Comment from George Leonard, Ocean Conservancy

Please find attached our detailed comments on the Gulf Council Draft FMP for aquaculture. Below is a summary of our 26 page document. Thank you. ----------------------------- October 22, 2008 Thomas McIlwain, Chair Gulf of Mexico Fishery Management Council 2203 N. Lois Avenue, Suite 1100 Tampa, FL 33607 Facsimile: 813.348.1711 e-mail: gulfcouncil@gulfcouncil.org Re: PUBLIC HEARING DRAFT: FISHERY MANAGEMENT PLAN FOR REGULATING OFFSHORE MARINE AQUACULTURE IN THE GULF OF MEXICO (INCLUDING A DRAFT PROGRAMMATIC ENVIRONMENTAL IMPACT STATEMENT, INITIAL REGULATORY FLEXIBILITY ANALYSIS AND REGULATORY IMPACT REVIEW) DATED SEPTEMBER 2008 Dear Mr. McIlwain and other members of the Gulf of Mexico Fishery Management Council: Ocean Conservancy is writing to provide comments on the National Marine Fisheries Service’s Public Hearing Draft: Fishery Management Plan for Regulating Offshore Marine Aquaculture in the Gulf of Mexico (Including a Draft Programmatic Environmental Impact Statement, Initial Regulatory Flexibility Analysis and Regulatory Impact Review) (Aquaculture FMP or Draft FMP) dated September 2008. In previous comments to the Gulf of Mexico Fishery Management Council on four separate occasions, we have expressed our serious concerns about both the timing and the content of the Council’s work on aquaculture, which, to date, have not been alleviated. We incorporate those comments by reference. In this letter we address in detail both our general and specific concerns with the Aquaculture FMP and conclude that for a host of reasons, the Gulf Council should halt its efforts to establish a regional permitting system for offshore aquaculture. Our conclusions are based on four main arguments. First, and most importantly, we conclude that the Gulf of Mexico Fishery Management Council is overstepping its authority under the Magnuson-Stevens Act in developing a permitting program for offshore aquaculture in the Gulf of Mexico. Secondly, even assuming the Council and agency had appropriate authority, the Draft FMP is legally deficient and fails to meet the minimum requirements of the National Environmental Policy Act and the Endangered Species Act. Among other defects, the DPEIS is based on unfounded assumptions and incomplete information, all reasonable cumulative impacts have not been identified, and the range of alternatives considered is too narrow. These numerous deficiencies, combined with the Council’s clear lack of authority to regulate aquaculture, render this amendment package unlawful. Thirdly, a Council decision to approve the FMP will directly undercut the role of Congress in fully considering the pending National Offshore Aquaculture Act of 2007, a bill designed to establish a coordinated national approach to regulating offshore aquaculture. While Ocean Conservancy concludes that the environmental and liability standards in the pending legislation are insufficient, we are strongly supportive of the establishment of such a national framework before permitting of open ocean aquaculture in federal waters begins. Finally, even assuming the Gulf Council has the authority and its FMP is legal, the environmental and liability provisions in the draft permitting system are wholly insufficient to protect ocean ecosystems and coastal communities from the risks of open ocean aquaculture. To do so, the Gulf Council (as well as Congress) should look toward California’s Sustainable Oceans Act as a model for how to rigorously address these challenges with performance-based environmental standards. At present, neither the Gulf Aquaculture FMP nor the National Offshore Aquaculture Act of 2007 does so. We urge the Council to halt any further development of its aquaculture plan. Continuing to pursue such a regional plan, in the absence of robust national standards, is both legally suspect and an irresponsible use public dollars, especially when other mandatory regulations, such as the implementation of the new Magnuson provisions, require the Council’s attention and resources.