U S Regulation of Offshore Aquaculture Can We

U. S. Regulation of Offshore Aquaculture: Can We Compete In a Global Market? W. Richard Smith, Jr. Robinson & Cole LLP 280 Trumbull Street, Hartford, CT 06103 (860) 275 -8218 wrsmith@rc. com www. rc. com

Preface • This presentation is intended to facilitate a discussion of the issues presented and does not constitute legal advice. Any questions regarding specific legal issues or facility operations should be reviewed with a lawyer engaged by you for that purpose.

Objective: Produce marketable food fish species in federal waters in compliance with operating standards. Requirements: • Legal right to occupy an EEZ location; • Reasonably obtainable permits and approvals; • Reasonable expectation of continuity; • Reasonable facility operations regulations; • Authority to grow food fish as inventory; and, • Competitive operating costs.

Fish Markets vs. Fish Management • Marketable products defined in regulatory terms: – Right fish (market dictates species); – Right size (reasonable possession controls); – Right time (no season-based restrictions); and, – Right price (competitive production costs).

Some of the Issues to address: • Jurisdictional limits • CWA Discharge permits – which programs apply? • Coastal Zone Management Act standards • Fee issues • Magnuson-Stevens Act (SFA) issues • Other applicable laws issues

1. Jurisdictional limits • Drawing the state-federal lines • Manner of state participation • State regulation in federal waters? – Environmental standards – Other factors • Can states bar federal approvals in EEZ? – Do states get a veto? – Regulation by strangulation – where do you land? – Regulating land operations – range of considerations?

1. Jurisdictional limits cont. • Presidential proclamations and agency rulemaking – Territorial sea – 3 to 12 to 24 n. m. – Contiguous zone and “oceans" definitions – how affected? – Incorporating changes in rulemaking – U. S. C. G. example – Judicial interpretations of specific statutes • Question: did Congress intend a statute to be affected by changes to “territorial sea” definition or other definitions?

2. Discharge permits – which programs apply? • Federal Water Pollution Control Act – effluent limitations guidelines (sec. 402) • Proposed BMPs (2004 due date) • Enforceable BMPs (how – permits? ) • Will Best Professional Judgment cover gaps? • Where do “waters of the US” end? – Did Congress mean 3 miles? – What happens if ELGs don’t apply?

2. Discharge Permits – which programs apply? cont. • Ocean discharge permits and permit criteria – Ocean must mean ocean, correct? – “no unreasonable degradation” or “healthy oceans”? – Sec. 402 vs. 403 (additional or substitute? ) • “Aquaculture discharge permit” (sec. 318 – is it what it says? ) • State regulations – Water quality standards

3. Coastal Zone Management Issues • Impacts evaluations (sec. 307(c)(1)(A)) – What limits for socioeconomic impact analysis? – Do we outlaw consumer-favorable competition or market impacts? • Frustration of federal policy – NOAA’s Year 2025 targets ($5 B products, 600, 000 jobs) – Do we need marine aquaculture, or kill it and move on? – Will a shortage of 4 th grade classrooms stop a fish farm? • Competition between states – Could states oppose offshore facilities in neighboring states?

4. Fee Issues • How to address State or Federal fees? – Minerals vs. mutton snapper? They are not the same. – “Produced” from public lands? Who put products there? – A single model is not appropriate. • Avoiding “payback” approaches? – Aquaculture will not address complaints over range fees.

5. Magnuson-Stevens Act (SFA) Issues • Food fish vs. stock enhancement – is there is a difference? • Should aquaculture remain in “fishing” definition? • Role of FMCs – Veto vs. providing expert comments? – Veto by conditions – death by a thousand cuts? – Aquaculture representation on councils? • Are competition and market impacts proper decision criteria?

6. Other laws applicable to offshore operations • Labor, safety, products liability, environmental standards? • State law, maritime law or new legislation? • Specific laws for aquaculture operations? • Draft NOAA Code of Conduct*: How does it apply? – *”The [Pirate’s] Code is what you call guidelines more than actual rules. ”, Captain Barbossa to Miss Elizabeth Swann in Pirates of the Caribbean – “Codes” vs. “Laws”: do labels matter? – A mandate by any other name.

How could legislation provide solutions? • Maximize legislative answers and reduce uncertainty • Recognize the public policy value of offshore aquaculture • Confirm laws applicable to offshore aquaculture • Resolve potential agency jurisdiction conflicts • Avoid broad and numerous “veto” authorities • Acknowledge the “fish not fees” objective • Create objective standards of approval and operation • Avoid and eliminate duplicative or conflicting federal standards • Don’t leave policy issues to rulemaking or permitting