Analysis of the National Offshore Aquaculture Act of 2007

Recently, the National Oceanic and Atmospheric Administration, known more commonly as NOAA, sent a bill to Congress that would establish a system of regulations for large-scale fish farming, or aquaculture, off our nation’s coasts. NOAA is the agency responsible for the protection and management of our federal fisheries. Despite NOAA being charged with the stewardship of one of our nation’s most precious public resources, it is located within the Department of Commerce. NOAA’s proposal for an offshore aquaculture program exemplifies the travesty of this incongruous placement.

The National Offshore Aquaculture Act of 2007

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This bill would support and encourage the development of an offshore aquaculture, or fish farming, industry in any federal waters from three to 200 miles out from shore. This area is known as the Exclusive Economic Zone, or EEZ.

This form of aquaculture involves the raising of carnivorous finfish, such as cod, halibut, and red snapper, in large, often crowded, cages. These operations involve the use of chemicals and concentrated amounts of fish waste that then flush straight into the open ocean. The ocean feedlots not only raise concerns about pollution, they could also potentially introduce non-native and genetically modified fish into the ecosystem, which can threaten wild fish populations.

We need to better understand how these intensive fish farms affect human health, the economies of local fishing communities, wild fish populations, marine mammals, endangered species, birds, and essential fish habitat.

Unfortunately, the bill does not take a look-before-you-leap approach to offshore fish farms – delaying permits until their potential problems are identified, studied, and resolved, as already required by some federal proposals. Instead, this bill allows the Secretary of Commerce, in consultation with other federal agencies, to fast-track the permitting of fish farms before criteria for protecting the environment, local fishing communities, and consumers are developed.¹

Specific Problems

Deficient Environmental Review.

• NOAA’s legislative proposal failed to include a Legislative Environmental Impact Statement (LEIS), as required by the National Environmental Policy Act (NEPA).² An LEIS is needed so that Congress can adequately assess the effects of offshore fish farming since the bill fails to require any study of aquaculture’s environmental effects.
• This bill focuses on the permitting process and lacks standards for individual permits, which should be subject to NEPA review.
• There is no requirement to eliminate or minimize problems that aquaculture facilities pose to wild fish stock, ecosystems, water quality and habitat, marine wildlife, or endangered species. Instead, the bill proposes only that these impacts be considered and addressed to the extent necessary.³

No Requirements for Reduction of Use of Wild Fish in Feed.

The farming of carnivorous finfish will only add to pressure on, and the decline in, wild fish populations if the use of fishmeal and oil is not eliminated or minimized. This bill only mandates that the Secretary of Commerce conduct research to reduce the use of wild fish in aquaculture feeds.⁴ There is no mandate for implementation or application of these research findings.

Allows Aquaculture Farms on Oil and Gas Rigs.

Aquaculture facilities are allowed on and within one mile of oil and gas rigs.⁵

State Opt-Out Provisions Extend Only to 12 Miles.

• This bill provides states the right to opt out of new offshore aquaculture facilities only within 12 miles of that state’s coastline.⁶ Such an arbitrary delineation hampers states’ ability to mitigate negative effects associated with offshore aquaculture. This language should be changed to allow for states to opt out for the entirety of the EEZ off their coast.
• This provision does not apply to permit applications filed prior to a state opting out.
• The provision has no flexibility for opting in for one type of aquaculture versus another (e.g., shellfish versus finfish).

Allows the Issuance of Long-Term Permits.

The Secretary of Commerce is given total discretion to approve aquaculture permit terms, conditions, and restrictions.⁷ All permits are required to be 20 years long and at the end of the 20-year term, they can be extended for another 20 years, ad infinitum, at the complete discretion of the secretary.⁸

Inadequate Monitoring and Tagging Provisions.

• While this bill does provide a requirement for the monitoring of offshore aquaculture’s effects on marine ecosystems, there is no requirement for baseline assessments in order to effectively compare monitoring data.⁹
  
• Tagging of farmed fish is required only “if necessary.” ¹⁰ This provision should be changed to require tagging unless clearly impractical, as this is an important accountability measure in cases of fish escapes.

Deficient Enforcement, Sanction, and Liability Provisions.

• Though this bill authorizes the Secretary of Commerce to establish application and permit fees, there is no requirement that such fees cover the cost of the permit process, monitoring, or enforcement. Without such requirements, these costs will be left to taxpayers.
• Bonds are not required to cover clean-up costs or damage done by escaped fish, pollution, or by the spread of disease.
• No right-of-action is given to citizens to enforce the statute, leaving the burden to already underfunded and overworked federal agencies.
• There is no language within the bill to address liability.

Aquaculture facilities are exempt from state tax laws.

Although the facilities are in federal waters, the fish will be brought to port and may utilize land based processing facilities. These facilities should be subject to state tax, just as any other industries.

Footnotes

¹ Id. at Section 5(c).
² Id. at Section 4(e)(1).
³ Id. at Section 4(d)(2).
⁴ Id. at Section 4(b)(2)(B).
⁵ Id. at Section 4(b)(2)(C).
⁶ Id. at Section 4(a)(5)(B).
⁷ Id. at Section 4(a)(4)(F).
⁸ Id. at Section 4(c)(1).
⁹ See id. at Section 4(c)(3), mandating the secretary to collect bonds or other financial guarantees for unpaid fees or costs of removing facilities. This language grants the secretary complete discretion to determine the amount of such guarantees and what constitutes “other financial risks” to be covered, with no mention of escapes or other environmental hazards.
¹⁰ Id. at Section 10.