Transcript Title of the PowerPoint Times New Roman

U.S. Offshore Aquaculture:
Elements of a Viable Legal System
W. Richard Smith, Jr.
Robinson & Cole LLP
280 Trumbull Street, Hartford, CT 06103
(860) 275-8218
[email protected]
www.rc.com
©2005 Robinson & Cole LLP
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.
•
The statements in this presentation are attributable to the author
alone, and do not reflect particular positions of clients or other
persons.
Business 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 manage food fish as inventory; and,
• Competitive operating costs.
Government Objective: Create legal authority to
support viable commercial offshore operations.
 Requirements:
– Support domestic food production capabilities
– Food source security and quality assurance
– Improve trade balance (domestic and export markets)
– Minimize user conflicts in EEZ
– Protect Public Trust resources
• A program no one chooses to pursue = failure to meet the
objective!
Government Actions to Date
• U.S. Commission On Ocean Policy Recommendations
– Final Report (September 2004) Reflections:
• Deleted concern for application of Magnuson-Stevens
Act to aquaculture
• Unqualified proposal to address “all potential impacts”
from aquaculture (Why resolve all “geneticallymodified” fish issues if no such projects are proposed or
permits prohibit their use?)
• Related “prove the negative” concerns: “ no
environmental impact” (those of us breathing impact air
quality and temperature in this room); some federal
standards and research already exist (e.g. Clean Water
Act)
Government Actions to Date cont.
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Executive Order created Committee on Ocean Policy and:
– Directs federal bodies to meet and advise on federal policy
– Requires coordinated activities of executive branch departments
and agencies regarding ocean related matters
– Directs federal agencies to facilitate, as appropriate, coordination
and consultation regarding ocean-related matters
– Cf: Experience of Aquaculture Act of 1980: difficult to focus
departments on National Aquaculture Development Plan
•
New Federal Legislation: To be proposed: 2005+ (?)
– Regulations will have to be developed after legislation (2+ years?)
Potential Program/Project Viability Issues
 Location and User Conflicts – how many viable sites exist?
 Coastal Management Act – make consistent w/Aquaculture
Act objectives
 Fee Issues – aquaculture-specific model needed
 Fisheries Management Issue – resolve authority issue
 If serious legislative questions are left to litigation exposure
 Save your legislative breath on an Aquaculture Act!
 Difficult to convince farmers to spend money on
lawyers, scientists, consultants and others to resolve
fundamental questions to define the program!
1. Locations and User Conflicts
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Location Factors: Huge areas of potential aquaculture not likely
• How far offshore: < 10, 20, 50, 100 n.m. (but beyond state waters)?
• Facility design water depth criteria: 20, 40, 60 fathoms?
• Other Use Constraints (Location, design or operational factors):
– Marine sanctuaries or preserves
– Shipping/navigation lanes
– Fishing grounds
– Oil, gas & mineral lease areas
– Weather-prohibitive areas-currents, sea state
•
Market Distances, Employment and Supplies Sources
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Result: Potential Development Areas are a tiny fraction of EEZ
2. 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?
– Do we consider school overcrowding from aquaculture
families?
– Could “Aquaculture Act” support for marine food and
products be trumped by any level of competition with
fishing fleet?
– Will early applicants have to fund litigation of these issues?
3. Fee Issues
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How to address State or Federal fees?
– Collecting a public resource (e.g. minerals/oil) vs. growing your fish on
public lands. They are not the same
– A single model is not appropriate
– Concerns for subsidies given to aquaculture
– Consider: Federal government fisheries expenditures: $0.9B vs. landed
value $1.8B, Cong. Res. Service (2001)(not fee recovered)
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Avoiding “payback” approaches and other mistakes?
– Aquaculture will not address complaints over past western range fees
– Fish farm rents won’t equal Martha’s Vineyard cottage rents (two concepts
of “waterfront” value)
4. Magnuson-Stevens Act (SFA) Issues
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Requirements:
– Absolute exemption from management and fishing definition:
species, size, season, possession restrictions
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Role of FMCs
– Expert comments on applications but no “veto” authority
– Farm fish inventory is not a stock management issue
– Conflict of interest issues could be insurmountable (exemptions
notwithstanding)
– Are competition and market impacts proper decision criteria?
(need legislative directive to address statutory conflicts)
Other Concerns Expressed by Opponents
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Misperception: Aquaculture Leases Violate Public Trust Doctrine
– No barriers to leasing public trust lands (current examples of exclusive use:
town mooring fields, state shellfish leases, oil & gas or mineral leases)
(these are not waterfront owner riparian/littoral rights issues)
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Misperception: NEPA reviews must address all hypothetical situations and
impacts. Reality:
– Review the range of practical or feasible (reasonable) alternatives
– Review reasonably foreseeable “significant effects on human
environment.” Other laws may affect what is foreseeable (CWA)
– Applicants’ concern: NEPA seen as an invitation to litigation and untenable
business risk (opponents like it that way)
Legislation to Avoid Litigation
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Maximize legislative answers and reduce uncertainty
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Don’t leave policy issues to rules, permits or litigation
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Make Aquaculture Act policy findings on need, competition and
public purpose determinative (Cf. CZMA, NEPA)
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Confirm laws applicable to offshore aquaculture (address now)
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Avoid broad and numerous “veto” authorities
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Acknowledge the “food not fees” objective
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Create objective standards of approval and operation
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Acknowledge: Fish farmers won’t seek permits and litigate policy
conflicts