Aquaculture
Read the first installment of
this two-part series, which covered International Fisheries, International Trade, and
Commercial Fishing Regulations.
President Trump’s “Executive Order on Promoting
American Seafood Competitiveness and Economic Growth” (Executive
Order) touched on a number of seafood-related topics, but the greatest part of
the document was focused on offshore aquaculture.
It’s easy to
understand why the president might believe that such Executive Order was
needed. Although various states have been regulating aquaculture in their own
waters for many years, there is no federal law governing the permitting and/or
regulation of aquaculture in the nation’s exclusive economic zone (EEZ), which
generally includes marine waters between 3 and 200 miles from shore.
May NMFS regulate offshore aquaculture?
In 2016, the National Marine Fisheries Service (NMFS) attempted
to fill that void, issuing regulations for permitting and
managing aquaculture operations the EEZ within of the Gulf of
Mexico. Such regulations were challenged in Gulf Fishermen’s Association v. National Marine Fisheries Service,
a legal action brought by a coalition of conservation, commercial fishing,
recreational fishing and food-safety groups in a federal district court in
Louisiana. The plaintiffs argued that NMFS had no statutory authority to issue
such regulations, countering NMFS’ claim that the Magnuson-Stevens Fishery
Conservation and Management Act’s (Magnuson-Stevens) definition
of “fishing,” which included the “harvest” of fish, granted NMFS the authority
to regulate aquaculture.
On September 25, 2018, the trial court issued its
decision. It agreed with the plaintiffs, finding that the purpose of
Magnuson-Stevens was to conserve natural resources, not to regulate
aquaculture, and that any reference to “harvesting” that appears in the law is
intended to address the capture of wild fish, and not the mere gathering of
farmed animals.
NMFS has appealed the trial court’s decision. Oral arguments
were heard on January 6 of this year, when NMFS renewed its claim that Congress
intended to give it the authority to regulate aquaculture when it passed Magnuson-Stevens.
The appeals court panel was reportedly doubtful. One observer noted that
“All three judges expressed skepticism almost immediately, wondering aloud if
NMFS’s sudden pivot fundamentally enlarged both the statute’s scope and its
underlying authority without underlying support from Congress or the MSA’s
text.”
It’s always dangerous
to try to predict what an appellate court will decide, but it is safe to say
that unless the trial court’s decision is overturned, Congress has not yet
authorized NMFS to regulate aquaculture in the EEZ.
Bills have been introduced to fill the regulatory void. H.R.
6191, titled the “Advancing the Quality and
Understanding of American Aquaculture Act,” (AQUAA Act) was
introduced by Rep. Colin Peterson (D-MN) and Rep. Steven Pallazzo (R-MS).
Similar to bills that failed to gain traction in previous sessions of Congress,
the AQUAA Act would create a regulatory framework for permitting and
maintaining aquaculture operations in the EEZ, and vest regulatory authority in
the National Oceanic and Atmospheric Administration (NOAA). However, the AQUAA
Act remains in the earliest stages of the legislative process; while it has
been referred to committee, it has not yet been scheduled for the committee
markup process.
What the Executive Order says about aquaculture
The Executive Order
provides a framework for regulating offshore aquaculture that must be viewed
against that background of Congressional inaction. Pursuant to the Executive
Order, NOAA would become the lead agency charged with preparing and issuing any
environmental impact statements (EIS) required pursuant to the National
Environmental Policy Act (NEPA), and would be required to complete any such EIS
within two years after beginning the assessment process.
The Department of
Commerce, NOAA’s parent agency, was also instructed to, “within 1 year of the
date of this order, identify at least two geographic areas containing locations
suitable for commercial aquaculture and, within 2 years of identifying each
area, create a programmatic EIS for each area to assess the impact of siting
aquaculture facilities there.” Two additional areas suitable for aquaculture
were to be identified in each of the following four years.
The Army Corps of
Engineers, which must approve all projects that may impact the use of navigable
waters, was also authorized to take a broad-scale approach to the approval
process, with the Executive Order granting it the authority to issue a
“nationwide permit authorizing finfish aquaculture activities in marine and
coastal waters out to the limit of the territorial sea and in ocean waters
beyond the territorial sea within the exclusive economic zone of the United
States.”
In addition, the
Executive Order gave NOAA just 240 days to create an aquaculture web page that
describes the federal regulations (which, with respect to aquaculture projects
in the EEZ, have not yet even been drafted) affecting aquaculture, lists the state
and federal agencies that play a role in the aquaculture permitting process,
and identifies grants available to aquaculture operators.
May the administration regulate offshore aquaculture?
The first question
that arises is whether, in the absence of a clear delegation of Congressional
authority, the president may legally grant NOAA the power to regulate offshore
aquaculture.
Under the United States Constitution, which separates and defines
the powers and duties of the administrative, legislative and judicial branches
of the federal government, the president has no regulatory authority at all.
Instead, Article I, Section 1 of the Constitution explicitly states that “All
legislative Powers herein granted shall be vested in a Congress of the United
States, which shall consist of a Senate and a House of Representatives.”
Section 8 of Article I
grants Congress the power “To regulate Commerce with foreign Nations, and among
the several States, and with the Indian Tribes;” and “To make all Laws which
shall be necessary and proper for carrying into Execution the foregoing Powers,
and all other Powers vested by this Constitution in the Government of the
United States, or in any Department or Officer thereof.”
Those passages make it
absolutely clear that the initial power to regulate offshore aquaculture lies
solely with the Congress, and not the president. However, Section 8 of Article
I grants Congress the authority to make “all Laws” that are needed to allow
“any Department or Officer” of the United States to execute the powers granted
to Congress under the Constitution. That would include the regulation of
interstate and international commerce and, by extension, aquaculture.
So to answer the first
question, it’s necessary to ask another: Has Congress validly delegated its
power to regulate offshore aquaculture to the president and administrative
branch? If so, the Executive Order would represent a valid exercise of such
delegated authority.
That’s a harder question to answer. The Supreme Court recognized
Congress’ power to delegate regulatory authority as early as 1825 when, in the
matter of Wayman v. Southard, it stated that “Congress may
certainly delegate to others, powers which the legislature may rightly exercise
itself.”
Since then, the scope of any such delegation has frequently been
litigated. As a rule, courts have been reluctant to overturn a Congressional
delegation of power, and have adhered to the guidance provided in the Wayman decision, which noted that “the precise
boundary of [the delegation] power is a subject of delicate and difficult
inquiry, into which a court will not enter unnecessarily.” Thus, more recent
litigation has generally focused on whether a delegation must be specific and
explicit, or whether implicit authority may be found in a general grant of
regulatory powers.
In the matter of Yakus v. United States, the Supreme Court set a very
low bar, requiring only that a delegation of power “sufficiently marks the
field within which the Administrator is to act so that it may be known whether
he has kept within it in compliance with the legislative will.”
But even that low bar doesn’t necessarily give the president the
power to regulate offshore aquaculture. In Gulf Fishermen’s Association, the trial court has already decided that
Magnuson-Stevens does not give NMFS jurisdiction over offshore aquaculture; if
that decision is upheld on appeal, then the president’s authority to regulate
such activity will have to be found elsewhere (although a factsheet available through the NOAA
website still claims that “NOAA may issue permits authorizing
aquaculture activities under the Magnuson-Stevens Fishery Conservation and
Management Act”).
The National Aquaculture Act of
1980 (Aquaculture Act) might provide such authority. It vests
the primary authority for creating a National Aquaculture Development Plan
(Plan) in the Secretary of Agriculture, but also creates roles for both the
Secretary of Commerce and Secretary of the Interior, empowering all three
officials to “prescribe such regulations as may be necessary to carry out the
Plan,” which was first completed in 1983.
But even that language
isn’t definitive. It could easily be argued that the Plan only authorizes
administrative agencies to assist in the development of aquaculture operations,
not to issue permits or regulate them. At least some members of Congress seem
to believe that’s the case, for if NOAA already had the authority to regulate
aquaculture, the AQUAA Act wouldn’t be needed.
The Executive Order’s potential impact on fish and fish habitat
But assuming that the
Aquaculture Act does represent a valid delegation of Congressional authority
and empowers the Administration to act, the next question is how the Executive
Order might impact the nation’s marine resources.
The answer to that
question lies in the old adage that “haste makes waste,” for the primary effect
of the Executive Order would be to hasten the permitting process.
Coastal aquaculture operations have shown that fish farming can
have negative impacts on
fish and their habitats. By giving NOAA only two years to prepare an EIS
related to an aquaculture permit, the Executive Order may make it very
difficult, or perhaps impossible, for the agency to take the required “hard
look” at whether offshore aquaculture poses similar threats and determine just
what the impacts might be.
Offshore aquaculture proponents
argue that the negative impacts associated with inshore
aquaculture, which include releasing fish wastes that damage nearby habitat,
concentrating parasites that then infect native fish, and introducing diseases
into wild populations, would not occur in the expanses of the EEZ. However,
there is also some evidence to rebut such claims. In Australia, imported
sardines, fed to caged tuna, introduced an exotic disease to
the local sardine population, which suffered high levels of mortality as a
result.
Escapes are also an issue. Whether due to severe storms,
maintenance issues or merely mishandling, some aquacultured fish will
inevitably escape from their pens and enter the marine environment. Should
those fish belong to non-native species, and should there be no native
predators able to keep their numbers in check, such escapes could have a
devastating impact on native fish and their habitat. The rapid expansion of lionfish,,
introduced by the aquarium trade into the waters of the southeastern United
States, is a cautionary example of what can occur when non-native species
invade a local ecosystem.
Because offshore
aquaculture is a new industry, it will take regulators time just to identify
the relevant issues, much less to determine the potential harm and how it can
be avoided. Compelling them to complete the EIS process within two years makes
it more likely that important threats will neither be recognized nor addressed.
That danger is
exacerbated by the Executive Order’s insistence that EIS for “aquaculture
opportunity areas” be completed on a “programmatic” basis, with a single EIS
covering all current and future development within the specified geographical
area, rather than completing a unique EIS for each new permit issued. The ocean
bottom is not uniform. In some places, it is composed by sand; in others it may
be composed of rock, support extensive kelp beds, or host living coral reefs.
The impact of an aquaculture project will differ depending on bottom type, by
the plants or animals being cultured, by the size of the facility and by the
density of the penned animals.
While small facilities might not have a significant impact on
bottom sediments, organic wastes released by a larger aquaculture facility
located in the ocean off Hawaii created a hypoxic zone on
the sea floor that extended for more than 250 feet from the fish cages. The
release of such wastes can cause even greater damage to high-profile live
bottom and coral reefs, where corals can be killed;
even those that survive in locations where the pollutants have become more
diluted suffer a loss of reproductive capacity.
While such
site-specific issues would probably be identified and addressed in an EIS
related to a single permit, they are very likely to be missed when EIS are
prepared programmatically. Both the time limit for producing an EIS, and the
requirement that, in specified geographic areas, any such EIS will be issued at
a programmatic level, subordinates the protection of marine environments to an
unseemly haste to get projects underway.
The bottom line
Ultimately, it’s up to the courts to decide whether Congress has
given the president the authority to take such hasty action. The Executive
Order may provide only the illusion of an efficient permitting process, as
actions taken thereunder will almost certainly draw a legal challenge, and
result in extended litigation. The Gulf Fishermen’s Association lawsuit was filed in 2016, and is not
yet resolved.
That being the case,
it would probably be better for the long-term health of fish stocks, fish
habitat and the aquaculture industry itself for Congress to take a considered
look at the topic and, whether through the AQUAA Act or some other
comprehensive legislation, take steps to assure that the marine ecosystem, the
aquaculture industry, and other ocean stakeholders are all given the
protections that they both need and deserve.
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This essay first
appeared in “From the Waterfront,” the blog of the Marine Fish Conservation
Network, which can be found at http://conservefish.org/blog/
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