Federal Authority for Offshore Aquaculture Reappears on the Horizon

In the wake of the Fifth Circuit’s August 2, 2020 decision holding that the National Marine Fisheries Service (NMFS) lacked authority to regulate aquaculture in the Gulf of Mexico, the “Advancing the Quality and Understanding of American Aquaculture” Act, or the AQUAA Act (Act), is making waves once again in Congress. 

Although the Act has been floating around for a few years, with its most recent reintroduction in the House in March 2020, the Fifth Circuit’s decision (as B&D previously discussed), coupled with the President’s May 2020 Executive Order emphasizing the government’s policy to facilitate aquaculture projects through regulatory transparency, have revived momentum for establishing a federal regulatory system for offshore aquaculture.

The Act proposes “the development of a sustainable marine aquaculture industry” through a new federal regulatory regime headed by an Office of Aquaculture (Office) that will sit within NMFS at the National Oceanic and Atmospheric Administration. The Office would coordinate regulatory, scientific, outreach, and international issues related to aquaculture, as well as collaborate with the National Sea Grant college program to conduct outreach and engage with stakeholders. Generally, the Act aims to reduce the United States’ seafood trade deficit by expanding the domestic supply of seafood through sustainable aquaculture and opening the United States’ exclusive economic zone to potential permit holders of offshore aquaculture facilities. 

Under the Act, the Secretary of Commerce (Secretary) would assess and inventory areas that are appropriate for offshore aquaculture. Once identified, these areas would be open for permitted offshore aquaculture. Entities interested in conducting offshore aquaculture activities must submit a permit application to the Secretary, specifying, among other things, the proposed location of the aquaculture facility, the type of aquaculture, and emergency response plans. The Secretary would then review the permit application to determine if it complies with the purpose and requirements of the Act.

The Act explicitly states that future offshore aquaculture facilities must comply with all applicable statutes, rules, and regulations. Potential permit-holders should therefore be aware of the implications of any federally-permitted project with potential impacts on marine mammals, endangered species, water quality, and the states’ coastal zones. And each permit will likely be required to undergo review pursuant to the National Environmental Policy Act. 

The Act’s future is uncertain as it must still pass Congress and, even then, there will be a lengthy rulemaking and structuring process to follow. However, the seafood industry continues to push for utilization of these offshore resources and the insufficiency of the current regulatory regime is adding support for the bill’s passage. With offshore aquaculture at the heart of controversy for many coastal communities who rely on traditional methods of seafood harvesting for livelihood or who rely on open waters for recreational use—often beyond the state’s coastal zone—the bill, if passed, will affect the entire seafood industry. 

Beveridge & Diamond offers insight, legal advice, and expert regulatory knowledge with regard to the future of offshore aquaculture. Beveridge & Diamond's Fisheries and Aquaculture industry group advises on the broad range of environmental, health, and safety issues impacting the fishing and aquaculture industries’ facilities, operations, and products. A number of our lawyers have biology or ecology backgrounds, personal experience working with fisheries, and unique perspectives from years of government service. B&D offers a physical presence in major fishing markets, as well as experience with fisheries off all U.S. coasts and in major fresh water bodies across the country. For more information, please contact the authors.