Abstract: Marine Aquaculture Zoning: A Sustainable Approach in the Growth of Offshore Aquaculture

The legal and regulatory environment surrounding the offshore aquaculture industry is cited consistently as one of the major hurdles to its development. Individuals interested in developing sustainable offshore aquaculture face challenges in the form of a fragmented and often inconsistent permitting process among the federal, state, and local agencies and questions regarding leasing, siting, and property rights. The lack of adequate leasing options for aquaculturists restricts the feasibility of moving pens offshore. Many of these issues must be resolved before a sustainable industry can be developed. One avenue to sustainable offshore aquaculture is the consolidation of specific sites for aquaculture leases into one area such as a Marine Aquaculture Zone (MAZ). Zoning has been a useful land-based tool in the United States to set aside particular areas appropriate for industry development. The creation of a MAZ requires the designation of one federal agency responsible for the management of the zone; issuance of leases of the water column and seabed in the zone; and issuance of a permit which would incorporate the concerns of other relevant federal and state agencies. Marine zoning faces significant challenges that its land-based counterpart does not, such as boundary disputes, enforcement difficulties, and more frequent user conflicts. Coastal and offshore waters represent a public resource for use by fishers, recreationalists, mineral exploiters, and the shipping industry. Despite significant policy conflicts, coastal managers across the globe are recognizing the importance of setting aside particular areas of marine waters for specific uses. These include marine sanctuaries; areas used as military zones; specific lease areas for offshore oil and gas exploration; and state and federal "marine reserves" or "marine protected areas" to conserve fishery and other marine resources. These designations, along with international zoning efforts, offer elements to create a marine zone model dedicated to aquaculture.

Introduction
The legal and regulatory environment surrounding the offshore aquaculture industry is cited consistently as one of the major hurdles to its development in the United States. In 1978, the United States National Research Council found that the procedures required to obtain permits and licenses for offshore aquaculture "have been a severe deterrent" to the development of the industry. Upon passage of the National Aquaculture Act in 1980, the U.S. Congress noted the "diffused legal jurisdiction" and "lack of supportive Government policies" when it codified the national policy of encouraging the development of aquaculture in the United States. Not surprisingly, an inadequate regulatory regime, i.e., a regime that is comprised of laws adopted to address problems or industries other than aquaculture, also hinders aquaculture across the globe.

During the last twenty years since the passage of the National Aquaculture Act, the aquaculture industry has seen few actual improvements in the structure of permitting and licensing. Multiple federal and state agencies have jurisdiction over aquaculture because it affects traditionally governed areas such as water supply, the use of navigable waters, food production, and environmental protection. Such agencies have excelled at regulating and permitting land-based aquaculture regimes, refining the licensing procedures and regulations with aquaculture industry development. In contrast, the offshore aquaculture regulatory structure offers significant hurdles for its development.

Findings about these legal and regulatory hurdles are not new. There have been numerous calls for improvements during the last two decades. Individuals interested in developing sustainable offshore aquaculture face challenges in the form of a fragmented and often inconsistent permitting process among the federal, state, and local agencies and questions regarding leasing, siting, and property rights. Many of these issues must be resolved before a sustainable industry can be developed. One method to responsible and sustainable offshore aquaculture is the establishment of marine aquaculture zones which can provide the establishment of areas best suited to marine aquaculture, as well as the protection of aquaculture interests and other coastal users.

Aquaculture Law and Leasing
The National Aquaculture Act (NAA), enacted in 1980, established a national policy of encouraging development of aquaculture in the United States. The NAA called for the creation of a National Aquaculture Development Plan to identify species with significant commercial potential and include research and development, technical assistance, and training programs as necessary. The NAA also established an interagency Coordinating Group to increase the effectiveness and productivity of federal aquaculture programs and to assess the industry and report to Congress. Finally, the act created a National Aquaculture Information Center and called for a review of regulatory constraints that may have a negative impact on the industry. Twenty years later, however, regulatory constraints are still present.

Under the NAA, the Department of Agriculture is the lead federal agency for aquaculture. For ocean aquaculture, however, the Corps of Engineers has a primary review responsibility through its permit decision under the Rivers and Harbors Act and its public interest review. The Corps must balance between all reasonably expected benefits and detriments to the public interest, including environmental, economic, aesthetic, navigation, property rights, and international interests. The Environmental Protection Agency has authority to permit those activities that discharge into waters of the United States under the Clean Water Act. In addition, the National Marine Fisheries Service and Fish and Wildlife Service have review and commenting responsibilities; and the National Marine Fisheries Service must authorize the activity in many cases. The Coast Guard has authority over navigational hazards, and regional fishery management councils have review under the Magnuson Act. While the interaction between agencies through procedures such as commenting and review lends itself to a comprehensive permitting and monitoring program for the future, federal permitting procedures for offshore aquaculture remain disjointed. Recognizing this deficiency, the Department of Commerce issued an Aquaculture Policy calling for collaboration to "develop an efficient and transparent permitting process for aquaculture."

In addition to the complications that arise with the multitude of permits necessary for placing an active aquaculture cage in federal or state waters in the United States, the inability to acquire leases in these waters also limits the potential for offshore aquaculture. While aquaculture leasing in coastal waters is somewhat common, the property rights conveyed via a lease remain questionable. Important questions to be addressed in leasing statutes include:

1. What agency or agencies have leasing authority?

2. Does the lease contain limitations as to size, aggregate amount of area that may be leased, time restrictions for leases, and the number of leases that may be held by a party at one time?

3. What purposes leases may be issued for (other than aquaculture)?

4. What is the cost for a lease?

5. What is the penalty for using the waters without holding a lease?

6. Is the application for a lease subject to public review and comment?

7. Must the leasing agency undergo "public interest review" or require analysis of interference with movement/access of riparian owners, navigation, fishing or other uses of the area, the ability of the lease site and surrounding area to support existing ecology, or the use of municipally, state, or federally owned beaches parks or docking facilities?

8. What are the reporting requirements for lease holders?

Most recently, the Hawaii Department of Land and Natural Resources agreed to lease a 28-acre patch of ocean for the commercial production of fish in offshore sea cages. The 15-year lease between the state and Kailua-based Cates International Inc. — the first of its kind in the nation — allows for up to four 80-foot cages, each in the shape of two cones joined together and 50 feet across, to be anchored to the ocean floor two miles off ‘Ewa Beach for the production of moi, also known as Pacific threadfin. While the lease has not been finalized at present, Cates is expected to lease the ocean floor substrate, a column of water above it, and corresponding surface area, with a ten year option to extend the lease. Rent will likely be based on a percentage of gross revenues to be determined by state officials and appraisal.

Aquaculture and Potential Zoning
The decision to grant an offshore aquaculture lease was a first for the state which has, up until now, only granted easements in its waters. If successful, the state can expect an increase in lease applicants, leading to the need for comprehensive planning for the placement of cages. At this stage, the state has declined to formally carve out areas of its coastal waters for aquaculture development. In order to advance an offshore aquaculture industry that will leave minimal marks on the marine environment, the state may need to turn to a planning process that is commonly used on land.

Land-Based Zoning
Land use management has employed zoning as one of its most powerful tools over the last century. At its most basic and simplistic, zoning is the division of an area or region into specific use designations. The variations of this early land use tool have multiplied many times over as development and progress continue to call for creative and innovative solutions to continually changing values, conflicts and environmental concerns. In the United States the use of zoning began in earnest in the early 1900's, when some of the larger cities found themselves in need of land use restrictions in order to better maintain quality of life for residents and ensure safe growth of industrial and commercial areas. There were three major stepping stones that, when placed together, catapulted zoning into the mainstream. In 1916, New York passed a citywide comprehensive planning ordinance. This was following by the first version of the Standard State Zoning Enabling Act in 1922, which was a model ordinance for state delegation of zoning powers to local government entities. The third step in the early evolution of zoning in the United States was the Supreme Court decision in Village of Euclid v. Ambler Realty Co. which addressed the constitutionality of zoning ordinances. The City of Euclid had passed an ordinance dividing and setting designations such as locations of industrial and residential sites, size, and the height and lot area of buildings. The Supreme Court's discussion in Euclid and its final determination of the reasonableness and constitutionality of the zoning ordinance opened the gates for the use of zoning in the United States. Now in the twentieth century, every U.S. citizen is subject to zoning in some shape or form.

Zoning is typically an extension of the police power of the federal, state or local government. Police power allows the government to regulate activities in order to promote the general public's health and welfare. Traditionally, zoning powers have been exercised on a local level, with local governments passing land use ordinances as a way to separate conflicting uses and promote safety. However, zoning plans may also be established through ordinance, statute, or Executive Order. The statute or order must authorize delegation of zoning authority to a government agency and ensure that all constitutional requirements continue to be met. A common format for zoning ordinances combines a map and text describing the uses allowed in the area designated on the map. Similar and compatible activities would be grouped together, such as residential and public recreational areas, multi-family housing units and light commercial and commercial and light industrial. These use combinations allow designated activities to grow in predictable directions and ensure that incompatible uses will not interfere with each other. This allows for stability within different sectors of a community and for more secure investments to be made.

Zoning has been utilized to designate uses and activities on both private ad public lands. Regulation of public lands and resources fall under the purview of the property clause. The property clause allows "needful rules and regulations" to be developed for the territories and properties of the United States. This clause gives the United States, through direction of Congress, the power to sanction some uses and limit or prohibit other uses, as well as forbid interference with sanctioned uses. There is a balance to this power when the resources being regulated are resources being held in the public trust for the benefit of the citizens as a whole. Interference or limitations on the public's use of these resources must be in the public interest and found not to be an unreasonable interference with public use.

Marine Zoning
One avenue to improving the legal and regulatory process for offshore aquaculture is to incorporate the creation of specific sites for aquaculture leases such as a Marine Aquaculture Zone (MAZ). As noted above, zoning has been a useful land-based tool in the United States to set aside particular areas appropriate for industry development. The creation of a MAZ requires the designation of one federal agency responsible for the management of the zone; issuance of leases of the water column and seabed in the zone; and issuance of a permit which would incorporate the concerns of other relevant federal and state agencies.

Marine zoning faces significant challenges that its land-based counterpart does not, such as boundary disputes, enforcement difficulties, and more frequent user conflicts. United States coastal waters represent a public resource for use by fishers, recreationalists, mineral exploiters, and the shipping industry. Creating a zone for exclusionary marine farming will face numerous policy and legal challenges.

Despite significant policy conflicts and some unanswered questions in the creation of marine zones, coastal managers across the globe are recognizing the importance of setting aside particular areas of marine waters for specific uses. Designated areas have specific restrictions on user groups ranging from complete moratoriums to the restriction of certain types of recreational vehicles. These include marine sanctuaries; areas for the creation of artificial reefs such as state fish havens; specific lease areas for offshore oil and gas exploration; state and federal "marine reserves" or "marine protected areas" to conserve fisheries resources; military use zones or "defensive sea areas"; and shipping fairways. These designations, along with examples of international zoning, offer models to create marine zoning in federal waters. For example, in 1999, the Gulf of Mexico Fishery Management Council created two marine reserves for the protection of the spawning location for gag grouper (Mycteroperca microlepis) and are considering using closures and marine reserves as a management tool in the future. Analysis of current zones such as these reserves used in marine waters can provide guidance for the creation of a MAZ.

Offshore Oil and Gas Leasing
The leasing program for offshore oil and gas resources has resulted in over 479 million acres of submerged lands offered for lease in U.S. waters, with approximately 41 million acres actually leased. These lease sales are not formally based on a zoning plan. Rather, the foundation for leasing, exploration, and exploitation of the U.S. continental shelf is found in the Outer Continental Shelf Lands Act which established guidelines for the management of the resources of the outer continental shelf and for leasing tracts for oil, gas, and other mineral exploration and development.

The leasing process resembles the establishment of a zoning scheme. First, the Department of the Interior issues develops a five-year leasing plan which is reviewed by federal, state and local government officials, and the general public. The plan must be based on the collection and synthesis of environmental and socioeconomic information for outer continental shelf leasing areas. After a tract has been leased, all exploration, development and production plans must be submitted to the Minerals Management Service, the federal agency that is responsible for the permitting offshore oil and gas related activities. The leasing process is also subject to the review of nearby coastal states and, therefore, must be consistent with the states' coastal zone management provisions.

Once a lease is acquired, a holder will acquire the authority to exclude persons from the platform area to the extent that is necessary to protect the holder's property. In addition, the Coast Guard may establish safety zones around platforms in order to protect them from vessels which operate outside normal shipping channels and fairways and to reduce the threat of oil spills, collisions, and releases of natural gas. Even though lease holders have the ability to exclude persons, they may still encounter challenges under the public trust doctrine from persons who have the common law right to navigate through the waters.

Defensive Sea Areas
A rather obscure provision of U.S. federal criminal law provides the primary statutory authority for the establishment of military zones in U.S. waters by authorizing fines and imprisonment for the violation of any regulation or order governing persons or vessels within the limits of a defensive sea area. These zones, called "Defensive Sea Areas" or DSAs, are created by Executive Order and under the control of the Secretary of the Navy who exercises control over entry into the areas. The purposes of creating a DSA is to provide for the protection of military installations in that area as well as other facilities including personnel, property or equipment in the area and to insure the full effectiveness of bases, stations, facilities, and other installations within or contiguous to the defense areas.

The initial use of DSAs can be traced to the Japanese military during the Russo-Japanese war when the Minister of the Navy sought to severely restrict vessel movement within certain designated areas and to forbid or limit acts which could interfere with military operations. Defensive sea areas were first established in the U.S. during World War I and twelve remain in existence today (two in the Caribbean and ten in the Pacific). While the DSAs can be tailored to address the existing installation, they generally prohibit all persons, vessels, or aircraft from entering into their confines, unless permission to enter is granted.

It is common in U.S. law that the needs of national security trump other uses but interestingly, the sovereignty within DSAs can still be considered ambiguous. Many DSAs include state waters (and some include state lands) and, taken to the extreme, the federal government could impose an absolute ban on development or nongovernmental use within a DSA. States, on the other hand, have options to limit the Federal government's sovereignty including the requirement that federal activities within a DSA be consistent with a state's coastal zone management program. Vague statutory language in the creation of DSAs also plagues the discussion of state versus federal sovereignty in these areas, such as the question of whether or not control of submerged lands is included in the control of the waters.

Finally, the federal government's sovereignty may be challenged by the state under the Public Trust Doctrine which gives the state the power to control the use of coastal waters and the underlying submerged lands for the benefit of the public. Thus, states may limit the federal government's use of the DSA because activities are found to be in violation of the public trust.

Marine Reserves/Marine Protected Areas
Marine Protected Areas are gaining momentum as mechanisms to manage coastal resources that are subjected to increasing pressures from population and industrial demands. The precise definition of such a protected area varies greatly between regions and states. With different challenges and resources, a marine protected area in one state could be managed for industrial development or set aside for preservation in another.

A Marine Protected Area (MPA) is a marine area which has been reserved by law or other effective means to protect part of all of the enclosed environment, including its overlying waters, associated flora and fauna, and historical and cultural features. Generally, authorities carry out long-term protection in MPAs through limits on harvest, direct or indirect disturbance or through active management. Reserved areas may be created for a number of reasons: management of certain fisheries; land-use efforts to provide better water quality; recreation; cultural preservation as national monuments; and general ecosystem preservation. These areas generally restrict commercial development but attempt to balance community demands with ecosystem needs to provide an intermediate level of environmental protection. Areas may be acquired through land purchase or merely zoned for particular uses.

Special Management Areas (or SMAs) are a type of marine reserve that attempt to balance the needs for water dependent development and environmental conservation through efforts between local and state governments and federal authorities in an effort to resolve development conflicts before they occur. Through a Special Management Area Plan, an area can be managed as an industrial or port area, a beach access area, or an urban waterfront for residential or commercial areas which are adjacent to the waterfront. Ports are often managed under such a plan which provides management guidelines as well as a dredging plan, an area development plan to show proposed limits on development in the area, and a mitigation program to compensate for environmental losses from development allowed in the area.

Coastal management techniques evolving across the globe are relying more on various forms of the Marine Protected Areas or marine reserves. The overlay of protections provided to these areas establishes a solid foundation for the carving out of submerged lands and the water column best suited for marine aquaculture zoning.

International Approaches
While the marine aquaculture industry is better developed in other countries such as Japan, Canada, countries of the European Union and the Mediterranean, the industry has grown as a result of a collection of individual decisions rather than as an industry based on the identification of areas that can accommodate aquaculture or comprehensive planning.

For example, the issuance of aquaculture licenses in Japan undergoes a public interest review to insure that it does not "impede other public interests" and to detail the particular area open for farming but Japan does not employ a formal nationwide marine zoning structure. Instead, decisions of placement of aquaculture facilities have been made taking into account the "public interest of the sea area" and the cultural and socioeconomic factors of the coastal towns. Without a formal planning process, aquaculture license holders still face challenges from recreational and other users.

Similar to the system developed in Japan, Canada has a system that is based on leases and aquaculture licenses. The Canadian Aquaculture Act, was established to promote orderly development of the aquaculture industry. The Act seeks to secure aquaculture property rights, minimize use conflicts and develop cooperative decision making. To accomplish these goals Canada's industry is organized by a set leasing and licensing structure. All applications for aquaculture licenses go through the Minister of Fisheries. If granted, a license is for a specific site, set species of aquatic plant or animal and specifics pre-determined terms and conditions. Furthermore, licenses may any be granted to persons that own, lease or otherwise have rights to the application site. Regulations promulgated by the Canadian Provinces control specific details of aquaculture by establishing the criteria for site development plans, annual reports, records of transfers, disease, food use and leasing procedures. For example, New Brunswick regulations require notification, allow for public comments to the Ministry of Fisheries and provide for consideration of user conflicts before a lease will be granted.

Additionally, countries in the Mediterranean, such as Greece, have developed systems designed to organize aquaculture development, balancing environmental and health concerns with increasing resource demands. A strictly regulated Greek permit system has emerged which requires applicants to obtain clearance from numerous government agencies (environmental protection, navigation, shipping, health protection, protection of antiquities, commercial fisheries, tourism, recreation, nature conservation and wildlife) before a permit and lease will be granted. The national coordinating authority for aquaculture is the Greek Ministry of Agriculture, however there are regional differences due to the division of Greece into sensitive and very sensitive regions (aquaculture is typically not permitted in very sensitive regions). In order to receive final approval the application and the required environmental impact assessment (EIA) must be submitted to the Direction of Physical Planning Ministry for the Environmental, Physical Planning and Public Works. The EIA requires the applicant to assess environmental impacts, as well as social benefits and harms to people, their homeland, livelihoods or other activities.

In conclusion, many elements from other country's programs will have a great benefit to the developing U.S. industry and will work well when coordinated together in a comprehensive marine zoning plan. The identification of and proposed solutions to issues surrounding siting, environmental concerns and social and economic impacts can be built into a marine zoning system for U.S. waters.

Guidance for Aquaculture Zoning
Despite the advance of marine aquaculture in other countries without the formal establishment of marine zoning, zoning remains a wise choice to avoid user conflicts and to plan for the best suited marine areas for aquaculture. Types of marine zoning exist in both U.S. waters and international forums to address a number of public needs in coastal and offshore waters. As mentioned above, user conflicts with traditional fisheries, recreational boaters, and other industries may arise from the siting of aquaculture cages in seemingly haphazard fashion. Between other users and ecological limitations on the placement of marine aquaculture cages, the area of suitable sites for successful grow-out of species is limited.

With optimal sites potentially limited, aquaculture zoning will ensure appropriate natural resources are accessible, increasing the likelihood of successful aquaculture ventures. Zoning would also ease the burden of site marking, with both zone perimeter buoys and individual cage lights, therefore decreasing liability issues associated with boat-cage collisions, and minimize theft and vandalism. In addition, zoning will decrease the risks associated with recreational fishers capturing reef fish attracted to the cages.

To create a zoning policy, the following questions are key:

1. What agency or agencies is zoning authority delegated to under the relevant statute or order?
Ideally, the agency with authority for leasing tracts for marine aquaculture will have zoning authority or, at a minimum, the responsibility for review of the zoning plan. The state creating a zoning plan should statutorily address the agency's processes and responsibilities with respect to the zones, including the specific items the agency must review in creating the marine zones.

2. How are zones delineated or designated?
As shown above, marine zones may be established by ordinance, statute, or Executive Orders. A zoning statute should specificity the process by which an agency may designate a zone, taking into account the need for technical environmental studies, public hearings, and review by other relevant federal or state agencies. In addition, the statute must clearly denote the boundaries of the zone, i.e., whether the zone includes the water surface, water column, and the submerged lands beneath, or some combination of the three.

3. What are the restrictions placed on other uses within the zone?
The determination of other users' rights within the zone is critical for future marine zone effectiveness. For example, can other users navigate through the zones, fish in them, recreate there? If so, how can these uses be accommodated while recognizing the interests and needs of the aquaculture processes?

4. How does the agency monitor the activities in the zone?
Enforcement of activities within the zone will be essential to the maintenance of the zone and the protection of the cages and species being grown. The burden of monitoring can be placed with the relevant governmental agency or shared by the state and the culturists that occupy the zone.

5. What other marine activities does the country use marine zoning for, such as military use, shipping, other industries, recreational, or ecologically sensitive areas?

The acknowledgment of other zoning in the country's waters can be helpful in establishing baseline data for the creation of marine aquaculture zones, including their establishment, enforcement, and viability. For example, many of the issues addressed in questions 1 - 4 may be addressed in other types of zoning efforts.

Conclusion
With optimal sites potentially limited, aquaculture zonation will ensure appropriate natural resources are accessible, increasing the likelihood of successful aquaculture ventures. Zonation would also ease the burden of site marking, with both zone perimeter buoys and individual cage lights, therefore decreasing liability issues associated with boat-cage collisions, and minimize theft and vandalism. In addition, zonation will decrease the risks associated with recreational fishers capturing reef fish attracted to the cages.

Creation of such an experimental marine farming zone, therefore, would not only provide a unique opportunity to site aquaculture facilities and reduce potential user conflicts, but also would allow for greater efficiency in the currently fragmented agency permitting and jurisdiction.

University of Mississippi