9.3.2.2 A Path Forward
In the context of this highly political struggle to promulgate comprehensive, overarching legislation, the federal government improvised a path forward. The approach
was to use America’s cornerstone national legislation for regionally managing
fisheries in federal waters, the Magnuson-Stevens Fishery Conservation and
Management Act (MSA), though the Act does not specifically mention aquaculture.
In 1993, NOAA legally defined marine aquaculture as fishing, under the authority of
MSA, which allowed three possible approaches to developing fish farming in each of
the eight regions defined in the Act: (1) Issuing an Exempt Fishing Permit of limited
scope and duration, (2) Amending an existing Fisheries Management Plan (FMP) for
a regulated species or ecosystem to include aquaculture, and (3) Developing a
specific FMP for regulating offshore mariculture in the region.
Several of the Regions embraced NOAA’s definition and increasing advocacy
for marine aquaculture. The New England Regional Fishery Management Council
established evaluation criteria for open ocean aquaculture proposals that dictated
the use of best management practices aimed at reducing environmental and fishery
impacts-one commercial scallop project has been permitted to date (Upton and
Buck 2010). The Western Pacific Council developed and passed a detailed
Aquaculture Policy Statement to encourage projects that comply with a set
guidelines-NOAA has issued permits for two short-term research projects testing
floating and deep water, anchored cages have been approved off Hawaii and they
prompted a court case instigated by an out-of-state environmental group that up
held the 1993 legal definition opinion. In addition, the Western Pacific Council has
begun a process to amend all its Fishery Management Plans to permit issuance of
permits for commercial aquaculture.
The Gulf of Mexico Council has been the most active in putting in place a
detailed regulatory process for selected managed fish species in federal waters, but
progress has been very slow. In 2003 the Council adopted an aquaculture policy for
the Gulf EEZ. Recommendations were made in six key areas: (1) allowable species,
(2) habitat protection, (3) research, (4) location and design, (5) water quality, and
(6) health management and disease control (GMFMC 2014a).
This led the Council to undertake preparation of a Management Plan for
aquaculture in federal waters of the Gulf, inclusive of a comprehensive Federal
Programmatic Environmental Impact Statement (PEIS), Regulatory Flexibility
Analysis and Regulatory Impact Review (GMFMC and NOAA 2009). The massive
document, after public review, was adopted by the Council in January 2009 and
was sent, as required, to the Secretary of Commerce for final review and approval.
In an unprecedented move, the Secretary and NOAA allowed the Plan and PEIS to
become law without agency approval because, “Offshore aquaculture activities
should be governed by a comprehensive national policy rather than by regional
regulatory frameworks.” At the time NOAA indicated they would work on an
overarching national policy with the Councils and Congress to ensure a smooth
transition to a national approach for regulating offshore aquaculture (Balsinger
2009).
9 Regulation and Permitting of Standalone …
197
In the context of this highly political struggle to promulgate comprehensive, overarching legislation, the federal government improvised a path forward. The approach
was to use America’s cornerstone national legislation for regionally managing
fisheries in federal waters, the Magnuson-Stevens Fishery Conservation and
Management Act (MSA), though the Act does not specifically mention aquaculture.
In 1993, NOAA legally defined marine aquaculture as fishing, under the authority of
MSA, which allowed three possible approaches to developing fish farming in each of
the eight regions defined in the Act: (1) Issuing an Exempt Fishing Permit of limited
scope and duration, (2) Amending an existing Fisheries Management Plan (FMP) for
a regulated species or ecosystem to include aquaculture, and (3) Developing a
specific FMP for regulating offshore mariculture in the region.
Several of the Regions embraced NOAA’s definition and increasing advocacy
for marine aquaculture. The New England Regional Fishery Management Council
established evaluation criteria for open ocean aquaculture proposals that dictated
the use of best management practices aimed at reducing environmental and fishery
impacts-one commercial scallop project has been permitted to date (Upton and
Buck 2010). The Western Pacific Council developed and passed a detailed
Aquaculture Policy Statement to encourage projects that comply with a set
guidelines-NOAA has issued permits for two short-term research projects testing
floating and deep water, anchored cages have been approved off Hawaii and they
prompted a court case instigated by an out-of-state environmental group that up
held the 1993 legal definition opinion. In addition, the Western Pacific Council has
begun a process to amend all its Fishery Management Plans to permit issuance of
permits for commercial aquaculture.
The Gulf of Mexico Council has been the most active in putting in place a
detailed regulatory process for selected managed fish species in federal waters, but
progress has been very slow. In 2003 the Council adopted an aquaculture policy for
the Gulf EEZ. Recommendations were made in six key areas: (1) allowable species,
(2) habitat protection, (3) research, (4) location and design, (5) water quality, and
(6) health management and disease control (GMFMC 2014a).
This led the Council to undertake preparation of a Management Plan for
aquaculture in federal waters of the Gulf, inclusive of a comprehensive Federal
Programmatic Environmental Impact Statement (PEIS), Regulatory Flexibility
Analysis and Regulatory Impact Review (GMFMC and NOAA 2009). The massive
document, after public review, was adopted by the Council in January 2009 and
was sent, as required, to the Secretary of Commerce for final review and approval.
In an unprecedented move, the Secretary and NOAA allowed the Plan and PEIS to
become law without agency approval because, “Offshore aquaculture activities
should be governed by a comprehensive national policy rather than by regional
regulatory frameworks.” At the time NOAA indicated they would work on an
overarching national policy with the Councils and Congress to ensure a smooth
transition to a national approach for regulating offshore aquaculture (Balsinger
2009).
9 Regulation and Permitting of Standalone …
197