Plenty of Fish in the Sea?

Assessing the environmental efficacy of The National

Sustainable Offshore Aquaculture Act of 2011
Allison Giffin, Pol 338, Chris Koski, 12/2/12

Contents:
Section One: Assessing the Existing State of Aquaculture
Policy
3
Introduction
3
Environmental Problems with the NSOAA
4
Depletion of Forage Fish
5
Disease Treatment
6
Fish Escapement
Waste
Reasons for the Establishment of Aquaculture in the EEZ
7
Actors Involved
Government Involvement
9
Current Regulatory Structure
Conclusion
10

6
7
8
9

Section Two: Getting Environmentalists on Board, Policy tools

in the NSOAA
Introduction
12
Policy Tools of the NSOAA
12
Disclosure
Scientific Research
15

Environmental Impact Statement

16

Permit System
Conclusion
20

Section Three: Filling Holes in the NSOAA

Introduction
Gaps in the NSOAA Bill
Power Vested in the Secretary of Commerce
21
Specifying Provisions
Penalites for Repeated Violations of Environmental Regulation
26
EIS Every Ten Years
26

13

17

20
21
23

Conclusion
27
Sources

27

Section One: Assessing The Existing State of

Aquaculture Policy in the U.S.
Introduction
The world production of fish has risen sharply in the last fifty
years. Global Per capita food fish supply increased from an average of
9.9 kg in the 1960s to 18.4 kg in 2009. On the 31 of January 2011, the
UN reported that global fish consumption had reached an all time high,
and that more people than ever are employed in or depend on the
fisheries sector. The US, third-ranked for fish consumption behind
China and Japan, had an estimated per capita consumption of 15.8
pounds 2010, eighty percent of which was imported (UN FAO. 2012).
To reduce dependence on foreign imports and to meet the growing
demand for fish, the Bush administration proposed the National
Offshore Aquaculture Act, sponsored by senator Ted Stevens [R-AK] in
2005. The bill directed the Secretary of Commerce to establish a site
and permit system for the establishment of offshore aquaculture
fisheries in the U.S. exclusive economic zone. The bill was voted down
due to environmental concerns, but in 2011, representative Lois Capps
[D-CA23], introduced a modified version called the National
Sustainable Offshore Aquaculture Act of 2011 (Ocean Conservancy,
2011).
The Bush proposal required the Secretary of Commerce to
establish an Office of Sustainable Offshore Aquaculture under the

National Marine Fisheries Service at The National Oceanic and

Atmospheric Administration (NOAA) headquarters as well as satellite
offices in each of NOAAs regional fisheries offices. Other provisions
included: maintaining an Office of Aquaculture database, making the
database publically available while protecting proprietary information
of owners and operators of offshore aquaculture facilities, requiring the
Secretary to assess application and annual fees with respect to the
aquaculture permits that were sufficient to pay the costs of issuing,
monitoring, and enforcing the permits, and the imperative that the
Secretary establish and conduct a scientific research program designed
to inform and guide the sustainable development of offshore
aquaculture (United States Congress, 2005).
The 2011 version includes all these provisions, with the addition
of a multitude of incredibly in depth environmental provisions. The new
bill has yet to pass through congress, so the question as to whether or
not the newest version adequately addresses environmental concerns
still remains. This paper seeks to outline these issues as well as
provide an overview of the political actors involved, their positions on
the issues, the current regulatory regime, and history of political
involvement with aquaculture.
The controversy over the bill involves three primary political
actors. Those in favor of the bill are generally existing aquaculture
businesses that wish to expand operations in the EEZ.
Environmentalists and wild catch fishing groups are the two groups
that are actively opposed to the bill. While the ultimate interests of
these two groups do not exactly align, both groups are concerned with
the same environmental hazards because they primarily affect stocks
of wild fish.

Environmental Problems

1.) Depletion of wild stocks of forage fish to feed carnivorous farmed

fish.
2.) The necessity of using various drugs and antibiotics to prevent the
spread of disease among farmed fish (which contributes to the waste
problem, and potentially harms consumers).
3.) The escapement of farmed fish that may compete with and
interbreed with wild stocks.
4.) Waste excretion into the surrounding environment, causing algae
blooms and subsequent oxygen depletion of the ocean
(eutrophication).
Each of these problems will be discussed in more detail below, along
with a recapitulation of any previous political efforts to address them.

Depletion of Forage Fish

Valuable carnivorous fish like salmon, tuna, tilapia, grouper, and
sea bass must be fed on smaller fish like herring, mackerel, sardines,
and anchovy. These kinds of fish (especially salmon and tuna) also
command a very high market price and are therefore some of the most
lucrative fish to farm. Unfortunately, the widespread employment of
carnivorous fish farms is incredibly inefficient because it requires
between two and five kilos of wild fish to grow one kilo of farmed fish.
The fish used for feed are wild-caught to reduce harmful genetic
mutations that could result from feeding farmed fish a diet of farmed
fish. Harvesting wild fish for farm fish feed depletes the stock of small
wild fish for larger carnivorous wild fish, and sacrifices stocks of
nutritious but less valuable fish for the production of these expensive
high value fish. Zeke Grader, executive director of the Pacific Coast

Federation of Fishermens Associations asks the question What are we

trying to accomplish, if we are grinding up food to satisfy the palates of
the wealthiest nation? (Politico, 2007)
It appears as though there is very little formal legislation that
addresses this issue. The EPAs compliance guide for concentrated
Aquatic animal production includes two provisions: that aquaculture
firms employ efficient feed management and feeding strategies that
limit feed input to the minimum amount reasonably necessary to
achieve production goals and sustain targeted rates of aquatic animal
growth, and that they minimize accumulation of uneaten feed
beneath the pens through active feed monitoring and management
strategies approved by the permitting authority. (EPA, 2006) The
guide also provides examples of best practice techniques and
technologies that facilitate these guidelines. It is possible that the thin
legislation regarding feed sourcing stems from the fact that private
aquaculture firms already have the incentive to search for alternatives.
Commercial fishing is expensive, so many firms are turning to soybean,
algae, flax, or barley based feeds for their carnivorous aquaculture
operations. Many also use the trimmings from commercial fish
processing plants (Lescin-Hoar, 2012). Rick Barrows, a lead scientist
and nutritionist with the USDA Agricultural Research Service notes that
five years ago, the farmed-salmon diet was 40-50 percent fish meal.
Today its in the teens somewhere. (Leschin-Hoar, 2012)

Antibiotic Use
Diseases and parasites spread quickly in fish farms, since the
populations are condensed so closely together. Fish diseases have
cost the global aquaculture industry tens of billions of dollars over the
last 20 years. The worlds shrimp industry has suffered losses from
white spot virus and infectious myonecrotic virus on the order of
US$10 billion since 1990 and new diseases emerge on a regular basis.

Vietnam alone reports losses due to disease of US$1 billion per year on
average. The Chilean salmon farming industry is in the process of
recovering from a severe outbreak of infectious salmon anemia, which
began in 2007 and cost 350-400 thousand tons of fish, US$2 billion of
revenue and some 30,000 jobs (FAO, 2012). These diseases are usually
controlled with heavy doses of antibiotics and other drugs. Untreated
diseases can spread to the wild populations outside of the farm,
especially if farmed fish escape (a problem that will be discussed in
further detail below). This is the grievance of wild catch fishing groups
who suffer severe economic losses when diseased fish escape and
contaminate wild stocks. Other concerns lie on the consumer side, with
many wary of the health effects of consuming drug-laden food. This
area also suffers from a lack of formal legislation. It is simply an
unfortunate simple fact that the production of farmed fish requires the
use of drugs.

Escaped Fish
Escaped farmed fish destroy the genetic integrity of wild fish
because being raised in a hatchery reduces fitness and impairs
instinctual migration patterns. A study comparing the behavior and
mating success of wild salmon verses released farmed salmon
indicated that the farmed salmon had only 20% the mating success of
the wild salmon. The farmed salmon also made fewer spawning beds,
displayed unsuitable spawning behavior, and had fewer roe that were
smaller in size and had lower survival rates than the wild roe.
Descendants of the farmed salmon were smaller and had irregular
migration patterns (Fleming et al, 2001). The science-based Norwegian
environmental organization Bellona estimates that that the percentage
of escaped farmed fish that make up fish populations in the ocean can
be up to 50% in some places (Bellona, 2008).

Waste
Finally, Fish farms are sources of huge and concentrated amounts
of fish excrement and carcasses. This kind of organic waste emission
spreads large quantities of phosphorous and nitrogen into the
surrounding ocean. Phytoplankton feed off of these nutrients and
bloom in large populations around areas with these kinds of organic
emissions. The phytoplankton blooms subsequently leech oxygen out
of the ocean, a process known and eutrophication, creating a biological
dead zone in the area surrounding an aquaculture facility (Nola, 2011).
It is estimated that, for every ton of fish, aquaculture operations
produce between 42 and 66 kilograms of nitrogen waste and between
7.2 and 10.5 kilograms of phosphorus waste (Strain and Hargrave,
2005).

Reasons for the Establishment of Aquaculture in the EEZ

Those in favor of the bill contend that the farms are necessary
because the demand for fish is too high to be met with wild catches
alone. The wild catch industry is rife with problems of overfishing and
oft needed moratoriums to replenish stock size (UN FAO. 2012). Many
fisheries in New England and Alaska have experienced considerable
struggle in terms of population collapses and emergency moratoriums
on fishing (Layzer, 2012). Political efforts to sustainably manage
fisheries inevitably mean that less fish can be caught at one time,
which is why aquaculture has been deemed necessary to supplement
the worlds overall supply of fish. It is interesting then, that despite the
fact that the development of aquaculture is meant to relieve pressure
on wild stocks of fish to meet growing demand, all the of the
environmental concerns associated with aquaculture primarily threaten

the very same wild stocks of fish it is meant to save. This is a major
flashpoint between pro and anti-aquaculture groups. Both sides
contend that their position is better for wild fish, and it is a difficult
empirical question whether aquaculture hurts wild fish stocks more
than it helps.
Besides being an obvious solution to the growing demand for
fish, aquaculture is a potentially lucrative domestic market. Currently,
over eighty percent of fish consumed in the U.S. is imported from
China, Canada, Thailand, Ecuador, Chile, and Mexico (ENS, 2005).
Proponents of the aqua culture bill argue that the countries that export
fish to the U.S. have dicey environmental regulations concerning
aquaculture, and that U.S. aquaculture would promote more
environmentally sound fish farms as well as domestic jobs. The
proposed bill also stipulates that the farms would be located more than
3 miles offshore where currents are stronger than coastal waters.
Stronger currents are theoretically better at sweeping away and
diluting pollution from aquaculture. The locations are also further away
from recreational beaches (ENS, 2005).

Actors Involved
Environmental interests that express concern over the bill are
mostly ocean-specific environmental advocacy organizations like The
Ocean Conservancy, as well as numerous wild catch fishing
businesses, most of which are members of The Wild Fish Network
(Politico, 2007). The Ocean Conservancy was staunchly against the
2005 legislation but is currently more sympathetic to the 2011 revision
(Ocean Conservancy, 2011). The Alaska Marine Conservation Council is
skeptical of the argument that the bill would create jobs since the
high cost of tending fish far from shore means facilities will likely be
automated. Other concerns environmental groups have with the bill
include the lack of specific environmental standards, the exclusive

control given to the Secretary of Commerce, the allowance for multinational and foreign corporations to lease the sites, and the lack of
provisions prohibiting genetically modified species (AK Marine FAQ).
While these concerns still remain in regards to the 2011 version of the
act, other concerns with the 2005 version have been addressed. These
previous concerns included: the absence of a EIS, the exemption of
projects from the authority of the Magnuson-Stevens Act and regional
fishery management councils, and the lack of standards requiring
species-specific aquaculture that would not compete economically or
biologically with wild stock.

Government Involved
The bill has yet to get past congress and become law. Thus, the
courts have little involvement since they havent a law to interpret.
The executive branch, however, has been considerably more active. On
July 19, 2010 president Obama signed an executive order establishing
a national policy for the stewardship of the ocean, coasts, and great
lakes. The policy includes a set of rules and principles for management
decisions regarding U.S. oceans, and considers marine spatial planning
as a top priority (Exec. Order 13547). The initial legislation in 2005
was also the product of an executive order. On December 17th, 2005,
George W. Bush released an executive order calling for the
establishment of a committee on ocean policy chaired by the chairman
of the council on environmental quality. Bush also submitted a
response to the final report of the U.S. Ocean commission on policy
with a U.S. Ocean Action Plan that outlined provisions for the initial
offshore aquaculture bill (NOAA Magazine, 2006).
Congressional action was limited in terms of the 2005 bill. The
bill was introduced in the senate by senator Ted Stevens and
cosponsored only by senator Daniel Inouye [D-HI]. It was read twice
and referred to the Senate Committee on Commerce, Science, and

Transportation but the committee chair tabled the bill so it was not
voted on (United States Congress, 2005). Rep. Louis Capps of Santa
Barbara introduced he 2011 version of the bill. There are currently no
co-sponsors. It was introduced on June 24th, 2011 and has since been
referred to the House Committee on Natural Resources. The bill has yet
to be passed by the committee (United States Congress, 2011).

Current Regulatory Structure

The current regulatory structure regarding aquaculture in the
U.S. is extremely weak. It consists primarily of fragmented policies that
exist only at the state level. The heavy opposition to large-scale
aquaculture from environmentalists, and wild fishing groups has made
it extremely difficult to get anything passed in congress, as
demonstrated by the demise of the 2005 National Offshore
Aquaculture Act. The National Aquaculture Act of 1980 established
aquaculture as a unique industry, and one that was necessary to wean
the U.S. off of dependence on foreign fish imports. While the NAA
establishes clear objectives for the development of the aquaculture
industry as well as means by which to adapt these objectives, there is
currently no specific organization charged with the authority over
creation or enforcement of such polices. Many different organizations
have therefore assumed the regulatory role through extension of their
authority in a related industry (Arsenault et al. 2002).
The formation of a complicated authority web has compounded
the difficulty in passing more effective regulation policy. The Joint
Subcommittee on Aquaculture is charged with the role of examining
future concerns with the aquaculture industry but has no regulatory
authority. It consists of twelve members and is headed by a
representative of the Department of Agriculture. The members of the
JSA include representatives from the Department of Commerce, the
Department of Agriculture, the Department of the Interior, the

Department of Health and Human Resources, the EPA, the National

Science Foundation, and the Farm Credit Administration. Currently, the
JSA evaluates the status of all federal programs related to aquaculture,
endeavoring to increase their effectiveness and productivity through
research in technology and other federal programs. The Department of
Commerce has become increasingly involved with the aquaculture
industry largely because of the impact that seafood imports have on
the U.S. economy (Arsenault et al. 2002).
The policies that guide the aquaculture industry are thus far a
hodgepodge of laws that are already in place for other industries. The
National Oceanic and Atmospheric Administration (NOAA) is a
subdivision under the DOC. The National Marine Fisheries Service is a
subdivision of the NOAA. Currently, the NMFS has assumed the
regulatory role over aquaculture in the Exclusive Economic Zone, which
is the area in question regarding the National Sustainable Offshore
Aquaculture Act of 2011. Since there is no legislation that issues direct
control over the aquaculture industry, the power granted to the NMFS
to regulate aquaculture is merely an extension of regulatory law over
other fishing industries that are structurally different from offshore
aquaculture. For example, the regulation of fishing is defined within the
Magnuson-Stevens Fishery Conservation and Management Act of 1976
(amended in 1996) but is interpreted to cover aquaculture because of
the use of the word harvest. Juvenile fish place into a cage culture
have the same size restrictions as those captured by fishermen under
Magnuson-Stevens. By this logic, all aquaculture in the EEZ would be
considered illegal unless the site has received an exemption from the
NMFS (Arsenault et al. 2002).
In short, organizational rulemaking is currently the name of the
game in terms of aquaculture regulation. In 2002, a code of conduct for
responsible aquaculture development in the EEZ was released in
October of 2002. It consists of a more concrete regulatory framework

directed towards aquaculture. Other organizations concerned with

aquaculture regulation include the National Ocean Service, which
works with state governments to evaluate coastal areas for potential
aquaculture sites (Arsenault et al. 2002).

Conclusion
Given the myriad of environmental problems associated with
aquaculture, and the severely fragmented and ill-fitting regulatory
structure that currently governs the aquaculture industry, it is clear
that legislation is necessary. Having defined clearly exactly what
problems are associated with aquaculture, it would be useful to see a
regulatory structure in the draft of the bill that addresses these
problems in turn. Whether or not or not the current bill for such reform
will be deemed acceptable by the strong oppositional forces against
the expansion of aquaculture remains to be seen.

Section 2: Getting Environmentalists on Board,

Policy Tools in the NSOAA
Introduction
The National Sustainable Offshore Aquaculture Act of 2011
(NSOAA) is a unique policy proposal from an environmental perspective
because it is a response to the serious environmental problem of wild
stock depletion, but it comes with its own myriad of environmental
problems. The 2011 proposal employs a number of different policy
tools to ensure the level of environmental protection established by the
Secretary of Commerce that the original act proposed in 2005 lacked.
The lengthy additions to the 2011 version mostly include oft-used
policy tools that the federal government has traditionally used in other
areas of environmental regulation. The additional environmental

provisions to the bill are meant to appease the concerns of both

environmental groups and fishing interests that both ecosystems and
wild stocks will suffer from the large scale commercial establishment of
aquaculture facilities offshore. Aside from also establishing a scientific
research program, the environmental requirements in section 5 of the
2005 bill were mostly vague and entirely left up to the discretion of the
Secretary of Commerce (NOAA, 2005). This was the primary reason
previous grievances with the 2005 bill.

Policy Tools of the NSOAA

1.) Public disclosure of the aquaculture database, which shall include
information on research, technologies, monitoring techniques, best
management practices, and recommendations of the Sustainable
Offshore Aquaculture Advisory Board (NSOAA, 2011).
2.) A scientific research program involved with the development of
aquaculture technologies that reduce or mitigate the harmful
environmental effects of aquaculture.
3.) Regional Programmatic Environmental Impact Statements every ten
years
4.) A much more detailed permit system including a long list of specific
environmental standards and rules for environmental protection, with
much less decision-making power left up to the Secretary of
Commerce.

Eachofthesepolicytoolsisadifferentavenuewithwhichtoapproachthe

sustainablemanagementofoffshoreaquaculture,byaddressingthefollowingproblems:

1.)escapedfish
2.)generatingenoughfeedforfarmedcarnivorousfishwhilemaintaininganadequate
wildstockoffeedforwildcarnivorousfish
3.)oxygendepletionofthesurroundingoceanduetowaste
4.)controllingdiseasewhilelimitingtheuseofantibioticsandchemicalsconsumersand
environmentalistsfindunfavorable

Thepolicytoolsaboveareemployedtoreachtheseendsbyeitherprohibitingthe

entryofenvironmentallyirresponsiblefirmsortodeveloptechnologiesthataidin
reachingthesegoals,bothofwhichareexantewaystoachieveenvironmentalgoals(i.e.
beforetheestablishmentofanaquaculturefacility).

Disclosure
Disclosure can be a powerful information tool that informs stakeholders
about the environmental impact of aquaculture and the latest updates
on how these problems are addressed. The availability of this kind of
information empowers interested parties to mobilize. Since the
establishment of the Emergency Planning and Community Right-toKnow Act (EPCRA) was established in 1986, The EPA and the States are
required to collect data annually on the release of certain toxic
chemicals from industrial facilities under section 313 of the EPCRA. The
data is then made publically available on the Toxics release Inventory
website. The idea behind it is simple: if the public has easy access to
easily understood information regarding behavior by firms that
negatively affect the environment, those firms are more likely to
engage in more responsible environmental practices for fear of gaining
a negative reputation among consumers. For this reason, public
disclosure also provides the incentive for engaging in research and
development for technologies that help solve environmental problems.

Since the establishment of the inventory, toxic releases have

declined substantially since the first inventory of chemicals was
published in 1988Among the reasons most often cited for corporate
reactions to the initial TRI reports are the negative publicity the
companies now faced over their newly visible chemical releases,
community pressure from affected residents located near their
facilities, pressure from organized environmental and other community
groupsor local officials, concern from newly created local emergency
planning organizations, and threats of additional regulation form state
regulatory officials. (Kraft et al. 2011). The evidence suggests that
information disclosure is a viable policy tool for maintaining some level
of environmental standards in the case of the TRI. This is the primary
reasoning behind the public disclosure of the aquaculture database,
which enables interested parties like environmental groups and fishery
cooperatives to monitor the development and management of
sustainable aquaculture.
For information disclosure to be an effective policy tool, however,
it is imperative that the information is accessible and easily understood
by the public, or in this case, the environmental and wild catch fishing
groups that are concerned with the development of aquaculture in US
waters. This means presenting relevant information in terms that arent
too technical for these individuals to understand. Since the relevant
stakeholders are those that are involved with fisheries in the first
place, some level of technicality is likely appropriate as these groups
are already involved with fisheries and likely understand the technical
language to an extent. More specifically, for the information to be
relevant to the environmental problems listed above, there must be
established mechanisms for the measurement and provision of
information regarding environmental quality.
For example, in Washington State, aquaculture fisheries are required to
have reporting and recapture plans that involve marking hatchery

finfish such that they are individually identifiable. In Maine, each

aquaculture facility must report known or suspected escapes of more
than 50 fish with an average weight of at least 2 kg each within
twenty-four hours (Naylor et al. 2005). Mechanisms such as these can
ensure that public information disclosure on escaped fish is a
streamlined and easy to understand process. Other relevant sources of
information include: the sources of feed for carnivorous fish, anti-biotic
use and disease outbreak notification, oceanic oxygen levels and
nutrient loading, and marine wildlife mortality rates around the facility.
The reporting of information regarding these issues is made explicitly
mandatory under section 5 of the NSOAA permit requirements.

Scientific Research
Scientific research can act as a capacity building tool as well as a
learning tool. The continual development of technology that reduces
environmental harm caused by the aquaculture industry is important
for the industry to remain environmentally and economically viable in
the long run. While information disclosure to the public induces
individual firms to engage in researching sustainable practices,
communication between firms could reduce duplicative efforts. The
establishment of a scientific research program would consolidate both
funds and information regarding best practice technology, and would
reduce the negative effects associated with competition like trade
secrecy and patent litigation.
Scientific research programs are frequently used environmental
policy tools that provide a collaborative framework for private, public,
and educational research institutions to communicate and access
valuable information. For example, The US Global Change Research
program (formerly the Climate Change Science program), was
established in 2005 by president Bush as a database by which all
manner of climate change researchers can document and access

relevant information. Hard scientific facts that inform policy are

incredibly effective tools with which the government can impose
regulations (Keller, 2009). In the former case, scientists who provide
increasingly robust evidence that anthropogenic greenhouse gas
emissions are causing climate change enable policymakers to establish
climate regulation with arguably less opposition. The scientific research
program for the NSOAA of 2011 similarly acts as a central database to
facilitate the collaboration among private, public, and academic
research facilities to establish norms for best practice technologies and
methods. Already, the numerous studies on the (extremely negative)
impacts of escaped farmed fish into the wild, scientific research into
alternative feeds, technological advancements in pen architecture, and
research into antibiotics has been and integral part of shaping the
evolution of the growing aquaculture industry. It is interesting to note
that, unlike the wild catch fishing industry, which has been historically
resistant to scientific advancements in sustainable management, the
aquaculture industry is relatively new, and by itself very harmful to the
environment, which arguably renders the industry much more
receptive of environmentally improving advancements in technology
(Layzer, 2012). The provisions for the NSOAA research program
involve:
(1) identify environmental factors, aquaculture technologies, and
practices that address the permit terms and conditions required
(discussed later)
(2) assess and mitigate the cumulative impacts of multiple offshore
aquaculture facilities;
(3) analyze potential socioeconomic impacts of offshore aquaculture on
fisheries and communities that are dependent on such fisheries;
(4) evaluate financial, public policy, and market incentives for
sustainable development of offshore aquaculture

There are a number of technologies developed to facilitate the

sustainable practice of offshore aquaculture that minimize the impact
on the surrounding environment. These are discussed in more depth
under the Permit System section.

Environmental Impact Statement

The environmental impact statement has been a powerful tool of
environmental policy since its establishment under NEPA in 1969. It
has historically been a decision making tool on the policymakers side
that helps decide whether or not to implement a policy on the basis
that the costs of environmental harm may be higher then is worth it.
Here, it acts as more of an informational tool designed to monitor the
cumulative impact aquaculture has on the marine environment. As its
nomenclature suggests, the EIS is designed to assess the impact that
any policy will have on the surrounding environment, as well as provide
a list of possible alternatives. It additionally provides policymakers
interested in passing environmental legislation with political fodder for
resisting opposing interests to the legislation in question. As long as
preserving the ecosystem remains a top priority in this case, the EIS
will provide sound evidence against any opposition to costly provisions
in the permit requirements that act to reduce environmental harm. The
act dictates that an EIS will be performed every ten years for all sites in
which an aquaculture facility is already built or where construction is
pending.

Permit System
The permitting system for allowing private entities to establish
facilities in the EEZ acts (in theory) as a filtration device for firms who
for whatever reason cannot comply with environmental standards.
Permits are frequently used policy tools to this end. There are

innumerable permit systems operating in the US to drill oil, log, and

mine on federal lands. The NSOAA is no different, allowing private
parties to obtain a permit to commercially farm species of fish in
federal waters. As the act dictates, the regulations shall be based on
the best scientific information available. (NSOAA, 2011). Acquisition of
a permit necessitate the interested party to provide the following
information for consideration:
(i) size;
(ii) depth;
(iii) water conditions, including currents;
(iv) substrate;
(v) preliminary habitat and ecological community assessment data;
(vi) distribution and composition of species;
(vii) proximity to other offshore aquaculture facilities; and
(viii) proximity to other uses;
(B) the proposed operation to be developed under the permit;
(C) the marine species to be propagated or reared, or both; and
(D) design, construction, and operational information as may be
specified in the regulations under this section;
(2) demonstrating that the location is sufficient to avoid or minimize
adverse effects on resources and other resource users;
Another interesting feature of the permit requirements that reduces
entry and promotes environmentally sound practices is the provision
that the secretary shall give priority to issuance of permits for
activities to be conducted using technologies and practices that will
substantially exceed compliance with the permit terms and conditions
required.
The Permit system includes annual fees that cover the cost of
monitoring and enforcement as well as annual reviews backed by
facility inspections. The acts provisions for enforcement involve both

announced and unannounced inspections of facilities to ensure

compliance with the provisions of acquiring a permit. Noncompliance is
met with a fee and a mandate for compliance. Repeated
noncompliance warrants revoking the permit and mandating that the
offender remove all structures immediately (by risk of court subpoena)
(NSOAA, 2011).
Besides the provisions listed above, obtaining a permit also
requires that the firm comply with all best practice technologies and
regulatory methods that address the environmental problems
associated with aquaculture. These are listed below.
Problem

Possible solution and tool type

Escaped
fish

1.) tagging and tracking (information

tool)
2.) impermeable facilities
(technological tool)
1.) artificial feed (technological)
2.) source from sustainably caught
stocks with ecosystem-based
management and whose population
biomass are at max sustainable yield
(purely regulatory)
-3.) use trimmings from fish
processing facilities (regulatory)
1.) low phytate feeds less
phosphorous (technological)
2.) efficient feed less waste
(purely regulatory/technological)
3.) filtration and collection
machinery to concentrate waste
(and possibly resell as agricultural
fertilizer) (technological)
4.) maximum concentration levels in
surrounding water (purely
regulatory)

Feed
depletion
of wild
stocks for
carnivorou
s fish
Waste
managem
ent

Is there
a
Provisio
n in
NSOAA?
1 and 2

2 and 3

Controlling
disease

1.) transgenic fish (i.e. genetic

engineering, technological)
2.) antibiotics (only in instance of
disease outbreak)

Reducing
impact on
migration
and
surroundin
g species
behavior

1.) no use of entangling equipment

or underwater acoustic deterrent
devices (regulatory)
2.) no killing of wildlife unless human
safety is immediately threatened
(regulatory)
3.) non-lethal deterrents as primary
course of action (regulatory)

Preserve
the market
for wildcaught fish

1.) consultation with coastal states

(learning)
2.) no permit for rearing a species
for which there is in effect a fishery
management plan under The
Magnuson-Stevens act (regulatory)
3.) no permit to rear a species in an
area within jurisdiction of a regional
fishery management council unless
authorized by council (regulatory)
4.) placement of facilities away from
existing fisheries (regulatory)
5.) issue a receipt to coastal states
for each facility built offshore, allow
state to prohibit (information)

2 (1 is
specifical
ly
outlawed
)
1, 2, and
3

1,2,3,4,5

Conclusion
The provisions in the NSOAA are indeed extensive, and cover a
large range of standards designed to target all the primary
environmental concerns with Aquaculture. The idea behind the long list
of rules in the permitting system is to garner support from both
environmental groups and fishing groups that protested the original bill
in 2005 for reasons having to do with environmental harm or
encroachment upon the fishing industry. The permitting system, the

EIS, the scientific research program, and public disclosure of all of the
above should be potent policy tools that help amass support from
those previously opposed to offshore aquaculture in the U.S. exclusive
economic zone.

Section Three: Filling Holes in the NSOAA

Introduction
The National Sustainable Offshore Aquaculture act of 2011 is the
most recent of three iterations on aquaculture policy. Both the 2005
and 2009 versions died in their respective committees because both
left environmental impact largely up to the discretion of the secretary
of commerce, and both lacked the lengthy list of specific
environmental standards specified in the newest version. In essence,
the 2011 version is the answer to a deluge of backlash both from
environmentalist and wild-catch fishing groups. While the regulatory
tools established in the act are detailed and cover a large swath of
environmental problems associated with offshore aquaculture, there
remains considerable room for improvement.

Gaps in the NSOAA Bill

1.) Concentrated decision-making power in the hands of the secretary
of commerce
2.) A lack of specific provisions in areas that could be easily legally
subverted
3.) Lenient non-criminal penalties for repeated violations of
environmental standards

4.) Conducting the EIS at arbitrary Intervals

The first three issues are fairly straightforward and typical of U.S.
environmental regulation. Currently there exist no rules written to
address these issues, but it is quite possible that the evolution of the
NSOAA will yield progress in the rule-making area. Until then, it is
useful to clearly define where specific rules are necessary, which is the
goal of this paper. The last problem is an interesting new component of
environmental policy. The bill features a novel and unique way of
executing the environmental impact statement on a regular basis as
opposed to once at the outset of implementation. This opens up
discussion to how the EIS can be better used to foster the continual
refinement of managing aquaculture sustainably.

Power Vested in the Secretary of Commerce

The primary complaint of the 2005 version of the aquaculture act
was the astounding amount of discretion left up to the secretary of
commerce. The only environmental provisions in the 2005 bill are
found in the following passage:
The Secretary shall consider risks to and impacts on natural fish
stocks, marine ecosystems, biological, chemical and physical features
of water quality, habitat, marine mammals, other forms of marine life,
birds, endangered species, and other features of the environment, as
identified by the Secretary in consultation as appropriate with other
Federal agenciesthe Secretary shall consult as appropriate with other
Federal agencies to identify the environmental requirements applicable
to offshore aquaculture under existing laws and regulations. (NOAA,
2005)

While the 2011 bill has a remarkably more detailed list of specific
environmental regulations, with much less left up to the complete
discretion of the secretary, it still lacks a system of checks and
balances with members from both environmental and aquaculture
business advocacy groups. Specifically, the 2011 bill dictates that
members of the advisory board shall be appointed by the secretary
for a term of two years. (NSOAA, 2011) If the board of advisees to the
secretary is appointed by the secretary, there is plenty of opportunity
for strategic appointment of individuals with particular agendas. The
advisory board has a very powerful role in the implementation of the
NSOAA. It oversees the periodic EIS, the implementation of the entire
permitting and regulatory program, the collaboration with all interested
stakeholders (fishery management councils, conservation
organizations, etc.), the administration of the research program, as
well as outreach, education, and training.
Other areas in which there is concentrated power in the hands of
the secretary include the natural resource damage assessment in
which the secretary assess(es) natural resource damages resulting
from the conduct of offshore aquaculture other than as authorized
under federal or state law, as well as the provision that all cultured
fish shall be marked, tagged, or otherwise identified as belonging to
the permittee in a manner determined appropriate by the Secretary,
unless the secretary determines that identifying cultured fish is
unnecessary for protecting wild fish stocks, the marine environment,
or other ocean uses(emphasis added). (NSOAA, 2011) In the former
case, the definition of damage is left up to the secretary, leaving
considerable room for lenient interpretations. In the latter case,
identifying whether or not tagging the fish is necessary is also a
decision left entirely up to the secretary. Environmental and fishing
interests are both groups in which tagging fish is seen as a very
important measure for tracking escaped fish to assess genetic damage

that farmed fish have done to wild stocks.

There are three options that might help spread the huge amount
of oversight allocated to the secretary and the appointed advisory:
1.) allowing a third party to appoint at least half of the board,
2.) stipulations as to what kind of interested parties must serve on the
board, or
3.) making publically available the background and credentials of the
advisors with the option for comment
Any of these would help mitigate the potential for nepotism and iron
triangles between the advisory board and powerful lobbyists. If partial
decision-making power was spread between the secretary and other
parties that equally represent important stakeholders then a fair
definition of damage as well as a fair assessment of the necessity of
fish tagging could be more attainable. This could come from any of
these three options, although each has their individual merits and
drawbacks. The third party option, while easy to implement, is less
likely to achieve the goal if the third party is subject to the same
political influences that the Secretary is. The second option is
administratively difficult (what kind of credentials qualify as
environmentalist, fishing interests, etc,) but would ensure that all
relevant interests have decision-making power more so than any other
option. The last possibility is both easy to implement, and would reach
the goal of making sure all interested parties had the ability to provide
input in the decision-making process as long as the information was
easy to obtain and comments were taken seriously.

Specifying Provisions
There are a number of areas in the NSOAA bill where the lack of
specificity invites subversion from those with permits (which, given the
costs of the permit applications, capital-intensive technological

requirements, and annual fees, are likely to be large scale corporate

producers). Most notable are following provisions:
1.) The Secretary shall require offshore aquaculture facilities to be
designed, located, and operated to prevent the incubation and spread
of disease and pathogens and ecosystem impacts from disease and
pathogen introduction;
2.)TheSecretaryshallincludeinthestatementundersubsection(a)foraregionidentificationof
(1)areasoftheregionthatarenotappropriatelocationsfortheconductofoffshoreaquaculture;and
2)areasoftheregionthatmaybeappropriatelocationsfortheconductofoffshoreaquaculture.
3.)NothinginthisActshallbeconstruedtodisplace,supersede,orlimitthejurisdiction,responsibilities,or
authoritiesofanyFederalorStateagency,orIndiantribeorAlaskaNativeorganization,underanyFederal
lawortreaty.
4.)TheSecretary,inconsultationwithRegionalFisheryManagementCouncils,shallensurethatoffshore
aquaculturepermitsunderthisActdonotinterferewithaccesstocommercialandrecreationalfishstocks.

Most of these provisions also suffer from the large amount of

discretionary power left up to the Secretary of Commerce. However,
like most of the additions to the 2011 bill, this can be at least partially
corrected by providing specific ex-ante regulations in the bill before it
is implemented.
The first and second provisions could be modified to include
specific standards for best practice knowledge of both location and
design that minimizes the spread of pathogens and general waste to
the surrounding ecosystem. Information regarding what type of habitat
is most sensitive to oxygen depleting algae blooms from fish waste as
well as information on what areas are breeding grounds for keystone
species is useful in this area. Spatially mapping out areas that are
suitable for aquaculture sights can be done using quickly developing
satellite technology that can provide a wealth of data on waves, sea-

surface temperature and ocean colorall highly useful for planning

where to establish new fish farms. (ESA 2011) Establishing suitable
sights before implementation also ensures that organizational issues of
overcrowding and where to put new sights are streamlined such that
the length of time necessary for the permitting process is minimized.
Further, researching and establishing designated areas where facilities
cannot be built help mitigates the risk of ex-post litigation that can
occur when an interested party is told they cannot build a facility they
were planning on building due to concerns about wildlife habitat. Under
this suggested scenario, these kinds of specifications would already be
outlined in the application.
The third and fourth provisions can be further specified to include
exactly the distance from existing fisheries, protected wildlife areas,
and designated native areas necessary to ensure that waste and
escaped fish do not encroach upon and wreak havoc on these
politically and/or environmentally sensitive areas. Ex-ante information
on currents and sediment dissipation would be useful to establish a
meaningful standard for such a distance.
Lastly, and most glaringly, is the lack of specific provisions for
waste management. This particular area is tough because it is much
more difficult to control waste dissipation from aquaculture facilities in
the deep sea than it is onshore. The absence of a base on which a
facility could be built makes it exceedingly difficult to install filtering
and water-recycling technology that effective captures waste. The
most clear-cut provisions for waste management are:
(A) The Secretary shall:
establish appropriate numerical limitations of nutrient inputs into the
marine environment from offshore aquaculture facilities
(i) in consultation with the Administrator of the Environmental
Protection Agency;

(ii) at a local or regional level as necessary to protect the environment;

and
(iii) taking into account cumulative and secondary impacts of such
inputs at the local and regional level from the expansion of offshore
aquaculture; and
(B) shall require each permittee under this Act to prevent discharges of
pollutants into ocean waters to the maximum extent practicable.
The phrase maximum extent possible leaves a less than
comfortable amount of discretion up to the permitee. An entire host of
possible legal disputes comes to mind. For example, one can easily
envision a scenario in which the sudden imposition of some costly
technology that ensures maximum population levels of a minute
uncharismatic species under the Endangered Species Act would be
cause for legal action on the side of the permitee. If terms like these
arent defined ex-ante, then a sudden imposition of rules from the
secretary could cause all manner of costly and wasteful legal battles. It
would behoove the drafters of the bill to include: a.) specific provisions
as to what the best practice technologies are in areas of environmental
protection and that they must be installed, b.) what species are being
specifically protected, either for reasons having to do with their
keystone roles in the ecosystem, or because they are protected under
the ESA (like most stocks of wild salmon, which are especially sensitive
to aquaculture due to extraction of forage fish) and, most importantly,
c.) that technological mandates are to be updated with scientific
discovery. Rules like these would warn permitees of the costly
regulations for building a facility, specifics as to where they can and
cannot build, and that they are subject to continual updates as to best
practice technology before a permit is even obtained.
Finally, the provision that the Secretary establish numerical
limitations of nutrient emissions into the ocean in consultation with the

administrator of the EPA poses the possibility of a cap and trade

system, which would help achieve the goal under section seven of
market incentives for sustainable development of offshore
aquaculture. (NSOAA, 2011) If the Secretary established an overall
numerical cap on nutrient loading, permitees could allocate permits
among themselves according to who values the emission of waste the
most. There are, however, significant drawbacks to the cap and trade
system in general. Firms who are more highly capitalized and can
afford more permits are (generally) the very same firms that can more
easily afford to mitigate waste emissions, while undercapitalized firms
are forced out of business. A possible solution to this problem would be
to hand out permits for free as opposed to auction them off, but then
the office of aquaculture misses out on potential revenue. In short, the
costs and benefits of the cap and trade system would have to be
carefully weighed before implementation, which might be a feet more
costly to administer than it is worth. In this case, given the fees and
capital requirements for an offshore aquaculture permit, it is more
likely that the firms involved will be more homogenous in terms of their
net worth and level of capitalization, which would render both broad
mandates and a market system more or less equally effective. If so, it
is likely less costly all in all to simply impose individual nutrient
emission quotas.

Penalties for Repeated Violations of Environmental

Regulation
Section 10 outlines what constitutes criminal activity and
penalties. Criminal activities include: acts meant to intimidate
inspection officers, lying, failing to remove equipment if a permit is
suspended or revoked, and anything else that prevents inspection.
Interestingly enough, violating an environmental permit requirement is
not defined as criminal. Acts like these only lead to the suspension or

denial of a permit renewal, and only after repeated offenses (and their
subsequent citations). There exists then, the perverse incentive
(however unlikely) for a firm to farm cheaply and unsustainably for a
short period of time while ignoring certain permit requirements, and
then just moving operations once the permit has been revoked. Such a
scheme would give ample time to make a profit if inspections were
infrequent and there was room for repeated citations before shutdown.
Overall cost of violation is the probability of being caught
(ranging from 0 to 1) multiplied by the cost of the penalty. Either
increasing the probability of being caught or increasing the penalty
cost would make overall cost of violation higher and would thus
increase the deterrent effect. Increasing the severity of punishment,
however, is less costly than increasing the frequency of inspection.
Thus, it would be prudent for the drafters of the bill to increase the
severity of the punishment (i.e. possible criminal sanctions under the
ESA, heavy fines, or zero tolerance policies) rater than increase the
probability of inspection. Any of these would have a greater deterrent
effect on breaking environmental provisions then are currently in the
bill.

EIS Every Ten Years

The Environmental impact statement is typically only done once at the
outset of policies that might have an impact on the environment. The
fact that the EIS for the NSOAA is to be performed on a reoccurring
basis is entirely novel. It is certainly more sensible to perform the EIS
after the establishment of aquaculture facilities in order to accurately
assess their impact on the surrounding ecosystem. It is even more
sensible to do so more than once such that cumulative impacts can be
taken into account. The question remains then, as to whether or not
ten years is an adequately short period of time to ensure that no more
than what is deemed to be safe levels of nutrient loading is released

into the ocean. It is entirely possible that harmful levels of aquaculture

waste would be released in a period of even one or two years, causing
costly or even irrevocably harmful levels of oxygen depleting algae
blooms in the surrounding water. Unless the scientific research
program performs supplemental monitoring of the surrounding marine
environment (not specifically outlined in the bill as of yet), shortening
the period between environmental impact statements to a scientifically
informed period that accurately prevents waste accumulation would be
necessary. It is currently not at all clear that the ten-year mark isnt
completely arbitrary.

Conclusion
The 2011 National Sustainable Offshore Aquaculture Act is
already an incredibly detailed revision of its two predecessors. The
sheer depth and breadth of the environmental stipulations renders it
almost three times as long as the 2005 draft. Nonetheless, as with
most environmental regulations, there still exist areas of vagueness
where legal subversion and loopholes can be found. The suggested
provisions above can help close these loopholes by limiting the power
of the secretary, providing specifics where specifics are lacking,
increasing the penalties for environmental infractions, and shortening
the period between the EIS.

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