Download - Shellfish Aquaculture and the Environment (Shumway/Shellfish Aquaculture and the Environment) || Balancing Economic Development and Conservation of Living Marine Resources and Habitats:

Chapter 15

Balancing e conomic d evelopment and c onservation of l iving m arine r esources and h abitats: the r ole of r esource m anagers Tessa L. Getchis and Cori M. Rose

Introduction

Bivalve shellfi sh production represents a large and growing segment of the U.S. and global seafood industry, with nearly 20% of domestic and 27% of worldwide aquaculture produc-tion being attributed to shellfi sh aquaculture (U.S. Department of Agriculture National Agricultural Statistics Service 2006 ; Food and Agricultural Organization of the United Nations 2008 ). Although production is increas-ing, there is uncertainty and public concern with respect to the ecological effects of aqua-culture practices, which threatens to constrain further development of the industry (Food and Agricultural Organization of the United Nations 2008 ; National Research Council

2010 ). This ambiguity has led to both local and sweeping national changes to the manner in which shellfi sh aquaculture is regulated and the husbandry standards by which shellfi sh producers must adhere to, in the United States and elsewhere.

Evaluation of the effect of bivalve shellfi sh aquaculture on the marine and estuarine near - shore environment has, until recently, predom-inantly focused on near - fi eld assessment of the effects of highly intensive operations outside of the United States (Cranford et al. 2003 ). It has been assumed that because, unlike fi nfi sh aquaculture, shellfi sh cultivation occurs in open water without the addition of feed, the likelihood for adverse effects was low. This incomplete rendering led to a general mindset

Shellfi sh Aquaculture and the Environment, First Edition. Edited by Sandra E. Shumway.© 2011 John Wiley & Sons, Inc. Published 2011 by John Wiley & Sons, Inc.

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426 Shellfi sh Aquaculture and the Environment

water quality degradation (Chapter 7 ); changes in sediment chemistry and composition (Chapter 10 ); habitat degradation, altered bio-diversity and community structure (Chapters 5 and 9 ); the introduction of nonnative species including predators, pests, and disease; the spread of harmful algal blooms (Chapters 13 and 14 ); and the loss of genetic diversity in wild shellfi sh populations (Chapter 12 ).

Some studies have indicated that intensive shellfi sh production can result in ecosystem - level changes in water quality (Souchu et al. 2001 ), phytoplankton biomass (Nichols et al. 1990 ; Banas et al. 2007 ), and benthic sediment chemistry and composition (Dahlback and Gunnarsson 1981 ; Kaspar et al. 1985 ; Figueras 1989 ; Grant et al. 1995 ; Cranford et al. 2003 ) (see Fig. 15.1 ).

Direct and indirect impacts to critical habitats and changes in biodiversity have been linked to operations that utilize sub-merged or fl oating cultivation structures, inter-tidal rearing methodologies such as predator netting, or harvesting gear such as dredges. Physical disturbance such as scouring and

that shellfi sh cultivation is a “ benign ” use of the marine environment. However, the con-tinuing controversy over the effects of marine fi sh farming and the common misconception that shellfi sh aquaculture incorporates similar husbandry techniques has driven environmen-talists, scientists, regulators, and industry in the United States and elsewhere to reconsider this view. Consequently, there has been more of an impetus to fully investigate and properly document the potential for immediate and local effects resulting from shellfi sh farming, as well as the probability for longer - term and estuary - wide effects to occur. The purpose of this chapter is to highlight the current frame-work for and emphasize the national trends in the regulation of bivalve shellfi sh aquaculture within the United States.

Environmental e ffects

The principal concerns with respect to the interaction of shellfi sh aquaculture and the environment are generally considered to be

Figure 15.1 Longline mussel culture.

Development and conservation: Role of resource managers 427

and disease - causing organisms is a signifi cant ecological and economic problem (McKindsey et al. 2007 ). As such, most states now require a shellfi sh transport permit that certifi es that the product (larvae, seed, or adult shellfi sh) is a native species, disease/toxin - free, and will not pose harm to existing shellfi sh populations.

Recent studies have demonstrated the potential for a loss of genetic diversity when hatchery stocks interbreed with wild popula-tions of shellfi sh (Arnold et al. 2004, 2009 ). Interbreeding is especially diffi cult to prevent or control as many molluscan shellfi sh are broadcast spawners and larvae can be carried long distances away from their reproductive populations (Chapter 12 in this book).

This is not to suggest that the benefi cial aspects of shellfi sh culture should be over-looked or underestimated. The current body of knowledge and scientifi c documentation is replete with the value of shellfi sh and shell-fi sh aquaculture for their ability to improve water quality and clarity making the environ-ment more suitable for aquatic organisms.

sedimentation can indirectly impact biodiver-sity by altering or removing essential habitat. Of particular interest to resource managers is the potential for adverse effect to threatened or endangered species (e.g., mammals, birds, turtles, and migratory fi sh) and protected habi-tats such as submerged aquatic vegetation ( SAV ) (see Fig. 15.2 ). Such disturbances to fed-erally protected species such as Pacifi c salmon (Simenstad and Fresh 1995 ; Thom 2009 ) as well as negative impacts to special habitat such as seagrasses have been documented (Everett et al. 1995 ; Tallis et al. 2009 ). However, these impacts are very site and gear specifi c. In addi-tion, intentional and accidental introductions of aquatic organisms have resulted in signifi -cant and often undesirable consequences to aquatic environments (Nichols et al. 1990 ). Aquaculture, in general, is now the leading cause of nonnative introductions (Chapter 14 in this book) to inland aquatic ecosystems (Welcome 1988 ) and introductions to marine waters have also been documented. In addition to the unintended spread of the target culture species, the proliferation of predators, pests,

Figure 15.2 Aquaculture operations in eelgrass beds.


level of three - dimensional complexity and hard substrate that results in enhancement of the diversity and abundance of biota that is similar or greater than natural marine habitats (Brehmer et al. 2003 ; Crawford et al. 2003a ; DeAlteris et al. 2004 ; O ’ Beirn et al. 2004 ; Roycroft et al. 2004 ; Lindahl et al. 2005 ; Pinnix et al. 2005 ; Wechsler 2006 ; Powers et al. 2007 ; Clynick et al. 2008 ; Erbland and Ozbay 2008 ) (see Fig. 15.3 ).

Filter - feeding molluscs achieve this by reduc-ing excess phytoplankton associated with eutrophication and other fi ne particulate matter, and transforming inorganic nutrients into bioavailable forms (Reusch et al. 1994 ; Peterson and Heck 2001a, 2001b ; Newell 2004 ; Newell and Koch 2004 ). In addition, the shellfi sh, the physical aquaculture struc-tures themselves, and in some cases the associ-ated shell deposits can all serve to provide a

Figure 15.3 Physical aquaculture structures as enhanced three - dimensional structure and hard substrate for other organ-isms. (A) A lobster (inset) in a cage full of oysters; (B) a godwit foraging among cages.

(B)(B)

(A)


The effects of aquaculture on the estuarine environment, whether benefi cial or detrimen-tal, are highly dependent on the species cul-tured and the type, scale, intensity, and frequency of the activity (Kaiser et al. 1998 ; Folke et al. 2004 ; Vaudrey et al. 2009 ; see also Chapter 9 in this book). In addition, the inten-sity and temporal and spatial extent of the effects may vary in response to the local envi-ronment ’ s resistance to change (Bradbury et al. 1983 ; Simenstad and Fresh 1995 ). Most experts agree that scale and intensity are two of the more important management consider-ations when permitting aquaculture and that understanding the effect of scale is critical to planning for sustainable aquaculture produc-tion (Dumbauld et al. 2009 ). Unfortunately, information on these effects is lacking as few studies in the United States until recently have assessed the cumulative and additive effects of multiple farms and estuary - wide effects of shellfi sh aquaculture.

Social e ffects

In addition to environmental effects, other major considerations in the siting of aquacul-ture operations include the impact to naviga-tion and other competing uses of the coastal zone, and concern that the activity will result in undesirable aesthetic impacts such as visual and noise pollution. Societal issues such as these also have the potential to impede the growth of the bivalve shellfi sh aquaculture industry along populated coastlines (see Fig. 15.4 ).

Although these impacts are diffi cult to assess and mostly due to subjective interpreta-tion, their consideration is nonetheless neces-sary as coastal waters are generally held in “ public trust ” for the benefi t of all (Fernandez 1996 ). Although it is important to mention that societal concerns can be critical to the successful siting of shellfi sh aquaculture proj-ects, we note that their discussion is beyond the scope of this chapter.

The uncertainty with respect to environ-mental interactions and social confl icts associ-ated with shellfi sh aquaculture has led to an increasingly complex review process for shell-fi sh aquaculture projects. The permitting process is not only daunting for the industry, but extremely challenging for the regulatory community that is responsible for balancing economic development, conservation of living marine resource and habitats, and other uses of the coastal zone. Hence, regulators often take a conservative approach to siting aqua-culture projects rather than accepting the responsibility for unknown or unforeseen risks (Dumbauld et al. 2009 ).

There are many competing issues that resource agencies must often consider with respect to shellfi sh aquaculture and the envi-ronment. The main focus of this manuscript is to elaborate on the potential effects (benefi cial or adverse) that bivalve culture may present to marine species and habitats. However, resource managers not only regulate the shellfi shing industry but they also on the other hand promote its existence. As such, resource man-agers must also monitor water quality and enforce no - discharge zones that can impact shellfi sh production and harvesting. There are also regulations such as health and sanita-tion standards and requirements that growers recognize as critical to production (Aspen Systems Corporation 1981 ). In addition, both resource managers and producer associations are in the process of or have developed man-agement practices that address public concern and will foster sustainable growth of the industry.

Regulatory f ramework for s hellfi sh a quaculture in the U nited S tates

Regulation of the shellfi sh aquaculture indus-try in the United States often includes review and agency oversight at one or more local, county, state, and federal levels. Consequently, a permit from several of these government


cultivation grounds, permits or licenses may be required for the operation of aquaculture vessels or land - based facilities, for placing and marking aquaculture gear, and for transplant-ing or harvesting product, among others.

bodies may be required for establishment of an aquaculture operation. It may even be nec-essary to obtain multiple permits from a single agency, particularly at the state level. In addi-tion to securing leases or deeds for shellfi sh

Figure 15.4 Geoduck aquaculture. (A) Predator exclusion devices; (B) geoduck farm in a tideland.

(A)(A)

(B)(B)


Historically, aquaculture was considered and regulated in many states as an activity related to fi sheries (Rubino and Wilson 1993 ), or recognized by states as an agricultural activ-ity with oversight under their respective agri-cultural agencies. In many instances, this approach resulted in a streamlined state review process through which all permits and licenses could be acquired from a single agency. However, the simplicity of this strategy was thwarted with the passage of federal legisla-tion such as the Coastal Zone Management Act ( CZMA ) of 1972. The CZMA encouraged states to exercise their responsibilities with respect to the use of land and water resources of the coastal zone and required the develop-ment and implementation of management pro-grams to balance competing uses of the U.S. coast and near - shore waters. As such, any activity in coastal waters with the potential to affect the area ’ s use, resources, or its character is required to be evaluated for consistency with the policies of a particular state ’ s coastal zone management program. The paradox being that coastal zone management usually does not fall within the auspices of a state ’ s department of agriculture, therefore requiring the engage-ment of more than one state agency in the review of applications for aquaculture activity.

To address this disjointed process, the CZMA was amended in 1990 and again in 1996 to encourage planning and provide funding (1) for the adoption of procedures and policies to evaluate and facilitate the siting of public and private aquaculture in the coastal zone; (2) to enable states to formulate, admin-ister, and implement strategic plans for marine aquaculture; and (3) to develop a coordinated process among multiple state agencies to regu-late and ultimately permit aquaculture facili-ties in the coastal zone. Unfortunately, the impact of these amendments on aquaculture development varied and, in many states, these amendments did little to unravel the complex-ity of the permitting process.

Programmatic agreements, joint proce-dures, or other administrative processes are sometimes used at the state level to reduce the burden of redundant agency review of aqua-culture activities considered to have negligible or minor impact on natural resources and/or navigation. Still, the complexity of the regula-tory structure is considered the primary con-straint to the development of the aquaculture industry. The uncertainty related to the inter-action of shellfi sh aquaculture and the envi-ronment further complicates this already confusing regulatory process.

Near - s hore a quaculture

Currently, the majority of shellfi sh culture in the United States occurs within the boundaries of state waters, less than 3 NM from shore (Dewey et al. 2007 ). Oversight for this activity is administered through an amalgam of federal and state coastal management law and regula-tion not always directly applicable, or easily adaptable, to the needs of the shellfi sh indus-try. A continuing industry - wide hurdle is the fact that commercial aquaculture is largely a private sector initiative that seeks to benefi t from resources commonly held by states and regulated by government entities for the public trust. Because some forms of shellfi sh culture systems, such as surface or submerged gear, can be exclusionary in terms of their ability to displace or otherwise impede a variety of other recreational and commercial uses of the coastal zone, the siting of near - shore aquaculture activity can be subject to a substantial amount of controversy (National Research Council 1992 ; Cicin - Sain et al. 2004 ). As such, applica-tions for this type of aquaculture draw in public governmental bodies that play a role in protecting the environment and managing the public trust through policies such as coastal zone management and the navigable servitude, which again may not be designed to foster development of the aquaculture industry.


( CEQ ), which is the White House coordinator of federal environmental review, to implement the National Environmental Policy Act ( NEPA ) (42 USC 4321) for its permit actions as well as to comply with other environmental direc-tives such as Executive Orders and Code of Federal Regulation. NEPA requires federal agencies such as the USACE to consider envi-ronmental values into their decision - making processes and to take into account the envi-ronmental impacts of proposed activities and reasonable alternatives to those activities. To meet NEPA requirements, the USACE must prepare an Environmental Impact Statement, which is reviewed and fi led by the U.S. Environmental Protection Agency ( USEPA ).

In addition to environmental impacts, the USACE must consider the effects of proposed projects on other factors such as water quality, navigation, public use, and enjoyment of navi-gable waters, and aquatic health management. The USACE is required to comply with a myriad of other federal agency regulations. These include Section 401 of the CWA that addresses discharges or effl uents with the potential to impact water quality, Section 307 (c) (3) (A) of the aforementioned CZMA (16 USC 1456) that mandates that the USACE coordinate with the state coastal zone manage-ment agency to ensure that the proposed activ-ity is consistent with the state ’ s coastal zone management plan, the Endangered Species Act ( ESA ), the Marine Mammal Protection Act (16 USC 1361), the National Historic Preservation Act (16 USC 470), Section 302 of the Marine Protection, Research, and Sanctuaries Act, and the Magnuson – Stevens Fishery Conservation and Management Act ( MSFCMA ) (50 CFR 229.2).

The USACE administers the regulatory review process and generally coordinates with three key federal agencies during the routine review of applications for shellfi sh aquaculture in near - shore waters. They are the National Oceanic and Atmospheric Administration ’ s National Marine Fisheries Service ( NOAA

For a traditional shellfi sh aquaculture project (not requiring water diversion, with-drawal, or discharges), there are two main components to authorization. They are the leasing (or purchasing) of cultivation grounds and the permitting of aquaculture structures and/or resultant benthic modifi cations, in tidal or navigable waters. Leasing of public lands in the near - shore environment is almost always handled at some combination of the munici-pal, county, or state level, in accordance with statute or regulation. However, the federal government is charged by Congress with regu-lating the installation of all structures, includ-ing aquaculture gear, in coastal and navigable waterways to ensure protection of their course, condition, location, or capacity for commerce - related purposes. The federal government is also required to issue permits for any activity that involves a discharge of dredged or fi ll material, which includes the deposition of shellfi sh and or cultch, in waters of the United States (defi ned by regulation to include resources such navigable waters, inland rivers, lakes, streams, and wetlands at 33 CFR 328).

Permitting a gencies and a uthorization

The U.S. Army Corps of Engineers ( USACE ), through its Regulatory Program (33 CFR 320 – 332), administers the laws passed by Congress to regulate work in waters and wetlands, and in most cases manages the coordination process for application review with federal resource agencies and state regulatory agen-cies. The USACE ’ pertinent authorities are Section 10 of the Rivers and Harbors Act of 1899 ( RHA ) (33 USC 403) for structures and preservation of navigation, and Section 404 of the Clean Water Act ( CWA ) (33 USC 1344) for the discharge of dredged or fi ll material in waters or wetlands. The agency is also required by the Council of Environmental Quality


will of Congress to protect the quality of the aquatic environment as it affects the conserva-tion, improvement and enjoyment of fi sh and wildlife resources. Reorganization Plan No. 4 of 1970 transferred certain functions, includ-ing certain fi sh and wildlife - water resources coordination responsibilities, from the Secretary of the Interior to the Secretary of Commerce. Under the FWCA, federal agency activities that propose to modify any body of water/wetlands must fi rst consult with the USFWS or NOAA NMFS, as appropriate. Both of these federal agencies also have con-sultation responsibilities as it pertains to the issuance of a permit where the action has the potential to result in adverse effect to listed species or their critical habitat under the ESA.

The MSFCMA requires that the USACE consult with the Department of Commerce (delegated to NOAA NMFS) whenever the agency proposes to authorize, fund, or under-take an action that may adversely affect any essential fi sh habitat ( EFH ), such as seagrasses. Further, the act requires that NOAA NMFS recommend conservation recommendations to avoid, mitigate, or offset the impact of any activity that may adversely affect EFH. In the event that the USACE receives conservation recommendations from NOAA NMFS, it is not required to follow the recommendations, but it must provide a detailed response to the agency explaining the reasons for not follow-ing the recommendations and describing the measures it will take to avoid, mitigate, or offset the impact of the activity on EFH. Needless to say, both the USFWS and NOAA NMFS play an important advisory role in the USACE ’ s permit review process for shellfi sh aquaculture activity.

It is this complex, sometimes inconsistent, and often unpredictable and overlapping col-lection of state and federal policy and regula-tory review highlighted above, which is often cited as the main reason why the goal for sus-tainable and profi table shellfi sh aquaculture

NMFS ) within the U.S. Department of Commerce, the USEPA, and the U.S. Fish and Wildlife Service ( USFWS ) within the U.S. Department of Interior. Depending on the potential for environmental and social effects, the agency may coordinate with any number of other federal agencies including, but not limited to, the U.S. Coast Guard, the Advisory Council on Historic Preservation, and various agencies with the Departments of Commerce and Interior to address impacts relevant to the expertise of that agency during a review. An example of a “ roadmap ” for the permitting process for near - shore shellfi sh aquaculture is provided in Figure 15.5 .

The USEPA ’ s involvement in the review of shellfi sh aquaculture activity stems from its shared oversight and development of policy under the CWA. The CWA is the legislation that authorizes the Secretary of the Army; acting through the Chief of Engineers, to issue permits, after notice and opportunity for public hearing, for the discharge of dredged or fi ll material into the waters of the United States (33 CFR 323). The selection and use of “ dis-posal ” sites are identifi ed in accordance with guidelines developed by the Administrator of USEPA in conjunction with the Secretary of the Army and published in 40 CFR 230. While the USACE administers many of the day - to - day elements of the CWA 404 program, the responsibilities of USEPA under this section include developing and interpreting environ-mental criteria used in evaluating permit appli-cations; determining scope of geographic jurisdiction, approving, and overseeing state assumption of the 404 Program identifying, activities that are exempt; reviewing/commenting on individual permit applica-tions; and enforcing Section 404 provisions.

The Fish and Wildlife Coordination Act of 1934 ( FWCA ) (16 USC 661) provides the basic authority for the involvement of the USFWS and NOAA NMFS in evaluating impacts to fi sh and wildlife from proposed projects and provides the avenue to fulfi ll the

Figure 15.5 An example roadmap of the permitting process for near - shore shellfi sh aquaculture. Source: Getchis et al. 2008 .

APPLICANTContacts State Department of

Agriculture, receives and submitsapplication package

APPLICANTContacts State Department of

Agriculture, receives and submitsapplication package

MUNICIPAL SHELLFISH COMMISSIONProvides lease documentation and comments if

project is to be located in town waters

MUNICIPAL SHELLFISH COMMISSIONProvides lease documentation and comments if

project is to be located in town waters

DEPARTMENT OF AGRICULTUREReviews application, confirms receiptwith applicant, forwards application to

various agencies

DEPARTMENT OF AGRICULTUREReviews application, confirms receiptwith applicant, forwards application to

various agencies

DEPARTMENT OFENVIRONMENTAL

PROTECTIONOffice of Long Island

Sound Programs(DEP OLISP)

Determines if project isexempt or not exempt

from DEP/OUSPpermits; sends letter

notify applicant

DEPARTMENT OFENVIRONMENTAL

PROTECTIONOffice of Long Island

Sound Programs(DEP OLISP)

Determines if project isexempt or not exempt

from DEP/OUSPpermits; sends letter

notify applicant

DEP/Fisheries, DEP/BoatingDetermine if the project results

in substantial, minimal or noconcerns, reports back to

DEP/OLISP

DEP/Fisheries, DEP/BoatingDetermine if the project results

in substantial, minimal or noconcerns, reports back to

DEP/OLISP

Joint Permit Processing Screening MeetingJoint Permit Processing Screening Meeting

DEP (variousdivisions)

Send letter to applicantstating if DEP permits

are required


Send letter to applicantstating if DEP permits

are required

USACEBegins Individual Permit*

process

USACEBegins Individual Permit*

process

DEP/OLISPProvides sign-off for

Programmatic GeneralPermit (PGP)**



DEP/OLISPConducts Federal CoastalZone Management Plan

Consistency Review

DEP/OLISPConducts Federal CoastalZone Management Plan

Consistency Review

DEP/OLISPIdentifies if activity concurs with CoastalZone Management Plan Consistency,

applicant notified that activity is approved

DEP/OLISPIdentifies if activity concurs with CoastalZone Management Plan Consistency,

applicant notified that activity is approved


Issue DEP permits(if applicable)


Issue DEP permits(if applicable)

USACEIssues PGP with

conditions to applicant

USACEIssues PGP with

conditions to applicant

USACEIssues Individual

Permit to applicant

USACEIssues Individual

Permit to applicant

DEPARTMENT OF AGRICULTUREIssues Certificate for Aquaculture

Operations

DEPARTMENT OF AGRICULTUREIssues Certificate for Aquaculture

Operations

USACEIssues PGP to

applicant

USACEIssues PGP to

applicant





With substantial concerns:With substantial concerns: With minimal concerns:With minimal concerns: With no concerns:With no concerns:

USACESeeks input from various

agencies; conducts atechnical review, reportsconcerns at Joint PermitProcessing Screening

Meeting

USACESeeks input from various

agencies; conducts atechnical review, reportsconcerns at Joint PermitProcessing Screening

Meeting

USEPAUSEPA

NOAA NMFSNOAA NMFS

USFWSUSFWS

434


thorough review of the potential environmen-tal and socioeconomic effects of the proposed activity than other types of permits. A fi nal determination to issue a permit for an activity will ultimately result in an Environmental Assessment and Statement of Findings, and the USACE cannot issue a permit for a project if the proposed work is not in compliance with other laws such as Section 401 of the CWA and the CZMA.

Depending on where in the country the proposed project is to be located, abbreviated processes termed Letters of Permission ( LOP s) or General Permits (including Nationwide Permits [NWPs], Regional Permits, or State Programmatic Permits) may also be available.

An LOP is a type of permit usually for work under Section 10 of the RHA issued at a regional level, that includes coordination with federal and state fi sh and wildlife agencies and a public interest evaluation, but without the publishing of an individual public notice (33 CFR 325.2). An LOP procedure is an alterna-tive process for evaluating standard permit applications. It requires that the LOP proce-dure itself is advertised through public notice that allows agencies, interested parties, and the general public to provide comment and have an opportunity for public hearing on establish-ment of the process. It is designed to reduce administrative procedure and to expedite permit decisions for cases that include only minor work in waters of the United States; do not have signifi cant individual or cumulative environmental impacts; and should encounter no appreciable opposition. However, similar to a standard permit, a CZMA consistency concurrence must be obtained or presumed. LOPs may also include general conditions and appropriate case - specifi c provisions necessary to protect the environment, including natural and cultural resources or other aspects of the public interest.

NWPs are those permits issued at a national level to authorize specifi c types of minor

production is unlikely to be reached in the United States (Aspen Systems Corporation 1981 ; Duff et al. 2003 ).

Permit t ypes

Permits for shellfi sh aquaculture from the USACE can take many forms depending on which region, division, or district that the pro-posed project is to be located. The agency has 8 regions, 11 divisions, and 36 district offi ces and is decentralized in its operation to allow the various state and federal regulatory pro-grams to complement one another and reduce duplication of effort (U.S. Army Corps of Engineers 1999 ). In many cases, it is the scope of the project and nature of the potential impacts that will determine which review pro-cedure is most applicable.

The majority of new shellfi sh aquaculture activities in the nation have been historically, and continue to be, reviewed under an Individual or “ Standard ” Section 10 permit process that requires submission of an applica-tion directly to the USACE. This procedure is a common form of review for activities that may have more than minimal adverse impact on the nation ’ s waters. An application of this nature generally requires a full public interest review involving coordination with other agencies, interested parties, and the general public through issuance of a public notice and an opportunity for public hearing, as well as consideration of a broad range of potential impacts (individual and cumulative) such as the effect of the facility/structure on recre-ation, fi sh, and other wildlife, pollution, eco-nomic factors, safety, aesthetics, protection of navigational integrity, cultural values, and water quality. This review is usually commen-surate with the potential level of impact to the aquatic resource. Consequently, it may also involve consideration of less environmentally damaging confi guration alternatives or other locations and it will often result in a more


measure for regulation of a discharge under Section 404 of the CWA (33 USC 404) was changed from one of a “ primary purpose ” test to that of an “ effects - based ” test. Consequently, existing shellfi sh aquaculture projects resulting in a discharge of fi ll material, including the placement of shellfi sh or cultch material that would change the elevation of the bottom below the high tide line, could be regulated as a discharge where previously regulatory review was not required. The 2002 USACE change in defi nition combined with the percep-tion that this case - by - case evaluation results in inconsistent application of CWA 404 jurisdic-tion for shellfi sh aquaculture has created sig-nifi cant confusion within the industry (Dewey 2005 ).

The last category of authorization is Regional or State Programmatic General Permits. These abbreviated processes are sometimes developed for general categories of activities or for a state program when the activities being evaluated are similar in nature and cause minimal environmental impact (individually and cumulatively). The intent of this process is to streamline review and reduce the duplication of regulatory control by state and federal agencies.

Several states have established the begin-ning of, or continue to improve upon, a regu-latory framework for the leasing and permitting of aquaculture in near - shore waters. These include, but are not limited to, California under the California Sustainable Oceans Act, Oregon under its Territorial Sea Plan Part II, Hawaii under Ocean and Submerged Lands Leasing (Chapter 190D), Washington under Revised Code of Washington Aquaculture Leasing Statutory and Regulatory Framework, Maine under Maine Conservation Marine Resources state statute, and New Jersey under the New Jersey Aquaculture Development Act. These efforts to streamline the permit-ting process should ultimately reduce the effort and time required to complete the

activities and minimize evaluation time. NWPs are authorizations that can be used throughout the United States, with some exceptions. Their purpose is to reduce the regulatory reporting burden for work with no more than minimal impact to the aquatic envi-ronment while maintaining adequate protec-tion of aquatic resources. The thresholds for the impacts and the types of activities allowed under the NWPs are established as national policy, and therefore are not regionally fl exi-ble. Consequently, some USACE districts and divisions have suspended or revoked these permits and replaced them with alternate forms of abbreviated processes. Where NWPs are used, regional conditions are often estab-lished to ensure that their implementation is consistent with meeting the program ’ s goals of streamlining federal and state review for those activities that are demonstrated to have no more than minimal impact to the aquatic environment.

There is only one NWP specifi cally designed to address shellfi sh aquaculture activities. It is NWP Number 48 for authorization of existing structures for rearing of shellfi sh within a per-mitted project boundary and the discharge of fi ll material, which may be necessary for shell-fi sh seeding, rearing, cultivating, or transplant-ing, and the related discharges associated with harvesting activities. The permit is applicable only to existing commercial shellfi sh aquacul-ture projects and does not apply to new opera-tions or expansion of an existing facilities, to the cultivation of additional species (not previ-ously cultivated by the enterprise), to the con-struction of structures such as docks and piers, or to the deposition of shell material into the water as waste. New shellfi sh aquaculture operations and expansion of existing facilities continue to require review through one of the other federal review processes. This activity - specifi c permit for shellfi sh culture refl ects a 2002 modifi cation to the USACE regulatory defi nition of “ fi ll material, ” whereby the


commercial - scale operation in the offshore oceanic environment (R. Barnaby, pers. comm.).

The University of New Hampshire ’ s Open Ocean Aquaculture Demonstration Project in the Gulf of Maine with the Portsmouth, New Hampshire, Commercial Fishermen ’ s Cooperative is one of the longest - running off-shore examples, developed in 1997, with the intent to demonstrate the biological, engineer-ing, operational, and economic feasibility of culturing both fi nfi sh and shellfi sh in unpro-tected, oceanic environments (Ward et al. 2007 ). Today the project consists of an ocean spar submerged sea grid cage system manufac-tured by Ocean Spar Technologies, LLC, for native fi nfi sh such as halibut, and haddock, an associated remote controlled feeding buoy, and submerged longlines for suspended ropes or socks for the rearing of mussels. The project has over 10 years of quantitative and qualita-tive assessment including physical substrate characteristics, water quality monitoring, benthic community infauna and epifauna

application and review process for shellfi sh aquaculture.

Offshore a quaculture

Currently, only a small percentage of produc-tion actually results from shellfi sh cultivation between 3 and 200 mi offshore in the U.S. Exclusive Economic Zone ( EEZ ) (see Fig. 15.6 ), and the activities that contribute to this production are predominantly experimental in nature.

The majority of open - water offshore bivalve culture occurring in recent years has been in the form of pilot projects, predominantly for mussels, seeking to lay the groundwork for competitive technically and economically fea-sible commercial enterprises. Much of this activity has taken place offshore in, or adja-cent to, waters of the states of California, Massachusetts, Rhode Island, and New Hampshire. At least one of these demonstra-tion projects has led to a subsequent

Figure 15.6 Schematic of state and federal maritime zones in the United States.

BASELINEBASELINE

STATE WATERS (0–3 NM)STATE WATERS (0–3 NM)

TERRITORIAL SEA (0–12 NM)TERRITORIAL SEA (0–12 NM)

CONTIGUOUS ZONE (12–24 NM)CONTIGUOUS ZONE (12–24 NM)

CONTINENTAL

SHELF

CONTINENTAL

SLOPE

RISE

EXCLUSIVE ECONOMIC

ZONE (12–200 NM)

EXCLUSIVE ECONOMIC

ZONE (12–200 NM)

EDGE OF

CONTINENTAL

MARGIN

EDGE OF

CONTINENTAL

MARGIN


USC 1333). The act provides for the regulation of structures and devices temporarily or per-manently attached to the seabed in the EEZ for the purpose of exploring for, developing, or producing resources from the outer conti-nental shelf. A permit from the U.S. Coast Guard under Aids to Navigation (33 CFR 62) may also be required. Other authorizations that may be necessary for marine - based off-shore facilities, but not normally applicable to molluscan shellfi sh systems, include approval from the USEPA activities that would result in a discharge from a point source into ocean waters under the National Pollutant Discharge Elimination System ( NPDES ) pursuant to Section 318 of the CWA (40 CFR 122.24), or in the case of a discharge that is categorized as a waste, the Ocean Dumping Act (33 USC 1412).

Similar to the near - shore regulatory review process, federal agencies with some level of oversight, but no actual permitting authority, include NOAA NMFS and the USFWS, the Regional Fishery Management Councils under the MSFCMA, the Minerals Management Service ( MMS ), and the U.S. Department of Interior. NOAA NMFS is responsible for the evaluation of proposals for new facilities in the marine environment that are regulated by other agencies, such as those for aquaculture or oil exploration. Evaluation of these activi-ties is undertaken to ensure that marine mammals (Marine Mammal Act), endangered species (ESA), and national marine sanctuary resources (National Marine Sanctuaries Act) are protected. The agency also coordinates with eight regional fi shery management coun-cils to manage fi shing activity and protect EFH in federal waters. Projects are reviewed to assess the potential for impact to EFH under the MSFCMA as a result of aquaculture activity.

The MMS is given authority under the OCSLA for management of lease sites on submerged lands of the outer continental shelf. However, their participation within

analysis, and practical engineering associated with a very high - energy offshore environment that exhibits rapid fl ushing and a high carrying capacity (Langdon 2002 ).

Reportedly, bivalve mollusc efforts have been thwarted by the status of marine - based aquaculture, in general, in that the activity is not directly addressed in federal statute in a holistic manner that gives a single agency authority for the siting of facilities and the ability to manage for a sustainable industry with intent to maximize the production of seafood (Fletcher and Neyrey 2003 ; Mittal 2008 ).

The legal and regulatory environment sur-rounding the offshore aquaculture industry is cited consistently as one of the major hurdles to its development in the United States (Fletcher and Neyrey 2002 ; Langdon 2008 ). In 1978, the National Research Council Committee on Aquaculture found that the procedures required to obtain authorizations for offshore aquaculture were a “ severe deterrent ” to the development of the industry (National Research Council 1978 ). Subsequently, U.S. Congress cited the “ diffused legal jurisdiction ” and “ lack of supportive Government policies ” when it encouraged the development of a U.S. national aquaculture policy in 1980. Not sur-prisingly, an inadequate regulatory regime, that is, one comprising laws adopted to address problems or industries other than aquaculture, continues to hinder aquaculture across the globe and in the United States (Browdy and Hargreaves 2009 ).

Under the National Aquaculture Act (16 USC 2801), the Department of Agriculture is the lead federal agency to provide for the development of aquaculture in the United States. However, by virtue of its regulatory authority for structures and other activities in near - shore waters, the USACE is the lead federal agency with primary jurisdiction for the evaluation of impacts and the issuance of permits in offshore waters under the Outer Continental Shelf Lands Act ( OCSLA ) (43


Congress House of Representatives in 2009 (U.S. Congress, House 2009, H4363). Its purpose is to establish an Offi ce of Sustainable Offshore Aquaculture within NOAA NMFS that would assume responsibility for imple-mentation of regulation for offshore aquacul-ture in the EEZ. The legislation proposes a comprehensive approach to the development and execution of a regulatory process and pro-motes the identifi cation of an integrated frame-work to set research priorities for the promotion of sustainable offshore aquaculture in the EEZ.

In response to a Government Accounting Offi ce review of this proposed legislation and with consideration of the Obama admin-istration ’ s establishment of a Council on Environmental Quality Interagency Ocean Policy Task Force (IAOP Task Force), NOAA is reassessing existing Department of Commerce and NOAA Aquaculture policies to address the current administration ’ s goals and to enhance opportunities for the establishment of economically and environmentally sustainable U.S. aquaculture.

The essence of this directive prevails today as the basis for future regulation of offshore aquaculture. The IAOP Task Force released an interim report in 2009 and posted its Interim Framework for Effective Coastal and Marine Spatial Planning (Interim Framework) for public review and comment. Under the pro-posed process, coastal and marine spatial plan-ning would be regional in scope, and developed cooperatively among federal, state, tribal, local authorities, and regional governance structures, with substantial stakeholder and public input. Along these lines, NOAA has scheduled a series of “ listening sessions ” around the country in 2010, in which the agency will obtain comments and hear recom-mendations from the public pertaining to all forms of marine aquaculture (all species, near - shore, and offshore). These sessions will provide a basis for identifying the scope and objectives of a draft national policy for

marine - based aquaculture and shellfi sh aqua-culture in particular is likely to be minimal unless the facility is located proximal to an existing lease or attached to an oil or gas platform.

Depending on where a proposed project is to be located within the country, concurrence from the U.S. Department of Interior, through the Secretary of Interior, may be required if the offshore aquaculture facilities may be situated on leases or easements, approved under the OCSLA or within 1 mi of any other permitted facility or for which a plan has been approved under the OCSLA.

Although the number of federal agencies, their narrow regulatory focus, and what appears to be a lack of continuity appears to be disjointed for open ocean aquaculture, the detailed interaction and detailed coordination between agencies within the existing proce-dures still has the potential to develop into a comprehensive, streamlined permitting and monitoring program for the future, if the various issues of underwater land management can be resolved.

NOAA is the lead federal agency for marine aquaculture policy and is pursuing the devel-opment of a comprehensive national policy and regulatory framework for sustainable marine aquaculture in federal waters, a task initiated in 2005 as heretofore unenacted leg-islation entitled The National Offshore Aquaculture Act (U.S. Congress, Senate 2005, S6238; U.S. Congress, Senate 2007, S7665). The agency ’ s priorities for program develop-ment can be found within its 2007 10 - year plan for aquaculture development (NOAA 2007 ). If this or similar subsequent legislation is enacted, NOAA would become the lead agency responsible for coordination and evalu-ation of offshore aquaculture activities in close coordination with other federal resource and regulatory agencies (including USACE and USEPA), state agencies, tribes, and stakehold-ers. The National Sustainable Offshore Aquaculture Act was introduced into the U.S.


Government - f acilitated BMP s

Driven by concerns that aquaculture may pose adverse effects to the environment, restrict tra-ditional uses of the coastal zone, result in food safety issues, or other public concerns, several states have established either voluntary or mandatory best management or codes of prac-tice for shellfi sh aquaculture. Voluntary BMP programs now exist in Maine, 1 Massachusetts, 2 Maryland, 3 New Jersey, 4 Virginia, 5 and Washington, 6 while the state of Florida 7 has implemented the fi rst government - mandated shellfi sh BMP program (Jensen and Zajicek 2008 ).

Environmental m arketing and o ther i ncentive p rograms

Both within and outside of the United States, government agencies, environmental groups, and other nongovernmental organizations have developed formal policies encouraging or

sustainable marine aquaculture in the United States.

Environmental b est m anagement p ractices ( BMP s)

BMPs have been developed and implemented in an effort to reduce or minimize adverse environmental and social effects, food safety issues, and other public concerns resulting from proposed shellfi sh aquaculture activity in near - shore and offshore waters.

BMPs are general overarching principles and specifi c procedures or methodologies used to guide the day - to - day operation of aquacul-ture businesses. Compliance with BMPs can be voluntary or mandated and can by driven by industry, regulatory agencies, environmental groups, or other nongovernmental organiza-tions. Industry - driven and government - mandated BMPs have been reviewed by Creswell and McNevin (2008) and Jensen and Zajicek (2008) , respectively. An overview on BMPs directly related to shellfi sh aquaculture is provided in Chapter 3 , and as such, we provide only a brief summary of relevant pro-grams in the following sections.

Industry - d riven BMP s

Industry - driven BMPs have been developed by state industry groups and regional associations as a proactive measure to solicit public support for sustainable industry development. The Pacifi c Coast Shellfi sh Growers Association ( PCSGA ) and East Coast Shellfi sh Growers Association ( ECSGA ) have developed environ-mental codes of practice and BMPs, respec-tively. Both organizations are currently conducting outreach projects to instruct indus-try members on how to adopt and implement such practices. Participation is voluntary, but peer pressure may infl uence producers to embrace these measures in order to secure additional market share.

2 D.F. Leavitt, Best Management Practices for the Shellfi sh Industry in Southeastern Massachusetts: www.mass.gov/agr/aquaculture/docs/Shellfi sh_BMPs_v09 - 04a.pdf .

1 Maine Aquaculture Association, Maine Aquaculture Code of Practice: www.maineaquaculture.com/Code_of_Practice_v1.pdf .

6 Washington State Department of Natural Resources, 2007 Best Management Practices (BMP ’ s) for Geoduck Aquaculture on State Owned Aquatic Lands in Washington State: www.dnr.wa.gov/Publications/aqr_aqua_2007bmp.pdf .

5 M. Oesterling and M. Luckenbach, Environmental Code of Practices for the Virginia Shellfi sh Culture Industry: www.vims.edu/adv/aqua/MRR 2008_9.pdf .

4 Rutgers Cooperative Extension, Recommended Manag-ement Practices for Aquatic Farms: Agricultural Management Practices (AMPS) Aquatic Organism Health Management Plan: www.jerseyseafood.nj.gov/aquacultureamp.pdf .

3 Maryland Aquaculture Coordinating Council, Best Management Practices: A Manual for Maryland Aquaculture: www.marylandseafood.org/pdf/best_management_practices_manual.pdf .

7 Florida Department of Agriculture and Consumer Services, Aquaculture Best Management Practices Rule: www.floridaaquaculture.com/publications/P - 01499 - booklet - 07_BMP_RULE.pdf .


“ ecolabel ” identifying the product as environ-mentally sustainable. Through the efforts of the WWF, the certifying parties it collaborates with, and the growers that comply with the standards, the environmental impacts of certain sectors of the aquaculture industry (e.g., shrimp production) have been drastically reduced and the resulting environmental mar-keting programs have helped to improve public perception of those sectors.

In addition to promoting industry adher-ence to BMPs, government agencies have offered incentive programs to producers that modify their cultivation practices in a way that reduces adverse and/or promotes benefi cial environmental effects of their activity. For example, the U.S. Department of Agriculture ’ s Natural Resource Conservation Service ( USDA NRCS ) administers the Environmental Quality Incentives Program ( EQIP ), which offers tech-nical expertise for planning and designing conservation practices that protect natural resources while maintaining or enhancing pro-ductivity. The EQIP program offers cost - share funds to shellfi sh producers to make such prac-tices affordable. In an effort to improve shell-fi sh health and prevent disease, Massachusetts producers utilized EQIP funds to create buffers or “ no - harvest zones ” between cultivation and wild harvest areas. In Rhode Island, producers established oyster reefs in an effort to provide new and/or expanded habitat for aquatic organisms and improve water quality.

Additionally, several government agencies and nongovernmental organizations within the United States and elsewhere have proposed the use of shellfi sh to manage eutrophication of coastal waters and incentive programs such as nitrogen credit exchange programs for pro-ducers (Chapters 7 and 8 in this book). At least one practical application has been explored by Lindahl et al. (2005) , who examined the potential for using intensive mussel culture as an alternative to traditional wastewater treatment plants in an effort to reduce excess nitrogen entering a Swedish estuary. The

mandating environmentally sustainable aqua-culture development through the implementa-tion of BMPs, and certifi cation guidelines to ensure compliance with such policies and prac-tices. Many programs initially focused on the development of guidelines for fi nfi sh and crus-tacean culture but have recently redirected their efforts to address shellfi sh production. The Food and Agriculture Organization of the United Nations ( FAO ) has developed both a Code of Conduct for Responsible Fisheries 8 and Technical Guidelines on Aquaculture Certifi cation. 9 Other programs include the Global Good Agricultural Practice Standards, 10 the Codex Principles for Food Import and Export Inspection and Certifi cation, 11 and the World Organisation for Animal Health ’ s Aquatic Animal Health Code. 12

The World Wildlife Fund ( WWF ), through its molluscan shellfi sh dialogues, is leading a global effort to develop performance - based standards for farmed clams, mussels, scallops, and oysters that will minimize social and envi-ronmental issues resulting from aquaculture activity. When complete, the standards will be turned over to the Aquaculture Stewardship Council, which will be responsible for working with independent, third - party entities to certify producers that are in compliance with the standards (World Wildlife Fund 2010 ). The standards are undergoing review and expected to be fi nalized in 2010. The certifi cation process will allow for producers to use an

9 Food and Agriculture Organization of the United Nations, Technical Guidelines on Aquaculture Certifi cation: library.enaca.org/certifi cation/publications/aquaculture - certifi cation - guidelines - fi nal.pdf.

12 World Organisation for Animal Health, Aquatic Animal Health Code: www.oie.int/international - standard - setting/aquatic - code/access - online .

11 Codex Alimentarius Commission, The Principles for Food Import and Export Inspection and Certifi cation: www.fao.org/docrep/009/y6396e/Y6396E01.htm .

8 Food and Agriculture Organization of the United Nations, Code of Conduct for Responsible Fisheries: ftp://ftp.fao.org/docrep/fao/005/v9878e/V9878E00.PDF .

10 Global Good Agricultural Practice Standards: www.global-gap.org/cms/front_content.php?idart = 34 .


to understand how cultivation practices and gear interact with the marine environment, the preservation of cultural and historical or other traditional uses of the coastal zone must be considered in the review of aquaculture appli-cations. Measures intended to manage and regulate activities conducted within the public resource base will continue to have a signifi -cant infl uence on the pace of growth and com-petitiveness within the commercial aquaculture sector. It is ultimately up to the public to decide what trade - offs they are willing to accept in order to have a sustainable aquaculture indus-try and seafood supply. The identifi cation and implementation of BMPs as well as the use of marketing and incentive programs to inform the consumer of industry adherence to such practices may allow for the creation of new or expansion of existing markets and lead to greater acceptance of any trade - offs associated with shellfi sh aquaculture.

Additionally, to foster expansion in this sector, the regulatory review process must be transparent and easily navigable for both industry and regulators. This may be achieved, in part, through education and outreach on the permitting processes and government agency responsibilities for regulation of near - shore aquaculture in coastal states and off-shore aquaculture within the U.S. EEZ. Ultimately, it may benefi t a state ’ s regulatory bodies, as well as the industry members within that state, to conduct a formal stakeholder review to learn how to best streamline their permitting process.

Shellfi sh cultivation plays an important role in our economy, society, and environment. It fulfi lls the demand for both staple and high - end seafood products, as well as provides a source of jobs and revenue, and is an impor-tant part of the cultural heritage of many coastal states in the United States. Finally, shellfi sh and shellfi sh aquaculture play a criti-cal and benefi cial role in the marine environ-ment that should not be overlooked.

project was successful in terms of removing the targeted level of nitrogen from the system; however, due to unforeseen shellfi sh market barriers, the operation failed and the waste-water treatment plants were ultimately erected.

While shellfi sh convert, and when har-vested, may contribute to the removal of large quantities of nitrogenous wastes, the exact amount of nitrogen removed is highly variable and dependent on a number of factors. Many coastal systems are so heavily eutrophic that it is improbable that shellfi sh alone can remedi-ate the problem. Even so, a number of U.S states and countries outside of the United States are considering the use of shellfi sh in addition to other nitrogen reduction measures. As such, researchers are applying theoretical models to assess the nitrogen reduction poten-tial of shellfi sh farms and for the valuation of nitrogen credits, which may be traded as part of a comprehensive nutrient abatement plan (Ferreira et al. 2009 ).

The adoption of BMPs through environ-mental marketing and incentive programs may prove valuable in terms of their benefi ts to both the environment and the shellfi sh indus-try. However, some producers still question whether program standards are attainable and affordable for the average grower (R. Rheault, pers. comm.). The costs associated with par-ticipating in and adhering to such programs should be incurred by the industry; however, to ensure producer participation such pro-grams should not be cost prohibitive.

Conclusions

Sustainable development of the U.S. shellfi sh aquaculture industry is unlikely unless an industry - specifi c process of regulatory control that maintains environmental integrity and upholds the important social aspects of the public trust is maintained. While it is essential


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