Salmon aquaculture in federal waters: shaping offshore aquaculture through the Coastal Zone Management Act.

• Author: Schatzberg, Melissa

INTRODUCTION I. THE PLACE OF SALMON FARMING IN THE WORLD SALMON MARKET A. Development of the Industry B. Benefits and Concerns of Salmon Farming 1. The promise of farming salmon 2. The need for caution II. FEDERAL OVERSIGHT OF SALMON FARMING A. The Rivers and Harbors Act of 1899 B. The Clean Water Act C. The Endangered Species Act D. The Coastal Zone Management Act III. STATE EXPERIENCES WITH SALMON FARMING: WASHINGTON AND ALASKA A. Washington 1. Washington Department of Ecology 2. Washington Department of Fish and Wildlife 3. Next steps in Washington B. Alaska IV. EXPANSION OF SALMON FARMING INTO FEDERAL WATERS A. Expansion Offshore B. Using Section 307 1. Section 307 2. Demonstrating effects on the coastal zone V. HOW THEY MIGHT DO IT: PROVING INCONSISTENCY A. Washington State B. Alaska 1. Finfish farming ban 2. Socioeconomic effects 3. Biological impacts CONCLUSION INTRODUCTION

While the practice of aquaculture (1) dates back almost 4000 years, (2) salmon farming is a relatively new application of the field. Farms have arisen in coastal areas from Europe to Asia to the Americas. In the United States, salmon farming is poised to leap into a new ecosystem: the federal offshore waters of the Exclusive Economic Zone (EEZ), the water seaward of state boundaries at the three-mile mark. (3) At the same time, wild salmon risk extinction on both coasts.

Farming salmon in federal waters is discussed in commercial, regulatory, and scientific circles. (4) When viable offshore farms may materialize is not certain, but examining the potential for open ocean salmon aquaculture is important in order to allow for thoughtful planning rather than misdirected retrospective regulation. In addressing offshore expansion, one integral question is how two western states--Washington and Alaska--might react to federal permitting of open ocean farms. (5) These states make an interesting comparison because, while both once hosted bountiful Pacific salmon populations, they now take differing approaches to salmon farming. This difference appears to correlate with the divergent fates of the states' respective commercial fishing industries. Whereas overfishing exhausted the Washington fishery, making way for the development of a small salmon farming industry roughly thirty years ago, Alaska's commercial fishery remains strong, and the state has banned salmon farming in its waters to protect the industry. (6)

In light of these two histories, this Note examines ways in which Washington and Alaska could use the Coastal Zone Management Act's (7) (CZMA) [section] 307 consistency provision to challenge and shape offshore salmon farming. Section 307 requires federal actions that affect a state's coastal zone to conform to select state laws that safeguard the fragile coastal ecosystem. By drawing on [section] 307, Washington and Alaska could test the true strength of their consistency rights under the current interpretation of the CZMA. Studying Washington and Alaska's interactions with salmon farming also illustrates the way in which other coastal states may embrace or reject open ocean aquaculture for a wide variety of species. (8)

Part I of this Note traces the development of the salmon farming industry and discusses the pros and cons of farming. Part II provides an overview of the relevant federal statutes regulating the U.S. aquaculture industry today. Part III examines the emergence and regulation of salmon farming in Washington State and the legislative ban on finfish farming in Alaska. Part IV discusses the potential expansion of salmon farming into offshore federal waters and analyzes how [section] 307 could affect such a move. Part V identifies specific state regulations that Washington and Alaska could use in combination with [section] 307 in order to influence industry practices in the open ocean.

1. THE PLACE OF SALMON FARMING IN THE WORLD SALMON MARKET

   1. Development of the Industry

      The emergence of commercial salmon farming occurred in step with a boom in international aquaculture as a whole. Rising demand for seafood, the ability of farms to provide high-quality products on a year-round basis, advances in disease control and genetic engineering, and improved farming techniques all contributed to increased interest in the field. (9) The growth of aquaculture also came, not coincidentally, when catches of wild fish peaked, if they were not already in decline. With capture fisheries unable to satisfy consumer demand, aquaculture emerged as the next best way to increase fish supplies. (10)

      Growing salmon in artificial conditions is a multistep process. Eggs and milt are collected from a broodstock, and then are fertilized, incubated, and raised to small fish (smolts) in freshwater hatcheries. Aquaculturists then transfer young salmon to clusters of saltwater net pens where they remain until harvested. (11) These pens anchor to the sea floor and allow for the continual inflow of fresh water and outflow of wastes. (12)

      Salmon farming originated in Norway in the 1960s, spreading primarily to Chile, the United Kingdom, and Canada. (13) Compared with these nations, the United States contributes only a miniscule amount to farmed salmon production worldwide. (14) In fact, the United States remains a net salmon importer. (15) Initially, America engaged hesitantly in aquaculture research and development because of its natural abundance of wild fish (16) and traditional reliance on foreign imports to satisfy a significant portion of its national appetite for seafood. (17) But when a series of wild stocks reached their maximum sustainable yield in the 1970s, America began looking to artificially augment its fisheries. This resulted in the passage of the National Aquaculture Act in 1980. (18) Although slow to catch on, aquaculture is now the fastest growing sector of the American agricultural industry. (19)

      Today, Maine and Washington are the primary producers of domestic farmed salmon. While indigenous salmon populations are quite different in the two states--Maine streams rear Atlantic salmon (Salmo salar) and Washington hosts Pacific salmon (genus Oncorhynchus) (20)--both regions now farm Atlantic salmon. In the 1960s and 1970s, researchers and commercial aquaculturists experimented with raising both species off the West Coast, but they quickly found Atlantic salmon better suited to farming. (21) Because of its superior disease resistance, high consumer appeal, and ability to grow in crowded net pen conditions, (22) Atlantic salmon is the predominant species raised on farms in North and South America, Europe, and Australia.

   2. Benefits and Concerns of Salmon Farming

      Expanding the American aquaculture industry, and salmon farming in particular, creates a series of potential economic and ecological benefits and concerns. With proper management, many believe that environmentally sensitive fish farming can make positive contributions to the world's food supply. For salmon farming to play a part in this trend, operators and regulators must examine both the positive forces propelling expansion of fish farming, as well as the possible dangers of poor environmental practices.

      1. The promise of farming salmon.

         Supplementing the world's food supply is a primary justification put forth in support of increased investment in aquaculture. (23) However, with regard to salmon, the majority of farmed fish feeds a relatively limited pool of consumers who can afford to pay for this delicacy. (24) At present, technological advances have not improved feed conversion ratios enough to make the protein transfer from wild-caught feed fish, to pellets, to farmed salmon an efficient one. Instead, it takes an average of 2.44 pounds of wild fish to produce one pound of salmon, (25) resulting in a net protein loss. (26) Only if the amount of fish meal and fish oil in feed declines can salmon aquaculture truly contribute to the aggregate global fish supply. (27) Meanwhile, developing countries can actually lose food resources to aquaculture, because the fish meal and fish oil used to make salmon feed frequently come from small fish caught in the waters off these nations. (28) This practice can harm foreign fisheries whose larger fish, higher up the food chain, lose their food source. (29)

         Although it is known to negatively impact certain feed fish and their natural predators, some believe that aquaculture could decrease pressure on other wild-caught fisheries. However, consumers and farmers have yet to show a readiness to purchase and farm the environmentally appropriate species. (30) So far, predictions that salmon farming will ease pressure on wild-caught salmon have not proven true. (31)

         Investment in aquaculture has also been touted as a way to promote economic development in coastal areas suffering from the collapse of wild fisheries. (32) But this is a questionable proposition in the case of salmon farming. Running a farm requires significant amounts of startup capital, skill, and time, (33) factors that have made the industry ripe for consolidation under multinational companies. (34) Although fish processing and other land-based activities could create jobs in coastal areas, raising salmon as an employee of a large farm is quite a different way of life than catching them as the owner of a small boat. So, while opening a salmon farm might pump life into a local economy, it would not necessarily reincarnate a fishing community that once prospered from a now-depleted resource.

         While aquaculture's "promise" is constrained by concerns, aquaculture, including salmon farming, has the potential to make positive contributions to the world's food supply. If performed in an environmentally sound manner, fish farming can increase the yield of healthy seafood and provide an excellent source of protein and nutrients for the human diet. As technology and regulations develop, realizing this potential will be increasingly within reach.

      2. The need for caution.

         The foremost...