ADDRESSING OFFSHORE AQUACULTURE

 On October 28, Senators Roger Wicker (R-MS), Brian Schatz (D-HI), and Marco Rubio (R-FL) reintroduced the Advancing the Quality and Understanding of American Aquaculture Act, nicknamed the “AQUAA Act,” which would grant the National Oceanic and Atmospheric Administration the authority to regulate aquaculture facilities in federal waters, and establish other standards and support for offshore aquaculture.

Offshore aquaculture has long been a fraught topic.

Fish and marine invertebrates, and to a lesser extent, algae, have long been a source of human nutrition.  There is evidence of Homo erectus harvesting oysters 700,000 years ago, and of Neanderthals living in what is now Portugal having a diet that was dominated by a variety of seafood—mollusks, crabs, fish, and marine mammals—100,000 years in the past.  Homo sapiens—that is, us—may owe its continued existence to abundant marine shellfish that served as “famine food” after climate change in the African savannah forced them to disperse from ancestral inland haunts to forage and expand along the coast in order to survive.

We have been consuming seafood ever since our beginnings, but have now grown so numerous that the sea can no longer be counted on to feed a still-expanding human population.

That’s where aquaculture comes in.  Just as agriculture has largely replaced traditional hunting and gathering on land, aquaculture is seen as a way to supplement, if not largely replace, the harvest of living marine resources.

Aquaculture has long been practiced in inshore waters, where its record has been spotty, at best.

Waste from aquaculture facilities has polluted inshore waters, which may also be affected by such facilities’ use of antibiotics and other drugs and pesticides.  Unnaturally dense concentrations of fish held in net pens can lead to outbreaks of disease and parasites which can then infect wild populations; the sea lice that teem around salmon farms have already proven to be a threat to wild salmon runs.  There are also the problems created when farmed fish inevitably escape into the wild.  Farmed species that escape into waters where they don’t naturally occur can establish invasive populations that compete with native fishes; native species that escape, after being bred for generations in captivity, can damage the genetic integrity of wild populations.

In 2018, the State of Washington banned the use of net pens to farm Atlantic salmon, after the escape of more than 300,000 salmon from a poorly maintained net pen facility raised concerns that the state’s already-depleted runs of native salmon might be threatened by invasive fish.

Open-ocean aquaculture is still in its infancy, and there are worries that it could create similar risks to offshore ecosystems.  Offshore fish farms also may create hazards to marine mammals that feed in and migrate through areas where such farms are sited.

Given the potential risks, it would be wise to move forward with caution, and not allow any offshore aquaculture facility to be constructed until all of the environmental issues had been satisfactorily addressed.  However, the opportunity to take such action was effectively foreclosed after the United States Court of Appeals for the 5^th Circuit decided the case of Gulf Fishermen’s Association v. National Marine Fisheries Service in August 2020.

In its decision, the court found for the plaintiffs, agreeing that aquaculture did not constitute fishing, and that the Magnuson-Stevens Fishery Conservation and Management Act, which only addresses fishing, did not grant NMFS the authority to regulate aquaculture. 

While the court’s decision vindicated the plaintiffs’ position that NMFS couldn’t regulate aquaculture, it ultimately frustrated the plaintiffs’ intent, for it did not prevent the development of offshore aquaculture facilities from moving forward.  Instead, it removed the agency with the greatest expertise in fisheries issues from the decision making process, and left the offshore aquaculture industry largely unregulated.

After the court's decision was handed down, Neil Sims, the Chief Executive Officer of Ocean Era, an aquaculture company seeking to build a “demonstration” offshore facility near Sarasota, Florida, reportedly commented that

“It’s one less permit [needed] for the demonstration pen,”

although he also recognized NMFS’ expertise and expressed regret that they would not be the lead agency for the permitting process.  Instead, the Environmental Protection Agency, which focuses on pollution and related water quality issues, will become the lead; NMFS will only be able to consult with EPA on fishery issues.

Thus, the reintroduced AQUAA Act, which would create an Office of Aquaculture within NOAA and grant that agency regulatory authority, has become a more important bill than it might have been when first introduced.  Its final form may very well impact both fish and fish habitat that are important to fishermen on every coast.

The bill sets off on the right foot, describing what aquaculture is, and what it is not.  In many ways, the latter is more important.  By stating that aquaculture

“does not include the practice of capturing juvenile finfish to rear to maturity in an aquaculture facility for subsequent commercial sale; and does not include the practice of rearing and releasing cultured species for the purpose of enhancing wild populations [internal numbering and formatting omitted]”

the AQUAA Act makes it clear that NMFS will still have full regulatory authority over the harvest of finfish, even those that might be used in so-called “grow-out” aquaculture facilities, and that hatcheries will not be considered aquaculture operations.

The Act also creates a comprehensive framework for permitting and regulating offshore aquaculture facilities, creating aquaculture opportunity areas, and providing for criminal and civil sanctions, including the revocation of aquaculture permits, in the event that the operator of a facility does not comply with the legal standards that the Act establishes.

While the AQUAA Act, if passed, would create a far better regulatory structure for offshore aquaculture than exists today, it still could use a few tweaks.

Some fish will always escape from aquaculture facilities, no matter how hard the operators try to avoid losing such fish and the income that they represent; escapes will probably be much more frequent in offshore facilities that are more nexposed to the full force of hurricanes and other severe weather, and are more vulnerable to ship strikes, than are facilities built in protected inshore waters.  

Thus, it is somewhat disappointing that while the AQUAA Act requires the agency to consider

“Potential impacts to wild fisheries from the escape of cultured species, or from cultured species becoming invasive or hybridizing with wild stocks within the region”

when establishing aquaculture opportunity areas, it still only requires that the agency

“prefer species that are native or historically naturalized to the region,”

rather than  completely prohibiting the culture of non-native species, when creating such areas or otherwise permitting an aquaculture operation.

In addition, while the Act limits the issueance of aquaculture permits to U.S. citizens, U.S. residents, and corporations organized within the United States, and prohibits issuing an aquaculture permit to any corporation owned or controlled by a foreign government, nothing in the bill prevents a foreign corporation from creating a U.S. subsidiary that will engage in aquaculture within U.S. waters.

While such foreign-owned companies, as a whole, are unlikely to create more problems than domestic entities, there remains a significant likelihood that some will seek to build facilities in U.S. waters in order to escape more restrictive regulations that govern aquaculture at home. 

The State of Maine is already dealing with such a situation.  A Norwegian-owned company, American Aquafarms, is seeking to develop an extremely large aquaculture operation just outside Acadia National Park, where it intends to raise 66 million pounds of Atlantic salmon at two facilities.  While Maine law doesn’t prohibit such a large operation, American Aquafarms’ owners would not be able to conduct a similar operation in their native Norway, where salmon farms are limited to no more than 10 million pounds of fish.

The proposed Maine facility would also cultivate salmon at a higher density than is permitted in Norway, about 40 kilograms of fish for each cubic meter of water; Norwegian law limits fish density to 25 kilograms per meter.

The AQUAA Act should be amended to assure that similar abuses cannot occur in the federal waters of the United States.

Even if those shortcomings were fixed, and the AQUAA Act became law, offshore aquaculture would remain problematic.

  Aquaculture facilities would preempt areas of the continental shelf, creating obstacles to navigation and perhaps closing off access to traditional recreational and commercial fishing grounds.  

Farmed fish would compete with wild-caught fish in the marketplace, very possibly to the detriment of commercial fishermen and traditional fishing communities.  

And farmed fish have to eat, too.  In order to feed them, forage fish will have to be removed from the ocean and processed into fish feed, leaving less forage behind for wild fish populations, birds, and marine mammals.

As noted earlier, it would be nice to be able to call a halt to offshore aquaculture development until all such problems are solved, but that is very unlikely to happen.  There is a lot of commercial and political pressure pushing for the development of offshore aquaculture in U.S. waters, and that pressure is going to be nearly impossible to resist.

Offshore aquaculture, in some form, is almost certainly going to become reality in the not-very-distant future.

Given that reality, and given that current offshore aquaculture is largely unregulated, the AQUAA Act could, at a minimum, provide a regulatory framework for further development, that makes it more likely to proceed in a somewhat rational fashion.

That doesn’t mean that offshore aquaculture is a good idea.  It does mean that if offshore aquaculture is going to happen, at least it ought to happen in an environment that makes it likely that the bad ideas—or, at least, the worst ideas—can be identified and killed off before they can do any harm.