Report on Regulatory Development Initiatives for Offshore Aquaculture in the United States

November 2017

Introduction

Marine aquaculture is expanding into deeper offshore environments in response to growing consumer demand for seafood, improved technology, and limited potential to increase capture from wild fisheries. Offshore aquaculture is being explored as the new paradigm in marine aquaculture.

Offshore aquaculture, also known as open ocean aquaculture, has been defined using a variety of criteria, including water depth, distance from the shore, wave exposure, and jurisdictional boundaries.  It is an emerging approach to marine aquaculture where fish farms are moved to deeper ocean waters away from the shore. The farms are positioned in deeper waters where ocean currents are stronger than they are near the coast. Siting aquaculture facilities in deeper waters that are farther away from the coast can potentially reduce environmental impacts and conflicts with other coastal users. Currently, offshore aquaculture is practiced in countries such as Japan, Korea, China, Norway, Ireland, Italy, Spain, Greece, Cyprus, Malta, Croatia, Portugal, Libya, the Caribbean, and Latin America.

Offshore aquaculture (i.e., aquaculture in federal waters) is currently among the most talked-about technologies associated with the future of seafood production in the United States (U.S.). The recent wave of interest in the offshore has strong roots in Chapter 24 of the U.S. Commission on Ocean Policy’s September 2004 report to Congress, entitled “An Ocean Blueprint for the 21st Century”. In its report, the Commission recommended that the National Oceanic and Atmospheric Administration (NOAA) develop a comprehensive, environmentally sound permitting and regulatory program for marine aquaculture.

In December 2004, the President’s Ocean Action Plan specifically called for national legislation to allow aquaculture in U.S. Federal waters, which extend from 3 nautical miles off most U.S. coastal states (9 nautical miles off of Texas, the west coast of Florida and Puerto Rico) to the outer limit of the Exclusive Economic Zone. NOAA’s legislative proposal to establish a regulatory framework was submitted to Congress in 2005 and again in 2007. The latter proposal called for an expanded research program for U.S. marine aquaculture.

Although Congress has yet to enact national legislation for offshore aquaculture, NOAA has continued to work with other federal agencies to enable offshore aquaculture under existing laws. While several permits have been issued for offshore aquaculture, these have been mainly for smaller scale research projects and no commercial offshore venture has ever been established in federal waters. Economic, scientific, regulatory, and social challenges remain for the industry to reach its full potential.

Fishery Management Plan for Regulating Offshore Marine Aquaculture in the Gulf of Mexico

On January 13, 2016, NOAA Fisheries published a final rule in the U.S. Federal Register (Volume 81, Number. 8) which implemented the Fishery Management Plan for Regulating Offshore Marine Aquaculture in the Gulf of Mexico (FMP).  The final rule went into effect 30 days later on February 12, 2016.

The FMP was prepared by the Gulf of Mexico Fishery Management Council (Council) and was implemented through regulations at 50 CFR part 622 (Code of Federal Regulations) under the authority of the Magnuson-Stevens Fishery Conservation and Management Act. The FMP provides a comprehensive framework for authorizing and regulating offshore aquaculture in the Gulf of Mexico (Gulf) and establishes a programmatic approach for evaluating the potential impacts of aquaculture in the region.

The purpose of the FMP and final rule is to establish a regional permitting program (i.e., Gulf Aquaculture Permit or GAP) to manage the development of an environmentally sound and economically sustainable aquaculture industry” in Federal waters of the Gulf. 

In summary, the FMP and final rule establish an aquaculture permitting process, operational conditions and restrictions, and permit duration of 10 years with 5-year renewals for up to 20 offshore aquaculture operations. Culture of native, non-genetically engineered and non-transgenic Council-managed species (excluding shrimps and corals) only are allowed. The FMP and final rule provide guidelines for approval of grow-out systems, establishes criteria for siting marine aquaculture facilities, and creates a restricted access zone for each aquaculture facility. It also establishes recordkeeping, reporting and operational requirements, as well as biological reference points and status determination criteria. Moreover, the final rule specifies framework procedures for modifying biological reference points (e.g., optimum yield, maximum sustainable yield) and management measures.

Gulf Aquaculture Permit Program for Federal Waters of the Gulf of Mexico

Permit requirements, eligibility and transferability

Application and operational requirements

Permit duration, species and systems

Siting requirements and conditions

Restricted access zones

Recordkeeping and reporting

Management reference points and framework procedures

Establishment of an interagency work group

Concluding remarks

To date, NOAA has not received any GAP applications.  NOAA continues to work with other Federal agencies to ensure coordination of permitting processes and reduce duplication and will update guidance materials for aquaculture in federal waters of the Gulf of Mexico, as necessary, in response to industry concerns and lessons learned.  Currently, NOAA is working with the Western Pacific Fishery Management Council to develop a similar program for offshore aquaculture in Hawaii and the Pacific Islands.

The inventory and identification of regulatory development initiatives and tools for offshore aquaculture in the U.S. will provide the opportunity for Canada to examine the U.S. framework and enable future alignment of Canada’s framework for offshore aquaculture to that of the U.S.

Appendix I: Federal permitting and authorization process

appendix 1

Appendix I: Federal permitting and authorization process

Pre-application meeting

Read A Guide to the Application Process for Offshore Aquaculture Operations in U.S. Federal Waters of the Gulf of Mexico.

Prepare information outlined in the Pre-Application Checklist. Once information is complete, contact NOAA to schedule the Pre-Application Meeting.

Approximately 30 days after NOAA receives the completed information, a Pre-Application Meeting will be scheduled.

Participate in the Pre-Application Meeting with all relevant federal agencies.

Complete any necessary follow-up with relevant Federal agency(ies).

Application process

Contact Federal Agencies (NMFS, USACE, EPA, BOEM, USCG) individually to request application information.

Prepare and submit NMFS Gulf Aquaculture Permit Application, including Baseline Environmental Survey requirements. Prepare and submit USACE ENG Form 4345 to USACE. Following USACE Part 10 approval, prepare Private Aids to Navigation Application Form (CG-2554). Prepare and submit EPA Forms 1 and 2B and the Baseline Environmental Survey requirements. Prepare and submit a BOEM RUE request, if applicable.

Maintain open communication with Federal Agencies throughout the application process, weigh in during public notice and comment periods and participate in any public meetings, should they occur.

Permit issuance and operational phase

Thoroughly read all permits and authorizations as soon as they are issued. Review and familiarize yourself with all permit terms and conditions. Permittees may not commence operations until all permits and authorizations have been issued.

Comply with all monitoring, reporting and recordkeeping requirements as specified in permits and authorizations. Work with Federal agencies to complete compliance reviews or inspections.

Contact Federal agencies well in advance of permit and authorization expirations or renewals. All permits and authorizations must remain current in order for a facility to remain operational.

Appendix II: Aligning the permitting processes

appendix 2

Appendix II: Aligning the permitting processes

Aligning the permitting processes. There are four separate permitting processes: 1) the United States Army Corps of Engineers (USACE) process; 2) the Environmental Protection Agency (EPA) process; 3) the National Oceanic and Atmospheric Administration (NOAA) Process; and 4) the Bureau of Ocean Energy Management (BOEM)/ Bureau of Safety and Environmental Enforcement (BSEE) process. The graph shows the key steps in each process from the pre-application phase, through to the “deploy and commence operations phase.”

  1. The USACE process: This process begins with submitting a complete ENG Form 4345 to USACE. The application is then put on public notice, and sent for a Section 10 Permit Decision. After this is completed, the Section 10 Permit decision is submitted to the United States Coast Guard (USCG), and goes through the USCG process for approval.
  2. EPA process: This process begins by submitting the complete Forms 1 and 2B and the Biological Evaluations (BEs) to EPA. The application is posted for public notice, and once approved, an National Pollutant Discharge Elimination System (NPDES) permit is issued.
  3. NOAA process: The applicant submits a completed Gulf Aquaculture Permit (GAP) application and the BEs to NOAA. The application is posted by NOAA for public notice. Once approved, a GAP is issued.
  4. BOEM/BSEE Process: The applicant submits a completed Right of Use and Easement (RUE) request to BOEM. From this, a formal RUE is established.

These processes can occur concurrently. U.S. federal agencies collaborate on issues relevant to timely decisions on the proposed offshore project; for example, aligning public notice periods, developing consistent permit provisions, and collaborating on the U.S. Endangered Species Act and the National Environmental Policy Act consultations.