ENVIRONMENTAL LAW
Farming the Ocean

By Ann Powers

There is growing interest in mariculture far offshore in areas beyond national jurisdictions.

As part of our healthier diet, we are reducing our consumption of meats and increasingly finding our protein in fish and other seafood. It is not only in developed countries that this trend toward increased use of fish and fish products is occurring. As countries with developing economies raise their standards of living, increased incomes fuel the demand for additional sources of protein, particularly for fish.

But the state of our world’s fisheries is at this point problematic. Stocks of traditional species have been overexploited, with fewer and smaller fish being caught, in spite of increased efforts and more sophisticated technology. Around the globe there is excess fishing capacity, which means too many boats chasing too few fish, resulting in overfishing and depletion of stocks. Because of increasing demand for fish products and decreasing wild supply, considerable time, attention, and money are being devoted around the world to studying and promoting aquaculture (cultivating aquatic organisms) and mariculture (cultivating ocean species).

A great deal of aquaculture occurs onshore in freshwater ponds, but much attention is being focused on cultivation in coastal areas of high-value species, such as salmonids and shrimp. These activities may impact not only the water resources of the country where the farming occurs, but also the water resources of other countries with abutting coastal areas or countries close enough in proximity to be negatively affected.

In addition to operations in national waters, there is growing interest in mariculture far offshore in areas beyond national jurisdictions. Experiments are underway to determine whether large-scale, offshore projects are feasible, but this raises oversight questions. For the United States, regulation of aquaculture by individual states in their own territory is often poor; regulation in federal waters is complicated; and regulation of mariculture in the high seas is nonexistent.

Environmental concerns in farming the ocean. With increasing production of farmed fish comes increasing environmental concerns that generally fall into three categories. First, fish-farming facilities are often located in fragile waters, and their construction and operating practices, including feeding and medicating the fish, can have serious, adverse impact on bodies of water. The actual construction of the facilities, which are typically floating pens anchored to the seabed, can have detrimental effects on the sea bottom, and maintenance can introduce toxic chemicals such as pesticides and antifoulants into the water column.

A second concern is the detrimental effect that escapees from farm facilities can have on wild species, as farmed fish can carry diseases and parasites and compete with wild fish for forage. Farmed fish are typically bred to be voracious feeders, so escapees may out-compete wild fish for food and mating. Farm-raised fish may also be less healthy and vital, diluting the gene pool through interbreeding to the detriment of the wild stocks.

Third, farming carnivorous species, such as salmon and shrimp, requires that other species be fished to provide food for the farmed stock in a greater proportion than the amount of farmed fish produced. This may reduce the forage-species populations available to wild fish, interfering with food webs of which they are a component. Moreover, there may be questions about the safety of the feed used in fish farming.

In addition to environmental concerns, another point to consider is the impact that U.S. patterns of consumption and production may have on fishers and fish farmers in other countries. To the extent that we focus on high-end carnivores and deplete the small fish used for fish food, we may interfere with local fish populations on which poor fishing communities depend. And as demand for fish meal increases to meet the needs of carnivore farming, small-fish farmers producing primarily for local markets can be priced out of the market.

Existing regulation of ocean farming. Advances in the aquaculture industry do not come without environmental costs, as noted above, and the regulatory systems currently in place do not address them adequately. A report by the Pew Oceans Commission in 2003 and by the U.S. Commission on Ocean Policy in 2004 both noted the fragmented regulatory system, which includes numerous government agencies and a variety of legislative measures. Most prominent for offshore aquaculture projects are the National Oceanic and Atmospheric Administration’s Marine Fisheries Service (NOAA Fisheries) and the Environmental Protection Agency (EPA). The commissions both recommended that a comprehensive and environmentally sound regulatory program for offshore aquaculture be developed.

The geographical area over which the United States has regulatory authority stretches from the shore out 200 nautical miles to the end of our Exclusive Economic Zone (EEZ). Within the U.S. EEZ, states retain primary jurisdiction over areas out to three nautical miles from their respective shorelines. The extent to which various laws apply may depend on where in these geographic areas a particular aquaculture facility will be located.

In general, U.S. aquaculture facilities are regulated under the Clean Water Act (CWA). To the extent they discharge to U.S. waters, aquaculture facilities must obtain a permit under the CWA’s National Pollutant Discharge Elimination System program. Ocean discharges are also subject to the CWA’s Ocean Discharge Criteria. Additionally, fish-farming projects fall under the CWA’s specialized aquaculture Section 318, pursuant to which the EPA has promulgated regulations that direct the manner in which aquaculture activities can be carried out.

The overall scheme of the CWA focuses on “point sources,” typically conveyances such as pipes, and requires end-of-pipe treatment for the waste discharges. Obviously, end-of-pipe treatment is inapplicable to pens in open water, so the primary thrust of the regulations under Section 318 is to require best management practices for open-water facilities. Those practices are aimed at minimizing the amount of waste feed emanating from the facility, ensuring that antibiotic use is no more than needed and does not interfere with water quality or impact indigenous species, and ensuring that feces and other pollutants do not interfere with water quality. Pens must also be designed to withstand wind and wave action and must prevent the escape of farmed fish.

The primary conduct prohibited by the CWA is the “addition of any pollutant to navigable waters from any point source” (33 U.S.C. § 1362 (12)(A)). Although navigable waters are interpreted to extend only three miles from shore, subsection (B) also prohibits “any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft” (U.S.C. § 1362 (12)(B)). So, although floating craft are not covered, stationary sources—such as permanently anchored aquaculture facilities—would be. Thus, the EPA’s regulations for aquaculture would cover all point sources within three miles of shore and all point sources that are not vessels or other floating craft to the extent of the 200-mile EEZ.

An additional relevant provision of the CWA is Section 401, which requires the state where the discharge is occurring to certify that it will not interfere with the waters attaining state water-quality standards. The state may deny certification or condition it. A similar but not so strict requirement is found in Section 307 of the Coastal Zone Management Act. Section 307 mandates that federal activities, including licensing and permitting, that impact the state coastal zones must be consistent with a state’s coastal-zone management plan. It is somewhat broader in scope than Section 401 because it applies not only to the state where the discharge occurs but to any state that is affected by the activity.

For More Information About the Section of Environment, Energy & Resources

- This article is an abridged and edited version of one that originally appeared on page 45 of Natural Resources & Environment, Fall 2007 (22:2).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website: www.abanet.org/environ.

- Periodicals: Natural Resources & Environment, quarterly magazine; Trends, bimonthly newsletter;  The Year in Review, annual summary of legal developments; committee newsletters.

-  Books and Other Recent Publications: Global Climate Change and U.S. Law; Toxic Tort Litigation; Amending CERCLA; The Federal Information Manual; Wetlands Law and Policy; Environmental Aspects of Real Estate and Commercial Transactions, 3d ed.; Clean Air Act Handbook, 2d ed.; RCRA Practice Manual, 2d ed.; and the Basic Practice Series with titles including FERC, RCRA, CERCLA, EPCRA, Clean Air Act, Clean Water Act, ESA, FIFRA, and TSCA.

Ann Powers is an associate professor of law at Pace University School of Law in White Plains, New York. She may be reached at .

Copyright 2008

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