EEZ Summary Workshop Part 2

III. Regional Workshops

(Part 2 of Web version)
(Gulf of Mexico Regional Workshop, Maine Regional Workshop, Massachusetts Regional Workshop)

Gulf of Mexico Regional Workshop

This legal and regulatory workshop (organized by Kristin Fletcher of the Mississippi-Alabama Sea Grant Legal Program and Ralph Rayburn of the Texas Sea Grant College Program, was held in conjunction with the Gulf of Mexico Offshore Aquaculture Consortium Research Retreat. Proceedings began with a welcome and introductions, followed by a statement of the meeting purpose.

The process for national response will involve further development of the framework, national and regional action, and finalization. Review of the draft framework progressed in the following fashion.

Attendees wanted details about how each of the types of site selection options worked.

Florida tried the streamlined approach that we are suggesting and abandoned it. Paul Zajicek from Florida said the change was based on one agency needing the authority to make all the decisions rather than just shepherding the permit through the system.

In addition, Connecticut has a similar structure with one agency having authority over aquaculture-related activities and structures. The DOA acts as the facilitator for the DEP for the required discharge permit.

There were many questions about what the lease fees and royalties go toward, e.g., does it buy protection by the Coast Guard or other marine enforcement? If not, what are the culturist’s rights to protect the cage and fish?

What definition are we using for the Precautionary Approach (or precautionary principle)? It would help to have this defined in the document as everyone has a different idea of what this means.

There were questions about the ownership of escapees, ownership of a runaway cage, etc. and suggestions for using Norway, Maine and the Pacific Northwest as models.

What role will the recommended agency have? Should it have an advocacy role for the industry or is it just shepherding the permit application through the other agencies? Is there an inherent conflict of interest having the permitting/regulatory agency have an advocacy role?

In soliciting comments of offshore aquaculture, we felt that is was essential to obtain the reviews of the Maine salmon fishermen. As they have been under severe pressure, including lawsuits, from the environmental community, they have been reluctant to participate in public meetings. We therefore had a preliminary meeting May 20^th in N. Dartmouth, MA, with Michael Hastings (Director of the Maine Aquaculture Innovation Center). It was agreed that we could obtain the information we wanted by meeting with him and Sebastian Belle, Director Maine Aquaculture. Association. Both of these are familiar with the issues and serve as spokesmen for the industry.

In preparation for the meeting, ten background papers and the draft report were emailed to Mike Hastings. In addition, printed copies of the draft report were brought to the four-hour meeting held September 13 in the Maine Aquaculture Association headquarters, Hallowel, Maine.

Harlyn Halvorson reported that a Sea Grant funded group has been trying to draft a framework for the administration and management of aquaculture in the EEZ. Sea Grant has funded two projects (1) Development of a Policy Framework for Offshore Marine Aquaculture (completed), and (2) Toward an Operational Framework for Offshore Aquaculture (in Draft). The committee is chaired by Dr. Biliana Cicin-Sain, Director, Center for the Study of Marine Policy, University of Delaware. Dr. Bob Rheault and Dr. Harlyn Halvorson are two from the NE on this committee.

Robert Rheault summarized the origin of the draft report. Two Sea Grant studies have been undertaken under the leadership of Dr. Biliana Cicin-Sain, Univ. of Delaware. The first "Governing Offshore Aquaculture: Issues and Policies" following review by an extensive Advisory Committee, was released in 2000. The second, "Development and Testing of an Operational Framework for Offshore Aquaculture in Conjunction with Stakeholders at National and Regional Levels" is currently under review. The purpose of this latter study is to move forward the general policy approach developed in the previous study to:1) develop an operational and readily implementable framework, and 2) build consensus among national and regional level stakeholders on desirable options to be included in the operational framework. The recommendations for each chapter were reviewed. Robert Rheault then led the discussion of the draft chapters of the report.

o The unstated assumption is that the goal of the document is to provide predictability.

o The document should state that the cost of regulations and operations must be less in the US EEZ than in other countries or there will be no investment by large multinationals.

o Somewhere in the document we MUST state that any federal aquaculture legislation must include a blanket exemption for aquaculture from Fisheries Management Plans drawn up by the regional Fisheries Councils.

o In statement on State Responsibility: State CZM should include aquaculture. How will applications deal with the state consistency review if the state has no mention or provision for aquaculture in their CZMP?

o Interagency reviews should be regionalized rather than centralized. (we discussed this at length, but I do not feel there was agreement on this point. Some regions are better than others and the desire to have a level playing field across the nation may outweigh other concerns)Should restate the Federal goal of increasing aquaculture production.

o May need Interstate Fish Health and Transfer permits to bring live animals through state waters

3.2 Chapter 3 Analysis of Past and Current Efforts to Establish and Operate Marine Aquaculture Facilities in the U.S.

o The document needs a definition section in the appendix. Esp. for “Sustainability, “precautionary approach”

o Why not just go through environmental impact statements instead of modeling impacts in advance?

o Regulators should bear the cost of modeling. Models have shortcomings…. inexact science…with unintended negative consequences.

3.4 Chapter 4 The Federal Framework for Administration of Offshore Marine Aquaculture

o Question the point of eligibility standards. This should only be considered when it is time begin operations. Object strongly to any limits on nationality of applicants.

o The length of short-term experimental lease should be linked to species being grown.

o Page 60 Jurisdictional Issues. NOAA identified for specific species only in MSA.

o The time frames or permits should be extensively increased – long term 50 yr. At any time the applicant fails to meet the conditions of the permit/lease the permits could be withdrawn.

o Page 62 2nd paragraph. User equity to make industry more comfortable. No preemptive assumption of priority. Goal of having regulations be predictable.

3.6 Chapter 6 Policy Development on Offshore Aquaculture: Lessons from the International Arena

o Page 74 Codes of Practice may be more effective than regulation. Use industry generated, regulator approved, 3rd party audited, w/ transparency – codes very effective. Well accepted by NGOs, also lead to better performance. Consider Maine Biosecurity Report as an example

o Consider moving to front of the report. – or give executive summary up front.

Sebastian Belle                                        Director Maine Aq. Assoc.,
Hallowel, ME & Harlyn O. Halvorson    PCMBT, Univ. Mass. Boston
Mike Hastings                                         Maine Aquaculture Innovation Center, Orono, ME
Robert Rheault                                         Pres. Moonstone Oysters, RI. Board Member NAA

1. Background

The Sea Scallop Working Group (SSWG) was chosen for this workshop. SSWG was organized in 1994 and meets bimonthly and involves a wide spectrum of stakeholders, state and federal officials, environmentalists, financial supporters and scientists. With support from SSWG and others, an amendment was approved in February, 1996, by the New England Fisheries Management Council. to establish a nine square mile site south of Martha’s Vineyard, MA, for an 18-month experiment and demonstration project involving sea scallop research and aquaculture. This is the first permit for aquaculture issued in US Federal waters, and opened opportunities for aquaculture projects in New England federal waters.

Ten months before the workshop a variety of reports were distributed daily by email to members of SSWG to prepare them with background information. These included:

Three weeks before the Workshop the draft 7 chapters were distributed by email with a request to return comments by email or at the workshop itself.

Bob Rheault and Harlyn Halvorson prepared a PowerPoint slide presentation outlining the history of the project and the main recommendations in each of seven chapters of the draft report. Copies of the draft report were printed and distributed at the workshop with the disclaimer that this was a document in progress. The agenda and invitations were extended to a wide group in the northeast. Mr. Garg Burris was invited as a keynote speaker. He is a former fisherman and now film producer of the decline in environmental indicators (including New England), many of which were based on changes in fisheries. His films have recently been shown on CNN

Harlyn Halvorson reported that a Sea Grant funded group has been trying to draft a framework for the administration and management of aquaculture in the EEZ. Sea Grant has funded two projects (1) Development of a Policy Framework for Offshore Marine Aquaculture (completed), and (2) Toward an Operational Framework for Offshore Aquaculture (in Draft). The committee is chaired by Dr. Biliana Cicin-Sain, Director, Center for the Study of Marine Policy, University of Delaware. Dr Bob Rheault and Dr. Harlyn Halvorson are two from the NE on this committee.

Mark Forest is in charge of district office for Representative Delahunt, and prior to that Representative Studds, is one who is deeply involved with the fisheries and aquaculture issues in this region, and was the key individual responsible for the creation of SSWG. Mark Forest reported that Rep. Delahunt is interested in many of these issues. He noted that Congress has not taken any action on the Wind farms, any governing structure, what will the process be, etc. The Oceans Commission may well come up with recommendations. We are interested in bringing the Oceans Commission, some of whose staff members were members of the old House Merchant Marine Fisheries Committee chaired by Rep. Studds, to hear and address local issues. We hope to meet with them at the end of the month. He wished us well in our endeavors.

Gary Burris who gave a keynote lecture "Oceans in need of balance: Pro and anti-aquaculture meet in the middle". Gary Burris is a former commercial fisherman who recognized early that something was wrong with the environment. He illustrated this with a film on pollution created black water and its impact on fisheries that was shown on CNN. He turned his attention to aquaculture and responded in the late 1980's to a request from EPA to prepare a documentary about estuaries around the country. This led to an award-wining documentary about the area around Narragansett. He is now interested in revisiting those he interviewed to see what has recently changed and why. It seems to be getting worse. Further documentaries for the newspaper and on the Gulf of Mexico are in the works. He has a weekly radio program in Florida and has been emphasizing the black water problem, as there has been a trend of denial of the pollution impact. He illustrated this with a story about the 1000 square mile dead zone off Louisiana's coast.

Gary Burris expects aquaculture to increasingly become the source of food for the planet. He discussed his recent experience in Australia, and showed a film detailing this, where fishermen themselves organized to regulate and cut back on the effort for the fisheries. He showed a documentary showing the transition from a bust to a robust fishery. They have controlled the amount and type of feed to generate a more nutritious product. He went on to stress the importance of public trust considerations and conservation of energy. In this process the public must be invited and participate.

Jack Pearce noted that one of the tangible effects on having NOAA as the lead agency is that you have within NOAA biological, chemical, and physical expertise about the oceans, all of which is important for marine aquaculture.

The question of aquaculture zones came up. It was noted that in an allowable site there were certain types of activities that would be permissible, possibly with expedited permitting. What aquaculture need when sitting at the table with other public trust users is (1) recognition that you have a right to be there, and (2) acknowledgment that your actions are not necessarily exclusionary. Not everyone has to be pushed out of that space. Because the industry is young, it bears the brunt of much criticism. The view was held that every grower should be able to determine what place in the ocean he could place his activity. A pre-permitted site would facilitate an application, but we cannot foresee every type of future development. Robert Rheault feels we need both; pre-permitted areas and the right to go elsewhere. Aquaculture zones will be in the areas that no one else wants and are not likely to be the areas most conducive to growth. Someone else disagreed – aquaculture should be restricted to zones or zones become meaningless.

Mike Ludwig: Unless the MAZ is based on optimal habitat for the species to be grown/studied in its confines, the researcher/grower starts with any number of natural handicaps in the hunt for success.

Katie Wilson: The zoning scheme seems to offer a range of positive advantages. It is a basic construct with great potential, particularly because the basic scheme is something we all encounter on land. Perhaps you are also considering incorporating provisions for rotational management where the zoning restrictions and entitlements could be modified to respond to certain variable or changed conditions. We see this in the agricultural context and could be applicable here as well.

Rob Garrison noted that in Massachusetts you already have aquaculture in mooring areas. In shore there are more conflicts.

Scott Lindell: A concern that Leasing Provisions should include ...granting exclusive rights to the ownership of the cultured species including shellfish or fish that are "planted" but not confined in those waters". This could help community-based aquaculture initiatives that involve "ranching" of aquatic species.

1) There is a body of law regarding the rights and responsibilities of leasing open ocean areas for power generation. In the late 1980s, Ocean Thermal Energy Conversion (OTEC) was a hot topic for the waters off Hawaii. Law and CFRs were put in place to manage OTEC development. That information its found in 33 CFR section 99. It could be used as a pilot for offshore aquaculture. You'll find that NOAA was the lead on the topic.

2) There is a rapidly growing interest in placing windmill driven electric generation facilities in the EEZ. The process and procedures are identical to those needed for offshore aquaculture. At the present time, the Army Corps of Engineers is the lead. The efforts are focused in the Northeast right now, but what works for permitting here will be embraced throughout the U S. You have the first big (170 units) windmill proposal by Cape Wind in Nantucket Sound.

In developing the Clean Water Act, there was considerable concern about new technologies. This was particularly true in dealing with EPA. The difficulty in having NOAA the lead agency is that NOAA is not a development agency. At the beginning you need an RIIA to input private money for development at the local level. You need local focus groups to work out the procedures. With EPA it was not until much later that they came up with local experts to develop their strategy.

Robert Rheault: in response to doubts about the proposed procedures, thought that no one would be willing to invest in the EEZ unless there are assurances that they have exclusive rights to the animals being cultured.

One concern was that if the office was created in NOAA, and is not used, that you have personnel which will want to deal with inshore issues.

Mike Ludwig: Chapter 2 - …there is no uniformity in the information needs of the assessment procedures, but that reflects the diversity in the limited number of large-scale aquaculture requests we have reviewed. However, I suggest that the Federal procedures used to assess applications do have uniformity. There is a dearth of facts regarding environmental impacts associated with retention structures, husbandry of the farmed species and the impacts of both in an open water setting. This situation is not unusual in the regulatory business. And, yes, the topic of aquaculture is not specifically covered with a procedural protocol. But, few activities subject to permitting are afforded such focused attention. I expect that regulatory types can look at any action in terms of its environmental impact by asking questions about structures and water quality. Those two items are covered in the Rivers and Harbors Act and Clean Waters Act. Appended to that legislation are the other laws such as the National Environmental Policy Act, Endangered Species Act, Magnuson – Stevens Fishery Conservation and Management Act and the Fish & Wildlife Coordination Act that enable or focus attention on specific resources. The framework for invocation of the regulatory process may appear to be a “… hodge-podge that only tangentially address aquaculture,” but, I suggest that is incorrect and results from perception and expectation rather than factual evaluation. I do agree that it is unlikely that OA will ever garner a special place in regulatory programming, but does it need to achieve that status?

The information shortage is another matter. I have come to believe that reasonable flexibility in “growing” an OA operation is the key to a successful permitting experience. By applying profitability and issue resolution criteria, an initial installation size can be identified and a monitoring program used to address uncertainties while growing the operation to full size. Phased development of a site allows monitoring of events and conditions where insufficient information is available, but expectations are high that impacts are acceptable. There are projects that lack redeeming social value, they should not be authorized. As the monitoring information collects, the industry, public and regulators build on expectations with solid facts that should facilitate subsequent expansions and similar proposals. To that end, the Regulatory Agencies have not sat by and watched aquaculture development unfurl. We have and will continue to facilitate applications for OA. Curiously, we see that the expectation of applicants is operating, often, on a wholly different level than regulators’. The nature of the procedures needed to authorize any type of private activities within the Public Trust Waters of the US is not a simple task, nor should it be. Instant permits are not in the immediate offing.

The burden of depicting how an OA operation fits within the multi-use mix presently in-place, in ocean waters, lies with the proponent of the activity. Often times, we find the proponent has not fully appreciated the nature and breath of the information required for a complete application for activities in those Public Trust Waters. To address this situation, NMFS, in conjunction with EPA, the Corps of Engineers (COE) and the New England Fisheries Management Council, created guidance and procedures for assessing OA proposals. The information is contained on a single page of paper. The guidance is designed to facilitate the education of all parties in an OA evaluation by setting goals and noting procedures for a comprehensive presentation of the request. To facilitate the presentation, NMFS NERO developed a guidance package for aquaculture, based on meeting the National Environmental Policy Act objectives. Yes, the first applicants in the regulatory process are scrutinized more thoroughly than subsequent proponents entering the process, but that reflects, simply, the learning curve related to the development of any project, not a reticence by the regulatory community to perform their functions. We are in the throes of developing similar protocols for assessing and, potentially, authorizing offshore windmill generated electricity (offshore windfarms). There are more similarities than differences AND windfarms occupy more real estate than OAs!

Curiously, efficiency in the permitting process is misrepresented or poorly perceived, all too frequently. As I noted above, there is a disconnection between the expectation of the various parties. The folks and Agencies involved in permitting require a certain level of assurance that authorized activities do not pose a threat to the resources or other users of the Public Trust. To achieve that level of confidence with a proposal, we require, often, a large and far ranging evaluation of the potential consequences of an action. The length of time needed to convince applicants of the need for such a depiction and the time needed to collect the information for that action are the two largest causes of protraction of the evaluation process. Yes, the third most common problem is lack of specific expertise on proposals, but the nature of the business is such that institutional memory is in short supply. It would not be a surprise to see that expertise more available if the flow of aquaculture requests increased. In all three situations, we should strive to make the protocols more obvious. Rebuilding the ship after it left the dock often has unanticipated consequences.

Ron Smolowitz said that siting issues were local. He thought that we were proceeding from the top down and not the reverse. We need to work with existing users of the EEZ (fishermen) or there will be tremendous resistance. Proposed framework will prohibit participation by small operators. We need to find some way not to inhibit small-scale entrepreneurs. He believes that odds of getting a new Office in NOAA authorized in the current administration are exceedingly remote. (Opinion shared by most)

Alternatively we should be tweaking the existing authorizations in the Magnussen Act (and others as needed) and not by creating a new structure. For example : growout or spat collection will require changes in the MSA. Permit applications become EISs or EAs. Government should help by writing the EIS's that are required.

Sebastian Belle noted that private capital will move overseas before putting up with these regulatory costs. Some of the most entrepreneurial people are already being driven overseas. The present management plan is trying to reduce the number of fishermen across the board.

There was a general discussion of the importance of separating regulatory activities from advocacy. NOAA has grabbed the former through a questionable interpretation of the MSA that calls aquaculture “fishing”. The USDA needs to do a better job of advocacy in Marine waters. –Regional Centers underfunded, but right idea. US entrepreneurs must compete with other nations that throw millions of dollars of subsidies at their industries. Canada declared aquaculture as a priority 15 years ago - $64 million in subsidies this year. Sebastian Bell said the real battle to be fought is on the development side. When we push investment to other nations with less environmental controls or enforcement (as we do now) then we in effect push environmental problems to other nations. “Eco-racism”

The view was held that every grower should be able to determine what place in the ocean he could place his activity. A pre-permitted site would facilitate an application, but we cannot foresee every type of future development. Robert Rheault feels we need both; pre-permitted areas and the right to go elsewhere. Aquaculture zones will be in the areas that no one else wants and are not likely to be the areas most conducive to growth. Someone else disagreed – aquaculture should be restricted to zones or zones become meaningless.

Rollin B. Johnson: I was really impressed by the great effort you and others put into the draft document for NOAA for aquaculture in the EEZ. While I will probably have more comments for you soon, there are two I'd like to emphasize. My work about and for the Federal Government persuades me that trying to make aquaculture in the EEZ work within existing institutions and structures is a wise approach. Said another way, not to create new structures is a reasonable principle to follow. It is always difficult to create new offices and institutions, and then to ensure that they are actually funded. I believe it is easier to add programs items to existing institutions and their mission statements than creating new institutions.

Secondly, I hope that your recommendations encourage the entrepreneurial spirit of large and small companies. In the care to give all parties and users of federal waters a voice, I hope you can still reward the entrepreneurs for being the first to propose an aquaculture activity in a particular site by giving them the priority they deserve for sticking their necks out, putting their time, energy, and money on the line, and putting together a detailed proposal. Another consideration is whether the process (whether it be bids as for mining leases on the continently shelf, or some other strategy) puts small operations at a disadvantage, meaning they cannot compete and an important source of creativity and pioneering spirit is discouraged.

A third point I had was on compensation. There has been a lot of criticism about how the Federal Government has allowed ranchers to graze on federal lands in the West at bargain basement prices, and for the federal government to sell timber on federal lands to private companies at absurdly low rates. The same criticism may be directed to aquaculture in the EEZ if compensation isn't worked out carefully. What is the fee charged for a lease if no aquaculture is done? Being given an exclusive use of a site is a cost to the public. How is that cost evaluated? Relevant to my second point, if the leases are too dear, they may exclude small enterprises. Also, how to limit companies from buying up too many of the leases and holding them?

Rob Garrison noted that in Massachusetts you already have aquaculture in mooring areas. In shore there are more conflicts.

Background documents and reports	10
Reports on finfish	97
Reports on habitat	13
Reports on shellfish	24
Reports on policy and legal issues	39
Misc. reports	13