December 1, 2017

In recent months, talk of offshore aquaculture has been buzzing in the news and in Washington. While finfish and shellfish culture has flourished in state waters for more than a century, offshore finfish aquaculture has not kept pace.  There are currently no large-scale commercial finfish net-pen aquaculture operations in federal waters. Congress and federal agencies are making strides to set up the legal and regulatory structure that will allow an offshore aquaculture industry in the U.S. to flourish while protecting marine ecosystems from environmental damage. We’ve highlighted some of the key issues, recent developments, and our engagement thus far to underscore the immense opportunity before AFS to provide solid scientific knowledge, share decades of member experience across the culture sectors, and contribute to efforts to improve management plans and policies related to marine aquaculture. The Trump Administration brought some weight to the idea of expanded offshore aquaculture when Wilbur Ross, Secretary of the U.S. Department of Commerce, identified it as a promising opportunity to help our nation decrease its foreign trade deficit. One of the reasons that offshore aquaculture is not advancing is that lengthy, expensive and complicated permitting requirements discourage investment.  Stable and predictable regulatory regimes are key to investment in offshore aquaculture. Efficient regulation of offshore aquaculture could lower the financial burden and reduce the time associated with permitting while ensuring the regulatory requirements are satisfied. AFS met with NOAA officials to get a better sense of the agency’s plans and the larger landscape and to offer our expertise as the agency works through these issues.  Through these meetings, AFS learned that NOAA officials have discussed the possibility of collaborating with industry, states, and other stakeholders on a national aquaculture initiative to increase U.S. domestic seafood production through regulatory streamlining and other measures. NOAA is also working on a draft bill to provide for a legal regime and permitting structure for an offshore aquaculture regime. Congress is also discussing aquaculture as part of broader Magnuson-Stevens Act (MSA) re-authorization talks and as a stand-alone legislative effort. There are a host of issues to resolve in legislation, but the one that really seems to be a sticking point is the concern that federal law doesn’t clearly authorize aquaculture in the U.S. Exclusive Economic Zone.   Resolving this problem would lead to greater certainty, which could in turn allow for greater investment in aquaculture. NOAA asserts that the MSA gives the agency jurisdiction to regulate offshore aquaculture for federal managed species.  In 2009, the Gulf of Mexico Fishery Management Council developed a Fishery Management Plan (FMP) for Regulating Offshore Marine Aquaculture in the Gulf of Mexico.  In January 2016, NOAA finalized a regulation that provides for the permitting of offshore finfish aquaculture in the Gulf of Mexico. The rule authorizes NOAA Fisheries to issue permits to grow federally managed species such as Red Drum, Cobia, and Almaco Jack in federal waters in the Gulf for an initial 10-year period with an optional 5-year renewal. Shortly after publication of the final rule in the Federal Register, fishing and public interest groups filed suit challenging the rule on the grounds that NOAA exceeded its authority under MSA by including offshore aquaculture as “fishing” activity.  The plaintiffs argued that the MSA does not contemplate aquaculture as fishing either expressly or indirectly and that there was no legislative history to suggest that aquaculture was contemplated under the law. To date, there have been no permit applications submitted to conduct offshore aquaculture operations in the Gulf of Mexico.  The issue has even come up in recent MSA re-authorization hearings in the Senate with Sen. Roger Wicker (R-Miss.) questioning NOAA Assistant Administrator Chris Oliver about why there had been no permit applications for offshore aquaculture in the Gulf of Mexico despite the rule.  Oliver wasn’t able to provide a response at the time, but the uncertain legal landscape could be a significant factor leading to the lack of permit applications. Even if NOAA prevails in the lawsuit, there are other challenges to using the MSA to regulate offshore aquaculture.  Because the law was developed to regulate the harvest of wild fish, some provisions may be incompatible with management of aquaculture.  Further, FMPs regulate federally managed species, but large scale offshore aquaculture operations may need the flexibility to cultivate a broader range of species to be economically viable, making an alternative legal regime desirable.  From a more practical perspective, most fishery management councils have designated aquaculture as a non-fishing activity, further limiting the application of MSA as a vehicle for offshore aquaculture expansion. Over the last several months, AFS has been working with congressional staff to provide the scientific and management expertise of our members to inform draft legislation on offshore aquaculture.  AFS staff attended a Capitol Hill briefing on aquaculture this summer where we learned of Sen. Wicker’s interest in crafting a bill on this topic.  In follow-up, AFS staff met with the senator’s staff to explore ways that we could offer support as they worked towards a draft bill. As a result of that meeting, AFS was able to share some big picture information to help inform the bill as well as some recent research to help staff better understand the improvements in science and technology that have lessened the potential environmental impact of aquaculture activities. We were later asked to comment on the senator’s discussion draft of the “Marine Aquaculture Act of 2017” that seeks to “establish a regulatory system for offshore aquaculture in the United States exclusive economic zone.” With the assistance of our Resource Policy Committee, AFS solicited comments from AFS members with appropriate expertise and relayed timely comments for consideration back to staff. Wicker’s bill creates a new legal and permitting regime for aquaculture and takes the regulation of offshore aquaculture out of the MSA.  At least one other member of Congress has addressed offshore aquaculture in proposed legislation.  Jared Huffman’s (D-Calif.) discussion draft of a MSA re-authorization bill in the House proposes to exclude aquaculture from the definition of fishing.  We’ll