How can states outside the gulf of Mexico regulate offshore finfish aquaculture?

• Author: Siedlak, Sarah Ann

CONTENTS INTRODUCTION I. AQUACULTURE A. Environmental Effects of Aquaculture B. Socio-Economic Effects of Aquaculture II. REGULATION OF OFFSHORE FINFISH AQUACULTURE A. State-Federal Waters Delineation B. The Coastal Zone Management Act C. Federal Regulation of Offshore Finfish Aquaculture: The Gulf Aquaculture Plan III. ROSE CANYON FISHERIES SUSTAINABLE AQUACULTURE PROJECT A. Specifics of the RCF Sustainable Aquaculture Project B. California Regulation under the Coastal Zone Management Act: The California Coastal Management Program C. How California Regulations Should Apply to the RCF Sustainable Aquaculture Project: The Federal Consistency Review 1. Hypothetical Consistency Review of the RCF Sustainable Aquaculture Project: Comparison to KZO Sea Farms and Platform Grace a. Background on KZO Sea Farms and Platform Grace b. Comparison of the RCF Sustainable Aquaculture Project to KZO Sea Farms and Platform Grace i. Size and Location of the Aquaculture Farm ii. Commercial and Recreational Fishing Impacts iii. Economic Impacts iv. Impacts 011 Marine Resources v. Water Quality Impacts vi. Scenic Impacts 2. California State Aquaculture Laws Applicable to the Hypothetical Consistency Review of the RCF Sustainable Aquaculture Project IV. NATIONWIDE IMPACTS: COASTAL ZONE MANAGEMENT LESSONS CONCLUSION INTRODUCTION

San Diego, California, may soon be home to not only the largest fish farm in the United States, but also to the first one located in federal waters. (1) Hubbs-Sea World Research Institute (HSWRI), a nonprofit research arm of SeaWorld, has paired up with Cuna Del Mar, a private equity firm primarily funded by Wal-Mart billionaire Christy Walton, (2) to form Rose Canyon Fisheries (RCF), a group dedicated to pioneering offshore aquaculture in the United States. (3) RCF desires to permit, establish, and operate the first finfish aquaculture project located in the federal waters of the United States. (4) The proposed RCF Sustainable Aquaculture Project would be located approximately 3.6 miles off the coast of San Diego, (5) just west of popular tourist areas, including Sunset Cliffs and Mission Beach. With an ocean footprint of 1.3 square miles, RCF would be roughly the size of Central Park in New York City and could eventually produce up to 5,000 metric tons--or 11 million pounds--of yellowtail jack, white seabass, and striped bass per year. (6)

The proposed placement of RCF in federal waters poses unique and unanswered regidatory questions for the United States. Although the Gulf Aquaculture Plan, which regulates offshore aquaculture exclusively in the Gulf of Mexico, recently went into effect on February 12, 2016, (7) no regulatory framework for offshore finfish aquaculture currently exists for the rest of the United States. While RCF claims that offshore aquaculture is necessary in the United States to ensure a safe, secure, domestic supply of seafood, such activity nonetheless poses many environmental and socio-economic issues.

As no federal laws regulate aquaculture in the federal waters off of California, what guidelines or standards are available to ensure that RCF farms fish in a safe, environmentally sound way? The Coastal Zone Management Act (CZMA) creates a cooperative federalism program where coastal states assume most of the federal administrative and enforcement responsibilities to manage and protect their coastal zones and resources." Based on this substantial coastal management power, this Note outlines how offshore finfish aquaculture, in a region outside the Gulf of Mexico, can be regulated by coastal states to sufficiently protect states's coastal zone and marine resources.

Part I of this Note provides background information on aquaculture and its potential environmental and socio-economic effects. Part II discusses the regulation of offshore finfish aquaculture and explains the state-federal waters delineation, the CZMA's role in regulating offshore aquaculture through a cooperative federalism program, and the regulation of offshore aquaculture in the Gulf of Mexico under the Gulf Aquaculture Plan.

Part III outlines specifics of the proposed RCF Sustainable Aquaculture Project and examines what a hypothetical federal consistency review of the project could look like by applying the enforceable policies of the California Coastal Act of 1976 and California state laws. Reviews of two past aquaculture projects, KZO Sea Farms and Platform Grace, will be analyzed and compared to the proposed RCF project through six main factors: the size and location of the aquaculture project, commercial and recreational fishing impacts, economic impacts, impacts on marine resources, water quality impacts, and scenic impacts. This Note argues that RCF, as proposed, is not consistent with the enforceable Coastal Act policies and, therefore, should not be granted a consistency certification, meaning the project should not proceed. Significant alterations to the project, however, could make RCF consistent with the Coastal Act policies. In Part IV, the nationwide effects of the recently published Gulf Aquaculture Plan are discussed, as well as lessons other coastal states can learn from the RCF situation in California to ensure that they are protected from adverse offshore aquaculture effects.

1. AQUACULTURE

   Aquaculture, or fish farming, involves the breeding, rearing, and harvesting of animals in the ocean. (9) Typical offshore aquaculture facilities consist of cages or net pens that are placed on the seafloor, float on top of the water, or are suspended in the water column, anchored to the ocean floor. (10) These cages are stocked with young fish, generally reared in hatcheries, which live in the cage until they grow to market size. (11) The farmed fish are then sold to consumers all around the world.

   Large aquaculture operations typically farm shellfish or finfish. (12) Shellfish--oysters, mussels, and scallops--grow out 011 the ocean floor or on long line cultures. (13) Shellfish can take as little as one year to grow to market size after being reared in hatcheries. (14) As filter-feeders, shellfish filter water by removing particulates, such as nitrogen, organic material, silt, and other nutrients, from the surrounding water as their food source. (15) No additional food is needed to feed shellfish--the only food required is that which the ocean already provides. (16)

   "Finfish" refers to fish such as salmon, steelhead trout, cod, red drum, Hawaiian yellowtail, and cobia. (17) Finfish are generally bred and reared in hatcheries, spend time as juveniles in grow-out, facilities, and are then moved to net pens or cages in the open ocean where they grow to market size. (18) Unlike shellfish, finfish must be fed external food, and any uneaten food falls into the surrounding water along with fish excretory products. (19) Also, chemicals are frequently used in finfish operations to maintain fish health, disinfect and improve water quality, and control nuisance organisms. (20) These differences between shellfish and finfish generate widely different environmental and socioeconomic impacts.

   1. Environmental Effects of Aquaculture

      HSWRI's current aquaculture project in Southern California--the White Seabass Enhancement Plan--highlights various environmental concerns that surround aquaculture farms. (21) The white seabass program is currently being audited by the California Department of Fish and Wildlife because over the years, hundreds of thousands of juvenile white seabass have died at the hands of HSWRI. (22)

      Diseases, developmental deformities, and human errors have led to multiple major die-offs of HSWRFs juvenile white seabass. (23) At the Redondo Beach grow-out, facility, almost 7,000 juvenile white seabass died in 2012 after household bleach leaked into the system's intake water, (24) and in 2015, 3,000 juvenile white seabass died due to a power outage. (25) At other grow-out facilities, panicked fish have slammed themselves to death against tank walls and over 100,000 fish have been euthanized due to issues such as fish herpes outbreaks. (26)

      Such problems persist after juveniles leave the hatchery. Although HSWRI tries to euthanize all deformed fish before they leave the hatchery, deformed fish are still found outside the hatchery. (27) Common deformities include blindness, commonly caused by captivity conditions, "BAD heart," where fish hearts are the wrong size, color, or texture, or leak blood, and "horn head," where bumps form on top of fish heads and appear as horns. (28) A 2015 sample of fifty HSWRI white seabass revealed that every single fish had at least one deformity, and the average fish had four deformities. (29) White seabass raised in the hatchery do not survive as well as wild white seabass, and the farmed fish have not been improving, even after over twenty years of experimentation. (30)

      Although not all aquaculture farms face the same breeding and rearing challenges HSWRI does, there are numerous environmental challenges commonly experienced by all aquaculture farms. The most obvious challenge is that raising millions of pounds of fish creates copious soluble and solid waste. The size of the aquaculture farm, husbandry methods used, and site hydrography influence the amount of waste discharge that flows into the surrounding water column and falls to the benthic seafloor. (31) Discharges include uneaten food, fish feces, urine, mucus, and dead fish. (32) Buildup of these waste particulates can degrade the benthic community by creating anoxic sediments and toxic gases and by decreasing benthic diversity. (33)

      Benthic impacts are typically greatest beneath cages densely stocked with fish requiring high rates of feed. (34) Various studies found that benthic impacts are localized and can be reversed by fallowing, (35) while others have measured benthic effects greater than twenty-five meters away from cages and found that it can take twenty-one to twenty-four months for the sediment...