By Mike Conroy
In the September 2022 edition of Fishermen’s News, we published an article outlining the process for designating “Aquaculture Opportunity Areas (AOAs)” created in federal waters off the United States in 2020.
The prospect of a widespread taking of large areas of what is currently open ocean to devote them exclusively to industrial-scale aquaculture instead of fisheries is a threat that has not gone away.
As a reminder, AOAs were mandated by the first Trump Administration in Section 7 of the May 7, 2020, Executive Order on Promoting American Seafood Competitiveness and Economic Growth (E.O. 13921).
The second Trump administration is likely to push these designations much further. To date, two major areas (one off Southern California and another in the Gulf of Mexico) are the geographic regions where AOAs have been identified.
One problem with the whole AOA designation process is that it’s being done pursuant to a sweeping but vague Executive Order, not detailed legislation, and it is very unclear which agency, and which protective rules, should govern any actual aquaculture projects that go forward.
The AOA permitting process is currently being led by the U.S. Army Corps of Engineers (USACE), which adopted a nationwide permit for just this purpose (“NWP 56”) at the end of the first Trump Administration in January 2021. PCFFA and other groups immediately (and successfully) challenged that USACE Permit in federal court (see PCFFA Update below).
On Nov. 22, NOAA published the Draft Programmatic Environmental Impact Statement (DPEIS) for the Identification of Aquaculture Opportunity Areas (AOAs) in Federal Waters of Southern California.
A 90-day public comment period was established for the DPEIS, which closes on Feb. 20. Refer to the NOAA Fisheries West Coast Region Southern California Aquaculture Opportunity Area webpage URL below to get a copy of the document and for more information.
When finalized, the Programmatic EIS will identify “one or more locations (referred to as AOAs) in federal waters off of southern California that may be suitable for multiple future offshore aquaculture projects and to evaluate the impacts of siting aquaculture in those locations.”
While this is still just a planning exercise and it does not as yet authorize, or propose, any specific aquaculture type or facilities in itself, this means that project-specific analyses under the National Environmental Policy Act (NEPA) still will be needed as specific projects are proposed.
However, future proposed aquaculture projects may tier off from the Programmatic EIS, thus greatly simplifying the later NEPA and permitting process, although they are not required to do so.
As noted above, the purpose of the proposed NEPA action (i.e., identification of AOAs in federal waters within the Southern California Bight) is to apply a science-based approach to identifying the AOAs and their likely impacts.
The stated need for the DPEIS is to meet the directives outlined in E.O. 13921 to address the increasing demand for seafood, facilitate long-term planning for marine aquaculture development and address interests and concerns regarding offshore marine aquaculture siting.
The DPEIS analyzes four different alternatives, with three “action alternatives,” including two sub-alternatives.
Alternative 1: No Action Alternative – always require as a comparison baseline.
Alternative 2: Santa Barbara Channel
Sub-alternative 2a: macroalgae and shellfish aquaculture only
Sub-alternative 2b: all types of commercial aquaculture (including finfish)
Alternative 3: Santa Monica Channel
Sub-alternative 3a: macroalgae and shellfish aquaculture only
Sub-alternative 3b: all types of commercial aquaculture (including finfish)
Alternative 4: Combination of Geographic Areas
Sub-alternative 4a: macroalgae and shellfish aquaculture only
Sub-alternative 4b: all types of commercial aquaculture (including finfish); (designated as the “preferred alternative”).
For each of these alternatives, the DPEIS considers potential impacts of identifying the AOAs on different “environments” including: (1) the Administrative Environment (2) the Physical Environment (3) the Biological Environment (4) the Socioeconomic Environment and (5) the Cultural and Historic Environment.
The fishing community should pay particular attention to the Biological and Socioeconomic Environments’ analyses. While the initial identification of AOAs is still a planning effort that does not itself result in any authorizations, permits or regulatory impacts, later actual project actions of siting and operating aquaculture facilities may well have multiple impacts on the environments identified above.
Biological Environment
Within the Biological Environment, the DPEIS analyzes federally protected species and habitat, wild fish stocks, ecologically important marine communities and potentially farmed species.
As every commercial fisherman on the West Coast knows, the risk of interactions with humpback whales, blue whales and leatherback sea turtles is having profound impacts on fixed gear fisheries. The pelagic waters of the Alternatives provide foraging habitat for many protected species and serve as migratory corridors for others.
Protected species, as considered in the DPEIS, include those listed as endangered or threatened under the federal Endangered Species Act, marine mammals pursuant to the Marine Mammal Protection Act and certain sea birds as provided in the Migratory Bird Treaty Act.
The DPEIS then, in general terms, speaks to the potential impacts that could accompany later actions of siting and operating aquaculture facilities. These include “takes,” entanglements (primary or secondary), marine debris, vessel strikes, noise and light pollution, habitat use and disease.
Wild-fish stocks are those which are expected to reside in or travel through areas and include salmon, coastal pelagic and other forage species, highly migratory species, groundfish and cartilaginous fishes. Included under this “environment” are habitats important to wild-fish stocks such as PFMC-designated Essential Fish Habitat (EFH) and Habitat Areas of Particular Concern (HAPCs).
Potential impacts that could accompany later actions of siting and operating aquaculture facilities include changes in habitat characteristics and habitat use, wildlife aggregations, marine debris, noise and light pollution, water quality pollution, escapes, disease and the introduction of non-native species.
With regard to fish farm escapes, the DPEIS, to its credit, acknowledges that escapes “are inevitable in aquaculture and have been reported in almost every country where aquaculture occurs.” It is vague, however, as to what (if any) mitigation measures should be taken to avoid adverse impacts on wild-fish fisheries from future aquaculture operation escapes.
“Ecologically important marine communities” include generally, and qualitatively, those on lower trophic levels, as well as benthic and pelagic resources. Lower trophic level communities are those which provide nutrition and food for species at higher trophic levels.
Benthic resources are those that occur at or on the sea bottom. Pelagic resources are those in the water column. Potential impacts that could accompany later actions of siting and operating aquaculture facilities include habitat alteration or changes in species abundance and organism diversity. The DPEIS acknowledges that.
“Without adopting ecologically-sound management practices, an expanded aquaculture industry could make the world’s food supply less resilient by posing a threat to ocean fisheries.”
Potentially farmed species include native or naturalized species thought to be potentially suitable for any of the proposed AOAs, including:
Macroalgae/seaweed – Sugar kelp; Ribbon kelp, Giant Kelp, Bull Kelp, Bladderwrack, Kombu, Sea Palm, Sea Cabbage or sweet kombu, Nori, Sea spaghetti and Turkish Washcloth.
Shellfish – Olympia oyster, Pacific oyster, Purple-hinged rock scallop, Manila clam, Pismo clam, California mussel, Mediterranean mussel and Abalone.
Finfish – California yellowtail, Longfin yellowtail, white seabass, Striped Bass, Sablefish, California Halibut and Olive flounder.
Potential impacts that could accompany later actions of siting and operating aquaculture facilities include increased logistical demands on permit compliance and enforcement, pollutant discharge from vessels servicing the facility, non-infectious diseases, infectious diseases and parasites, biofouling and accumulation of pollutants in shellfish or finfish.
Socioeconomic Environment
The items of particular interest under this umbrella include impacts on commercial and recreational fishing, markets and Regional Food Systems and ports and working waterfronts.
The document does describe commercial and recreational fishing in and around the proposed AOAs. For commercial fishing, limitations of certain datasets, AIS and VMS for example, are touched upon.
Potential impacts that could accompany later actions of siting and operating aquaculture facilities include equipment supporting aquaculture that could result in loss of grounds or hazards to specific gear types, marine debris, navigational obstacles, the fish aggregating potential to attract species or keep fish drawn to the facility from being harvestable, seafloor disturbances during baseline surveys and construction.
Operational synergies between aquaculture and commercial fisheries could have positive impacts, however, according to the DPEIS, as would additions to the seafood supply chain with predictable, increased supply of products.
The issues of recreational fishing’s economic contributions, employment and cultural importance also were raised.
The socioeconomic interactions with recreational fishing are more likely to be associated with ports and working waterfronts, such as charter boar businesses, tackle shops, boatyards and marinas. The potential impacts identified for the commercial fishing community that are attributable to a specific gear type generally also apply to the recreational community.
Consideration of markets and regional food systems includes market values related to the marine economy, seafood industry and existing aquaculture industry in order to describe the human dynamics that link off-shore activities to economic systems on-shore. To date, most aquaculture products in California target high-end luxury niche markets.
Stressors for markets and regional food systems include variability in the predictability and stability of supply and consumer demands, disruptions to marketing values and practices and market interactions between aquaculture products and wild-caught seafood.
Potential impacts that could accompany later actions of siting and operating aquaculture facilities include direct and indirect economic costs and benefits, job creation and reducing reliance on imported seafood, meaning an overall beneficial impact on regional, state, and U.S. markets as uncertainty is reduced in supply chains.
Increased affordability and access to seafood also may increase competition with wild-capture seafood and combating potential sources of illegal, unreported and unregulated (IUU) fishing.
Fishing communities are dependent on ports and working waterfronts. Fishing communities include economic and social groups whose members rely heavily on fishing activities and fishing culture. The shoreside businesses that support fisheries and other associated activities are necessary to get product to consumers and integral to the well-being of the industry.
Potential impacts discussed in the DPEIS that could accompany later actions of siting and operating aquaculture facilities include economic activity during construction, operations and decommissioning of facilities, increases in tax revenue from rising production and exports, employment benefits, potential new avenues for sustainable seafood to reach consumers and opportunities for synergistic collaborations.
Cumulative impacts also are briefly discussed in the DPEIS, but in my opinion, this discussion is deficient given all of the other planned uses of the marine space in waters off California. But NEPA requires a robust analysis of cumulative impacts.
With this DPEIS open comment period (again, until Feb. 20), our industry finally has a shot at raising our many concerns.
If aquaculture is to be developed in any of the proposed AOAs, the fishing community must demand
(1) no non-native species be grown
(2) no unreasonable interference with the ability of wild-capture fisheries to access fishing grounds, to access land-based infrastructure necessary for offloading or otherwise serving the commercial fishing industry and transit to and from fishing grounds (3) carefully informed, science-based and fully understood management practices that ensure the aquaculture industry does not pose a threat to ocean fisheries and (4) until assurances can be given that escapes are impossible, no finfish should be grown.
For impacts that can’t be avoided, minimized and mitigated, adequate compensatory mitigation also should be required. Such mitigation should be developed in partnership with the fishing industry and communities which stand to be impacted.
Your Chance to Comment
On Nov. 15, NOAA Fisheries posted the Draft Programmatic Environmental Impact Statement (DPEIS) for the Identification of Aquaculture Opportunity Areas (AOAs) in Federal Waters of Southern California. Comments must be received no later than Feb. 20.
For more information see: https://www.fisheries.noaa.gov/west-coast/aquaculture/west-coast-region-southern-california-aquaculture-opportunity-area
PCFFA Update
PCFFA remains highly skeptical that industrial-scale ocean aquaculture will not seriously jeopardize valuable West Coast fisheries. As a result, PCFFA joined in a recent lawsuit challenging the U.S. Army Corps of Engineers’ authorization of large-scale aquaculture operations in AOAs by way of a blanket Nationwide Permit 56 (NWP 56), adopted by the first Trump Administration in January 2021.
NWP 56 automatically authorizes buoys, long-lines, floats, anchors, rafts, racks and other similar aquaculture structures, with little regard to avoiding navigation hazards to commercial fishing vessels. We WON that lawsuit (Don’t Cage Our Oceans, et al. vs. U.S. Army Corps of Engineers, et al., U.S. Dist. Court, Western Dist. of WA, Case No. 2:22-cv-01627). In a ruling dated Sept. 30, the court concluded that NWP 56 is “unlawful” and “as such, no new activities shall be permitted under NWP 56 in its current form.” Whether to appeal this ruling or send it back to the Corps to fix will be decided by the second Trump Administration.
PCFFA guest columnist Mike Conroy, J.D. is the Principal of West Coast Fisheries Consultants, a boutique firm focusing on legal aspects of fishing, fisheries management and fisheries policy. He is also a former Executive Director of the Pacific Coast Federation of Fishermen’s Associations (PCFFA) and current co-chair of the Pacific Fishery Management Council’s Ad Hoc Marine Planning Committee. He can be reached by email at: mike@wecofm.com.