Defining The Federal Role In Offshore Aquaculture: Should It Feature Delegation To The States?

Improvements in the science and technology of marine aquaculture, the growth in multiple use conflicts in nearshore coastal waters, and the overfished condition of many commercially exploited fish stocks suggest it may be time to consider using open ocean waters for raising marine species for food and other uses. As on previous occasions when similar signs pointed toward aquaculture, policy makers recognize that the legal framework for government involvement is not well-equipped to respond to many of the issues that surround sea farming in the offshore environment. The purpose of this Article is to describe some of the important attributes of an effective legal framework for open ocean aquaculture and to discuss the ability of federal agencies to provide these attributes under current law. Part HI outlines the legal and regulatory barriers to the development of aquaculture in the United States, and the elements of an improved government framework for aquaculture are described in Part III. Next, Part IV discusses the roles of state and federal agencies in the aquaculture permit process. Part V reviews the key provisions of proposed federal legislation for management of aquaculture in the federal 200-mile Exclusive Economic Zone (EEZ), and finally, in Part VI, a proposal is offered for an alternative system of state-based management with federal oversight and coordination

Saving Salmo: Federalism And The Conservation Of Maine\u27s Atlantic Salmon

In the last decade of the twentieth century, state and federal officials reluctantly acknowledged that restoring wild salmon would take more than making more fish. The anadromous Atlantic salmon (Salmo salar) once flourished in river systems throughout New England, but the economies of the nineteenth century unwittingly reduced the salmon’s range to a few river systems in Maine. In 2000, the remnant populations that returned to eight of the minor coastal river systems of eastern Maine were listed as endangered under the U.S. Endangered Species Act of 1973 (ESA). The bitter fight that broke out between State of Maine officials and federal officials over the listing represented a new low in environmental federalism. Combatants pitted the tenuous prospects of a much-revered biological relic facing a changing climate regime against the bright promise of economic revival of the boarded-up fishing and farming towns of Downeast Maine. Adding to the debate, far from the traditional, low-tech industries of that region that wax and wane seasonally, foreign investors in the new salmon-farming venture were determined to use technology, economies of scale, and intensive production methods to overcome ecological constraints and thereby ensure global competitiveness. Moreover, a newly elected governor, Angus King, who was independent of political party affiliation, was determined that “common sense” and higher economic aspirations would prevail over environmental fear-mongering and nimbyism. In an attempt at compromise, federal officials mustered whatever dexterity they could under the ESA. They used newly-minted ESA policies to avoid dealing with the hydropower dams on the salmon’s largest remaining riverine habitat and to maintain the state’s primacy in devising a conservation strategy. In the end, this flexibility was insufficient to bridge the differences between state goals and federal responsibilities. A century-old partnership turned into a brawl over the interpretation of genetic data and a rhetorical spat over the difference between a salmon in Maine and a Maine salmon. A political atmosphere that encouraged anti-federal grandstanding found a convenient whipping boy in the proposed listing, despite the flexibility shown by federal administrators. Accommodation turned to anger in the space of less than two years. The salmon farming industry’s resistance to changing their increasingly intensive and risk-prone husbandry practice undermined the federally endorsed state conservation plan (the Maine Plan). After one year of implementation, it was clear to federal officials that the Maine Plan was underfunded, not tough enough on the growing risks that aquaculture posed to the meager numbers of returning salmon, and unlikely to be strengthened. When two conservation groups, the Atlantic Salmon Federation and Trout Unlimited, sued federal ESA administrators, the listing proposal was reinstated. This time, the proposed status was “endangered,” with no plan to rely on state, local, and voluntary measures in lieu of federal restrictions. When the listing became final, the State of Maine challenged it in court, faulting its underlying science and its unwarranted intrusion on sovereign state interests. The federal court upheld the listing in 2003. The election of a new governor, John Baldacci, eventually laid the legal battle to rest. A victory for the federal regulatory decision in the U. S. District Court of Maine helped the state come to terms with the ESA listing. This victory was assisted by an independent scientific report by the National Academy of Sciences, which vindicated the view that the Maine salmon was a genetically distinct and significant population segment (DPS) entitled to recognition and protection as a “species” under the ESA. In the final analysis, however, it took a citizen-suit ruling under the federal Clean Water Act (CWA) to demonstrate to the state and to the aquaculture industry that, without a doubt, federal environmental law controlled. United States District Judge Carter demonstrated his willingness to deal with industry intransigence. If the regulators would not, he would order the salmon farms to cease stocking non-native strains of Atlantic salmon immediately or hold them in contempt of court, even if this imposed costs that the industry had hoped to avoid under a state conservation regime. Recovery planning for the Maine Atlantic salmon began, with both the state and the aquaculture industry promising to take a cooperative approach. Meanwhile, a final report from the National Academy of Sciences’ scientific panel that supported the DPS determination dropped the proverbial second shoe, making it clear that recovery activities that focused too narrowly on the eight rivers of the DPS would not be adequate. Notwithstanding the federal listing agencies’ victory on the definition of what a “Maine Salmon” is, the National Academy of Sciences’ panel concluded that rehabilitating the species in Maine must include helping the populations whose habitat is diminished by dams. Independent of the ESA listing and recovery efforts, private and nongovernmental groups began to tackle the fish passage and habitat degradation issues caused by dams, brokering the Lower Penobscot Multi-Party Settlement Agreement to restore the mighty Penobscot, the river to which most Atlantic salmon in Maine return. For the sake of the salmon, three of the worst offending dams would be bought from their power-company owner and pulled down, while other dams, less damaging to habitat, would increase their power output. As her predecessor Bruce Babbitt had done at the historic breaching of the Edwards Dam on the Kennebec in 1999, Interior Secretary Gale Norton took advantage of a photo opportunity on the banks of the Penobscot River in the summer of 2004 to extol the virtue of cooperation in regaining our common natural heritage. Despite her surprise appearance to sign the Lower Penobscot Multi-Party Settlement Agreement personally, Secretary Norton did not bring news of any federal funds to help meet the multimillion-dollar purchase price for the dams. That news was to take another four years and the intervention of many more players in the saga of the Atlantic salmon listing. Finally, the listing process came full circle when salmon in Maine’s four largest industrialized rivers were added to the endangered listing of Gulf of Maine salmon, along with an extensive determination of its critical habitat, which included virtually the entire watersheds of all significant salmon rivers in Maine. This case study recounts the state-federal conflict over the endangered species listing decision for the Maine populations of Atlantic salmon. After a brief introduction to the species’ natural history, it describes the cooperative conservation efforts that preceded the citizens’ petition to list under the ESA. Second, it describes federal efforts to use state authority and institutions to minimize the threats to salmon survival and avoid a listing. Third, it discusses how the breakdown of these efforts and an independent scientific review led to the federal listing decision. Fourth, it suggests the overriding impact of cooperative federalism policies under the CWA. The final section describes the recovery planning efforts that followed the listing, the listing of additional river systems and critical habitat, and a partnership for river restoration, all of which presents new opportunities for cooperation

Oysters, Ecosystems, and Persuasion

In his essay on the commons scholarship of Carol Rose, Michael Heller deploys an epoch-spanning synopsis of Western society\u27s passion for the oyster to make his case for a Rose theorem. Professor Heller posits that the work of Carol Rose sets out a testable theory: law emerges from and is shaped by the interactions of human culture with nature and natural resources. The oyster\u27s survival across the ages, he suggests, is due to this process, a constantly shifting matrix of strategies, simultaneously public and private, individual and community, and on their constant renegotiation and interpolation. Professor Heller\u27s is indeed an engaging account, and he is certainly correct that the oyster\u27s story challenges the neoclassical economic account of the evolution of property rights. But as an account of what the oyster\u27s story contributes to our ideas about common resources, it is incomplete. And Heller surely has not gone far enough in looking at the scholarship of Carol Rose from the point of view of the oyster. By failing to bring the story into the twenty-first century, Heller misses most of what the oyster\u27s story tells us about human institutions

Saving Salmo: Federalism And The Conservation Of Maine\u27s Atlantic Salmon

In the last decade of the twentieth century, state and federal officials reluctantly acknowledged that restoring wild salmon would take more than making more fish. The anadromous Atlantic salmon (Salmo salar) once flourished in river systems throughout New England, but the economies of the nineteenth century unwittingly reduced the salmon’s range to a few river systems in Maine. In 2000, the remnant populations that returned to eight of the minor coastal river systems of eastern Maine were listed as endangered under the U.S. Endangered Species Act of 1973 (ESA). The bitter fight that broke out between State of Maine officials and federal officials over the listing represented a new low in environmental federalism. Combatants pitted the tenuous prospects of a much-revered biological relic facing a changing climate regime against the bright promise of economic revival of the boarded-up fishing and farming towns of Downeast Maine. Adding to the debate, far from the traditional, low-tech industries of that region that wax and wane seasonally, foreign investors in the new salmon-farming venture were determined to use technology, economies of scale, and intensive production methods to overcome ecological constraints and thereby ensure global competitiveness. Moreover, a newly elected governor, Angus King, who was independent of political party affiliation, was determined that “common sense” and higher economic aspirations would prevail over environmental fear-mongering and nimbyism. In an attempt at compromise, federal officials mustered whatever dexterity they could under the ESA. They used newly-minted ESA policies to avoid dealing with the hydropower dams on the salmon’s largest remaining riverine habitat and to maintain the state’s primacy in devising a conservation strategy. In the end, this flexibility was insufficient to bridge the differences between state goals and federal responsibilities. A century-old partnership turned into a brawl over the interpretation of genetic data and a rhetorical spat over the difference between a salmon in Maine and a Maine salmon. A political atmosphere that encouraged anti-federal grandstanding found a convenient whipping boy in the proposed listing, despite the flexibility shown by federal administrators. Accommodation turned to anger in the space of less than two years. The salmon farming industry’s resistance to changing their increasingly intensive and risk-prone husbandry practice undermined the federally endorsed state conservation plan (the Maine Plan). After one year of implementation, it was clear to federal officials that the Maine Plan was underfunded, not tough enough on the growing risks that aquaculture posed to the meager numbers of returning salmon, and unlikely to be strengthened. When two conservation groups, the Atlantic Salmon Federation and Trout Unlimited, sued federal ESA administrators, the listing proposal was reinstated. This time, the proposed status was “endangered,” with no plan to rely on state, local, and voluntary measures in lieu of federal restrictions. When the listing became final, the State of Maine challenged it in court, faulting its underlying science and its unwarranted intrusion on sovereign state interests. The federal court upheld the listing in 2003. The election of a new governor, John Baldacci, eventually laid the legal battle to rest. A victory for the federal regulatory decision in the U. S. District Court of Maine helped the state come to terms with the ESA listing. This victory was assisted by an independent scientific report by the National Academy of Sciences, which vindicated the view that the Maine salmon was a genetically distinct and significant population segment (DPS) entitled to recognition and protection as a “species” under the ESA. In the final analysis, however, it took a citizen-suit ruling under the federal Clean Water Act (CWA) to demonstrate to the state and to the aquaculture industry that, without a doubt, federal environmental law controlled. United States District Judge Carter demonstrated his willingness to deal with industry intransigence. If the regulators would not, he would order the salmon farms to cease stocking non-native strains of Atlantic salmon immediately or hold them in contempt of court, even if this imposed costs that the industry had hoped to avoid under a state conservation regime. Recovery planning for the Maine Atlantic salmon began, with both the state and the aquaculture industry promising to take a cooperative approach. Meanwhile, a final report from the National Academy of Sciences’ scientific panel that supported the DPS determination dropped the proverbial second shoe, making it clear that recovery activities that focused too narrowly on the eight rivers of the DPS would not be adequate. Notwithstanding the federal listing agencies’ victory on the definition of what a “Maine Salmon” is, the National Academy of Sciences’ panel concluded that rehabilitating the species in Maine must include helping the populations whose habitat is diminished by dams. Independent of the ESA listing and recovery efforts, private and nongovernmental groups began to tackle the fish passage and habitat degradation issues caused by dams, brokering the Lower Penobscot Multi-Party Settlement Agreement to restore the mighty Penobscot, the river to which most Atlantic salmon in Maine return. For the sake of the salmon, three of the worst offending dams would be bought from their power-company owner and pulled down, while other dams, less damaging to habitat, would increase their power output. As her predecessor Bruce Babbitt had done at the historic breaching of the Edwards Dam on the Kennebec in 1999, Interior Secretary Gale Norton took advantage of a photo opportunity on the banks of the Penobscot River in the summer of 2004 to extol the virtue of cooperation in regaining our common natural heritage. Despite her surprise appearance to sign the Lower Penobscot Multi-Party Settlement Agreement personally, Secretary Norton did not bring news of any federal funds to help meet the multimillion-dollar purchase price for the dams. That news was to take another four years and the intervention of many more players in the saga of the Atlantic salmon listing. Finally, the listing process came full circle when salmon in Maine’s four largest industrialized rivers were added to the endangered listing of Gulf of Maine salmon, along with an extensive determination of its critical habitat, which included virtually the entire watersheds of all significant salmon rivers in Maine. This case study recounts the state-federal conflict over the endangered species listing decision for the Maine populations of Atlantic salmon. After a brief introduction to the species’ natural history, it describes the cooperative conservation efforts that preceded the citizens’ petition to list under the ESA. Second, it describes federal efforts to use state authority and institutions to minimize the threats to salmon survival and avoid a listing. Third, it discusses how the breakdown of these efforts and an independent scientific review led to the federal listing decision. Fourth, it suggests the overriding impact of cooperative federalism policies under the CWA. The final section describes the recovery planning efforts that followed the listing, the listing of additional river systems and critical habitat, and a partnership for river restoration, all of which presents new opportunities for cooperation

Methodologies and mechanisms for management of cumulative coastal environmental impacts. Part I: Synthesis, with annotated bibliography; Part II: Development and application of a cumulative impacts assessment protocol

What Are ~umulat iveE ffects? Coastal managers now recognize that many of the most serious resource degradation problems have built up gradually as the combined outcome of numerous actions and choices which alone may have had relatively minor impacts. For example, alteration of essential habitat through wetland loss, degradation of water quality from nonpoint source pollution, and changes in salinity of estuarine waters from water diversion projects can be attributed to numerous small actions and choices. These incremental losses have broad spatial and temporal dimensions, resulting in the gradual alteration of structure and functioning of biophysical systems. In the environmental management field, the term "cumulative effects" is generally used to describe this phenomenon of changes in the environment that result from numerous, small-scale alterations

BLOOM: A 176B-Parameter Open-Access Multilingual Language Model

Large language models (LLMs) have been shown to be able to perform new tasks based on a few demonstrations or natural language instructions. While these capabilities have led to widespread adoption, most LLMs are developed by resource-rich organizations and are frequently kept from the public. As a step towards democratizing this powerful technology, we present BLOOM, a 176B-parameter open-access language model designed and built thanks to a collaboration of hundreds of researchers. BLOOM is a decoder-only Transformer language model that was trained on the ROOTS corpus, a dataset comprising hundreds of sources in 46 natural and 13 programming languages (59 in total). We find that BLOOM achieves competitive performance on a wide variety of benchmarks, with stronger results after undergoing multitask prompted finetuning. To facilitate future research and applications using LLMs, we publicly release our models and code under the Responsible AI License

Public Trust, Public Use, and Just Compensation

In its recent decision, Bell v. Town of Wells, the Maine Law Court declined to grapple with one of the major legal conceptual problems presented by the case. The court failed entirely to reckon with the intersection of two competing, dynamic principles of American property law; these principles are increasingly significant in an era of growing conflict between public and private interests in land and natural resources. The first principle protects particular expectations of private owners of property through application of the just compensation (or takings ) clause of the fifth amendment. The second principle recognizes that certain property is held by the law to be inherently public and therefore is afforded special consideration by courts and legislatures. Navigable waterways, the waters of the sea, and the lands covered by the tides are included in this special category. The purposes of this Article are threefold. First, the Article discusses the Bell II court\u27s evaluation of the takings clause challenge to the Public Trust in Intertidal Land Act; it outlines the major authority upon which the Bell II court relied for its finding that the Act violated the constitutional provision that property shall not be taken for public purpose without just compensation. The Law Court also drew considerable support from an advisory opinion by the Massachusetts Supreme Judicial Court that contained many analytical deficiencies. Second, a brief review of recent United States Supreme Court cases demonstrates the court\u27s error in ignoring these important federal decisions. Two Supreme Court decisions are discussed in particular: Nollan v. California Coastal Commission, in which the Court invalidated a public beach access condition under the just compensation clause, and Phillips Petroleum Co. v. Mississippi, in which the Court made important findings concerning the application of state property law to define rights in tidally-influenced lands. The Article concludes with a discussion of how just compensation clause challenges to particular classes of governmental actions—those aimed at vindicating public rights in waters and tidally-influenced lands—should be evaluated by the courts. It outlines an alternative mode of analysis that, had it been followed, would have made an important contribution, both within the state and beyond, to the ongoing debate about the boundary between public and private expectations in land and natural resources

Whales, Whaling, and the Warming Oceans

In its first campaign of ocean diplomacy for the twenty-first century, the United States is trying to save the international whaling regime from breaking apart over the issue of commercial whaling. On the assumption that a reformed whaling regime could address the challenges whales face due to global warming, negotiators have come closer to a compromise than any previous attempt. But any effort to maintain a role for the International Whaling Commission (IWC) must not undermine the application by other regimes of new international norms, which include protecting the integrity and resilience of marine ecosystems. A compromise that does not repudiate the “whales-eat-our-fish” notion underlying the IWC’s current view of the ecosystem approach will hinder progress in other ocean governance institutions whose need for reform greatly surpasses that of the IWC