Water Log 29.3, November, 2009

New Developments in Gulf of Mexico Aquaculture Plan

Amy Lubrano, J.D., LL.M.
     
On September 3, 2009, the Fishery Management Plan for Regulating Offshore Marine Aquaculture in the Gulf of Mexico (Gulf FMP or Plan) took effect when the National Oceanic and Atmospheric Ad­min­is­tration (NOAA) failed to take any action with regard to the Plan. Applications for offshore aquaculture permits in the Gulf will not be accepted until implementing regulations are in place, so it could still be months or even years before there is any offshore aquaculture activity in the Gulf.

Background
The United States currently imports 84% of its seafood supply.1 The U.S. seafood trade deficit is $9.4 billion, second only to oil in the natural resources category. Worldwide, aquaculture is a $70 billion industry, and is the fastest growing form of food production in the world.2 About half of U.S. seafood imports are from aquaculture.3 Offshore aquaculture is the cultivation of aquatic organisms in controlled environments, such as cages or net pens, in federally managed areas of the ocean.4 Federal waters begin where state jurisdiction ends and extend 200 miles offshore.
      Currently, several aquaculture operations are conducting research and commercial production in state waters. NOAA has also approved some offshore aquaculture activities, including live rock aquaculture in the Gulf of Mexico and South Atlantic and an area enclosure for scallop aquaculture in New England.5 How­ever, the Gulf FMP is the first plan that would permit commercial finfish aquaculture operations in U.S. federal waters. Offshore aquaculture is preferable to nearshore aquaculture because there are fewer competing uses, such as fishing and recreation, farther from shore. Also, deeper and stronger water flows found farther from shore ease mitigation of environmental impacts, such as nutrient and organic loading.6
      The Gulf FMP provides the framework for permitting and regulating an estimated 5 to 20 offshore aquaculture operations in the Gulf of Mexico over the next 10 years. Each permit will be issued for an initial 10-year period and subject to renewal every 5 years.7 The Gulf Council predicts that the Gulf FMP will produce up to 64 million pounds of seafood each year, an amount that is equivalent to more than half of the annual commercial catch off the Texas coast.8
      The Gulf FMP includes a number of environmental safeguards. These safeguards include: limiting the species that may be cultured to Gulf Council-managed species (except shrimp and corals) that are native to the Gulf of Mexico; prohibiting aquaculture operations from being sited in certain areas; capping the total amount of fish that can be cultured annually, as well as the relative contribution of each individual operation to the annual cap; and establishing numerous recordkeeping, reporting, and operation requirements de­signed to minimize or mitigate potential environmental impacts.9

NOAA’s Decision Regarding the Regional Plan
The Gulf of Mexico Fishery Management Council (Gulf Council) approved the Gulf FMP on January 27, 2009, and then subsequently sent the Plan to NOAA’s National Marine Fisheries Service (NMFS) for Secre­tarial review. Pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (MSA), NMFS provided public notice and comment beginning June 4, 2009 and ending sixty days later on August 3, 2009.10 The Secretary had thirty days thereafter to approve, disapprove, or partially approve the Plan.11 Instead, the Secretary chose no action and the Gulf FMP entered into effect by operation of law on September 3, 2009.12
      In a letter to the Chairman of the Gulf Council, James Balsiger, NOAA’s Acting Assistant Administrator for Fisheries, discussed NMFS’s unprecedented ap­proach to Secretarial review of the Gulf FMP. Accord­ing to Mr. Balsiger, the only potentially viable basis for disapproval of the Gulf FMP that NOAA identified was a determination that it does not have authority to regulate aquaculture under the MSA. However, this conflicts with NOAA’s longstanding position that the definition of “fishing” encompasses aquaculture under the MSA. Furthermore, if NOAA were to disapprove the Gulf FMP on this basis, there would be no overarching authority to address environmental and fishery concerns for aquaculture operations in federal waters. While the U.S. Army Corps of Engineers and the Environmental Protection Agency do have some regulatory authority over siting and water quality issues, Mr. Balsiger stressed that other marine resource conservation concerns such as fisheries management and fish habitat in federal waters could not be addressed without NOAA’s MSA authority.13 Because there is no other comprehensive legislative authority for regulating offshore aquaculture, NOAA concluded that a decision that would remove its own authority to regulate aquaculture under the MSA was not an acceptable outcome. Rather, it did not take any action on the Gulf FMP, thereby allowing the Plan to take effect by operation of law and preserving its authority to later implement a national aquaculture framework.
      On October 2, 2009, two advocacy groups filed a lawsuit in federal court in Washington, D.C., challenging the Gulf FMP and alleging that NOAA failed to conduct required environmental reviews under the MSA and the National Environmental Policy Act. The groups further argue that NOAA and the Gulf Council do not have authority to pursue permits under the MSA. The groups are asking the court to throw out the Plan before implementing rules are written.14

National Plan
Although NOAA allowed the Gulf FMP to take effect, the Agency believes that offshore aquaculture activities should be governed by a comprehensive, ecosystem-based, national policy rather than by regional regulatory frameworks.15 On September 3, 2009, NOAA announced its intent to develop a comprehensive national policy for permitting and regulating offshore aquaculture. According to NOAA Admin­istrator Jane Lubchenco, the national policy will focus on the protection of ocean resources and marine ecosystems, address the fisheries management is-sues posed by aquaculture, and allow U.S. aquaculture to proceed in a sustainable way. For this reason, NOAA announced that it will develop a national policy within the coming months.16 Among the reasons NOAA stated for pursuing a na­tional offshore aquaculture program are the belief that such a program would move the United States towards becoming more self-sufficient in the production of healthy seafood, providing jobs for coastal communities, and reducing the seafood trade deficit.17
      NOAA believes that the regulations for a national offshore aquaculture program should:
1.  Include terms and conditions to conserve and protect our living marine resources and marine ecosystems and to address fisheries management issues posed by aquaculture activities, including the placement of aquaculture facilities, species selection, genetic and ecological risks of escapes, risk of disease transfer, and other potential adverse impacts to wild fish stocks, fish habitat, ecosystem functioning and other living marine resources.
2.  Ensure a coordinated federal regulatory process for permitting aquaculture facilities in federal waters and provide regulatory certainty for potential investors.
3.  Allow NOAA to work with other federal agencies to clarify various regulatory responsibilities and to provide the scientific information needed for permitting decisions.18
      If the Gulf FMP is inconsistent with the national policy NOAA develops, the agency will have the ability to seek amendments or withdrawal of the Plan through the MSA process.19 However, according to James Balsiger, NOAA expects there to be little difference between the plans.20

Conclusion
It is clear that NOAA is committed to developing a federal permitting and regulatory system for offshore aquaculture. Whether the Gulf FMP will lead to offshore aquaculture activities in the Gulf of Mexico is somewhat less clear, in light of the recent lawsuit filed against the Plan. Even if the court does not throw it out, implementing regulations must first be developed before any permits can be issued under the Plan.

Endnotes
1.  See Cain Burdeau, Federal Agency Approves Plan for Gulf Fish Farming, Chattanooga Times Free Press, Sept. 4, 2009.
2.  Offshore Aquaculture: Hearing Before the Subcomm. on Insular Affairs, Ocean and Wildlife of the H. Comm. on National Resources, 111th Cong. 3 (2009) (statement of James W. Balsiger, Acting Asst. Adm’r for Fisheries, NOAA, U.S. Dept. of Commerce) (hereinafter “Balsiger Testimony”).
3.  See Press Release, NOAA, U.S. Dep’t of Com­merce, NOAA to Pursue National Policy for Sustainable Marine Aquaculture (Sept. 3, 2009) (hereinafter “NOAA Press Release”) (on file with author).
4.  See Gulf of Mexico Fishery Management Council, Fishery Management Plan for Managing Offshore Aquaculture Frequently Asked Questions (Sept. 2008) (hereinafter “FAQs 2008”) (on file with author).
5.  See Gulf of Mexico Fishery Management Council, Fishery Management Plan for Regulating Offshore Marine Aquaculture in the Gulf of Mexico, Frequently Asked Questions (Sept. 2009) (hereinafter “FAQs 2009”) (on file with author).
6. See FAQs 2008, supra note 4.
7. See FAQs 2009, supra note 5.
8.  Matthew Tresaugue, Agency’s Non-decision Opens Gulf to Fish Farming, Houston Chron., Sept. 4, 2009.
9. See FAQs 2008, supra, note 4.
10.16 U.S.C. 1854, 104-297(a)(1)(B) (2007).
11. Id. at 104-297(a)(3).
12. See NOAA Press Release, supra note 3.
13. Letter from to James W. Balsiger, Ph.D., Acting Asst. Adm’r for Fisheries, NMFS, to Dr. Robert Shipp, Chairman, Gulf of Mexico Fishery Management Council (Sept. 3, 2009) (hereinafter “Balsiger Letter”) (on file with author).
14. See Allison Winter, Lawsuit aims to block deepwater aquaculture in Gulf of Mexico, Greenwire, Oct. 5, 2009.
15. Balsiger Letter, supra note 13.
16. See NOAA Press Release, supra note 3.
17. Balsiger Testimony, supra note 5 at 5-6.
18. Balsiger Letter, supra note 13.
19. Id.
20. Tresaugue, supra note 8.

Recommended citation: Amy Lubrano , New Developments in Gulf of Mexico Aquaculture Plan, 29:3 WATER LOG 3 (2009).