Coalition Challenges National Marine Fisheries Service Rules for Regulating Offshore Aquaculture in the Gulf of Mexico

by Kelley Drye & Warren LLP

On February 12th, a coalition led by the Center for Food Safety filed suit in the U.S. District Court for the Eastern District of Louisiana challenging the National Marine Fisheries Service’s (“NMFS”) final rule implementing the Fishery Management Plan for Regulating Offshore Aquaculture in the Gulf of Mexico (“FMP”). The rule is the first FMP for domestic aquaculture for species managed by the Gulf of Mexico Fishery Management Council (“Council”), and the first broad-scale specific authorization for offshore aquaculture in the United States.

The Council approved the FMP in 2009; however, NMFS did not implement its measures as a final rule until January 13, 2016. In the interim, two national policies on aquaculture were adopted: (1) NMFS issued a Marine Aquaculture Policy in 2011; and (2) the Interagency Working Group on Aquaculture released a draft National Strategic Plan for Federal Aquaculture Research in 2014.

According to the Council, the FMP applies to activities that constitute “rearing of aquatic organisms in controlled environments (e.g., cages or net pens) in federally managed areas of the ocean.” It authorizes up to 20 Gulf Aquaculture Permits, for a term of ten years each, up to a total annual production of 64 million total pounds. Any individual permit holder may only produce 20% of that annual total. The FMP also requires a dealer who receives fish cultured at an offshore aquaculture facility to possess a Gulf aquaculture dealer permit. A permit allows harvest of all native Gulf species that are managed by the Council, excluding shrimp and corals.

There are currently no commercial offshore aquaculture operations in federal waters for finfish rearing. There are 25 permit holders for live rock aquaculture in the United States’ Exclusive Economic Zone, as well as several aquaculture operations in state waters of California, Florida, Hawaii, Maine, New Hampshire, and Washington.

The FMP has several mechanisms for regulating offshore aquaculture, including the overall harvest limit for the fishery noted above. The Council set that harvest limit (referred to as “optimum yield” in keeping with legally-mandated principles for wild-caught fishery stocks) equal to the average annual landings of all marine species in the Gulf, except menhaden and shrimp, between the years 2000 and 2006. Entry to the fishery may be limited in subsequent years if the overall harvest level is exceeded. The FMP also contains siting requirements, obligates permit applicants to conduct a baseline environmental assessment off the proposed site prior to permit review, and requires extensive and routine monitoring and reporting once operations are underway.

The legal complaint, filed by twelve organizations representing fishery interests and environmental and food safety groups, alleges that industrial aquaculture is sufficiently different from fishing that NMFS does not hold permitting authority over its regulation. Rather, the complainants believe that it should be regulated more akin to farming practices. While FMPs are typically used to manage single- or multiple-stock wild-caught fisheries, fishery management councils have utilized them with some flexibility in the past for purposes such as ecosystem-based management.

NMFS, for its part, counters that all offshore fisheries, including aquaculture, are most appropriately regulated under the Magnuson-Stevens Fishery Management and Conservation Act. On February 23rd, NMFS’ Deputy Assistant Administrator for Regulatory Programs, Sam Rauch, testified before the Senate Commerce Committee’s Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard that, while setting optimum yield for aquaculture is “a little awkward,” the agency feels that the Magnuson-Stevens Act provides sufficient statutory authority for managing offshore aquaculture.

The complaint further alleges that the FMP does not adequately address how aquaculture will affect the survival of wild fish. The topic of large-scale commercial aquaculture has traditionally been controversial in the United States. Opponents’ major concerns are that escapes from aquaculture pens could affect wild populations through genetic modification or disease, and that operations will adversely affect the environment through waste and chemical contamination.

NMFS has argued in the regulatory documents that reporting requirements minimize such risks, and that permitting operations will benefit the nation by increasing the supply of in-demand local species such as snappers, groupers, red drum, cobia, and jacks.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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