Oct 27, 2008Dr. Thomas McIlwain, ChairThe Gulf of Mexico Fishery Management Council2203 N. Lois Avenue, Suite 1100Tampa, FL 33607

Submitted via fax to (813) 348-1711 and email togulfcouncil@gulfcouncil.org.

RE: The Public Hearing Draft Fishery Management Plan for Regulating Offshore MarineAquaculture in the Gulf of Mexico (Previously the Generic Amendment to the Gulf of MexicoFishery Management Council’s Red Drum, Reef Fish, and Stone Crab Fishery Management Planand The Gulf of Mexico and South Atlantic Fishery Management Councils’ Joint Spiny Lobsterand Coastal Migratory Pelagics Fishery Management Plan)

Chairman McIlwain and Members of the Gulf of Mexico Fishery Management Council:The Marine Fish Conservation Network, a coalition of almost 200 organizations, includingenvironmental groups, commercial and recreational fishing associations, aquariums, and marine scienceorganizations, submits the following comments on the Draft Fishery Management Plan (FMP) forRegulating Offshore Marine Aquaculture in the Gulf of Mexico.The Network commented on a previous draft of this proposal in Jun 2008, at which time we urged theGulf Council not to proceed with the Generic Aquaculture Amendment and to cease its efforts todevelop a plan to permit and regulate offshore aquaculture in the Gulf of Mexico. The Council’sproposed action has changed significantly since then, evolving from a generic amendment to the existingFMPs into a full-blown FMP that would be managed and overseen by NMFS and the Council. Thechanges to the proposed action envisioned in this DEIS have not addressed our concerns, only increasedthem. In our view, the Gulf Council has greatly overstepped its authority under the Magnuson-StevensAct by proposing to regulate aquaculture in federal waters as an FMP. Nothing in the MSA gives theCouncil the authority to do so, and the DEIS illustrates why the Council is poorly equipped to do so.As we noted previously, commercial-scale offshore aquaculture in the Gulf of Mexico poses substantialrisks to the marine environment and could negatively impact fisheries and fishing communities in manyways. Few of these risks and threats have been adequately addressed in the current DEIS. Moreover,there are many unresolved legal and regulatory questions concerning siting and permitting rules, leasingor royalty fees for use of public resources, monitoring and enforcement requirements, liability fordamage to public trust resources, environmental standards, and socioeconomic impacts which also have600 Pennsylvania Ave. SE * Suite 210 * Washington, DC 20003Phone: 202-543-5509 Fax: 202-543-5774network@conservefish.org * www.conservefish.org

MFCN Comments on Public Hearing Draft FMP for Regulating Offshore Marine Aquaculturenot been addressed adequately in this DEIS. Earlier this year the U.S. Government AccountabilityOffice (GAO) reported that multiple federal agencies currently have the authority to regulate differentaspects of offshore aquaculture under a variety of laws that were not designed for this purpose,

and theCouncil’s DEIS illustrates the difficulties of attempting to establish an offshore aquaculture managementregime in the absence of clear federal guidelines. We reiterate our strong opinion that it is inappropriatefor the Gulf Council to proceed with this proposed aquaculture initiative in the absence of a nationallegal and regulatory framework for sustainable offshore aquaculture. Indeed, the Council’s authorityunder the MSA is to manage wild-capture fisheries, not fish farms.The MSA never contemplated aquaculture as part of the “fisheries” managed by NMFS and thecouncils. The lack of correspondence between the Gulf Council’s management objectives for fisheriesunder the MSA and management of aquaculture can be seen in the ad hoc attempt to apply FMPrequirements to offshore aquaculture facilities by establishing values for MSY and OY for aquacultureproduction in the Gulf of Mexico. The Council’s preferred alternative for aquaculture MSY/OY is 64million pounds – approximately twice the annual production from fisheries under the Council’s existingFMPs. The DEIS admits that this OY value is a short-term proxy until more is known about the number,size and true impacts of operations, but the DEIS clearly envisions that aquaculture has the potential toresult in much greater production than wild fisheries and thus, “If the planned level exceeds thepreferred OY then the Council would initiate review of the OY proxy…and determine whether OYshould be increased or some other action is appropriate” (DEIS, Sec. 4.9, p. 80). The MSA requirementto achieve OY in wild fisheries has never been applied to the production of cultured fish in cages, andthe DEIS does not demonstrate that the preferred OY has fully or even partially taken into account theimpacts to fishermen, fishing communities, and the marine environment.Similarly, the DEIS envisions that NMFS would have broad authority to site and permit offshoreaquaculture facilities on a case-by-case basis. But NMFS’s permitting authority under the MSA islimited to fishing vessels, not aquaculture facilities. The MSA never contemplated that aquaculturefacilities would be treated as equivalent to fishing vessels. The whole purpose of NMFS is to manageand conserve wild fisheries, not to create a new type of “fishery” based on offshore aquacultureproduction. Preferred Alternative 3 gives NMFS full authority to decide where farms can be located andappears to allow the agency to decide which criteria to apply, on a case-by-case basis. Thus a fish farmcould be sited on a favorite fishing ground, in a marine sanctuary, or adjacent to sensitive fish habitatsdesignated as habitat areas of particular concern (HAPC).

The scale of fish farming in federal waters envisioned in the proposed aquaculture FMP would conflictwith fisheries and fishermen in numerous ways, and the DEIS does not ensure that the interests of commercial and recreational fisheries will be protected in the process of developing commercial-scalefish farming.The DEIS also lacks monitoring requirements based on stringent standards to address pollution andcontaminants released into the surrounding environment from aquaculture facilities. Instead of requiring

GAO Report to the Chairman of the U.S. House of Representatives Committee on Natural Resources, May 2008. OffshoreMarine Aquaculture: Multiple Administrative and Environmental Issues Need to Be Addressed in Establishing a U.S.Regulatory Framework. GAO-08-594.

The DEIS proposes that essential fish habitat designated as HAPC would be off limits to fish farming. However, aprohibition on fish farms in National Marine Sanctuaries was removed from Preferred Alternative 3.

MFCN Comments on Public Hearing Draft FMP for Regulating Offshore Marine Aquaculturea monitoring program, the Council’s preferred alternative would rely on existing Clean Water Actpollution controls under the EPA’s jurisdiction. But the CWA does not currently require effluentmonitoring from aquaculture facilities and the existing standards were not created to address large-scalecommercial production from offshore aquaculture facilities. The lack of any meaningful monitoring of aquaculture effluent or requirements to mitigate those impacts is particularly worrisome given that theoptimal areas for siting of offshore aquaculture facilities are believed to reside in a narrow zone atdepths of 25-100 meters, which would serve to concentrate the impacts and effects of effluents fromoffshore fish farms. Although the DEIS proposes that sensitive areas designated as HAPC would be off limits to fish farming – a position we support – the proposed action does not ensure that the operation of offshore aquaculture facilities will not result in the loss or degradation of fishing grounds or thetransmission of disease from farmed fish to wild fish in surrounding waters.Attempts in the 1990s to develop offshore aquaculture facilities on abandoned oil platforms in the Gulf of Mexico were destroyed by storms, yet the proposed aquaculture FMP does not prohibit the siting of fish farms on oil and gas platforms and does not appear to provide assurance in the form of a bond orliability system to insure against catastrophic system failures. There appears to be no liability or cost-recovery mechanism aimed at addressing disease outbreaks and the spread of disease from farmed fishto wild fish, or other unforeseen events. The assurance bond required in Section 4.2.3 is only specifiedfor the removal of all components of facilities at the end of the project’s lifetime. A performance bondmay also be required, but it is unclear if this is intended to cover catastrophic events or would besufficient to do so. And there is no provision for leasing or royalty fees to compensate the public for theuse of public resources by private developers.The plan also lacks limits on the amount of wild fish used as feedstock for farmed fish. Any acceptableplan to permit offshore aquaculture facilities should include limitations on the amount and type of wildfish used in feed, and should include a research plan aimed at finding alternatives to wild forage fish assources of feedstock for farmed fish. The DEIS attempts to sidestep this issue by making the weak argument that Gulf and Atlantic menhaden stocks are not considered overfished, even though theCouncil can provide no assurance that fishmeal and oil used as feedstock for farmed fish feeds at Gulf of Mexico aquaculture facilities will come directly from the menhaden reduction fisheries in U.S. waters.The market for fishmeal and oil is global and much of the meal and oil produced by the menhadenreduction fishery is shipped abroad to foreign buyers, in part to supply the growing demand foraquaculture feeds in those countries. There are no provisions in the proposed plan to ensure that suppliesof feedstock for fish feeds are coming from responsibly managed reduction fisheries in the U.S. orelsewhere. Even with reduced per unit usage in some aquaculture operations, the demand for fishmealand fish oil is still growing overall as global aquaculture production expands. Aquaculture developmentsin the Gulf of Mexico raising carnivorous fish species in offshore pens will only increase demands onalready heavily exploited forage fish stocks.Finally, we note that the Fisheries Service is already under-funded to carry out its mission of conservingand sustaining wild fisheries, and the new authorities and responsibilities envisioned by the proposedaquaculture FMP would only add to the demands on the agency and the Council. The scale of aquaculture production envisioned in the DEIS’s preferred alternative would likely require increases inthe NMFS budget or a shifting of agency resources away from the fisheries to the management of fishfarms. Such a course would undermine the agency’s core mission under the MSA to conserve andsustain fisheries in U.S. waters. It seems to us that the Council should be redoubling its efforts to3