Aquaculture Magazine

February/March 2016

Finally! A Final Rule. So, is this is the End of the Beginning?

By Neil Anthony Sims

There was little real fanfare – Kathleen Sullivan, the head of NOAA, held a press conference in New Orleans, and announced that NOAA was going to move forward with implementing the Rule for the Fisheries Management Plan (FMP) for aquaculture in the Gulf of Mexico (GoM). They’d be ready to start moving forward in February. Those stalwarts of seafood internet news services –, Seafood, and a few others – scattered the story out amongst the ether.

By Neil Anthony Sims*

Some few of us around the country grinned, and maybe pumped our fists into the air, and exclaimed “Finally!” But the sun didn’t stop in its tracks. The tides still rolled back and forth. And folk from Key West to Brownsville kept plowing their way through grouper sandwiches, mahimahi fillets, jambalayas and blackened redfish entrees, oblivious to whatever winds of change may have blown across those waters.

“So what?” they might have asked. Well, here’s what: there is now a permitting pathway in place for growing seafood in the Federal waters in the GoM. The Rule’s release and January 13 publication in the Federal Register is the culmination of more than a decade’s work on this issue by a bevy of industry partners, working with the GoM FMC, NOAA, and other Federal agencies. Over a decade ago, the FMC had recognised that fisheries for wild stocks in the GoM were already being exploited at or beyond their capacities. Many fisheries were in decline. Waterfronts around the Gulf had the faint aroma of Detroit-dereliction, washed over by a wave of concrete and glass condos. Joe Hendrix, that unflagging stalwart, led an initiative on the Council to recognize the obvious: the only opportunity for growth lay in growing. And the Council – feeling the pressure from consumers, and seafood restaurants, and fish processing plants that were increasingly hungry for product – bought the bold concept.

So began the process. The initial steps involved drafting an Environmental Impact Statement. Amongst all the handwringing and fear-mongering and anecdotal horror stories, the EIS asked, what might be the actual expected impacts of putting fish into the water, rather than just taking them out? And if there are significant impacts, then how might these be mitigated? The EIS waded through these waters, and came to the conclusion that – so long as basic Best Management Practices are adhered to - the upshot of aquaculture is mainly up. Or, at least, the impacts of farming fish – using the waters as a medium to grow fish in their natural environment - are probably a lot less than the impacts that are already visited upon the Gulf by existing extractive activities, such as the oil and gas industry (say no more), and commercial and recreational fishing (which directly extract both fish and by-catch, and inflict other ecosystem impacts to varying degrees, depending on the fishing method used). A Rule for management of an aquaculture industry in Federal waters was then drafted by the Council, in concert with NOAA, and adopted with alacrity by the Council. We all cheered. We were fools.

That was 2009. All that was required, then – or so we believed - was for NOAA to accept and implement the Rule. Slam dunk, right? Bam! Done! Well, not quite… NOAA’s approach to this gambit might be kindly described as an ‘abundance of caution.’ We have, in these pages past, berated NOAA for the achingly slow progress. It was progress so slow that it usually did not look like progress. Regress, more like. Digress, often. NOAA would happily share their reasons: everybody else was always badgering their in-house lawyers with law suits; there was no overarching Aquaculture Policy to guide and direct the administration (ignoring the 1980 Aquaculture Act, where Congress very clearly spelled out the imperatives); NOAA felt the need to convene ‘listening sessions’ around the country to get input from everyone who might have an opinion; and “Oops! The Deepwater Horizon oil spill (refer to the ‘say no more’, above) might impact the original findings of the Aquaculture EIS, so let’s do a supplementary EIS.”… ad seemingly infinitum. The overarching sense was that NOAA was going to take its own sweet time, if indeed it would ever actually act. Those of us who watched and sweated and wept and prayed, some of us started to grow cynical and bitter. Each step forward seemed to trigger an additional two sideways and two back. Acceptance by NOAA pushed it over to the Office of Management and Budget (an oversight agency that was reputedly a black box; described by some as where good regulations go to die). There ensued bureaucratic back-and-forth, ping-ponging between OMB and NOAA (the Rule was moving; it just did not appear to be moving towards completion). Then once more it was back in NOAA’s hands, and there were no more hurdles. All that remained to be done, was the announcement. And now it was. Has been. Done.

So now, friends, we are at the end of this arduous process. We feel like we’ve won, but what does that mean? The Rule is certainly not perfect, and we have previously, in these pages, bemoaned much about it that appeared to us to be – at worst – purely bone-headed, or at best, way too timid. Permits are limited to 10 years’ duration, with a poorly defined permit renewal process. Production is capped for the entire GoM at 29,000 tons per year, with a target of five farms. (Which is reminiscent of the early days of computers, when the most bullish proponents predicted that one day, far off in a techno-future, there would be a computer at every major university in America). All fishing is excluded from anywhere near the net pens. (Good luck, my friends, at your first public meeting with the fishing community! Wear your flak jacket and football helmet!). And the level of reporting to NOAA is over the top. (No, you don’t have to tell NOAA every time you use the bathroom, but you do have to tell them every time you are going to harvest fish, or land fish, or stock fish).

There is also the daunting prospect of the other Hydra-heads of “cognizant” Federal agencies. A NOAA Aquaculture permit lets you grow the fish. But you also need an Army Corps of Engineers (ACOE) permit to deploy the net pens – and the attendant anchors, buoys, grid-lines and feed barges. And ACOE will check around amongst all the other Federal agencies (Navy, Fish and Wildlife Service, NOAA – yes again – and any or all others) to ensure that they all have a chance to weigh in. You’ll need a National Pollutant Discharge Elimination System (NPDES) permit from the Environmental Protection Agency (EPA) to allow your fish to add their nutrients (my euphemism for urine and faeces) to the effluent waters. You need to check with the Bureau of Ocean Energy Management to ensure that no-one in the oil and gas industry has any claim or concern with your proposal. You need Coast Guard to approve the lighting on your operation, and to register it as a Private Aid to Navigation (PATON). And you will need to ensure that the operation is consistent with the adjacent coastal state Coastal Zone Management Plan.

You work through all this… through the Scoping Meetings, the public meetings, the drafting of an Environmental Assessment and its review by agencies and the public (even with a Programmatic EIS for the entire Gulf, each permittee will still need to conduct their own EA to inform the ACOE permit and the NPDES process). And then, if you or NOAA aren’t sued by the fringe - you might have your permit in hand. The time and money required to work through this process is unfathomable, but one wiser than I in such matters (in most matters, really) suggested that it might be two years, and $2 million. Or perhaps some young buck (or doe) fresh out of college might find the passion for pursing a permit, considering ‘sweat equity’ as if it were a cheaper, more practical education than a Masters in Marine Public Policy. (And it most certainly would be!)

Good luck to us all, I say! Yes, the process is not perfect, but it’s a place to start. About 10 years ago, I was meeting with one of the Capitol Hill staffers, pressing for broader recognition of the need for open ocean aquaculture.

“Sure,” she said. “I see it, Neil. But… where’s your constituency? Where are your industry members?”

I looked down at my shoes, and shuffled my feet in embarrassment.

Well, we now have a chance to build an industry, and to build a broad constituency of supportive industry benefactors – the boat builders and ice houses and fish processors and restaurant wait staff and net makers and hatchery operators – and their friends and relations. Sure, there are numerous areas where the Rules might have been better drafted, but once we get farms out there, and fish in the water, then the flaws will become apparent to all, and one hopes that common sense will prevail. Many of the Rule provisions can be readily amended by the FMC, without the NOAA-OMB ping-ponging.

This, then, is a time for optimism; for entertaining possibilities; for dreaming dreams. This is a significant accomplishment. The future lies before us. It’s not so much the End of the Beginning. It’s the end of the Prelude. It’s a new Beginning. There’s good, honest work to be done. Let’s go grow some fish! Finally!

Neil Anthony Sims is co-Founder and CEO of Kampachi Farms, LLC, based in Kona, Hawaii, and in La Paz, Mexico. He’s also the founding President of the Ocean Stewards Institute, and sits on the Steering Committee for the Seriola-Cobia Aquaculture Dialogue and the Technical Advisory Group for the WWF-sponsored Aquaculture Stewardship Council.

Neil Anthony  Sims

Neil Anthony Sims

Neil Anthony Sims is co-Founder and CEO of Kampachi Farms, LLC, based in Kona, Hawaii, and in La Paz, Mexico. Over the past two decades, Sims has led teams that have accomplished a number of breakthrough developments in pearl oyster culture, offshore aquaculture legislation and regulation, marine fish hatchery technology, open ocean mariculture systems, and most recently, untethered open ocean ‘drifter pens’: the Velella project.

Neil is also the founding President of the Ocean Stewards Institute, and sits on the Steering Committee for the Seriola-Cobia Aquaculture Dialogue (SCAD) and the Technical Advisory Group for the WWF-sponsored Aquaculture Stewardship Council. 

Sims resides in Kona, Hawaii.

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