by Carolyn Gramling Thursday, January 5, 2012
Picture it: Dozens of kilometers off the coast of Texas, a giant polygon-shaped cage constructed of steel ribs and mesh netting floats 30 or so meters beneath the waves. The cage, moored to the seafloor, is filled with tens of thousands of teeming, silvery fish. Several kilometers away, offshore wind turbines sprout from the sea surface in a curving line, their spindly white arms churning the atmosphere. Still farther along the horizon, a massive oil platform squats heavily on four stumpy legs over its parcel of ocean, pipes plunging 11 kilometers into deep reservoirs within the seafloor. In the open waters between these industries, tankers and commercial fishermen follow snaking shipping lanes that lead them toward the coast.
This sea-sprawl scenario is not yet real. In fact, how all these industries might someday coexist in the vast real estate located in the United States' deep offshore waters is still murky. But with a growing number of industries turning their eyes to the vast real estate offshore, the coastal ocean of the future may soon become a busy, crowded place. And that will require regulatory oversight that does not now exist.
A possible solution to balancing various commercial interests and environmental concerns may rest with a concept called “marine spatial planning,” the notion that government agencies, industries and others involved in managing ocean development should simultaneously weigh all possible uses for the ocean — whether competing or complementary — before deciding how best to develop its resources. Marine spatial planning could bridge the oversight of various agencies, such as the Environmental Protection Agency and NOAA, that now determine different aspects of how industries can operate in deep offshore waters. Those waters, called the U.S. Exclusive Economic Zone, extend seaward from state coastal waters out to 322 kilometers offshore. Currently, they are occupied only by shipping lanes, a few oil and gas rigs and migrating whales and other marine life. But new industries, including deepwater aquaculture and offshore wind farms, may soon be seeking significant portions of that watery real estate.
A good example of the tension that can arise from regulatory uncertainty is found in the unresolved question of offshore marine aquaculture. In January 2009, a regional body that regulates fishing in the Gulf of Mexico decided it had the authority to issue permits for offshore fish farming in federal waters. The decision highlighted a long-smoldering controversy over whether the federal government, state governments or regional stakeholders should have sovereignty over aquaculture — or any business — in those waters. That conflict remains unresolved: Although it allowed the regional plan to become law, NOAA has said it will not allow any permits to be issued until it establishes its own offshore aquaculture policy.
These sorts of conflicts could be avoided through marine spatial planning — a conceptual framework that some policymakers say is the best way to accommodate both business and environmental objectives.
Marine spatial planning is a necessary first step to establishing a policy for aquaculture, hydrocarbon exploration and other uses of our oceans, says George Leonard, director of Aquaculture at the Ocean Conservancy in Washington, D.C. It isn’t just about carving up the ocean and giving different users access to a piece of it, Leonard says: “If marine spatial planning is just a way to divvy up the ocean, we will have failed.” Instead, he says, planners should take a broad view, considering the most sustainable way to balance and supervise uses of the ocean’s resources — including those already existing and those that might exist in the future.
Over the last year, the issue of marine spatial planning has taken on new urgency. With the uncertain economy and anxiety over national security, lawmakers and business want to rely less on foreign imports and see the U.S. economy grow, whether through the exploration and production of hydrocarbons such as oil and gas, alternative energy sources such as wind turbines or ocean thermal energy, or food resources such as fish farming and fisheries. In 2008, for example, Congress allowed a nearly two-decade-old ban on drilling on the outer continental shelf to expire. If leasing of the outer continental shelf begins in 2012 and production by 2017, as estimated, this will produce 1.6 percent of the country’s oil and 2 percent of its gas in the near future, according to the U.S. Energy Information Administration. Meanwhile, the Gulf of Mexico Fishery Management Council, one of eight regional fishery councils around the country, decided in January 2009 not to wait for a national permitting plan to lease waters for offshore fish farming and developed a controversial permitting plan of its own for the Gulf.
With economic and environmental concerns alike heating up, last June, President Barack Obama established an Interagency Ocean Policy Task Force, under the administration’s Council on Environmental Quality, to develop a new national policy toward the oceans that focused on both environmental stewardship and coastal and marine spatial planning for future industrial uses. The Task Force released its interim report in December, including a proposed framework for effective coastal and marine spatial planning. One part of the report examined, as a test case, how marine spatial planning might be applied to offshore traffic in the Stellwagen Bank National Marine Sanctuary off the coast of Massachusetts, where ships carrying liquefied natural gas to port have on occasion collided with endangered right whales. By taking a multisector, multiobjective approach, the report stated, government agencies and stakeholders can increase maritime safety and significantly reduce the risk of collisions.
The underlying message of the Ocean Policy Task Force’s report is the need for a central vision of future ocean use. Different stakeholders and agencies will undoubtedly clash over their different goals, regulations and boundaries, the report notes — so the important thing will be to ensure that not only individual and regional but also national objectives for the ocean are always under consideration.
Although the report emphasizes national objectives for the ocean, it’s not entirely clear that the national approach will make the most sense when it comes to actually working out ocean use, says Porter Hoagland, a scientist at the Marine Policy Center at the Woods Hole Oceanographic Institution in Massachusetts.
Hoagland says there’s plenty of precedence for marine planning in state waters. Recently, for example, Massachusetts completed a study of its coastal resources to understand the historical patterns of use — such as shipping and commercial and private fishing — and to propose sites for new uses such as aquaculture or renewable energy. “There’s some value to that, in showing historical patterns [of use] and starting the debate,” Hoagland says. But the trouble with just looking at historical uses, he adds, is that it may end up being too limiting in the long run, as different stakeholders emerge and old ones recede.
Overall, Hoagland worries that planners may be taking an overly simplistic approach. “Much of the discussion among governments, agencies and users of ocean resources has been a kind of five-year plan: Here’s a map, we’re going to try to pull everybody together and engage in discussions to see what goes where, we’ll divide up the ocean that way and proceed on our merry way,” Hoagland says. “It’s a crude conceptualization, but it’s not too far off” from the right conceptualization.
Another way to think about it, Hoagland says, is that the real commodity in the oceans is not a particular industrial resource, such as hydrocarbons, or wind or fish — it’s simply space. Take wind power, for example, he says. “Most people think the resource here is the wind. But in fact, you’re not really using up the wind in any way. There’s no measurable diminishment of that resource. The relevant resource is the occupation of ocean space itself.” If ocean space is considered the commodity, Hoagland suggests, a market-based approach might be a more efficient or fairer way of determining what goes where in the ocean: For example, determining whether a wind farm or, say, a squid fishery should occupy a particular region might therefore be based on a number of factors, such as a cost-benefit analysis of the economic value and environmental costs of the wind farm to a nearby population versus the fishery.
And in this view, Hoagland says, it could make the most sense to make siting offshore aquaculture farms, for example, a regional rather than national decision. “At a regional level, you might expect that people would have a better sense of the local environment, conditions. … Even if you had national legislation, you might expect that it would devolve [some] authority to the regional level,” he says.
NOAA does, however, assert that making such decisions with respect to a larger national plan is essential. “The important thing is to have a national perspective as to where, as a nation, we want to see aquaculture going,” says Susan Bunsick, a policy analyst with the NOAA Aquaculture Program in Silver Spring, Md., which focuses both on freshwater and marine aquaculture industries, including future offshore farms. That policy, she says, should include clarifying what sort of requirements and permitting processes should be in place. Still, she says, “my personal take on it is, within a national approach you do have to consider regional differences, so there is some interaction between the two.”
In general, environmental groups agree that an overarching national policy is likely to offer more safeguards to the marine environment than a piecemeal approach to ocean policy. The Ocean Conservancy, for example, supports the idea that NOAA would supervise offshore aquaculture, including providing well-researched national standards for regulation and mitigation. “Clearly, NOAA is the agency most capable of addressing the kinds of risks fish farming pose to the environment,” Leonard says.
U.S. regulatory “fragmentation” when it comes to many ocean issues makes the oceans a “regulatory orphan,” as Florida State University law professor Robin Kundis Craig wrote in the University of Colorado Law Review in 2008. Throughout the past decade, stakeholders and policymakers alike have increasingly called for more streamlined government plans for managing ocean-based industries, including offshore aquaculture. The U.S. Commission on Ocean Policy, convened in 2000 by Congress to assess the health of the oceans, published a report in 2004 that called for the establishment of a national council on ocean policy to coordinate the various agencies' work. A similar report published in 2003 by the Pew Oceans Commission also called for a national oceans council, finding that the confusion over conflicting mandates between agencies made it difficult to regulate environmental concerns such as non-point-source pollution.
Shortly after the U.S. Commission’s report, an interdisciplinary group of scientists focused on offshore aquaculture, outlining a policy framework on the subject for NOAA. The group also recommended the creation of a new NOAA Office of Offshore Aquaculture to oversee leasing, environmental review and monitoring of the fledgling industry.
But none of this has happened yet. A pair of 2007 House and Senate bills to provide authority to the Department of Commerce (the department that includes NOAA) to establish a regulatory system for offshore aquaculture in the Exclusive Economic Zone didn’t even make it out of committee, in part because they lacked sufficient environmental safeguards, Leonard says. “They were widely criticized as fundamentally flawed,” he adds. For example, the bills left many environmental mitigation measures up to the discretion of the Secretary of Commerce, rather than establishing legally binding national standards. “Many of us were concerned that that kind of discretion opens the door for putting ocean ecosystems at risk,” Leonard says.
As with questions of marine spatial planning in general, different interests still debate whether there should be a national aquaculture policy and regulation or regional policies. When it comes to fisheries in state waters, regional management has long taken precedence over national policy. NOAA’s National Marine Fisheries Service, under the Magnuson-Stevens Fishery Conservation and Management Act (first enacted in 1976 and later amended in 1996 and 2007), is responsible for managing commercial fishing operations, including regulatory requirements on permits and size limits. But most of the management decisions and fishing regulations are determined regionally by eight regional fishery management councils, each consisting of various stakeholders related to the fishing industry, as well as state and federal representatives.
The Magnuson-Stevens Act, which defines fishing as “harvesting,” also applies to offshore aquaculture, Bunsick of NOAA says. That definition has been an ongoing source of contention: Many environmental groups contend that harvesting fish from offshore “farms” is vastly different from “fishing” and should be subject to different regulatory requirements.
Although aquaculture so far is not big business in the United States, deepwater fish farms could have significantly greater capacity, providing potentially tens of thousands more tons of seafood per year to increasingly health-conscious U.S. consumers. Stakeholders across the board find that prospect attractive, but despite a growing interest in offshore aquaculture, there is currently no permitting system in place to lease ocean waters for that purpose — in large part because it’s not clear who should do it.
At issue is not just a semantic dispute; tied up in that definition is who would ultimately manage those offshore aquaculture operations — NOAA’s National Marine Fisheries Service (via the regional councils, or not) or some other agency. Multiple agencies have jurisdiction over different aspects of offshore aquaculture operation: Because inland and nearshore aquaculture falls under the Department of Agriculture, USDA chairs the Joint Subcommittee on Aquaculture, formed in the 1980s after the National Aquaculture Act passed. The Army Corps of Engineers has the authority to issue permits for offshore aquaculture facilities under the Rivers and Harbors Act. The Environmental Protection Agency, under the Clean Water Act, issues permits for waste discharge into public waters (which would include waste produced by the fish). And the Food and Drug Administration has jurisdiction over regulating the sale of fish that have been treated for disease.
The prospect of offshore aquaculture in the deeper federal waters is appealing for many reasons. Currently, the United States imports more than 80 percent of the seafood it consumes, a seafood deficit that amounts to more than $9 billion annually. And aquaculture is growing rapidly overseas: About half of the seafood imported by the United States originated in aquaculture farms, not in the wild. That trade imbalance has raised economic and food security concerns.
In 2003, the Gulf of Mexico Fishery Management Council, one of the eight regional councils established by the Magnuson-Stevens Act, developed its own plan to lease parcels of federal waters in the Gulf to large-scale commercial fish farms.
“The general consensus of the Council was that this was an important area for development for the United States, from the standpoint of seafood supply,” says Joe Hendrix, a member of the Gulf Council and a mariculture consultant in Houston, Texas. Furthermore, he says, it makes sense for the regional councils to manage the industry. “This process will not be the same in the Northwest as the Gulf or New England. Most of the fish species we’re working with are subtropical — salmon farming is not the same as farming red drum.”
The Gulf Council’s plan became mired in years of public hearings and protests as environmental groups worried over potential flaws in the plan and challenged the council’s authority to lease federal waters. “There were more public hearings than have ever been held for a plan before,” Hendrix says. Six years later, in January 2009, the Gulf Council approved the plan and sent it to the Secretary of Commerce for approval, a necessary step to become law.
Meanwhile, lawmakers, including House Natural Resources Committee Chairman Nick Rahall, D-W.Va., urged the secretary to reject the plan, citing both the confusion over proper authority and environmental concerns. A regional plan, wrote Rep. Rahall in a February 2009 letter to the then-acting commerce secretary, would hardly be able to address how to allot ocean space to a growing list of industries.
But as the months passed, the Department of Commerce remained silent on the issue. Eventually, in September, the department announced its position: It wasn’t going to take one. However, under the Magnuson-Stevens Act, if the commerce secretary neither approves nor disapproves such a plan, it takes effect anyway. From NOAA’s perspective, that’s not ideal, Bunsick says, because “the agency would prefer a national instead of region-by-region approach.”
Still, NOAA wasn’t prepared to say that it doesn’t have authority over offshore aquaculture, as the agency’s ultimate intention was to oversee the fledgling industry via a national policy. At the same time that it announced it would take no action on the Gulf Council’s plan, NOAA also announced its intention to create a national policy for sustainable marine aquaculture, highlighting the need for coordination and sound science. If the Gulf Council’s plan turns out to conflict with that national policy, NOAA’s Acting Assistant Administrator for Fisheries James Balsiger noted in a September statement, then “we will consider appropriate action.” The national policy would not be a specific permitting plan so much as a set of goals and objectives — and it would not carry the force of law, Bunsick says. “Policy is more like the lens through which you evaluate something like the Gulf plan.” NOAA is accustomed to a similar working process with the fishery councils on fishing issues, she adds. “That’s the kind of process we’d need to go through with this.”
Environmental groups are concerned that the Gulf Council’s plan sets a dangerous precedent for other regional councils. A big part of the problem with the Gulf Council’s plan — and with the failed congressional bills — is that they still consider offshore aquaculture to be fishing, Leonard says. “Fishing is not farming, farming is not fishing,” he says. “Fish farming is more like agriculture, while fishing is more like hunting. [So] when you have a law designed for how to sustainably remove fish that live in the wild, it doesn’t work as a framework to manage fish farming.”
For example, Leonard says, fishing management involves figuring out how to selectively remove wild animals from an ecosystem, based on aspects of population biology, such as how long fish live, when they reproduce, how many eggs they lay and how likely the eggs are to survive. From that, managers determine a total allowable catch and set a limit. Fish farmers, however, have to deal with a completely different set of problems, he says, such as how and what to feed the fish, what to do with the waste they produce, how to deal with fish escapes (which can affect surrounding wild populations of fish) and what to do when diseases infect their fish. “It’s a serious ‘square peg, round hole’ problem.”
The Gulf Council’s plan, which includes its own environmental impact
assessment, doesn’t address many of these issues in an overarching way,
Leonard says. Instead, the plan leaves many decisions about required
environmental standards up to the Secretary of Commerce to determine on
a case-by-case basis — which overlooks the potentially cumulative
impacts of waste, disease and other concerns.
Bunsick says she understands the concerns: “How you fish is very different from how you farm.” But in terms of statutory authority, she says, NOAA’s longstanding legal opinion on aquaculture is that fishing is harvesting. There is already precedent for this, she adds: Currently, for example, “live rock” harvesting of corals is conducted in the Exclusive Economic Zone under the regulation of the regional fishery councils.
The future of offshore aquaculture in the United States is still unclear. Before the Gulf Council can issue permits to lease federal waters for fish farming, NOAA Fisheries must undertake a rulemaking process, which can include a period of public comment. NOAA has said it will postpone that process until it completes its own national policy for marine aquaculture. That, Bunsick says, could occur sometime this spring.
Meanwhile, Congress may also take action: In December, Rep. Lois Capps, D-Calif., introduced a new bill to Congress — the National Sustainable Offshore Aquaculture Act of 2009 — to establish a national regulatory system for sustainable offshore aquaculture. The bill states that offshore aquaculture should not be considered fishing under the Magnuson-Stevens Act and would ban regional fishery management councils from issuing permits for offshore aquaculture. The bill also calls for establishment of a research program to ensure that offshore aquaculture development proceeds in an ecologically and economically sustainable fashion. This legislation “represents a huge step forward in our efforts to establish a comprehensive regulatory framework for offshore aquaculture development that balances environmental, social and economic concerns,” Capps said in a statement accompanying the bill. “I believe this type of balanced, comprehensive and precautionary approach will work.”
In the end, whether the bill or any other legislation or rulemaking would solve any seafood trade deficit is less clear. The very environmental standards imposed on the industry could make it difficult for U.S. offshore aquaculture to be economically competitive, Leonard acknowledges. “You get what you pay for,” he says. “It’s pretty well-known that a lot of other countries have lower environmental standards, which is reflected in relatively inexpensive products.”
Whether a U.S. industry should even try to compete with other international fish farms is the question, he adds. Leonard points instead to a growing demographic in the United States that would likely be willing to purchase more expensive “green” seafood, whether farmed or wild. When it comes to inexpensive seafood, he says, “we probably can’t win at that game. It’s a false argument to use the seafood trade deficit as a reason to create a system that will allow rapid development.” What matters most, he says, is making sure that offshore aquaculture — and any future industries that will occupy ocean space — are managed sustainably from the start.
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