Transcript Title of the PowerPoint Times New Roman

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
[email protected]
www.rc.com
Preface
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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:
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Jurisdictional limits
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CWA Discharge permits – which programs apply?
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Coastal Zone Management Act standards
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Fee issues
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Magnuson-Stevens Act (SFA) issues
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Other applicable laws issues
1. Jurisdictional limits
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Drawing the state-federal lines
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Manner of state participation
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State regulation in federal waters?
– Environmental standards
– Other factors
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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.
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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?
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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.
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Ocean discharge permits and permit criteria
– Ocean must mean ocean, correct?
– “no unreasonable degradation” or “healthy oceans”?
– Sec. 402 vs. 403 (additional or substitute?)
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“Aquaculture discharge permit” (sec. 318 – is it what it says?)
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State regulations
– Water quality standards
3. Coastal Zone Management Issues
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Impacts evaluations (sec. 307(c)(1)(A))
– What limits for socioeconomic impact analysis?
– Do we outlaw consumer-favorable competition or market impacts?
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Frustration of federal policy
– NOAA’s Year 2025 targets ($5B products, 600,000 jobs)
– Do we need marine aquaculture, or kill it and move on?
– Will a shortage of 4th grade classrooms stop a fish farm?
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Competition between states
– Could states oppose offshore facilities in neighboring states?
4. Fee Issues
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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.
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Avoiding “payback” approaches?
– Aquaculture will not address complaints over range fees.
5. Magnuson-Stevens Act (SFA) Issues
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Food fish vs. stock enhancement – is there is a difference?
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Should aquaculture remain in “fishing” definition?
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Role of FMCs
– Veto vs. providing expert comments?
– Veto by conditions – death by a thousand cuts?
– Aquaculture representation on councils?
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Are competition and market impacts proper decision criteria?
6. Other laws applicable to offshore operations
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Labor, safety, products liability, environmental standards?
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State law, maritime law or new legislation?
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Specific laws for aquaculture operations?
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Draft NOAA Code of Conduct*: How does it apply?
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*”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?
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Maximize legislative answers and reduce uncertainty
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Recognize the public policy value of offshore aquaculture
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Confirm laws applicable to offshore aquaculture
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Resolve potential agency jurisdiction conflicts
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Avoid broad and numerous “veto” authorities
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Acknowledge the “fish not fees” objective
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Create objective standards of approval and operation
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Avoid and eliminate duplicative or conflicting federal standards
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Don’t leave policy issues to rulemaking or permitting