considerably.

Within days of his joining the agency, the US Commission on Ocean Policy released its final report and called on NOAA’s recently established Office of Sustainable Marine Aquaculture to develop a comprehensive, environmentally-sound, permitting, leasing, and regulatory program for marine aquaculture.

At the same time, rumors that NOAA had a draft aquaculture bill ready to send to Congress were circulating throughout the aquaculture industry.

Still new to the job, but already a savvy Washington hand, Rubino refused then to comment on the substance of the mystery bill, but did confirm that some legislation was in the interagency review process.

He also said that NOAA wouldn’t have any comment on the bill unless the White House decided to make offshore aquaculture part of its legislative agenda this year. Earlier this year, though, he was confident that draft legislation would be forthcoming.

NOAA rolled out the new legislation at a press conference that featured several NOAA bigwigs.

In addition to Hogarth and Rubino, NOAA Administrator Adm. Conrad Lautenbacher and senior NOAA scientist Dr. Paul Sandifer were on hand to outline the legislation’s provisions and push the idea that NOAA should have the leading role in regulating offshore aquaculture in the EEZ.

That task would seem to be enormous by any measure, particularly for an agency that suffers from chronic budgetary problems. The EEZ covers some 4.2 million square miles of ocean stretching along some 13,000 miles of coastline.

So what does the proposed legislation actually do?

In terms of putting fish in the water any time soon, not much.

Basically, the legislation would ban offshore aquaculture inside the EEZ without a permit from the US Dept. of Commerce (DOC), and sketches the outlines of the permitting process.

The legislation also exempts aquaculture from the definition of fishing under the Magnuson-Stevens Act and calls for development of appropriate environmental protection and monitoring standards.

Furthermore, the legislation requires that DOC consult with other federal agencies, state governments, Native American tribes, and regional fishery management councils in developing those standards.

While environmentalists have already jumped on the plan as being insufficiently specific with respect to environmental safeguards to be imposed in offshore aquaculture permits, the bill does offer some hints as to what direction NOAA will pursue if Congress gives it the go-ahead.

NOAA permits would not supersede or replace the permits required under any other federal law, such as the Clean Water Act or the Rivers and Harbors Act, and permitted offshore aquaculture operations must not interfere with wild fisheries stock conservation and management efforts.

The legislation also requires that NOAA permits be consistent with federally approved state coastal zone management plans.

As outlined, the process calls for two separate permits – a “site permit” and an “operating permit” – which would be issued for an initial 10-year term with subsequent five-year renewals.

In theory, NOAA would have to act on a permit application within 120 days after determining that it was “complete.” Alternatively, the agency would have to provide a written description of why it can’t meet the deadline and a timeline for completing the process.

The site permit would establish a “general right” to conduct aquaculture operations in a particular location; the operating permit would set site-specific conditions relating to such matters as what species could be farmed, environmental protection and monitoring, management practices, and the like.

According to Hogarth, the parameters for those conditions would be set in regulations to be adopted after the law is enacted.

Hogarth said that drafting of those regulations, “will be a wide open public process,” involving the regional fishery management councils and all stakeholders.

With legislation that is extremely short on detailed environmental or operating controls, the regulations will furnish virtually all of the meat on the statutory bones.

Hogarth said that drafting the regulations would be “an open, transparent process.” It will certainly be a contentious one.

Within hours after NOAA introduced the legislation, the conservation group Environmental Defense issued a statement criticizing it for promoting “ocean feedlots for fish,” while the National Fisheries Institute (NFI) voiced its support for the legislation.

The proposed legislation is silent as to what the fees might be for an offshore aquaculture permit – they will be set by regulation or by Congress – but they are likely to be substantial. Hogarth said that the entire process would be supported by a combination of user fees and appropriations from Congress.

Although, in the present budgetary climate, the level of Congressional funding for offshore aquaculture may be problematic, NOAA officials seem confident that they’ll be able to find the money they need to get the program off the ground and to keep it running.

According to Sandifer, the Ocean Commission estimated that it would take just $3 million annually “to get an offshore aquaculture program up and running.” After that, he said, the program would cost around $7 million annually.

According to Lautenbacher, NOAA has “looked at the enforcement requirements, we’ve looked at the regulatory requirements, and we believe at this point with this year’s budget we have sufficient funding to cover that. As this develops and we move forward, we intend to request the right amount of sums and I believe we’ll get support.”

“This issue is extremely important to us at NOAA fisheries,” Hogarth added. “And we internally are looking at it as one of our priorities and so we will. Every dollar we can find, we will put towards making sure this program gets up and running.”

While Hogarth hopes that Congress will act quickly on the aquaculture legislation, it clearly has a way to go.

Simultaneous with introducing the legislation in the Senate, Stevens introduced an amendment that would allow states like Alaska to prevent offshore aquaculture operations in the EEZ off their coastlines.

Aquaculture isn’t popular in Alaska, although the state’s salmon fishery relies heavily on stocking with hatchery reared smolt.

In April, Alaska’s junior senator, Lisa Murkowski, introduced legislation to prohibit offshore aquaculture in the EEZ until Congress required all federal agencies involved in the permitting process to conduct extensive analyses of issues such as disease control, water quality, potential genetic impacts on wild stocks, and the economic and social impacts of offshore aquaculture.

Lautenbacher doesn’t favor the “opt out” approach of the Stevens amendment. He said he believed that the legislation “is sufficiently flexible for states to exercise their prerogatives to be full partners” in the regulatory process.

Hogarth isn’t a fan of the opt out idea either, but he is a pragmatist, adding “if that’s what it takes to get the legislation, we’ll take it.”

At least two other senators offered amendments to the NOAA legislation.

Inouye sponsored an amendment to require enhanced environmental safeguards for wild fish stocks from the impacts of offshore aquaculture operations and to prohibit foreign governments from operating offshore aquaculture operations in the EEZ.

Sen. Olympia Snowe (R-ME) offered an amendment to require that all vessels used to support offshore aquaculture in the EEZ be built in US yards and flagged in the US.

While some in the fishing industry view aquaculture as a competitor, Hogarth sees the development of offshore aquaculture as a way to save the fast disappearing infrastructure that wild capture fishermen depend on. He pointed to areas throughout the country where declining catches have led to the near demise of the processing industry.

“If you look at some of the New England villages with the groundfish, if you go out and look at some of the ports we’ve had on the West Coast in both Washington and Oregon, if you go down and look at the Gulf of Mexico with the shrimp industry and red snapper issues, we’re losing the infrastructure because we’re not able to harvest and produce enough wild stock to keep the infrastructure and keep the processing alive,” Hogarth said.

“On the West Coast, we’re losing processors every day and it’s too expensive basically to do onshore aquaculture because of the price of property … So what we’ve got to do to maintain our fisheries in the US is find a combination of wild (capture fisheries) and aquaculture to keep the processing alive and these coastal communities alive, and I think the combination is there to do it.”

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