I. Introduction

Oceans have functioned for centuries as highways of maritime commerce and as fishing grounds. The economic role of oceans has lately expanded to include nonrenewable resource extraction, in particular oil and gas; oceans also support a vibrant tourist economy. More recently, a number of other ocean uses have emerged, including bio-prospecting, wave energy, tidal energy, offshore wind power development, and marine aquaculture. Although some of these uses are still under development, while others have to some degree been brought to fruition, all these new uses share a common problem and raise a common concern--policy regarding their use in U.S. waters is being formulated piecemeal, and they are all developing economically in the absence of a coherent and publicly vetted policy framework.

At present in the United States, any attempt to develop the promise of these new uses requires the government to spin together a hodgepodge of laws enacted prior to the development of these technologies and applications without the benefit of having them in mind. Such a regulatory void can be seen in attempts to regulate offshore aquaculture: (1) an entrepreneur must obtain a U.S. Army Corps of Engineers (the Corps) permit to place a structure in U.S. navigable waters; (2) the U.S. Environmental Protection Agency (EPA) regulates the discharge of effluents from the aquaculture facility; and (3) the National Oceanic and Atmospheric Administration (NOAA) asserts jurisdiction over aquaculture based on the premise that aquaculture operations may negatively impact wild fish stocks, yet no agency has the authority to lease ocean space for the purposes of aquaculture. A similar hodgepodge exists for offshore wind power. While public debate over offshore wind power and aquaculture is likely to be centered on environmental and aesthetic issues, the government's present offshore "framework" places both decisions in the hands of the Corps--a regulatory agency whose primary foci are navigation and national security, thus mismatching public concerns with regulatory priorities.